Marai v R

Consideration

Consideration of the issue raised by the applicant requires consideration of s 16E of the Crimes Act 1914 and ss 24 and 47 of the Crimes (Sentencing Procedure) Act, which it brings into operation.
Section 16E states, as relevant: 16E Commencement of sentences (1) Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non‑parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence. (2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non‑parole period fixed in respect of that sentence: (a) may be reduced by the period that the person has been in custody for the offence; or (b) is to commence on the day on which the person was taken into custody for the offence; the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non‑parole period fixed in respect of that sentence.
Section 24 of the Crimes (Sentencing Procedure) Act provides, as relevant: "24 Court to take other matters into account In sentencing an offender, the court must take into account - (a) any time for which the offender has been held in custody in relation to the offence".
Section 47 states, as relevant: "47 Commencement of sentence (1) A sentence of imprisonment commences, subject to… any direction under subsection (2), on the day on which the sentence is imposed. (2) A court may direct that a sentence of imprisonment - (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed… … (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence…"
As has been noted previously by this Court, s 47(2) provides courts with a general discretionary power to backdate the commencement of sentences. Section 47(3) provides that in exercising the discretion the court must take into account time served in custody which relates to the offence, but s 47(3) does not fetter the scope of the general discretion provided by s 47(2)(a): Refaieh v R [2018] NSWCCA 72 per N Adams J, Hoeben CJ at CL and Johnson J agreeing; Glynn Kaderavek v R [2018] NSWCCA 92 per Hamill J, Beazley P and Schmidt J agreeing.
Section 16E uses slightly different terminology than ss 24 and 47. Section 16E(2)(a) refers to "the period that the person has been in custody for the offence". Sections 24(a) and 47(3) use the term "any time for which the offender has been held in custody in relation to the offence". As N Adams J observed in Refaieh, the words "in relation to" in those sections have not been defined. Neither is "custody" defined in the Crimes (Sentencing Procedure) Act or the Crimes Act 1914. The word seems to be used commonly in criminal proceedings to mean custody in a prison.
The issue of a sentencing court taking into account time spent by an offender in immigration detention has been considered in a number of decisions.
In R v Dadash [2012] NSWSC 1511, RA Hulme J took into account the offender's period in immigration detention in the following circumstances: "[28] Mr Dadash spent almost a year in Corrective Services' custody before he was returned to immigration detention. I am satisfied, however, that his detention since being returned is referable to the fact that he was charged with offences arising from the events of 20 April 2011 at Villawood. He had applied to be returned to his home country but the Australian Federal Police advised DIAC that this would be inappropriate whilst the charges were outstanding. As a consequence, I am prepared to accept that the entire period… should be taken into account as pre-sentence custody and the sentence I impose will be backdated to then."
In Parhizkar v R [2014] NSWCCA 240 this Court was asked to consider that the sentencing judge had not quantified the time the offender had spent in immigration detention to backdate the commencement of his sentence. Basten JA described the situation in the following terms: "[68] … The applicant was at all stages in detention. However, whilst awaiting trial, he was held for a period in custody in a prison, being a more restrictive form of detention. That pre-trial custody… was taken into account by backdating the sentence… The judge continued in his judgment on sentence… "I have also taken into account in favour of each offender, although in an unquantifiable sense, that it is likely that the length of time they have been kept in immigration detention has been exacerbated by the fact that there have been pending criminal proceedings against them." [69] The short point on the sentence appeal is that the period from when he was released back into immigration detention (having been held in gaol before being granted bail), until the time of the trial was "likely referable to the criminal charges". This was a period of some 13 months… During that period, he was held in "the maximum security section at Villawood, Blaxland, which is little different to a gaol." The submission was that the applicant should have had a quantifiable allowance with respect to that period of custody, which was not merely an extension of the period of immigration detention, but an extension in circumstances of increased restraint. [70] While the point was made by way of submissions in this Court, it was not expressly relied on before the sentencing judge. Nor does it appear that evidence of the circumstances of the period in immigration detention was presented to him. In those circumstances, it cannot be said that the judge erred in the approach he took."
Price and McCallum JJ agreed. It seems to be this decision to which counsel for Mr Marai referred in his oral submissions to Craigie SC DCJ and in paragraph [56] of his written submissions on sentence.
In R v Cheraghi [2020] NSWCCA 70 the Court said that the sentencing judge was not obliged to backdate the sentence to include a period when the applicant was on bail and in immigration detention, because in the Court's view the applicant was not being held in custody in relation to the offence for which he was being sentenced when he was on bail in immigration detention. Nevertheless, the sentencing judge had, in the exercise of his broad discretion under s 47(2)(a), backdated the sentence to count all of the time the offender was in immigration detention.
In Islam v The Queen [2014] ACTCA 2, the Court of Appeal of the ACT noted that there seemed to be no dispute that periods in immigration detention were linked directly or indirectly to Mr Islam's offending behaviour, and the Crown had conceded before the sentencing judge that a period of immigration detention while Mr Islam was awaiting trial for one of several offences for sentence should be taken into account in determining the backdating of his sentence. However, the sentencing judge had not given Mr Islam credit for some pre-sentence custody which included some immigration detention. The Court noted that the sentencing judge gave no reason for ignoring the period in immigration detention. The Court held that the sentencing judge's failure to provide an explanation for why he disregarded periods of pre-sentence custody, including in immigration detention, indicated sentencing errors, "perhaps best categorised as failures to have regard to relevant considerations." The Court referred to R v Thomson; R v Houlton, in which this Court noted the obligation of sentencing judges to give reasons for their decisions.
In Alimudin v McCarthy; Nurdin v Bravos (2008) 23 NTLR 102; [2008] NTCA 7, the Court of Appeal of the Northern Territory held that the sentences of the appellants should be backdated to take into account periods of detention under fisheries management legislation and immigration detention. The appellants had been arrested using a foreign boat for fishing in the territorial sea of Australia, and detained under the Fisheries Management Act 1991 (Cth) and then in immigration detention, until Commonwealth authorities made a decision to prosecute them. The Court considered the operation of s 16E Crimes Act 1914 and the applicable provision of the Sentencing Act 1995 (NT), which then stated: "Where an offender has been in custody on account of his or her arrest for an offence and the offender is convicted of that offence and sentenced to imprisonment it may be ordered that such imprisonment shall be regarded as having commenced on the day on which the offender was arrested or on any other day between that day and the day on which the court passes sentence."
The Court thus had to consider whether each appellant had been "in custody on account of his… arrest for an offence" for which he was subsequently convicted, when in fisheries and immigration detention. The Court stated, at [24], that the purpose of s 16E Crimes Act 1914 is to ensure that periods spent in custody by a person awaiting sentence are taken into account when sentence is imposed, either by reliance on the laws of the State or Territory which provide for a reduction of sentence for time spent in custody, or in the absence of such a provision, in reliance on the terms of s 16E(3). The Court stated: "The necessary nexus is present when the custody is 'in relation to' the offence concerned reflecting an intention to permit a wide application to the provision".
The Court stated that the intended effect of the local Sentencing Act provision and like provisions was to ensure that "fairness applies in the sentencing process", and thus they should be accorded "the widest available application consistent with the wording of the provision": [25].
The Court found that the appellants were detained under fisheries and immigration detention in relation to the offences for which they were sentenced and therefore their sentences were backdated to commence on the date they were detained.
In Sahhitanandan v The Queen the Court of Appeal of Victoria considered the manner in which the sentencing judge approached that the appellant had been in immigration detention for a period before his bail was revoked and he was remanded in custody. The sentencing judge had been referred to the decision of the Victorian Court of Appeal in Underwood (a Pseudonym) v The Queen [No 2] [2018] VSCA 87 that "immigration detention should be taken into account in sentencing in a 'broad and practical way'."
The prosecutor in the sentence proceedings had submitted that the sentencing judge should not numerically identify the "credit" referable to immigration detention, but should explain "what weight was assigned to the punitive nature of immigration detention" as part of the "instinctive synthesis" in reaching a lower sentence and non-parole period. Counsel for the offender had submitted to the sentencing judge that in the interests of transparency, the court should take into account all the time spent by the offender in immigration detention to reduce his sentence, and the court should state the amount by which the sentence was reduced because of his immigration detention.
The sentencing judge held that the period of immigration detention was not calculable as pre-sentence detention, as the appellant was in custody for a reason not related to the criminal proceedings, but because his bridging visa had expired and his application for a protection visa was refused, so he had become an unlawful non-citizen. The sentencing judge had noted that in immigration detention the appellant was in a "secure, guarded and locked environment where he did not have freedom to come and go". The sentencing judge said that the period the offender had spent in immigration detention should be regarded as a significant factor in mitigation of the sentence and non-parole period, but his being in immigration custody for a reason not related to the criminal proceedings operated against giving him "full credit" for the period in immigration detention, and thus the weight attached to that detention was to be moderated.
During the hearing of the appeal, it became apparent that the appellant's visa had been cancelled because he was charged with the offence for which he was sentenced and therefore he was in immigration detention for a reason "entirely related" to the criminal proceedings. Before the appeal court, counsel for the appellant accepted that the relevant provision of the Victorian sentencing legislation did not apply to immigration detention and "exact equivalence was not mandated".
The Victorian sentencing legislation used the term "held in custody in relation to proceedings for the offence". The Court of Appeal said that expression "describes a connection between the custody and the proceedings which is more than tenuous or incidental": [30]. The Court said the purpose of the provision was to avoid double punishment. The Court said "custody in immigration detention is not brought about as part of the proceedings for the offence and does not have the conduct of those proceedings as its objective" and that immigration detention is not for any punitive purpose: [31]. The Court said: "[32] The question is, then, what account is to be taken of a period spent in immigration detention? As already noted, it was held in Underwood that the fact of such detention must be recognised in a 'broad and practical way' in the sentence imposed, reflecting the fact that the offender has been deprived of his or her liberty during the relevant period."
The Court noted the practice of allowing on sentence credit for some of the time spent in a residential rehabilitation facility, recognising the "punitive nature" of such residency, although distinguishing it from time spent in custody, the entire period of which must be deducted from a custodial sentence in a precise mathematical manner: [33].
The Court went on to observe that "unlike time spent in a residential rehabilitation facility, immigration detention is time spent in custody": [36]. The Court noted that the purpose of immigration detention is not punitive, and made some observations about the conditions which may be experienced in immigration detention and prison. The Court said: "But in the absence of evidence before a sentencing judge as to the nature of the burden of immigration detention, the judge will have no basis for distinguishing immigration detention from any other form of custody".
The Court held that the judge had been in error in finding that the appellant's immigration detention was not related to the criminal proceedings, because as the material before the appeal court showed, the appellant was in immigration detention only because of the criminal charges. In resentencing the appellant the Court took into account his time spent in immigration detention. The Court stated: "[40] … In our view, in order to give proper weight to the approximately 17 months spent by the appellant in immigration detention, a different sentence should be imposed. In taking account of that matter in a broad and practical way, we give only limited weight to the fact that immigration detention differs from custody in a prison because it lacks a punitive purpose. As mentioned, there is no evidence enabling us to make a meaningful comparison between the circumstances of the appellant's detention and time spent on remand or in prison. It would nonetheless not be right for us to assume that the two forms of custody are identical. [41] We will therefore give the time spent in immigration detention significant weight, recognising that it is only because of the present offending that the appellant's bridging visa was cancelled."
The Court did not allow a numerical equivalency between the period of immigration detention and the period by which it reduced the sentence on appeal, even though the Court acknowledged that the time the appellant spent in immigration detention was due to his criminal proceedings.
So it can be seen that there have been a range of approaches by courts to taking immigration detention into account on sentence. Some sentencing courts have allowed credit for the full period of immigration detention, particularly, as in Dadash, where the sentencing judge took the view that the offender was in immigration detention because he had been prevented from being returned to his home country by the prosecution requiring that he be kept in Australia pending the disposition of his criminal proceedings. Generally, although not always, the courts have required a nexus between the immigration detention and the offence to take it into account in the sentence. That is, they have approached the question in terms of the provisions in the sentencing legislation, whether the offender's immigration detention was "in relation to" the offence for sentence. Otherwise, relevant factors seem to have been fairness and transparency in the sentencing process, and construing the sentencing provisions broadly to achieve those aims.
Although ss 24(a) and 47(3) mandate that a sentencing court must take into account time spent in custody "in relation to the offence", the broader discretion in s 47(2) is not so circumscribed. A sentencing discretion should be exercised fairly and reasonably.
On the basis of the chronology presented to this Court, the applicant was in immigration detention at the request of the CDPP, for the purpose of the completion of the prosecution proceedings, from 4 June 2022. The material presented by the applicant shows the CDPP made the application which resulted in the decision made on 4 June on 23 February 2022.
It appears from the material in the chronology that the applicant's visa was cancelled on 10 November 2021 due to his conviction for prior criminal offences against State law, although as at that date he had been taken into custody for the Commonwealth offence for sentence, on 17 August 2021. He was granted bail on 7 February 2022 but remained in prison custody until he entered immigration detention on 9 March 2022. The applicant's seeking review of his visa cancellation decision continued until 29 August 2022.
Craigie SC DCJ was made aware of the fact of the applicant being in immigration detention, and the submission was made to his Honour, in counsel's written and oral submissions, that the applicant should be accorded a quantified period of backdating of his sentence to give him full credit for his period of immigration detention, albeit that the submission was made imperfectly, without reference to s 16E of the Crimes Act 1914 or ss 24 and 47 of the Crimes (Sentencing Procedure) Act.
Although his Honour referred in his Remarks on Sentence to that submission, his Honour made no reference in his Remarks on Sentence to Exhibit B, and the reason why the applicant was in immigration detention, at least in part, at the request of the Commonwealth, which the Commonwealth prosecutor conceded in the proceedings before his Honour. His Honour did not explain in his Remarks on Sentence why, having noted the submission made to him on behalf of the applicant, he had not backdated the sentence to take into account all or any of the period of time the applicant had spent in immigration detention.
Nor did his Honour provide reasons when he stated, after the delivery of his Remarks on Sentence "I make it clear I have not regarded the immigration detention as referable to the sentencing process", that being his conclusion rather than his reasons for that conclusion.
Later, when counsel for Mr Marai sought clarity, his Honour again did not give any reasons. It may be that what his Honour said at that point indicated some misapprehension as to what the Crown had submitted in the sentence proceedings, that the Crown had opposed Mr Marai's immigration detention being taken into account (as it did in the written submissions, but not in oral submissions). But even if his Honour was confused about the Crown's position, that did not absolve him from giving reasons for what he had decided.
In failing to provide reasons for not taking into account the period of time the applicant had spent in immigration detention, when that matter had been raised on his behalf in the sentence proceedings as a significant matter to be taken into account, his Honour erred in the exercise of his sentencing discretion.
Further, his Honour not providing reasons and only announcing his decision that he considered the immigration detention "not referable to the sentencing process" after he had delivered his sentencing remarks, strongly suggests that his Honour erred by failing to take into account the period in immigration detention in sentencing the applicant.
In the hearing of this appeal both counsel for the applicant and the Crown acknowledged that if the Court decided the judge had erred, the error was not one of mathematical calculation but an error in the exercise of the judge's discretion, requiring that the applicant be re-sentenced in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
The Crown fairly made two submissions which assist the applicant. One was that it is open to the sentencing court to take into account the time the applicant spent in immigration detention while remaining in the country for the purpose of the criminal proceedings. The second was that if the applicant's time in immigration detention was not to be regarded as his being held in custody for or in relation to the offence, pursuant to s 16E Crimes Act 1914 and s 47(3) Crimes (Sentencing Procedure) Act, it could be considered as a subjective factor and the sentence backdated in accordance with the general discretion in s 47(2) Crimes (Sentencing Procedure) Act.
The applicant was deprived of his liberty in immigration detention from 9 March 2022 until he was sentenced and entered into Corrective Services custody on 6 October 2022. I take the view that for all of that time he was in immigration detention, deprived of his liberty, because of the request of the Commonwealth made on 23 February 2022 that he remain in Australia for the purpose of the resolution of the prosecution proceedings. It seems from the chronology presented in these proceedings by the Crown that Mr Marai was not during that time seeking to be returned to Papua New Guinea, but was undertaking administrative reviews of the decision to cancel his visa until 29 August 2022. However although Mr Marai was in immigration detention for two reasons for part of the time, the CDPP request was a factor in that detention. I am satisfied his detention was in relation to his offence for sentence.
I note that Fagan J considers that the period of immigration detention which is referable to the offence dates only from 4 June 2022, the date the Department of Home Affairs issued the Criminal Justice Certificate. Before then, in his Honour's view, the immigration detention was referable only to the applicant's status as an unlawful non-citizen, and the appellant having sought a review of the Department's decision to cancel his visa by the Administrative Appeals Tribunal. The Tribunal's decision rejecting the review application was handed down on 18 May 2022.
The CDPP applied to the Department for a Stay Certificate on 23 February 2022. Fagan J takes the view that the request did not of itself change the applicant's immigration status, before the Department's decision on 4 June 2022. I understand the logic of his Honour's view.
However, I consider that the timing of the bureaucratic decisions should not operate to the detriment of the applicant. It is not clear why, when the applicant was taken into custody for the Commonwealth offence on 17 August 2021, and his visa was cancelled on 10 November 2021, the CDPP did not make its request to the Department until 23 February 2022. It may be that their attention was focussed on the issue by the applicant being granted bail on 7 February 2022.
It is then not clear why the Department took until 4 June 2022 to make a decision on the CDPP's request. It may be they were awaiting the outcome of the Tribunal review. However it is not likely that had the applicant sought to leave Australia between 23 February 2022 and 4 June 2022, he would have been permitted to do so while the Department's consideration of the CDPP's request was still pending.
To visit the consequences of the timing of departmental decisions on the applicant seems unjust. Therefore I remain of the view that all of the applicant's period in immigration detention from 9 March 2022 should be treated as referable to his offence.
The question is whether the time the applicant spent in immigration detention at the behest of the CDPP is to be treated as a period of time that he was in custody for or in relation to the offence, for the purposes of s 16E Crimes Act 1914 and ss 24 and 47(3) of the Crimes (Sentencing Procedure) Act, or if it is to not be so treated, whether it can and should be taken into account, in accordance with the general discretion in s 47(2) to backdate the commencement of the sentence, as a feature of Mr Marai's personal circumstances, and in either case, how much of his time in immigration detention he should be given credit for.
It is not clear that the provisions of s 16E and ss 24 and 47(3) which refer to persons being held in custody were intended to encompass immigration detention, although courts have interpreted them to that effect. I do not think it is necessary to resolve the meaning of those provisions to dispose of the applicant's appeal. I acknowledge that Fagan J has taken a different approach.
As a matter of fairness, the period of time the applicant was in immigration detention between 9 March and 5 October 2022 (the day before he was sentenced and entered into Corrective Services custody) should be taken into account as a period he was detained in relation to his prosecution for the Commonwealth offence, and his sentence should be backdated, pursuant to the general discretion in s 47(2) Crimes (Sentencing Procedure) Act, by the whole of that period, of 211 days.
I do not consider that evidence of the applicant experiencing hardship, beyond the deprivation of his liberty, while so detained, is necessary for that backdating to occur.
In the event the Court came to re-sentence the applicant, he did not take issue with the term of the sentence imposed or any other of Craigie SC DCJ's findings. The sentence should be the same as that imposed by Craigie SC DCJ, that is, 3 years imprisonment and to be released pursuant to s 20(1)(b) of the Crimes Act 1914 after serving 1 year and 8 months imprisonment, for the reasons his Honour gave.
The commencement date of the sentence should be further backdated from 20 July 2022, the date Craigie SC DCJ chose, by the 211 days the applicant was in immigration detention. However, to do so now would result in a release date which has passed. I note that the Notice of Intention to Appeal was filed on behalf of the Applicant on 19 October 2022, soon after his sentence date. The Notice of Appeal was filed on 5 June 2023. The hearing occurred on 11 August 2023. In those circumstances it seems appropriate that the backdating occur so that the applicant is released the day after the orders of this Court.
Therefore I propose the following orders: 1. Grant leave to appeal 2. Allow the appeal 3. Set aside the sentence imposed in the District Court 4. Sentence the applicant to imprisonment for 3 years, commencing on 7 January 2022. He is to be released pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) after serving 1 year and 8 months imprisonment on 6 September 2023.

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