Hajaruban Konamala v The Queen [2016] VSCA 48

1 Following pleas of guilty, as long ago as 19 March 2012 the applicant was sentenced in the County Court to be imprisoned for six years on a charge of armed robbery[1] (charge 1), and for five years and four years respectively on two charges of recklessly causing serious injury[2] (charges 2 and 3). Orders for partial cumulation produced a total effective sentence of eight years' imprisonment, upon which the judge fixed a non-parole period of five years.

2 Having been granted an extension of time within which to do so, somewhat belatedly the applicant sought leave to appeal against his sentence. Although the applicant originally sought to rely on two grounds,[3] ultimately only one was pressed. The ground was expressed as follows:

Changes to the Migration Act 1958 (Cth) ('Migration Act') (enacted in December 2014) constitute fresh evidence as espoused in R v Nguyen[4] in that these changes relate to events which have occurred since the sentence was imposed and demonstrate the true significance of facts in existence at the time of sentence.

3 For the reasons that follow, we would refuse leave to appeal.

4 So as to appreciate the objective gravity of the applicant's offending, it is necessary to summarise its circumstances in some detail. As will become clear, the actions of the applicant, and those with whom he was complicit, were vicious.

5 On 14 April 2011, the applicant and three co-offenders committed an armed robbery at the 'Jayani Jewellery' store situated in Sydney Road, Brunswick. The store was owned and operated by Vairamuthu Thiruvilangam ('Vairamuthu') and his wife, Javanarani Thiruvilangam ('Javanarani'). The business premises consisted of a showroom at the front, and a workshop directly behind the showroom. The front door to the showroom was always locked, and customers were required to ring a bell at the front of the premises to be admitted to the showroom. There was a kitchen and lounge room behind the showroom, and bedrooms upstairs. The owners lived at the premises with their daughter, then aged 12 years, and their son, aged eight years.

6 At about 1:00 pm on the day before the armed robbery, the applicant went to the store with a co-offender. The applicant had a broken gold chain with him which Vairamuthu repaired at an agreed cost of $15. Before leaving the store, the applicant asked Vairamuthu whether the store would be open the following day, Sri Lankan New Year. Vairamuthu advised him that the store would indeed be open, and the applicant said that they would return the next day to buy some jewellery.

7 Shortly after the applicant left the store, Vairamuthu went into the city with his two children, leaving his wife Javanarani in charge. Later that afternoon, Javanarani was in the store by herself when two male co-offenders entered. The two males were in the shop for about ten minutes and made enquiries about purchasing a gold chain. Javanarani suggested that the two males should come back the next day, when her husband would be there to assist them.

8 The following day, 14 April 2011, Vairamuthu and Javanarani opened the store at the normal time, 10:30 am. Shortly afterward, two co-offenders rang the front doorbell. Javanarani recognised them from the previous day, so she let them in. Her husband permitted her to serve them whilst he remained in the workshop.

9 About ten minutes later, the applicant and a third co-offender came into the shop and were served by Vairamuthu. The applicant told Vairamuthu that he was looking for a gold chain for his wife. Vairamuthu showed the applicant some gold chains and also showed some jewellery to one of the others.

10 The applicant and his three co-offenders were in the store, ostensibly looking at jewellery to purchase, for about thirty or forty minutes. Then, when both Vairamuthu and Javanarani were near a counter, they were suddenly set upon by all four offenders and forced into the workshop. One grabbed Vairamuthu around the head and mouth and, with the assistance one of the others, forced him towards the back of the shop and thence into the workshop. Vairamuthu struggled as he was being forced into the workshop, and one of the men used a Taser gun on several occasions to deliver an electric shock to him.

11 Once in the workshop, one of the men took a jeweller's hammer - which is about the same size as a carpentry hammer - and hit Vairamuthu on the side of the head. It was a forceful blow and caused Vairamuthu to fall to the floor. Once Vairamuthu was on the floor, another offender used plastic ties to bind his wrists and legs.

12 The applicant and another co-offender grabbed Javanarani around her mouth and arms and also forced her into the workshop. Once she was in the workshop, the male armed with the jeweller's hammer hit her on the back of the head with it, causing her also to fall to the ground. When she was on the ground, Javanarani tried to crawl over towards her husband. The man with the hammer hit her on the head with it on two further occasions. The blows were hard and fast. Javanarani continued to try to crawl towards her husband and, as she did so, the offender with the hammer hit her with it on the body and delivered several electric shocks to her using the Taser gun.

13 When they heard the commotion, the children, who had been in the lounge room, came into the workshop area. Javanarani, seeing her children in the doorway, yelled at the offenders not to hurt them. The male with the hammer responded by hitting her on the legs with it, telling her to shut up. In what must have been a terrifying experience for them, both children were bound with plastic ties and had tape placed over their mouths.

14 The applicant was looking for the keys to the jewellery cabinets in the showroom. He approached Vairamuthu and hit him to the left side of the face and ear and asked him for the keys. Vairamuthu had the keys in his left hand but, due to his condition, had forgotten that he had them. He told the applicant that he did not have the keys. When the applicant then found the keys in Vairamuthu's hands, the applicant again hit him to the head.

15 Once the applicant obtained the keys, he went into the showroom with a co-offender and opened up the cabinets to take jewellery. Most of the jewellery was put into a backpack that the applicant had taken into the showroom, although the offenders also placed some of the stolen jewellery in their pockets. The applicant also grabbed Vairamuthu's wallet and stole $1000 from it. Cash in the sum of

16 Shortly prior to leaving, the applicant placed plastic ties around Javanarani's hands and tied her wrists to a table leg. She managed to free herself from those restraints, however, and followed the offenders as they were leaving from the rear of the premises. Javanarani also called to her neighbour, Jim Buttigieg, to help her and he came out to the rear of the premises.

17 Two of the offenders had jumped over the rear fence into a laneway, and the applicant and another offender were in the process of jumping over the fence when Javanarani got to the front door. She opened the rear roller door, which allowed access out into the laneway. Mr Buttigieg confronted the applicant in the laneway, and, in the course of a struggle with him, the applicant dropped the backpack containing most of the stolen jewellery. Javanarani quickly grabbed the backpack and ran inside to place the contents in a safe. Mr Buttigieg gave up his short struggle with the applicant when one of his co-offenders approached them. All the offenders then fled the scene.

18 After the assaults on them, both victims were covered in blood. They were taken by ambulance to the Royal Melbourne Hospital. Vairamuthu had sustained a depressed skull fracture which required surgical intervention. He also suffered a perforated eardrum, a fracture to his right shoulder and bruises and abrasions over his limbs. Vairamuthu remained in hospital until 19 April 2011.

19 Javanarani suffered two lacerations to her scalp, one of which required stitches. She also suffered bruises and abrasions over her body. Javanarani remained in hospital for two days.

20 Police searched the backpack that was recovered from the scene and found a silver coloured knife, upon which the applicant's fingerprint was located. The applicant's palm print was also located on the rear fence of the premises. On 16 May 2011, the applicant was recorded in a telephone intercept discussing the armed robbery with an associate and referring to the amount of blood at the scene.

21 On 7 July 2011, the applicant was arrested by police and interviewed. After the formal part of the interview, the applicant answered 'no comment' to all questions relating to his involvement in the offences.

22 In the course of the robbery, the applicant and his co-offenders stole jewellery to the value of $240 000, although most of it was recovered when Javanarani retrieved the backpack. After the incident, Vairamuthu prepared a list of stolen jewellery. In total, $54 070 worth of jewellery was stolen and not recovered, and about $3000 to $5000 worth of jewellery was damaged. Also stolen were a 10-gram Perth Mint coin worth $1000; five 8-gram sovereign coins worth in total $2000;

$28 800 in cash; and an Apple iPhone belonging to the female child.

The effect of changes to the Migration Act

23 In the course of his plea in mitigation, counsel for the applicant told the judge that the applicant came to Australia from Sri Lanka in 2006, when he was aged 26 years. Material produced on the plea showed that the applicant had applied for a 'protection visa', but that it was initially refused. Upon application to the Refugee Review Tribunal, however, on 21 April 2006 the applicant was granted a protection visa. Thereafter, on 3 July 2009, the applicant was granted permanent residency status.

24 In her reasons for sentence, the judge addressed the possibility of the applicant's deportation. She said:

At the plea hearing a request was made by the Court for clarification of your residency status and also whether there was any likelihood of deportation. I have regard to the principles as set out in the recent Court of Appeal decision of R v Darcie [[2012] VSCA 11]. There, the Court emphasised that the Court required evidence concerning the prospect of deportation and that it was not appropriate for the Court to embark on a speculative exercise. The authority of R v Guden [(2010) 28 VR 288], was referred to, which emphasised that a sentencing Court cannot be asked to speculate and therefore I cannot speculate about whether or not you will be deported. To do so would be to put myself in the position of the decision maker and decide what the ultimate outcome of the Migration Act process will be once your sentence is imposed.

This is the case where on a plea in mitigation defence counsel can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister of Immigration either to revoke an existing visa or to decline to renew one.

However I do consider that there is the possibility that you may lose the opportunity of settling permanently in Australia. Further, there is a degree of risk that your concern and fear of being deported upon serving your sentence will make your imprisonment more burdensome than it would have otherwise. I have taken these factors into account. ...

25 In this Court, counsel for the applicant submitted that the applicant was sentenced on the basis that he faced an unknown risk of deportation which made his imprisonment more burdensome. The judge sentenced the applicant on the basis that it could not be concluded that he definitely would lose the opportunity to settle in Australia. It was contended that, although that finding might have been correct at the time of sentence, subsequent changes to the Migration Act 1958 (Cth) ('the Act') make it a 'certainty' that, following service of his sentence, the applicant will lose the opportunity to settle in Australia (subject only to the right to seek revocation of the cancellation). The change to the way in which the Act operates is, it is submitted, fresh evidence, demonstrating that the applicant will be subject to a further 'significant punishing consequence'.

26 In order to evaluate the applicant's submissions, it is convenient first to examine the key provisions of the Act.

27 Section 501(3A) of the Act is expressed in mandatory terms. It provides that the relevant Minister must cancel a visa granted to a person if certain conditions are satisfied:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

28 Section 501(6)(a) of the Act provides that a person does not pass the character test if 'the person has a substantial criminal record (as defined by subsection (7))'. In turn, so far as relevant, s 501(7) provides:

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of 12 months or more; ...

29 On the face of it, since the applicant has been sentenced to a term of imprisonment exceeding 12 months, subs 501(3A)(a)(i) and (7)(c) are engaged, rendering the applicant's visa liable to mandatory cancellation.

30 It must be recognised, however, that the Minister retains a discretion to revoke any decision made under s 501(3A) to cancel a visa. So far as relevant, s 501CA provides:

501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

...

31 Hence, despite the operation of subs 501(3A)(a)(i) and (7)(c), s 501CA imparts to the Minister an apparently broad discretion to revoke the original decision to cancel a visa if - despite the person failing the character test - 'there is another reason why the original decision should be revoked'.

32 Thus, the practical effect of the key provisions of the Act (in its current form) is that the Minister must cancel the visa of a person sentenced to (and serving) a sentence of imprisonment of 12 months or more. Any decision thus made to cancel a visa then stands, unless the Minister later is satisfied that there is a reason why the original decision to cancel the visa should be revoked. (It might be expected that the task of persuading the Minister that there is a reason why the decision should be revoked will usually be borne by the person whose visa was cancelled.)

33 In Guden[5] - which was decided prior to the changes to subsection 501(3A) of the Act - the Court made the following observations about the possibility of deportation:[6]

In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender's deportation is an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true. Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.[7]

It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence. The Queensland Court of Appeal pointed out in Simard[8] that this is not a sentencing consideration which can be called in aid by an offender who has Australian citizenship. But, with respect, this is simply an illustration of the infinite variety of personal circumstances which fall for consideration.

As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the NSW Court of Criminal Appeal in Kwon[9] that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious 'punishing consequence' of the offending.

34 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.

35 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.[10]

36 For the reasons given in Lima Da Costa Jnr v The Queen,[11] the amendments do not require any change to the approach in sentencing. What was said in Guden[12] still applies. It is apparent that the judge directed herself correctly in considering the significance of the risk of deportation.

37 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'.

38 We would add this. The applicant's offending was nothing short of horrifying. It was attended by calculated savagery. In our view, in the circumstances the individual sentences imposed on each charge, and the total effective sentence and non-parole period, are moderate (if not lenient). Thus, even had we been of the view that the relevant legislative changes warranted a grant of leave to appeal, in our opinion no different sentence - that is, no lesser sentence - should be imposed.[13]

39 For the foregoing reasons, the application for leave to appeal against sentence should be refused.

[1] Crimes Act 1958 s 17. The maximum penalty is 15 years' imprisonment.

[2] Crimes Act 1958 s 75A. The maximum penalty is 25 years' imprisonment.

[3] A ground which claimed that the total effective sentence and non-parole period imposed on the applicant offended the principle of parity in light of the sentence imposed on a named co‐offender was abandoned prior to the hearing in this Court.

[4] [2006] VSCA 184.

[5] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288.

[7] See Khem v The Queen [2008] VSCA 136; (2008) 186 A Crim R 465, 472 [31].

[8] R v Simard [2003] 1 Qd R 76, 78 [6]; see also Dauphin v The Queen [2002] WASCA 104 [22].

[9] R v Kwon [2004] NSWCCA 456.

[10] See, for example, R v Binder [1990] VicRp 50; [1990] VR 563, 569-70 (Crockett and Marks JJ).

[11] Lima Da Costa Jnr v The Queen [2016] VSCA 49.

[12] [2010] VSCA 196; (2010) 28 VR 288.

[13] Criminal Procedure Act 2009, s 281(1)(b).