Hanna v Environment Protection Authority

Court of Criminal Appeal (NSW)|2019-11-04|Before: Macfarlan JA, Walton J, Bellew J

NSWCCA 315 R v Pham [2005] NSWCCA 94 R v Shortland [2018] NSWCCA 34 R v Simard [2001] QCA 531 R v White (1981) 28 SASR 9 R v Williams [2005] NSWCCA 355 Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180 The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Wright v R (2016) 259 A Crim R 133; [2016] NSWCCA 122 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Dib Hanna Abdallah Hanna (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: T Game SC / A Cook (Applicant) K Stern SC / D Hume (Respondent)

Solicitors: Longton Legal (Applicant) Environment Protection Authority (Respondent) File Number(s): 2018/192193, 2018/192219, 2018/192229, 2018/192234, 2018/192240 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 5 Citation: [2018] NSWLEC 80 Date of Decision: 31 May 2018 Before: Preston CJ in LEC File Number(s): 2016/344029, 2016/344030, 2016/344031, 2016/344032, 2016/344033, 2016/344034, 2016/344035 and 2016/344036

THE FACTUAL CIRCUMSTANCES

At all relevant times the applicant and his wife, Mrs Rebecca Hanna, operated a business known as New Line Demolition, Excavation and Tipper Hire. The business used two trucks to transport unwanted building and demolition materials from building and demolition sites to other locations in Greater Sydney. The applicant advertised the business' services by letter box drops which included a flyer advertising "free clean top soil, clay, crushed bitumen or shale delivered to you're [sic] property".
In 2016 the applicant was charged with eight offences relating to four different properties on which he deposited waste material. In respect of each property, he was charged with one offence under s 144AB of committing a waste offence contrary to s 142A(1) by causing pollutants to be deposited on the property and one offence under s 144AB of committing a waste offence contrary to s 143(1) by unlawfully transporting waste to a place that cannot be used as a waste facility. Prior to the sentencing hearing, the prosecutor however agreed that it would discontinue three of the four transport charges on the basis, as recorded in an Agreed Statement of Facts, that the applicant: "has agreed to admit his guilt in relation to these three charges and has agreed to allow the Court to take these offences into account when dealing with him for the Principal Offences".
The Agreed Statement of Facts included the following matters relevant to the objective seriousness of the offences: "105 Mr Hanna engaged in the offending the subject of these proceedings for the purposes of financial gain. He was paid by persons to collect contaminated soil and, rather than incurring the cost of dealing with that soil in an environmentally responsible way, he elected to deposit that soil in residential properties around Sydney. Mr Hanna's offending was part of a systematic business of collecting and depositing contaminated soil. 106 Mr Hanna was aware that the soil that he collected and deposited was or might be contaminated and, in particular, that it did or might contain asbestos. Mr Hanna was also aware that the soil, once deposited, would or might cause a risk of harm to the environment and to human health. With that knowledge, he nevertheless chose to cause the soil to be deposited on residential premises. 107 In engaging in the offending the subject of these proceedings, Mr Hanna abused the trust that residential property owners had placed in him. They believed that they were receiving clean top soil for their properties. Instead, Mr Hanna delivered them contaminated and dangerous soil."
The Agreed Statement of Facts included the following matters relevant on appeal to the applicant's subjective circumstances: "3 The Defendant is a 43-year-old male. 4 The Defendant is married to Mrs Rebecca Hanna, with whom he has three children. Their eldest child is aged 13 years and the two twins are aged eight years. 5 Mrs Rebecca Hanna is the primary caregiver for the three children. 6 The Defendant's family home is in Victoria … Since 18 October 2017, and subject to two periods of time when his bail conditions were varied, the Defendant has been residing in New South Wales by reason of the bail conditions imposed on him as part of these proceedings. 7 The Defendant has previously been prosecuted and convicted for a number of waste offences and contempt of the Land and Environment Court …."

THE SENTENCING JUDGMENT

His Honour summarised his conclusions on the objective seriousness of the applicant's offences as follows: "154 Having regard to the nature of the offences committed by Mr Hanna; the maximum penalties prescribed for the offences; the substantial harm to the environment and human health; his intentional commission of the offences with knowledge of their illegality and their likely consequences; his commission of the offences to save tipping expenses and to profit from unlawfully transporting and depositing the waste; the reasonable foreseeability of the harm caused or likely to be caused to the environment and human health by the commission of the offences; the existence of practical measures to prevent that harm; and his control over the causes that gave rise to the offences, I find that each of the offences is of medium to high objective seriousness."
The sentencing judge's remarks concerning the applicant's remorse included the following: "182 Mr Hanna's counsel submitted that Mr Hanna's pleas of guilty to five of the eight charges and his agreement that he committed the other three charges that will not be pressed by the prosecutor and that the Court can take into account, rather than disregarding, these three charges in assessing the totality of the criminality involved, is indicative of 'real and very genuine remorse'. … 186 Mr Hanna's pleas of guilty to five charges and admission that he committed the offences in the other three charges provides some evidence that he acknowledges that he committed the offences and, to some extent, that he accepts responsibility for the actions that gave rise to the offences. Four of the five charges to which Mr Hanna has pleaded guilty are for offences against s 142A(1) of the POEO Act of polluting land. Mr Hanna's pleas of guilty to these offences to some extent acknowledges the consequence inherent in committing the offence of causing pollution of land. There is, however, no other evidence of Mr Hanna's remorse. Mr Hanna was faced with overwhelming evidence of guilt and his guilty pleas might have resulted from a recognition of the inevitable."
The sentencing judge made the following remarks concerning the three offences that the parties agreed would be taken into account but not the subject of charges that the prosecutor would pursue: "223 The term of the sentence of imprisonment is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of each offence committed by Mr Hanna and Mr Hanna as the offender: Markarian v The Queen [(2005) 228 CLR 357; [2005] HCA 25] at [37], [39], [66] and [73]. Accordingly, for each of the five offences, I take into account each of the objective circumstances and the medium to high objective gravity of each of these offences, as well as the subjective circumstances of Mr Hanna. I also take into account, as Mr Hanna has asked, that Mr Hanna has admitted guilt to the three further offences against s 144AB(2) of the POEO Act that will be discontinued by the prosecutor. I consider that an indicative term of imprisonment for each offence is one year and three months. There is no relevant distinction between the five offences against s 144AB(2) committed by Mr Hanna that would justify giving different terms of imprisonment for the offences. These terms of imprisonment should be discounted by 20% for the utilitarian value to the criminal justice system of Mr Hanna's pleas of guilty. This results in a term of one year imprisonment for each of the five offences."
When fixing the non-parole period, the sentencing judge made the following observations concerning special circumstances: "252 Mr Hanna submitted that there were three special circumstances: Mr Hanna's age (43 years); this is his first time in custody; and the fact that he would be serving his time in custody in a State (NSW) different to where he would normally be resident with his family (Victoria). 253 I do not consider that these matters are special circumstances warranting shortening of the non-parole period. The age of Mr Hanna (43 years) is neither sufficiently young nor sufficiently old to warrant a finding of special circumstances. 254 The fact that this will be Mr Hanna's first time in custody is not a special circumstance, considering the nature of the offences he has committed. [His Honour then described the nature of the offences that the applicant committed]. … 255 The fact that Mr Hanna will be serving his term of imprisonment in NSW, whilst his family is in Victoria, is not a special circumstance. Hardship to an offender's family is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non-custodial sentence. There can be circumstances of hardship to an offender's family, however, that are sufficiently exceptional in a suitable case to justify a finding of special circumstances: King v R [2010] NSWCCA 202 at [18]. Mr Hanna is married to Mrs Hanna, with whom he has three children. Their eldest child is aged 13 years and the two twins are aged eight years. Mrs Hanna is the primary caregiver for the three children. Mrs Hanna also looks after her father, who is seriously ill and her mother, who is also not well, in Victoria. The circumstances concerning Mr Hanna's family residing in Victoria and Mrs Hanna's duties as caregiver to their children and her parents, are not sufficiently exceptional to constitute special circumstances. Hardship to Mr Hanna by being imprisoned in a place away from his family is similarly not a special circumstance. 256 As I do not find there are special circumstances, the non-parole period for the aggregate sentence is to remain at the minimum period of two years and three months. This results in a parole period of nine months, which is one third of the non-parole period of two years and three months, in accordance with s 44(2B) of the Sentencing Act."
The sentencing judge concluded by imposing the sentence referred to in [3] above.

GROUND 1 - WHETHER THE SENTENCING JUDGE ERRED BY TAKING ADDITIONAL MATTERS INTO ACCOUNT AND IN THE MANNER IN WHICH HE DID SO

As noted above, the Agreed Statement of Facts tendered before the sentencing judge referred to the applicant's agreement, first, to admit his guilt of three offences which were the subject of the three transport charges that the prosecution agreed to discontinue, and secondly, to allow the Court to take those offences into account when sentencing him for the five other offences for which he was to be convicted. At the proceedings on sentence Ms Stern SC, who appeared with Mr Hume for the prosecutor, referred to these agreements and said that whilst the agreed course did not have "the Form 1 statutory backing" the prosecutor relied upon the common law as support for the additional matters being taken into account in relation to "real criminality" and "the need for specific deterrence".
The sentencing judge said at [223] of his judgment (see [11] above) that he had in fact taken the three additional offences into account but did not state how he had done so.
The prosecutor's reference to a "Form 1" was a reference to the procedure for which s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides as follows: 32 Prosecutor may file list of additional charges (1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. (2) A list of additional charges may be filed at any time - (a) after the court finds the offender guilty of the principal offence, and (b) before the court deals with the offender for the principal offence. (3) A copy of the list of additional charges, as filed in the court, is to be given to the offender. (4) A list of additional charges - (a) (Repealed) (b) must be signed by the offender, and (c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations. (5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised. (6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence.
Clause 4(1) of the Crimes (Sentencing Procedure) Regulation 2017 (NSW) provides that a list of additional charges under s 32 is to be in the approved form (known as a "Form 1"). Clause 4(2) then lists persons who are authorised to sign a Form 1 for the purposes of s 32(4)(c). That list does not include the Environmental Protection Authority. As a result, s 32 was inapplicable in the present case and the prosecutor therefore relied on the common law.
On appeal the applicant however submitted, despite his agreement to the contrary in the Court below, that it was impermissible for the sentencing judge to take the three additional offences into account in sentencing the applicant.
The applicant's principal argument was that s 32, by its terms, required the court to take into account an additional offence in relation to the sentence imposed only in respect of a particular, single offence and that any common law principle that permitted additional offences to be taken into account must, as a matter of "logic" be subject to the same requirement as s 32.
The applicant referred in this regard to authorities (R v Williams [2005] NSWCCA 355 at [29]-[30] and O'Connor v R [2017] NSWCCA 300 at [33]-[35]) emphasising that s 32 only authorises an additional offence to be taken into account in respect of a single, identified, charged offence.
The applicant however acknowledged as follows, that outside the confines of s 32 a charged offence could be treated as "representative" of offending: "41 An offender is able to agree with the prosecuting authority that a charged offence is to be dealt with as 'representative' and this could come with an acceptance by the Crown that in these circumstances other charges would not be laid. By extension an offender could acknowledge what these other 'uncharged' acts are and invite a Court to sentence accordingly. That is, the 'representative' nature of the charge laid would be clear enough."
The applicant nevertheless submitted that this permissible approach to sentencing when multiple offences had occurred did not support what occurred in the present case because having regard here to the other criminal conduct "could mean no more than that the offences charged (five in number) were part of a larger body of offending (that is, eight rather than five)" and that such difference would "seem to be insignificant and could really make little or no difference to sentence".
In its written submissions on appeal, the prosecutor cited authority for the existence of a common law sentencing principle which permits additional offences admitted by the offender to be taken into account in the sentencing process (in particular R v Jones [1978] Tas SR 126 at 129; R v White (1981) 28 SASR 9 at 13 and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [35]).
In R v White, the accused pleaded guilty to two offences of "clubroombreaking" and larceny under s 170 of the Criminal Law Consolidation Act 1935-1980 (SA). The sentencing judge was asked "to take into account five other offences all involving breaking and entering and some with larceny" (at 10-11). His Honour took those five additional offences into consideration in determining a sentence for the two offences for which the accused was being sentenced.
Wells J, with whom White and Mohr JJ agreed, held that the five other offences before the primary judge were "proper to be taken into consideration" (at 12). Wells J explained that when a judge "is asked to take other offences into consideration", the judge "is sentencing the prisoner for the offence or offences of which he stands convicted" (at 11, emphasis added).
Wells J did not indicate that each additional offence must be taken into account in respect of a particular, single offence. To the contrary, his Honour's reasoning suggests that it is permissible to have regard to other admitted offences when determining the appropriate sentence for multiple offences.
Ultimately, the applicant did not contest the existence of the common law principle relied upon by the prosecutor. Rather, his objection was that the sentencing judge was not asked to, and did not, take each of the additional offences into account only in relation to a single offence of which the applicant was convicted. The applicant was convicted of four pollution offences relating to the deposit of material on four different parcels of land. He was charged with a transport offence relating to each of those blocks of land but only one of those charges was pursued to conviction. The other three transport offences became the additional offences that his Honour was asked to take into account. As his Honour's indicative sentences in relation to all four pollution offences were the same (that is, imprisonment for one year), it seems that his Honour did not increase the indicative sentence in respect of the three of those four pollution offences where there was a corresponding additional offence (not the subject of conviction) relating to the same land. Otherwise, it would not be expected that the four indicative sentences would have been the same.
In these circumstances, it appears that, instead, his Honour took the additional offences into account in a general fashion as part of the "instinctive synthesis" which his Honour was required to, and said he did, undertake (Judgment [223] quoted in [11] above). The taking of these offences into account may or may not have led to an increase in the aggregate or indicative sentences. Either result would have been permissible and it was not necessary for his Honour to identify what if any impact those additional offences had in this regard. His Honour was entitled to consider them as part of the criminal context in which the offences of which the applicant was convicted occurred. The taking of them into account did not differ in principle from the way in which other unlaid charges are permissibly (as the applicant conceded - see [21] above) taken into account when charged offences are treated as "representative".
The applicant did not give any good reason why the relevant common law principle should be subject to the same limitation as the statutory regime, which requires the taking into account of an additional offence in relation to the sentence for a specific, identified offence of which the offender is convicted.

Special circumstances

Sub-section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) identifies a ratio between a non-parole period and the balance of the term of a sentence that must, prima facie, be adopted in structuring sentences. The ratio may be departed from if the sentencing judge finds that there are "special circumstances" for doing so. The court is required to state its reasons for departing from the ratio but the failure of a court to comply with material parts of the section, including that requirement, does not invalidate the sentence (see s 44(3)).
In the present case, the applicant's counsel submitted to the sentencing judge that his Honour should find that the following were special circumstances for the purposes of s 44: 1. the age of the applicant; 2. this was to be his first time in custody; and 3. he would be serving his time in custody in a State different to that where he would normally be a resident with his family.
As indicated in [12] above, the sentencing judge considered each of these matters and rejected the applicant's submission that they constituted special circumstances for the purposes of the applicant's sentencing (Judgment [252]-[255]). His Honour preceded that consideration with the statement: "I do not consider that these matters are special circumstances warranting shortening of the non-parole period".
On appeal, the applicant contended that the sentencing judge erred in considering each of the matters relied upon as a special circumstance individually and not considering them in combination.
It is not clear that his Honour did not in fact consider the matters in combination bearing in mind the preface to his consideration of them individually (see [32] above). In any event it is not open to the applicant on appeal to make this challenge to his Honour's exercise of discretion when the point now sought to be put was not raised before his Honour.
On appeal the prosecutor referred in this context to the approval by the plurality in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120] of the proposition that: " … when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious."
This principle has been applied in subsequent civil decisions, including Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 at [5] and [73].
This principle is reflected in the well-established reluctance of the Court of Criminal Appeal to entertain on sentence appeals points that were not taken in the court below. In a decision applied in many subsequent cases, Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81], Johnson J aptly said that a sentence appeal was "not the occasion for the revision and reformulation of the case presented below" and referred to the need for "exceptional circumstances" to exist before the Court will entertain arguments that have not been put at the sentencing hearing. No such exceptional circumstances exist in the present case.
In the present case, it cannot be doubted that if the sentencing judge had thought that the combined effect of the three matters relied upon constituted special circumstances that he would have said that even though not asked to do so. The absence of any submission that he should consider them in that way relieved him of any obligation to state expressly that he had done so. Moreover the absence of that submission precludes the applicant raising the point he seeks to make for the first time on appeal.

Hardship

The second aspect of this ground of appeal concerns the sentencing judge's consideration of hardship to the applicant and his family.
The primary judge stated when considering for the purpose of fixing the non-parole period whether special circumstances existed that "[h]ardship to an offender's family is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non-custodial sentence" (at [255], see [12] above). His Honour concluded that the "circumstances concerning Mr Hanna's family … are not sufficiently exceptional to constitute special circumstances" (at [255]).
On appeal, the applicant however submitted that the primary judge erred "in determining that the hardship was 'irrelevant' and could only be taken into account in highly exceptional circumstances justifying a non-custodial penalty". He submitted that hardship "ought to have been considered as part of the process of 'instinctive synthesis'", and that hardship to the applicant and his family was "a relevant mitigating factor" to be taken into account as part of the "general subjective mix of matters that the sentencing court was required to consider". He thus submitted that the relevance of hardship was not limited to the fixing of the non-parole period.
To support this proposition he relied in particular on the judgment of McCallum J in Carter v R [2018] NSWCCA 138.
On appeal in the present case counsel for the prosecutor noted, without challenge, that the applicant did not submit to the sentencing judge that he should take hardship into account in any way other than by reference to whether special circumstances existed for the purpose of fixing the non-parole period.
As noted above (see [35] to [37]), the court will not ordinarily entertain on appeal arguments that were not put to the sentencing judge. There is no exceptional circumstance here that would cause the Court to depart from this principle.
As a result, this aspect of the second ground of appeal should also be rejected.

GROUND 3 - THE APPLICANT'S RESIDENCY STATUS

I agree with Walton J that this ground should be rejected, for the reasons that his Honour gives.

ORDERS

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
WALTON J: I have had the advantage of reading the draft judgment of Macfarlan JA in this matter which will obviate the need for me to refer to the background giving rise to the appeal. I also agree with his Honour's reasoning for dismissing grounds 1, 2(a) and 2(b). What follows are my reasons for dismissing ground 3.

GROUND 3 - WHETHER THE SENTENCE PROCEEDINGS MISCARRIED BY REASON OF THE FAILURE TO BRING BEFORE THE SENTENCING COURT THE FACT OF THE APPLICANT'S RESIDENCY STATUS AND THE IMPACT OF ANY SENTENCE ON HIS CAPACITY TO REMAIN IN AUSTRALIA, IN CONSIDERATION OF HARDSHIP TO THE APPLICANT AND HIS FAMILY

The applicant contended that his sentencing miscarried because of a failure, by counsel appearing for the applicant, to bring before the sentencing court evidence of the applicant's residency status, the impact of any sentence on the applicant's ability to remain in Australia and any resultant hardship to the applicant and his family if he was unable to remain in Australia.
In order to establish the ground upon this basis, the applicant sought to adduce new evidence which was said to be necessary to overcome a significant and demonstrable miscarriage of justice as a result of the absence of evidence through oversight by counsel as to the mandatory visa cancellation of the applicant.
The new evidence sought to be led on that basis was: 1. an affidavit of Daniel Wakim, dated 2 May 2019; 2. an affidavit of Rebecca Hanna, dated 2 May 2018, with respect to paras 12 to 18; 3. an affidavit of the applicant, dated 3 May 2019, with respect to para 13; 4. an affidavit of Stephen Stanton, dated 29 July 2019; and 5. an affidavit of Daniel Wakim, dated 9 October 2018. (Those five affidavits shall be collectively referred to as "the new evidence").
The Crown opposed the receipt of the new evidence essentially upon the basis that the ground itself stood contrary to authority and, hence, the new evidence was irrelevant (although it was accepted the Court would rule upon that question in its judgment on the appeal).
The new evidence sought to be adduced concerned the following: 1. The applicant is a Lebanese citizen. The applicant was issued with a Class BB Subclass 155 Five Year Resident Return Visa on 21 May 2014 ("the visa"). 2. Sometime after 15 March 2019, the applicant received notification from the Department of Home Affairs that, on 15 March 2019, the visa had been cancelled by a delegate for the Minister pursuant to the provisions of s 501(3A) of the Migration Act 1958 (Cth). 3. On or about 16 May 2019, the applicant submitted a "Request for Revocation of a Mandatory Visa Cancellation" pursuant to s 501(CA) of the Migration Act ("the application"). 4. The application has not been determined. 5. The applicant has a wife and three children (male twins aged 9 and a daughter aged 14 years) who were born in Australia and hold Australian citizenship. The applicant and his family have lived in Australia for 16 years. The applicant's wife deposed to circumstances that would prevent her and the children joining the applicant in Lebanon and the financial and other impact if the applicant was to be deported from Australia.
Evidence of that character was not sought to be led at the sentencing hearing. Further, counsel appearing for the applicant at the sentencing hearing deposed he "was not aware that the applicant was not an Australian citizen" and "assumed" he was an Australian citizen.
In consequence of the sentence imposed by Preston CJ, the mandatory visa cancellation provisions in s 501(3A)(a)(i) of the Migration Act were engaged because the applicant did not pass "the character test" referred to in that provision. This resulted from the combined effect of s 501(6)(a) and (7)(c) which provided that the subject test would not be passed if a "person [had] a substantial criminal record" (s 6(a)), which expression was defined as a person who had been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). As previously mentioned, the indicative sentences imposed upon the applicant were each for 12 months.
The mandatory provisions do not apply to a substantial criminal record (for the purposes of s 501(6)(a)) within the meaning of 501(7)(d). Section 501(7)(d) concerns a person who has been sentenced to two or more terms of imprisonment and where the total of those terms are 12 months or more. In those circumstances, the Minister or his delegate have a discretion under s 501(3)(c).
If determined adversely to the applicant, the applicant has a right to seek a merits review of the decision of the Minister's delegate by the Administrative Appeals Tribunal ("AAT") under s 500(1)(b) of the Migration Act (a power of delegation arises under s 496).
It was submitted by senior counsel for the applicant that: 1. The oversight by counsel at the sentencing hearing was significant and resulted in a significant miscarriage of justice. 2. The evidence of the applicant's residency status and consequential hardship to him and his family was relevant to the sentencing proceedings, the penalty imposed and the structure of the sentence. 3. The mere act of fixing a sentence in this case had triggered the mandatory provisions of the Migration Act for a long term resident. 4. The evidence of the prospect of deportation and resultant hardship would justify a further slight reduction in the indicative sentences. 5. If the applicant had been sentenced to individual sentences of something just less than 12 months, the applicant would not have been faced with mandatory cancellation of his permanent residency visa. 6. If the Court had brought to its attention the implication of imposing an aggregate sentence in these circumstances, it would not have imposed such a sentence and would rather have structured the sentences vis-à-vis individual sentences with some accumulation such that the overall time served in custody would have been identical to the aggregate sentence. 7. As a matter of sentencing principle, the Court should not ignore any circumstances bearing upon sentencing. The circumstance of this matter produced a harsh outcome and call for mercy. 8. The line of NSW authorities relied upon by the Crown is not applicable in this case as the matter concerns the mandatory revocation of the visa and the consequences of the same. This is a very specific issue which does not require revisiting of those authorities. 9. The authorities relied upon by the prosecutor to demonstrate that the potential deportation of the applicant was not relevant to the sentencing process hinged upon the authority of the High Court in The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26 ("Shrestha"). 10. If the line of authority in NSW stands for anything more than Shrestha, then it is wrong. That authority did not support a conclusion that a non-parole period may be imposed notwithstanding an offender would be deported upon release from custody. Thus, the Court should not follow the line of authority in NSW, relied upon by the Crown, and instead follow Shrestha as adopted in R v Mirzaee [2004] NSWCCA 315 ("Mirzaee") (per Kirby J, with whom Sperling J and Newman AJ agreed); R v Pham [2005] NSWCCA 94 ("Pham") (per Wood CJ at CL, with whom Hislop and Johnson JJ agreed); AC v R [2016] NSWCCA 107 ("AC") (per Schmidt J, with whom Bathurst CJ and Wilson J agreed); and the Victorian Court of Appeal decision in Guden v R (2010) 28 VR 288; [2010] VSCA 196 ("Guden") at [25]-[28]. 11. Reliance was also placed upon R v Hull [2016] NSWSC 634 at [126]-[131] (per Davies J) and R v Shortland [2018] NSWCCA 34 ("Shortland") at [118]-[125] (per Hidden J). 12. As to the admission of new evidence, the principles in R v Fordham (1997) 98 A Crim R 359 and Wright v R (2016) 259 A Crim R 133; [2016] NSWCCA 122 at [5], [8]-[10], [12] and [15] (per Basten JA) permit the new evidence to be adduced on appeal in order to deal with a miscarriage of justice.
Little attention was paid by the parties to the principles applicable to appeals founded upon a ground, as in this case, of a miscarriage of justice occasioned by the incompetence of counsel. The principles, in this respect, are well established in High Court authority such as TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 and Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9, and authorities of this Court in R v Birks (1990) 19 NSWLR 677, Taylor v R (2009) 78 NSWLR 198; [2009] NSWCCA 180, and Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4.
In a sentencing appeal such as this, the following principles may be distilled from those authorities: 1. The ultimate determination must be whether the omission resulted in a miscarriage of justice in the sense that the sentencing of the applicant miscarried. 2. In the ordinary case, it is not relevant why an act or omission occurred. Given the nature of the adversarial system and assumptions upon which it operates, in most cases a complaint that counsel's conduct has resulted in a miscarriage of justice will be considered by reference to an objective standard. 3. It is only in exceptional circumstances that an appellate court will find it necessary to resort to subjective evidence concerning counsel's reasoning.
In my view, the applicant has not demonstrated that a miscarriage of justice arose from the failure of the applicant's counsel at the sentencing hearing to not put the aforementioned evidence (and accompanying argument) before the sentencing judge as to the mandatory cancellation of the applicant's visa and any adverse consequences upon him arising therefrom. There are three reasons for that conclusion.
First, and taking the new evidence relied upon by the applicant at its highest, there is no basis for this Court to find that the prospect of removal of the applicant from Australia is other than speculative.
There has been no determination of the application. If unsuccessful the applicant has a right of merits review of that decision.
It is also a matter of speculation that the applicant's prospects of administrative removal would vary depending upon whether there was a mandatory visa cancellation or one arising under the discretionary provisions of s 501 of the Migration Act. It might be noted that the applicant accepted that, on any sentencing scenario, he would be caught by the provisions of s 501(7)(d) and, therefore, exposed to cancellation of his visa by virtue of an aggregate sentence of 2 years or two or more terms of imprisonment where the total is greater than 12 months imprisonment, even if the indicative (or individual) sentences were less than 12 months imprisonment. Any difference occasioned by a discretion being predicated upon what the Minister "reasonably suspects" under s 501(3)(c) of the Migration Act is again a matter of speculation.
Secondly, it would be inappropriate for the Court below to alter an appropriate sentence to avert the effect of the Migration Act: see Loftus v R [2019] VSCA 24 at [81] per Whelan AP and Niall JA (noting that their Honours considered the fact an offender may be deported to be a relevant consideration in sentencing) (see also Shrestha).
Thirdly, the prospect of deportation or removal is not a relevant consideration in sentencing.
The prosecutor correctly relied upon a line of authority supporting this conclusion commencing with R v Chi Sun Tsui (1985) 1 NSWLR 308 ("Tsui") at 311. Tsui concerned whether the provisions of s 21(1)(b) of the Probations and Parole Act 1983 (NSW) ("the PPA"), which permitted a sentencing court to withhold a non-parole period for "any other reason which the court considers sufficient" permitted a "deportation prospect to weigh as a factor against specifying a non-parole period" (at 310 per Street CJ, with whom Slattery CJ at CL and Roden J agreed). The conclusion reached by the Court that the question should be answered in the negative derived from the provisions of s 26 of the PPA, which removed from the field of deliberation by the Parole Board whether a person may be deported upon release. It was held that "likewise… the prospect of deportation [was] equally irrelevant to be weighed by a sentencing judge" when he considered the imposition of a non-parole period (at 311).
However, Street CJ's observations, in this respect, were more broadly expressed and based upon an additional factor. His Honour stated that "the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society".
That conclusion resonates with the judgment of the High Court in Shrestha.
In Shrestha, the Commonwealth Director of Public Prosecutions had propounded on behalf of the Crown on an application for special leave, a general submission that it can never be open to a court to determine otherwise than that it is inappropriate that a convicted person be eligible at some future time for release on parole if that person is a foreign offender with no ties to Australia and whose sole purpose in entering Australia is to commit serious crimes. Deane, Dawson and Toohey JJ described the contentions of the Crown as being predicated upon the basis that, under the legislative provisions and executive policy, such an offender would be immediately deported if released on parole. It followed, it was contended by the Crown, that it could never be appropriate that such a person be released on parole for two reasons, the second of which was that deportation rendered inappropriate or futile supervision and other safeguards which control and regulate release on parole (see at 70).
In rejecting that submission, Deane, Dawson and Toohey JJ, after accepting there was greater force in the second contention found (at 71-72): … There are, however, two related reasons why the likelihood of deportation if a convicted person is subsequently released on parole should not, of itself, compel a sentencing judge to conclude that it is inappropriate that that person should be eligible to be considered for release on parole at some future time. The first reason is that the compulsory deportation of a prisoner released on parole is something which is beyond the control of the prisoner. It lies within the control of government. It is far from evident that the disadvantages to the community which would be involved in allowing a person released on parole to remain within Australia under the supervision of the relevant parole authority until the expiry of his parole would necessarily outweigh the disadvantages involved in keeping him in gaol throughout the whole of the period in which, if he were not a foreigner, he would be released on parole. Moreover, the inadequacy of the parole system to provide proper supervision and enforcement of parole conditions in the case of a prisoner who is released on parole and then deported is likewise something which is beyond the control of the prisoner. It is also arguably within the control of government, since it is not immediately apparent that it is beyond government initiative to negotiate arrangements with other countries pursuant to which persons released on parole could be supervised in those countries and, if necessary, returned to imprisonment in this or that other country in the case of breach of parole conditions. Even if a foreign prisoner will inevitably be deported upon being granted parole and be placed beyond supervision, that is no reason why he should be denied eligibility for parole. There could obviously be cases where compassionate considerations might justify release on parole notwithstanding that adequate supervision was impossible and that an involuntary return to custody would be impracticable.
Brennan and McHugh JJ referred to Tsui. In Guden (at [18]) their Honours had found Tsui stood for the proposition that the prospect of deportation was not an admissible or a relevant factor to be considered in the exercise of a discretion to withhold the specification of a non-parole period. However, their Honours (Guden at [58]) expressly acknowledged Street J's reliance upon deportation as being a product of a separate legislative and policy area as a reason for treating the prospect of deportation as being irrelevant to the determination of whether to impose a non-parole period.
The principles in Tsui and Shrestha have underpinned many aspects of the later line of NSW authorities on this topic.
In Pham at [13]-[14], Wood CJ at CL (with whom Hislop and Johnson JJ agreed) stated: [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. [14] The fact that the Respondent would be or might be deported to Vietnam, was accordingly an immaterial factor in structuring a sentence in this case and error would be demonstrated if it could be established that it became a factor in determining any aspect of the sentence including the selection of an appropriate commencement date. I am not however persuaded, particularly in circumstances where a period for potential release on parole was fixed, that his Honour erred in this respect.
In Ali v R [2014] NSWCCA 45, this Court, in considering whether a lesser sentence (both as to head term and non-parole period) was warranted in law, expressly found that the prospect of the appellant being deported should be disregarded "in accordance with long-standing authority of this Court" ((at [47]) per Button J, with whom Leeming JA and R S Hulme AJ agreed). In this regard Button J relied upon Pham and Mirzaee at [21].
The applicable part of the judgment of Kirby J (with whom Sperling J and Newman AJ agreed) in Mirzaee concerned special circumstances and was as follows (at [21]): [21] Where an offender would otherwise qualify for a finding of special circumstances, because it is recognised that he or she would benefit from a longer than usual period of supervision, then such a finding should be made. The sentencing Judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non parole period, and that supervision therefore would not be provided in Australia.
In Khanchitanon v R [2014] NSWCCA 204 at [28], the sentencing judge had taken into account as to sentencing the fact that the applicant would be deported at the end of his sentence and considered that this amounted to extra-curial punishment (see at [17]). Adamson J (with whom Hoeben CJ at CL and Fullerton J agreed) stated (at [28]): [28] Her Honour took into account the prospect of deportation as amounting to extra-curial punishment. The fact of actual or potential deportation is irrelevant to the sentencing exercise. It was, accordingly, an error for the sentencing judge to use deportation to determine any aspect of the sentence: R v Pham [2005] NSWCCA 94 at [13]-[14] per Wood CJ at CL, Hislop and Johnson JJ agreeing. In the present case, this error was in the applicant's favour.
In AC, this Court unanimously held that the "risk of deportation" for the offender "was not a relevant consideration on sentence, even in fixing the applicant's non-parole period. Deportation is a matter for the Executive Government…" (at [79], per Schmidt J, with whom Bathurst CJ and Wilson J agreed). Reference was made to Pham and Shrestha.
More recently, in Kristensen v R [2018] NSWCCA 189 ("Kristensen"), this Court had to consider the issue of the relevance of the risk of deportation when re-sentencing where error as to the original sentence had been conceded (at [7] and [21]). It was common ground that the applicant was subject to mandatory visa cancellation under s 501(3A)(a) of the Migration Act, although the applicant could seek review of that decision under s 501CA (at [23]).
Contrary to the submissions of the applicant the matter was considered, therefore, in a similar statutory context as the present matter.
Payne JA (with whom R A Hulme and Button JJ agreed) considered the effect of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) on the approach to sentencing in NSW. He stated (Kristensen at [34]): [34] … 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.
His Honour also dealt with different approaches adopted in Victoria and Queensland jurisdictions and concluded (Kristensen at [35]): [35] 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.
Thus, having regard to that line of authority, there can be no miscarriage of justice in counsel for the applicant below failing to bring argument and evidence about the applicant's residency or visa status to the attention of the sentencing judge as a mitigating factor. Further, the sentencing judge would have been bound by that authority to decline to take those matters into account in the sentencing exercise.
It may be noted, in that respect, that the applicant placed reliance upon Hull and Shortland. Those authorities do not avail the applicant and cannot ultimately stand for the proposition in this case that the sentencing Court may have regard to the prospect of administrative removal or deportation in the face of the line of NSW authority to which I have referred above. The prosecutor's submissions in support of that conclusion are compelling.
In Hull, Davies J held that the defendant's status as a person lacking Australian citizenship, together with her mental health, provided exceptional circumstances so as to enable family hardship to be considered (at [120] and [131]). It would appear that Davies J was not taken to any of the line of authorities set out above. However, it does appear from the judgment, at [130], that his Honour was taken to a number of judgments of the Victorian and Queensland Courts of Appeal on the question of whether the prospect of deportation was a proper consideration on sentencing. Further, and significantly, Davies J, at [128], identified that "a decision not to exercise the power to cancel a revocation by the Minister is not reviewable", but it would appear his Honour's attention was not drawn to s 500(1)(ba) of the Migration Act, which made it clear that a decision by a delegate of Minister in that regard is reviewable in the AAT.
The second authority the applicant referred to in his submissions was the judgment of Hidden AJ in Shortland, decided some four months before Kristensen. In Shortland, there was a division of opinion as to the basis for the orders made by the Court (although all members of the Court agreed with the orders made). Basten JA (with whom RA Hulme J agreed) found that hardship to others should not have been taken into account on sentence (at [19] and [37]). Hidden AJ was in dissent on this issue. In his dissenting judgment on the issue, Hidden AJ referred to and applied the decision of Davies J in Hull (at [118]-[125] and [155]-[159]). His Honour did not refer to any of the authorities of this Court on the issue of the potential relevance to sentencing of the prospect of deportation or removal of the offender. Notably, at [122], Hidden AJ referred to the statement of Davies J that the exercise of the power of the Minister under s 501CA was not reviewable.
Whilst Hidden AJ held at [124] that there is "long standing authority from cases such as R v Shrestha (1991) 173 CLR 48 that the possibility of deportation has no bearing on the structure of a sentence is not applicable", it would appear his Honour was not referred to the authority as set out above. Further, as a matter of fact, his Honour in that case appears to have found a "very real prospect of ... deportation in the event of a full time custodial term" (at [124]).
Reliance was not placed by the applicant upon the judgment of Adams J in R v Kwon [2004] NSWCCA 456 at [48], where reliance was placed upon deportation upon release together with a loss of an opportunity to obtain citizenship and distress to the family as subjective factors on sentencing. That would seem to be explained upon the basis that the findings turned upon a factual premise not applicable here, namely, there was an "inevitability of his deportation".
Thus, given that the applicant's submissions were founded upon the miscarriage of justice arising from counsel's competency and that the evidence of the applicant's likely administrative removal (or deportation) after a mandatory cancellation of a visa did not rise above speculation, it is unnecessary to delve into the undeveloped submissions of the applicant which, in one respect, sought to challenge longstanding authority in NSW by reliance upon Shrestha and authorities in Queensland and Victoria. These circumstances make the case an inappropriate vehicle to embark upon such a course.
However, some brief observations may be made as to those submissions.
First, even if deportation may be taken into account as a mitigating factor in sentencing the extent that the burden of imprisonment would be greater, as was found to be relevant by the Victorian Court of Appeal in Guden at [25]-[29], there remained the question as to whether the risk of deportation was relevant where the prospect of deportation was merely speculative.
The Victorian Court of Appeal accepted that limitation in Guden at [28] but confined its operation to circumstances where "the plea of mitigation 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 for Immigration… to revoke an existing visa…".
In R v Arrowsmith (2018) 333 FLR 415; [2018] SASCFC 47 ("Arrowsmith") at [34], Parker J (with whom Vanstone and Nicholson JJ agreed) stated that the risk of deportation "must be assessable rather than merely speculative".
It may be noted that, in Arrowsmith, the Full Court of the Supreme Court of South Australia also applied that principle to find that visa status was not a relevant sentencing consideration. The Court said (at [38]): [38] In the present case Mr Thompson's letter indicates that the Department of Home Affairs is still considering the request that the Minister or his delegate exercise the power under s 501CA of the Migration Act to revoke the cancellation of the applicant's visa. The Court cannot speculate about a decision that is still to be made by the Commonwealth Minister or his delegate. Thus, the likelihood of the applicant being deported from Australia is, on the information before the Court, not assessable. For that reason it is immaterial which of the two lines of competing authority is correct. On either view, the risk of deportation cannot be taken into account in determining the Court's response to the applicant's repeated breaches of the recognisance release order. I do not consider that the amendments to the Migration Act I have referred to at [33] affect the position as the decision on cancellation still lies with the Minister.
In R v Leka (2017) 267 A Crim R 432; [2017] SASCFC 77 ("Leka"), the Full Court of the Supreme Court of South Australia said at [32] that "[t]here must be evidence before the court that enables both a sensible quantification of the risk that deportation will, in fact, occur, and proof that deportation would, in fact, be a hardship during any term of imprisonment for that particular offender". In Leka, the Court emphasised the difficulty of that task in circumstances where "recent decisions emphasise the frequency with which the Migration Act is amended and Ministerial directions are issued pursuant to s 499 of the Act" (at [32]).
In Kristensen, as in this matter, and for the reasons I have given the prospect of administrative removal after cancellation of the visa is, on the evidence relied upon by the applicant, speculative.
Secondly, the prosecutor made written submissions, which were not developed or the subject of direct rejoinder by the applicant, which confirm the soundness of those principles and, more broadly, the line of NSW authority to which I have referred to above. Those submissions have considerable force and are reflected below as follows: 1. Taking the prospect of an offender's deportation into consideration has the potential to "produce a regime under which visitors or non-permanent residents [are] sentenced more leniently than Australians who [have] committed the same kind of offence. That cannot be a proper result in the administration of justice": R v Simard [2001] QCA 531 at [6] (per McPherson JA); see also Shrestha at 71 (per Deane, Dawson and Toohey JJ). 2. Policy choices relating to deportation are for the Commonwealth legislative and executive branches: Tsui at 311; Pham at [13] ("a matter exclusively for the Executive Government"). 3. "The court's sentencing discretion is not appropriately exercised by reference to predictions to how… an administrative discretion, which arises only after the appropriate sentence is imposed, may be exercised at some future time": Hickling v The State of Western Australia (2016) 260 A Crim R 33; [2016] WASCA 124 at [58] (per Mazza JA and Mitchell J).
I turn then to the question of hardship to the family, raised in the context of ground 3.
Two preliminary observations may be made in that respect.
First, even though, as it was correctly submitted, Kristensen did not specifically deal with the question of hardship to a family, it is difficult to envision how counsel's omission below may be impugned by reference to a failure to call evidence of the kind relied upon by the applicant if the applicant was otherwise precluded from advancing the issue of his administrative removal (for the reasons given above) in the circumstances of his sentencing, particularly having regard to the speculative nature of the contentions advanced by the applicant.
Secondly, as was explained in relation to ground 2(b), counsel submitted below that the question of hardship should be confined to special circumstances. Whilst the issue was raised again in the context of ground 3, it was not explained how a further reliance on hardship, presumably as a factor in mitigation, may here be permitted.
In any event, even allowing for the more "nuanced approach" referred to by Basten JA in Shortland (at [18]) (although I note the recent observation of Price J in Lee v R [2019] NSWCCA 15 at [74]), I do not consider the evidence, if allowed, as to family circumstances, constitutes exceptional circumstances or very significant hardship to a third party consistent with authorities bearing upon the taking into account of hardship to a family.
On those bases, the new evidence sought to be led by the applicant should be refused, save for that evidence bearing upon the applicant's visa cancellation status necessary to decide the question raised by ground 3 contained in the affidavits of the applicant and Mr Wakim. On an objective standard, the evidence of Mr Stanton is irrelevant.
I would dismiss ground 3.
BELLEW J: I have had the advantage of reading in draft the judgments of Macfarlan JA and Walton J.
I agree for the reasons set out by Macfarlan JA that grounds 1 and 2 should be dismissed. I agree for the reasons set out by Walton J that ground 3 should be dismissed.
I agree with the orders proposed by Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2019

Crimes (Sentencing Procedure) Regulation 2017(NSW)

Migration Amendment (Character and General Visa Cancellation) Act 2014(Cth)

Probations and Parole Act 1983(NSW)

Environment Operations Act 1997(NSW)

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