This decision considered an appeal against sentence, where the respondent was a foreign national but had lived in Australia since the age of two. The court considered the relevance of the prospect of deportation to the exercise of the sentencing discretion. The court explains the relevant principle is that if there is evidence that the prospect of deportation will in fact be a hardship for the particular offender then it may be taken into account in mitigation of sentence. Here there was no such evidence. The appeal was dismissed.
Sofronoff P and Gotterson and Philippides JJA
9 March 2018
The respondent was sentenced following a plea of guilty to trafficking and producing the dangerous drug cannabis, and lesser drug offences. . He received a head sentence of four years’ imprisonment, wholly suspended for an operational period of five years. . The Attorney-General (Qld) brought an appeal, arguing that a sentence involving no period of actual imprisonment was manifestly inadequate. .
The respondent was a citizen of New Zealand but had lived in Australian since the age of two. . He was aged 53 at sentence. . Section 501(3A) of the Migration Act 1958 (Cth) obliged the Minister to cancel the respondent’s visa if a sentence involving actual custody was imposed. –.
The remarks of the learned sentencing judge referred to a number of mitigating features, before considering how the prospect of deportation might be taken into account. , –. In imposing a wholly suspended sentence, his Honour had regard to the “distinct prospect” that the respondent might remain in immigration detention beyond the date fixed for release from actual custody, and the impact deportation would have upon his advanced steps towards rehabilitation. .
The appellant submitted that the decisions of R v S  1 Qd R 76 and R v MAO; ex parte Attorney-General (Qld) (2006) 163 A Crim R 63 were not overruled by R v UE  QCA 58, and should be preferred to the reasoning in Guden v The Queen (2010) 28 VR 288. . The appellant submitted that R v S and R v MAO do not preclude some consideration being given to deportation, but do preclude any consideration being allowed to result in a sentence that avoids, defeats or circumvents the possibility of detention. . Apart from this issue of principle the appellant submitted the sentence was manifestly inadequate as there ought to have been a period of actual incarceration. .
Justice Gotterson (Sofronoff P and Philippides JA agreeing) considered the authorities and found that the principles were not inconsistent with one another. –. The court affirmed the course taken in R v UE and subsequent decisions adopting the reasoning in Guden v The Queen. , . Clearly, it would be wrong for a sentence to be moulded in order to defeat the operation of another law, as it was in R v MAO. . But, the principle in Guden v The Queen is to the effect that:
“… if the risk of deportation following a sentence to a term of imprisonment greater than 12 months is capable of assessment by the sentencing court, then it may be shown by evidence to be relevant to the sentence in two ways; firstly, it may well mean that the burden of imprisonment will be greater than for someone who faces no risk of deportation; and, secondly, in an appropriate case, it will be proper to take in account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.” .
Here, the learned sentencing judge had concluded that any deportation was entirely speculative and therefore declined to take it in account any hardship from the deportation by way of mitigation of sentence. . The court held that was a correct application of the principle in Guden. In the result the court was not persuaded that the sentence was manifestly inadequate and dismissed the appeal. –.
K W Gover of Counsel