Islam v R [2006] ACTCA 21 | Case summary | Zoe

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This is an appeal against sentence.
The appellant pleaded guilty before a judge of this Court to one count of aggravated robbery, contrary to s 310 of the Criminal Code 2002. The maximum penalty for this offence is 25 years imprisonment.
He was convicted and sentenced to four years imprisonment with a non-parole period of 18 months. The head sentence and the non-parole period were to date from 22 August 2005 when he was taken into custody.
In committing that offence, the appellant also breached a recognizance to be of good behaviour.
On 1 July 2005 the appellant had been convicted of intentionally inflicting actual bodily harm. He was sentenced in the Magistrates Court to 12 months imprisonment which was suspended upon him entering into a recognizance for two years under supervision to address his drug, alcohol and anger management issues.
Because that recognizance had been breached, the sentencing judge ordered him to serve the period of 12 months imprisonment but directed that the sentence also be served from 22 August 2005.
Shortly after midnight on 21 August 2005, the appellant was in the company of David Alexander who was driving a red Ford Falcon. The appellant told Mr Alexander of his intention to rob a service station to obtain money. Mr Alexander agreed to drive the appellant to the service station and wait whilst the appellant committed the robbery. Mr Alexander parked the car near the Ampol Service Station on the corner of Drakeford Drive and O’Halloran Circuit, Kambah. The appellant left the vehicle and entered the service station carrying with him a black handled kitchen knife approximately 30 centimetres in length. He wore a scarf and beanie to cover his face.
The appellant pointed the knife at a console operator and demanded that he open the till. The console operator did so and removed the cash tray as indicated by the appellant who took the notes from the tray. In removing the cash tray, the console operator activated a silent alarm.
The console operator’s co-worker followed the appellant as he left the service station and saw him get into Mr Alexander’s Ford Falcon. Police stopped the car not far from the service station and found, under the front passenger’s seat, $245 in various notes, the beanie, the scarf and the knife.
Both the appellant and Mr Alexander were arrested and taken into custody. The appellant was still in custody at the time he was sentenced. Thus it was that the judge directed that the sentence commence on 22 August 2005.
The appellant first came before the Magistrates Court on the date of his arrest when he was remanded in custody. On 12 September 2005 he entered a plea of not guilty. On 25 November 2005 he was committed to this Court for trial. On 8 March 2006 he indicated that he would plead guilty and, on 14 March 2006, pleaded guilty to the offence of aggravated robbery.
The appellant was born in Bangladesh on 2 June 1986 and is the youngest of four children. The family first entered Australia in 1991 because of the appellant’s father’s work commitments and remained for a period of five years. The family again entered Australia in 2002 to enable the appellant’s father to again discharge his work commitments. His parents continue to reside in Australia on working visas. Two of his siblings have taken steps to become permanent residents. Prior to this offence, the appellant had been residing at his parents’ home with whom he enjoyed a positive relationship. Because of the sentence imposed, the appellant may have his visa cancelled and be deported.
The appellant left school in about 2002 and commenced a six month landscaping course but, because he did not have residential status, he was ineligible to continue. He enrolled in the Canberra Institute of Technology in 2005 but did not complete his Certificate in Business Administration.
The appellant began experimenting with alcohol at the age of 16 years and became a regular drinker after the age of 17 years. He also began using cannabis at the age of 16. Prior to his remand he, with four other people, was using two or three grams per day.
At 17 he experimented with heroin. He has also used both amphetamine and MDMA.
After he was arrested he underwent withdrawal. He was provided with withdrawal packs to assist him during this time.
Whilst in remand he has been a regular participant in alcohol and other drug programs.
The appellant has other convictions. As a child he was convicted of assault with intent of robbery, taking a motor vehicle without consent, attempted theft and providing a false name and address. The third and fourth offences were committed on the same day, and the first and second on separate days to each other and separate to the third and fourth offences.
He has been convicted in the Magistrates Court of taking a motor vehicle without consent, dangerous driving and intentionally inflicting actual bodily harm. It was the last matter which led to the recognizance for a period of two years.
The grounds of appeal are: a) His Honour imposed a sentence that was excessive in light of the sentence imposed upon the co-offender. b) His Honour gave undue weight to the antecedent history of the accused given that the prior convictions were in respect of offences convicted as a juvenile or as a very young adult. c) His Honour did not give sufficient weight to the probable effect that the sentence would have on the appellant’s family. d) His Honour did not give sufficient weight to the fact that the sentence would cause a particular hardship to the person as a result of him being deported after completion of his sentence. e) His Honour erred in imposing a sentence that in all the circumstances was manifestly excessive.
The sentencing judge adverted to the penalty imposed upon David Alexander: Mr Alexander was dealt with by Connolly J yesterday and sentenced to 6 month’s (sic) imprisonment which was fully suspended. There were a number of special features concerning Mr Alexander’s culpability and his subjective circumstances. He was a person who went along with what Mr Islam was doing and instead of withdrawing from participation, found himself charged with an extremely serious criminal offence. Unlike Mr Islam he had certain subjective features which were reflected both in the quantum of the sentence imposed and in its suspension. The principle of parity between co-offenders does not constrain me to ignore the significant differentiation in the culpability and the subjective circumstances between Mr Islam and Mr Alexander. That is particularly so when it was Mr Islam who must bear the responsibility for quite wrongly involving Mr Alexander in his actions.
The sentencing judge said: I take into account Mr Islam’s plea of guilty. I accept that as the probation and parole report notes that the current period of remand and the belief that he faces a further custodial sentence, appears to be having a salutary impact on him. And I take into account that the probation and parole report also notes that Mr Islam has accepted responsibility for his actions, recognized the extent to which he wrongly involved another person in them and has demonstrated some remorse for the victims of the offence. He is now taking positive steps to address his drug addiction and he has put himself in a position so as to have good rehabilitative prospects. Mr Archer, who has said everything that could be said on Mr Islam’s behalf, has asked me to take a risk in light of these factors and to release Mr Islam to residential rehabilitation with a prospect of a custodial sentence much less than would be otherwise appropriate. Having regard to Mr Islam’s previous offending and the serious crime he has committed, I am just not able to accede to that request. The sentence that I propose to impose is the minimum and most lenient that I can allow in the circumstances.
In our opinion, it cannot be said that the head sentence or the non-parole period were excessive. Indeed, in our opinion, the head sentence was moderate and the non-parole period was merciful.
In those circumstances, the sentence could only be criticised if it did not reflect the appropriate principles of parity between co-offenders or if it was appropriate to have regard to the fact that the sentence might give rise to the appellant’s deportation and to have adjusted the sentence accordingly.
His Honour has identified the circumstances which applied to David Alexander which differentiated his case from that of the appellant. David Alexander only became involved in this offence because he happened to be driving the appellant at the time the appellant indicated that he intended to commit the offence. Mr Alexander’s criminality was his stupidity in allowing himself to agree to drive the appellant to and from the service station.
On the other hand, the appellant instigated the aggravated robbery. He disguised himself. He wielded the weapon. He took the money. He did so in circumstances where less than two months before he had entered into a recognizance to be of good behaviour. There is nothing in the claim of disparity. Indeed, the ground of appeal relying on disparity was abandoned.
It was contended that the appellant is at risk of being deported as a result of the commission of these offences. That risk arises, it was contended, because he has been convicted of an offence and sentenced to serve a term of imprisonment of more than one year. Section 501 of the Migration Act 1958 (Cth) (the Migration Act) empowers the Minister for Immigration, Multicultural and Indigenous Affairs to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test.
For the purposes of s 501 “the character test” is relevantly defined to mean that a person has a substantial criminal record. A “substantial criminal record” is defined in s 501(7): (7) For the purpose of the character test, a person has a substantial criminal record if: (a) … (b) … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those two terms is two years or more; or (e) ...
The appellant was sentenced on 1 July 2005 to a term of imprisonment of 12 months. In those circumstances, the appellant was already a person to whom s 501(7)(c) applied whatever the result of this appeal.
In any event, even if that conviction and that sentence did not of itself mean that the appellant was a person to whom s 501(7)(c) applies, it could not be said, on any understanding of the crime, the subject of this appeal, that a sentence of less than 12 months would have been appropriate especially where it is the case that the maximum sentence for this crime is 25 years. It must be remembered that the sentence to which s 501(7)(c) refers is the head sentence; in this case the sentence of four years imprisonment: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577; Te v Minister for Immigration and Multicultural and Ethnic Affairs (1999) 88 FCR 264; Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 580, [2005] FCAFC 105.
It is the sentence of imprisonment imposed which is important, not the sentence actually to be served. We understand this to represent settled law. During the course of argument, Mr Archer indicated that there may be High Court authority questioning this. We gave him leave to file additional written submissions, which were received on 9 November 2006. Those submissions refer to remarks in Re Patterson; Ex parte Taylor [2001] HCA 51 (2001) 207 CLR 391. That decision, it seems to us, turned on the questions as to whether a Parliamentary Secretary could exercise certain powers under the Migration Act and whether a British subject was an “alien”. The matter arose from a decision to deport a British subject, who had been convicted of certain New South Wales offences and sentenced to a term of imprisonment. Gaudron J observed at [29] that: Mr Taylor was convicted of an offence in respect of which he was sentenced to a minimum term of imprisonment of three and a half years. Thus, he did not pass and cannot pass the character test in s 501(3) of the Act.
We do not take this to involve any questioning of the settled law represented by Federal Court authority. Rather, it was a statement of fact. McHugh J noted at [93] that the sentence was a minimum of three and a half years with an additional parole period of two and a half years. In this jurisdiction such a sentence would be described as a head sentence of six years with a non-parole period of three and a half years. On any view of it, such a sentence would enliven the discretion of the Minister under s 501(7)(c).
The Full Federal Court in Seyfarth, a decision some four years after Patterson, reaffirmed that the character test provisions are “concerned with the sentence that has been imposed on a person rather than the term of imprisonment actually served” (at [27], FCR 588). We regard this as settled law.
This was a very serious crime of aggravated or armed robbery committed against a defenceless console operator late at night. It would not be right to impose a sentence of less than 12 months so as to allow, if it be the case, the appellant to escape the consequences of the sentence for the purpose of s 501 of the Migration Act. It would distort the sentencing process and have the effect of passing an entirely inappropriate sentence upon the appellant.
In any event, it would be contrary to sentencing principles to impose a shorter and inappropriate sentence only to allow the appellant to avoid the possible consequences of deportation. His Honour recognized this in making reference to R v Chi Sun Tsui (1985) 1 NSWLR 308 and R v Mao: Ex Parte Attorney-General of Queensland [2006] QCA 99. Whether the Minister exercises the power given to her under s 501 is a matter for her in the exercise of the power of Executive government. It would be wrong for this Court to impose a sentence which would mean that the appellant did not fail the character test so as to affect the Minister’s decision. In R v Berlinsky [2005] SASC 316, Doyle CJ, in dealing with a submission that the sentencing judge failed properly to consider the impact of the sentence on potential deportation, said at [27]: ... at the end of the day the Judge had to impose an appropriate sentence having regard to the relevant circumstances. It would be wrong for the Judge to impose a lesser sentence than was appropriate on the basis that the shorter the sentence the better the prospects of the Minister permitting Ms Berlinsky to avoid deportation. And as to the fact of deportation, there was really nothing that the judge could do. The risk was there, whatever the Judge might do. While the risk of deportation is a matter that naturally arouses one’s sympathy, it is difficult to see how it can affect the sentencing process. As Ms Abraham QC, counsel for the respondent, correctly pointed out, deportation is a matter for the Executive Government. It is irrelevant, as such, as a sentencing consideration: R v Shresthra (1991) 173 CLR 48, Giri and Karki (1999) 109 A Crim R 499 at 507, R v Latumetan and Murwento [2003] NSWCCA 70 at [19], R v Satui [2002] QCA 323, R v Van Hong Pham [2005] NSWCCA 94.
It seems to us that the sentencing judge here approached the matter correctly and imposed an appropriate sentence.
There is a statutory requirement for sentencing judges in this Territory in passing sentence to take into account “the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants (Crimes (Sentencing) Act 2005, s 33(o)). To this extent it may go too far to say that the probability of deportation is an irrelevant consideration in the sentencing process.
We are satisfied that his Honour was mindful of this. The sentence he imposed, given the circumstances of the offending behaviour, and the non-parole period of 18 months, was appropriate and as merciful as the proper application of sentencing principles allowed.
While the possibility of deportation is a factor that could impact on an offender’s family or dependants and to that extent is a relevant consideration in the sentencing process, we would agree with the remarks of Doyle CJ in Berlinsky (at [33]) that: It would not be a proper exercise of this Court’s power to tailor the sentence in such a way as to affect the decision by the Minister.
Given that the Commonwealth Minister’s discretion in relation to deportation is enlivened by the imposition of a head sentence of 12 months imprisonment, a sentence in this matter that avoided the possibility of deportation would have been, in our view, so entirely inappropriate as to be appellable.
In our opinion, the appeal should be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate:

Islam v R [2006] ACTCA 21 | Case summary | Zoe