Afful v R

Extension of time

1. In support of his application for an extension of time the applicant stated that his intention to appeal was not formed until late 2020 when he obtained the above "new evidence", being the notice of visa cancellation dated 21 March 2019. He applied for a Legal Aid grant, was refused, and appealed the refusal. That appeal was rejected on 21 January 2021.
2. The Crown opposed the extension of time on the basis that no explanation had been provided for the delay of 1 year and 10 months between the applicant's visa cancellation on 21 March 2019 and his application for an extension of time.
3. For the reasons I have set out below I am satisfied that this application has no merit and on that basis the extension of time should be refused. In order to assess whether an extension should be granted it was necessary to assess the merit of the application. On that basis, although I would refuse an extension of time, it was necessary to consider each of the grounds in order to arrive at that conclusion.

Applicant's submissions

1. This ground concerns the applicant's pending deportation.
2. It was submitted that deportation had become a "certainty" and that was making the applicant's time in custody more burdensome than the sentencing judge could have predicted and thus his sentence was manifestly excessive. It was submitted that his anticipated deportation and separation from his Australian children had been traumatic for him personally and had a substantial impact on his family. Reliance was placed on the decision of Ye Zhao v The Queen [2018] VSCA 267 ("Ye Zhao"), which I will consider below.
3. The applicant was designated as a "Public Interest Inmate" by reason of his pending immigration matter. This designation was said to have hindered his progress and rehabilitation by restricting access to certain prisons and programs. The applicant has also suffered because he is no longer able to participate in educational programs or to progress to a C3 classification which has stymied his rehabilitation.
4. It was submitted that if the sentencing judge had been aware of these hardships at the date of sentence he could have moderated the sentence accordingly.
5. The applicant further submitted that the sentencing judge had erred in not giving appropriate weight to the finding that he had excellent prospects of rehabilitation. The nub of this submission appeared to be that the sentencing judge had assessed the applicant's prospects of rehabilitation on the basis that he would be able to participate in programs while in custody, but that this was no longer the case due to the applicant's immigration status. This was submitted to constitute a change of circumstances amounting to manifest excess or substantial hardship in the applicant's sentence.
6. These additional hardships were further submitted to constitute new evidence that was not considered by the sentencing judge. The applicant also submitted that the above matters were significant additional punishments imposed on him, and not his co-offender, who is an Australian citizen.

Crown submissions

1. The Crown distinguished Ye Zhao on two bases and relied upon the decision of Kristensen v R [2018] NSWCCA 189 ("Kristensen") which I will consider below.
2. The Crown further submitted that the applicant's risk of deportation was merely speculative as his request to have his visa cancellation revoked was still under consideration. The Crown observed that, even if the Victorian approach was adopted, the risk of deportation would need to be assessable, rather than merely speculative. It was further submitted that no submission was made on this issue in the proceedings on sentence and that the applicant should be bound by the case run below.
3. To the extent that this ground asserted manifest excess, the Crown submitted that the issue of weight in relation to this finding could not raise House v The King error: House v The King (1936) 55 CLR 499; [1936] HCA 40. The Crown submitted that any claims of manifest excess should be assessed by reference to the schedule of cases tendered by the Crown in the proceedings on sentence.

Consideration: Ground 1

1. The fact of possible or pending deportation is not a relevant factor in sentencing in New South Wales. As Wood CJ at CL (with whom Hislop and Johnson JJ agreed) observed in R v Van Hong Pham [2005] NSWCCA 94 at [13]: "It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.'"
2. Similarly, in AC v R [2016] NSWCCA 107, Schmidt J (with whom Bathurst CJ and Wilson J agreed) said at [79]: "It appears that the applicant is at risk of deportation once his sentence is served. This was not a relevant consideration on sentence, even in fixing the applicant's non-parole period. Deportation is a matter for the Executive Government (see R v Van Hong Pham [2005] NSWCCA 94 referring to Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48)."
3. Consistent with this well settled principle, the applicant's counsel at his proceedings on sentence noted that the fact of deportation could not be taken into account in mitigation of sentence. The sentencing judge accepted that as it was a correct statement of New South Wales law on this issue. The applicant is bound by the way he ran his case below unless a miscarriage of justice can be identified. As Johnson J observed in Zreika v R [2012] NSWCCA 44 ("Zreika") at [81]: "…in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence." (citations omitted)
4. Contrary to the position taken by his counsel before Jeffreys DCJ, the applicant now contends that his deportation should have been taken into account to reduce his sentence even further below that which was imposed. In support of this argument he relies upon decisions of the Victorian Court of Appeal. The difficulty is that Victoria takes a different approach to NSW on the question of the relevance of deportation in sentencing.
5. In Guden v R (2010) 28 VR 288; [2010] VSCA 196 ("Guden"), the Victorian Court of Appeal determined that the prospect of an offender being deported upon completion of the custodial portion of his or her sentence was a proper matter for consideration in determining an appropriate sentence, it being relevant in two ways: as making the burden of imprisonment greater than for citizens and, in some cases, as resulting in the offender losing the opportunity of settling permanently in Australia. At [28] the Court noted that evidence would be required to establish that deportation was more than "a completely speculative possibility" before it could be taken into account in one or both of these ways. The Court held at [29] that: "….in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship."
6. This Court (Payne JA, with whom R A Hulme and Button JJ agreed) noted the different approach taken by Victoria on this issue in Kristensen. In Kristensen the Court found error of the kind identified in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ("Xiao") and proceeded to re-sentence Mr Kristensen. It was common ground that Mr Kristensen's visa would be cancelled on character grounds due to his offending but there was no evidence in Kristensen as to whether there had been any application to the Minister for revocation of that decision.
7. Payne JA summarised the divergent authorities. By way of background, at [24] it was noted that since Shrestha, a non-citizen who commits a serious offence should be the subject of an order for release on parole in the same way a citizen would. Section 19AK of the Crimes Act 1914 (Cth) now requires such a course be taken. At [25] his Honour noted the decision of R v Mirzaee [2004] NSWCCA 315 in which Kirby J (with whom Sperling J and Newman AJ agreed) noted at [21] that if an offender qualifies for a finding of special circumstances (such as under what is now s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), such a course should be taken even if the offender may be deported at the end of the non-parole period. His Honour then went on to set out both the NSW position and the position taken in Victoria following the decision in Guden.
8. His Honour then noted at [30] that the different positions in Australia were summarised by Fraser JA in R v Schelvis; R v Hildebrand [2016] QCA 294; (2016) 263 A Crim R 1 at [72] as follows: "Guden has been consistently followed in subsequent Victorian decisions: see, for example, Konamala v The Queen [2016] VSCA 48 at [33]-[36], Da Costa v The Queen [2016] VSCA 49 at [24]-[26] and Schneider v The Queen [2016] VSCA 76 at [24]-[26]. I note that in Western Australia it has been held that the prospect of deportation at the conclusion of an offender's sentence is not of itself a relevant consideration in the exercise of the sentencing discretion: Dauphin v The Queen [2002] WASCA 104 at [22] Houghton v Western Australia [2006] WASCA 143; (2006) 32 WAR 260 at [23], Cohen v Western Australia (No 2) [2007] WASCA 279; (2007) 180 A Crim R 348 at [21], Ponniah v The Queen [2011] WASCA 105 at [48] and Hickling v The State of Western Australia (in which Guden was discussed and not followed) [2016] WASCA 124 at [9]-[11], [48]-[60]. I also note that in New South Wales it has been held that the prospect of an offender being deported is generally to be disregarded in formulating the sentence: R v Latumetan and Murwanto [2003] NSWCA 70 at [19], [45], R v Van Hong Pham, R v Mirzaee, and Ali v R [2014] NSWCCA 45 at [1], [47], [51]. I do not propose to analyse those cases or to investigate the position in other jurisdictions. No submission was made upon that topic. The respondent joined with Schelvis in submitting that this Court should apply this aspect of the reasoning in Guden, including the requirement that the risk of removal from Australia be assessable rather than merely speculative before it may be taken into account by way of mitigation. I proceed upon the footing that the applicable law is as set out in the preceding paragraph.' (references added from footnotes in original)"
9. Justice Payne noted that in R v Arrowsmith [2018] SASCFC 47 the Full Court of the Supreme Court of South Australia found it unnecessary to resolve the issue as the evidence disclosed that the appellant's request for revocation of the cancellation was still being considered. Payne JA concluded as follows in Kristensen (at [34]-[35]): "I see no reason based on the [2014 amendments to the Migration Act] to adopt any different approach to sentencing in New South Wales. It remains the case that, as in Mirzaee, Pham and AC, the applicant here is at risk of deportation once released from prison. True it is that the statute now has an automatic application, subject to safeguards and ultimately to review. The possibility of deportation was not, in Mirzaee, Pham and AC, a relevant consideration on sentence, even in fixing the offender's non-parole period. Deportation was a live issue in cases such as the present under the migration law prior to 2014. After the amendment, deportation remains a matter for the Commonwealth Executive Government, subject to review within the Constitutional structure. Even if the Victorian and Queensland approach to this question were to be adopted, this is a case where the evidence about the applicant's likely deportation does not rise beyond mere speculation. If there is to be a challenge to the long standing New South Wales approach to the relevance of possible deportation to sentencing, this case is not an appropriate vehicle for such a challenge. I do not propose to take the applicant's possible deportation into account."
10. The applicant relied upon the decision of Ye Zhao. The appellant in that case, like Mr Afful, had received notice under s 501(3A) of the Migration Act that his visa had been cancelled on character grounds. However, unlike Mr Afful, the appellant, Mr Zhao, did not respond to the letter within 28 days seeking the revocation of that cancellation. Mr Zhao thus became an "unlawful non-citizen" under the Migration Act. The Crown in Ye Zhao conceded that the appellant's immigration status was "new evidence" that had the effect of vitiating the exercise of the sentencing judge's discretion. The Court followed the usual practice in Victoria and mitigated the sentence on the basis that the appellant's custody would be more onerous given his ending deportation.
11. There are two difficulties with the applicant's reliance upon Ye Zhao. First, it can be distinguished factually. The parties in that case agreed that the applicant would not be released on parole. The Crown submitted that there was no such evidence or concession by the Crown in the present case. The second problem is, as I have already stated, the decision in Ye Zhao is a Victorian decision, in which a different approach was taken on the question of the relevance of deportation in sentencing. In effect, the applicant contends that this Court should adopt a new approach to this question.
12. Further, as the Crown submitted, the principles in Xiao were also not relevant to the applicant's case to the extent that the appellant in that case experienced hardship in custody because he was a foreign national with no family in Australia (Xiao at [286]-[288]). The Crown submitted that this kind of hardship was not relevant to the applicant's case and was not raised by counsel for the applicant in the proceedings on sentence.
13. Finally, the applicant contended that the exchange between Jeffreys DCJ and the applicant's counsel meant that his Honour was aware of the Victorian decision of Schneider. In that decision the sentencing judge had refused to ameliorate the sentence due to pending deportation given the state of the evidence but did state the following (at [21]): "It was submitted to me by [counsel] that I ought take into account your prospect of deportation. I refuse to do so. It would be impossible and entirely speculative for me to engage in a consideration of whether the Minister would, in the end, revoke your visa and deport you. Nonetheless, this is a matter that weighs upon you, as does the plight of your wife, who is isolated in this community and you have concerns for her. I am satisfied that in the circumstances of this case, for a combination of reasons that I have endeavoured to advert to, your period of imprisonment has been and will be more burdensome than others in similar circumstances in custody. Therefore, I intend to moderate the sentence that I would otherwise have imposed upon you." (emphasis added)
14. On appeal it was contended that the sentencing judge had given "insufficient consideration" to the appellant's prospect of deportation. Reliance was placed on the 2014 amendments to the Migration Act which meant that, because of his visa status, the appellant would not be able to undertake parole in the community and would be deported upon his release. The ground was dismissed as the Court was satisfied that the sentencing judge took into account the appellant's possible deportation in the only manner in which he was entitled. As for the 2014 amendments, the Court noted that the principles stated in Guden are unchanged by those amendments. Priest JA then quoted (at [25]) what his Honour had earlier stated in Konamala v The Queen [2016] VSCA 48 at [34]-[37] as follows (footnotes omitted): "Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner's personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community. In Guden, it was recognised that - subject always to the state of the evidence before the sentencing judge - the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant's position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so. For the reasons given in Lima Da Costa Jnr v The Queen, the amendments do not require any change to the approach in sentencing. What was said in Guden still applies. It is apparent that the judge directed herself correctly in considering the significance of the risk of deportation. As already mentioned, the judge said that she considered that 'there is the possibility that [the applicant] may lose the opportunity of settling permanently in Australia', and that there 'is a degree of risk that [his] concern and fear of being deported upon serving [his] sentence will make [his] imprisonment more burdensome than it would have otherwise'. The sentencing judge said specifically that she had 'taken these factors into account'." (footnotes omitted)
15. I make the following observations regarding the applicant's reliance upon this decision. First, I am not satisfied that this was the decision referred to by Jeffreys DCJ when his Honour mentioned a case which was recorded on the transcript as "Schroeder". Given that the relevant High Court decision of Shrestha is so well known, I am satisfied that is the decision his Honour mentioned. Second, the decision in Schneider does not represent the approach taken to this question in New South Wales, or for that matter the rest of Australia. Thirdly, the appeal in Schneider failed anyway based on the evidence.
16. As stated above, the applicant is bound by the manner in which he ran his case before the sentencing judge. Furthermore, the fact that the applicant's deportation is still subject to revocation by the Minister or, failing that, judicial review, is another matter that means that this is not an appropriate vehicle to challenge the longstanding practice in New South Wales regarding the relevance of deportation on sentence.
17. This ground has no merit.

Applicant's submissions

1. The applicant submitted that the sentencing judge's stated intention to reduce the applicant's sentence due to his mental health conditions was not reflected in the sentence ultimately imposed, and that this was evidenced by the fact that both offenders received the same sentence.
2. The applicant submitted that, because their offending was otherwise indistinguishable, the fact that the two offenders received exactly the same sentence indicated that the sentencing judge had not applied the finding of special circumstances. The applicant submitted that the sentence Mr Campbell received should have been the starting point from which his own sentence was reduced by reason of the finding of special circumstances.

Crown submissions

1. The Crown submitted that the sentencing judge's finding that the applicant would experience hardship in custody was reflected in the imposition of a ratio of 56% between the non-parole period and the head sentence.
2. It was further submitted that the sentencing judge was not bound to take a mathematical approach of making deductions for each mitigating factor and that no error was disclosed in his Honour's process of instinctive synthesis. His Honour clearly took into account the applicant's mental health diagnoses.

Consideration: Ground 2

1. His Honour expressly stated that he would moderate the applicant's sentence "to a modest degree" due to his mental health problems. He also found that Mr Campbell was "marginally lower" in the hierarchy than the applicant. All other findings were broadly the same as between the two offenders. The fact that the same sentence was imposed on both offenders is explicable on this basis.
2. In any event, his Honour's imposition of a ratio of 56% between the non-parole period and the head sentence based on the applicant's mental health was very generous. The applicant was convicted after trial of attempting to possess 7.45kg of pure methamphetamine. This reflected grave criminality and the offence carries a maximum penalty of life imprisonment. The applicant was sentenced to a non-parole period of only 4 years and 6 months.
3. This proposed ground is without merit.

Applicant's submissions

1. The applicant submitted that during his time in custody he experienced unanticipated hardship which had made his time in custody more onerous than that foreseen by the sentencing judge. It was submitted that a combination of the following factors had triggered the applicant's anxiety and depression while in custody: 1. The applicant's father died unexpectedly on 5 April 2017, around three weeks after the applicant entered custody. The applicant was unable to attend his father's funeral as he was in custody at the time; 2. The applicant's mother had been diagnosed with breast cancer and he was constantly anxious about her health. 3. The applicant's children had been severely affected by his time in custody. He had not seen them since 2016. The applicant said that the children's mother wanted to support a relationship between the applicant and his children but that she would not bring them into the custodial environment.
2. All of these factors were said to have caused increased stress and hardship to the applicant while in custody, such that his time in custody had been more traumatic and burdensome than for other inmates.

Consideration: Ground 3

1. As Johnson J observed in Zreika at [79]: "This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108."
2. No error is disclosed in the applicant's sentence by virtue of the fact that he suffered the losses referred to above after he was sentenced.
3. The sentence imposed on the applicant was a lenient one.
4. This proposed ground is without merit.

ORDERS

1. I would propose the following order: 1. Application for an extension of time is refused.
2. HIDDEN AJ: I agree with N Adams J.

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