Meng Kok Te v Minister for Immigration & Ethnic Affairs

Sentencing Act 1991 (Vic) 4 Section 27 of the Sentencing Act 1991 (Vic) ("Sentencing Act") specifies the circumstances in which a court sentencing an offender may impose a suspended sentence. Section 27, as it stood in 1992 and 1993, provided as follows: "27. Suspended sentence of imprisonment (1) A court which sentences an offender to a term of imprisonment of not more than 24 months may make an order suspending the sentence if it is satisfied that it is desirable to do so in the circumstances. (2) The order suspending a sentence of imprisonment may suspend - (a) the whole; or (b) a part - of the sentence. (3) A court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act. (4) ... (5) A wholly suspended sentence of imprisonment must be taken to be a sentence of imprisonment for the purposes of all enactments except any enactment providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits. (6) The court must specify in the order suspending a sentence of imprisonment a period of not more than 24 months from the date of the order during which the offender must not commit another offence punishable by imprisonment if he or she is to avoid being dealt with under section 31. (7) … (8) A partly suspended sentence of imprisonment must be taken for all purposes to be a sentence of imprisonment for the whole term stated by the court." Section 31, as it stood in 1992 and 1993, took the following form: "31. Breach of order suspending sentence (1) If at any time - (a) while the order suspending a sentence of imprisonment under section 27 is in force; or (b) within the period of 24 months after the expiry of the operational period of such a suspended sentence- it appears to a prescribed person or a member of a prescribed class of persons, that the offender during the operational period committed another offence punishable by imprisonment, he or she may apply in the prescribed form to the court which sentenced the offender for the making of an order under this section. … (5) If on the hearing of an application under this section the court is satisfied…that the offender has during the relevant period referred to in sub-section (1)… committed another offence punishable by imprisonment…, it may - (a) restore the sentence or part sentence held in suspense and order the offender to serve it; or (b) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or (c) …; or (d) make no order with respect to the suspended sentence - and in addition may impose a fine not exceeding level 12. (6) If a court orders an offender to serve a term of imprisonment that had been in suspense, the term must, unless the court otherwise orders, be served - (a) immediately; and (b) concurrently with any other term of imprisonment previously imposed on the offender by that or any other court. (7) A court must make an order under sub-section (5)(a) unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence, and if it is of that opinion the court must state its reasons."

The Facts 5 The appellant is a citizen of Cambodia, born in 1967. On 7 July 1983, he arrived in Australia and was granted a Cambodian Refugee Humanitarian visa. He therefore remained in Australia as a permanent resident from that date. 6 On 15 June 1992, the appellant was convicted by the Melbourne Magistrates Court of the offence of trafficking in a drug of dependence, in contravention of s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The offence was committed on 5 June 1991, within the ten year period referred to s 201(b)(i) of the Migration Act. 7 The Magistrates Court sentenced the appellant to twelve months' imprisonment. The appellant appealed to the County Court of Victoria against the severity of his sentence. On 16 September 1992, the County Court allowed the appeal and, pursuant to s 27 of the Sentencing Act imposed the following sentence on the appellant: "sentenced to 12 months imprisonment, three months of sentence suspended for three months." It was not suggested that the appellant had committed a further offence within the period specified in s 31(1) of the Sentencing Act. In any event, no action was taken under s 31to require the appellant to serve the suspended portion of his sentence of imprisonment. Accordingly, the appellant was actually incarcerated for a period of less than twelve months in consequence of his 1992 conviction. 8 On 29 May 1996, the appellant was convicted by the County Court of a further offence of trafficking in a drug of dependence. He was sentenced to a term of seven years imprisonment, with a non-parole period of five years. An appeal against the severity of the sentence was dismissed by the Court of Appeal on 30 October 1997. It was accepted by the Minister that the offence had been committed outside the ten year period referred to in s 201(b)(i). That offence therefore cannot support a deportation order against the appellant. 9 On 10 July 1998, a delegate of the Minister issued a deportation order against the appellant, pursuant to s 200 of the Migration Act. The delegate relied on the offence committed by the appellant on 5 June 1991 as conferring the power to make the order. At the date the deportation order was made, the appellant was serving the custodial sentence imposed by the County Court in 1996. 10 On 6 August 1998, the appellant applied to the Administrative Appeals Tribunal for review of the deportation order. That application has not yet been determined. 11 The appellant completed his custodial sentence on 16 August 1998. On 17 August 1998, he was detained in custody pursuant to a direction to the Governor issued by a delegate of the Minister under s 253 of the Migration Act

The Proceedings at First Instance 12 On 15 September 1998, the appellant commenced proceedings in this Court under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The appellant sought review of the Minister's deportation decision and of the decision to direct the Governor to detain him in immigration detention pending deportation. 13 The primary Judge dismissed the application. Her Honour noted that the sole basis on which the appellant contended that he did not fall within s 201 of the Migration Act was his claim that the offence for which he had been sentenced was not within s 201(c). She held that the decision of the Full Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, was precisely in point and presented an insuperable obstacle to the appellant's argument. That case had determined that an alien who had been sentenced to imprisonment for twelve months, accompanied by a direction that he be released after three months if he entered into a recognisance to be of good behaviour for two years, had been "sentenced to imprisonment for one year or longer" within the meaning of the then s 12 of the Migration Act (the equivalent of the present s 201(c)). It followed from Drake v Minister that the appellant had been convicted of an offence for which he had been sentenced to imprisonment for a period of not less than one year, within the meaning of s 201(c) of the Migration Act. 14 Her Honour rejected a further contention by the appellant, that the decision to direct the Governor to hold the applicant in immigration detention was not authorised by s 253 and 254 of the Migration Act. 15 Although the notice of appeal challenged her Honour's ruling in the latter point, Mr Tehan QC, who appeared with Mr Perkins for the appellant, did not press that ground of appeal. He conceded that, if s 201(c) of the Migration Act had been satisfied, the direction to the Governor given on 17 August 1998 had been authorised by s 253(1) of the Migration Act. No point has been taken about the fact that the appellant appears to have been kept in detention between the time his custodial sentence expired on 16 August 1998 and the time he was taken into custody on 17 August 1998 pursuant to the direction given by the Minister's delegate. Thus the only issue on the appeal is whether her Honour was correct in holding that the appellant was within s 201(c) of the Migration Act.

Drake v Minister 16 The starting point is the decision of the Full Court in Drake v Minister. In that case, the plaintiff was convicted of the offence of possession of a prohibited drug, namely cannabis. He was sentenced to imprisonment for twelve months, but the sentence was accompanied by a direction that the plaintiff be released after three months upon entering into his own recognizance of $200 to be of good behaviour for two years. The direction was made pursuant to s 5(1)(b) of the Criminal Law (Conditional Release of Offenders) Ordinance 1971 (NT). The effect of the legislation was that, if the plaintiff breached the recognizance he committed a separate offence and was liable to punishment for that offence. Under the terms of the original sentence, the plaintiff (assuming he entered into the recognizance) was entitled to be released after serving three months imprisonment. 17 The Minister issued a deportation order against the plaintiff, pursuant to s 12 of the Migration Act. Section 12, as it stood at the relevant time, empowered the Minister to order deportation of an alien "convicted in Australia of any...offence for which he has been sentenced to imprisonment for one year or longer". The question was whether the sentence imposed on the plaintiff brought him within the terms of s 12 of the Migration Act. 18 The majority (Bowen CJ and Deane J) held that s 12 authorised the Minister to issue the deportation order. They pointed out that the sentence referred to in s 12 must be the sentence imposed and not the term of imprisonment actually served. Their Honours said this (at 416): "The fact that a person who had been sentenced to be imprisoned for a term of one year was, by reason of remissions or release on parole, not required to serve the full term of imprisonment imposed would not affect the fact that he had been sentenced to imprisonment for one year for the purposes of s 12 of the Migration Act. In such a case, the remissions could not properly be regarded as part of the sentence imposed. They are the result of the context in which the sentence imposed operates. Similarly, in the case of premature release on parole, the release itself - even when consequent upon the fixing of a minimum non-parole period - cannot properly be regarded as altering the character of the sentence of imprisonment imposed. The fixing of a non-parole period neither confers any right of premature release upon the person sentenced nor qualifies the nature or term of the sentence of imprisonment actually imposed. In the event that the person sentenced is prematurely released on parole, the residue of the sentence of imprisonment is not extinguished. If the condition of parole are broken, the person released can be returned to prison to serve the residue of the term imposed." 19 Bowen CJ and Deane J acknowledged (at 416) that the plaintiff's position was not the same as that of a prisoner who had been released on parole or by reason of remissions. The direction for suspension of part of his sentence had been an element in a composite sentence, and operated as a condition or qualification upon the sentence of imprisonment. The plaintiff, upon entering the recognizance, was entitled to be released at the nominated time (that is after serving three months). Accordingly, his sentence expired on his release. Breach of the conditions of release would not "revitalise" his sentence, but was separately punishable under the Ordinance. 20 Nonetheless, their Honours held that the sentence imposed on the plaintiff was within s 12. In their view, the question was essentially one of statutory construction. They approached that question as follows (at 418): "The making of a deportation order pursuant to s 12 of the Migration Act can involve drastic interference with the liberty of an individual. The powers conferred upon the Minister by the section should be strictly construed. Plainly, it was the intention of the magistrate who sentenced the plaintiff that he should serve but three months in prison. In the ordinary course it was to be expected that he would enter the recognizance and be released from prison after he had served three months. In fact, at the time the deportation order was made, it was known that the plaintiff had entered into the recognizance and had served no more than three months in prison under the sentence imposed. The fact that he had served no more than three months in prison was the direct result of the terms and operation of the composite sentence itself. It is unfortunate that the liability of a person to be made the subject of a deportation order with all its consequences should depend upon verbal niceties of the type involved in the present matter. There is, indeed, much to be said for the view that a finding that the plaintiff was, for the purposes of s 12 of the Migration Act, sentenced to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. The magistrate in fact imposed that sentence of imprisonment. True it is that, by entering into a recognizance and undertaking obligations which, if breached, would render him liable to be sentenced to a new term of imprisonment, the plaintiff was entitled to secure his release after he had served three months of the term imposed and that, on such release, his liability to serve the balance of the term imposed was extinguished. Nonetheless, in our view, the plaintiff was, under the composite sentence imposed, sentenced to a term of imprisonment of one year. We are unable to read the relevant words of s 12 in a sense which would warrant the conclusion that their requirements were not satisfied by the sentence which was imposed upon the plaintiff." 21 Smithers J dissented. His Honour construed s 12 as referring to a sentence of one "year's imprisonment simpliciter", that is "a sentence which by its terms requires the person sentenced to serve one year at least in imprisonment" (at 424). His Honour (at 426) "noted that a sentence comprising what may be referred to as the period of imprisonment primarily imposed and the order for earlier release in accordance with s 5(1)(b) does finally dispose of the question of punishment of the offender in respect of the offence for which he is so sentenced. If he fails to observe the terms of the recognizance entered into thereunder such failure is a separate offence calling for punishment pursuant to s 6 of the Ordinance." He considered that Parliament intended that liability to deportation should depend on the quality of the crime, as reflected in the punishment to which the alien was sentenced by the court. 22 Smithers J made some additional observations about the sentence imposed on the plaintiff, emphasising the terms of the particular sentence (at 427): "the sentence under consideration does not unconditionally subject the person sentenced to suffer imprisonment for one year. Indeed, the order of the court according to its own terms provides that if the person sentenced takes certain action the imprisonment to which he is to be subjected will be considerably less than one year. And the action in question is action which is within the power of the person sentenced to take. It is clear that the total sentence would not be adequately defined by saying that it is a sentence of imprisonment for one year. So to define it would be misleading and would define only one part of what is an indivisible whole."

Reasoning 23 Mr Tehan first submitted that the decision in Drake v Minister was distinguishable from the present case. On the contrary, in our opinion, the facts of the present case are, if anything, stronger for the Minister. In Drake v Minister, it was clear from the moment the sentence was imposed that, assuming the plaintiff elected to enter into a recognizance, the maximum period for which he could be imprisoned for the offence for which he was convicted was three months. In the present case, if within the period of 24 months after the expiry of the "operational period" of the suspended sentence, the appellant committed another offence punishable by imprisonment, the court was empowered to make one of the orders referred to in s 31(5) of the Sentencing Act. Moreover, the court was bound to restore the sentence or part sentence held in suspense and order the offender to serve it, unless the court was of opinion that it would be unjust to do so: Sentencing Act, s 31(7). It follows that in the event of the appellant re-offending, he was bound to serve the whole of the suspended part of his sentence, unless the court otherwise ordered pursuant to s 31(7) of the Sentencing Act. 24 At the time the relevant sentence was imposed on the appellant, it could not be said that he was liable to serve a maximum of nine months imprisonment in respect of the offence for which he had been convicted. The length of his period of imprisonment for that offence would depend upon whether he re-offended during the statutory period and, in that event, whether the court exercised its discretion under the Sentencing Act in his favour. The reasoning of the majority in Drake v Minister applies with greater force to the sentence imposed on the appellant. Accordingly, there is no basis for distinguishing the decision of the Full Court from the facts of the present case. 25 Mr Tehan submitted, in the alternative, that Drake v Minister should be overruled. He contended that the majority decision was wrong and that the dissenting judgment of Smithers J was to be preferred. In substance, he relied on the same arguments that were considered and rejected by Bowen CJ and Deane J in their joint judgment. 26 A Full Court of this Court does not lightly depart from its previous decisions. As Black CJ said in Byrne v Australian Airlines Ltd (1994) 47 FCR 300, at 304, it will normally do so only in the "rare" case where it is convinced that the earlier decision is wrong: see also at 332-333, per Beaumont and Heerey JJ; at 358-359, per Gray J. Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (FC), at 546, per Wilcox J, at 565, per North J. 27 Of course, as is illustrated by the recent decision in Esso Australia Resources Ltd v Commission of Taxation of the Commonwealth, unreported, 22 December 1998, FC (declining to follow the earlier Full Court decision in Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418) there are some circumstances in which a Full Court will refuse to follow an earlier decision. There are, however, factors in the present case militating against a reconsideration of Drake v Minister. It is true that the majority judgment, although frequently followed and cited with approval in relation to other aspects of the decision, has not been expressly followed by the Federal Court on the point of construction raised by the present appeal. But the decision has stood for twenty years without challenge and has presumably been relied upon in very many cases in which the Minister has issued deportation orders. The absence of references to the decision in other reported decisions doubtless reflects the fact that the majority judgment has been thought to state authoritatively the construction of what is now s 201(c) of the Migration Act. 28 In addition, as Mr Tehan conceded, no decision since Drake v Minister has cast any doubt on the reasoning of the majority relevant to the present issue. Mr Tehan referred to several authorities, but each of these pre-dated Drake v Minister. The most pertinent, R v Carngham (1978) 140 CLR 487, was addressed by the majority, who pointed out (at 417) that the issue raised by that case was distinct from the one they were required to consider. Smithers J, although relying on some observations in R v Carngham, acknowledged (at 426) that the remarks were made by the High Court in a different statutory context. Bowen CJ and Deane J were conscious of and took into account the principle that legislation interfering with the liberty of the individual should be strictly construed. Accordingly, there is nothing in the authorities or as a matter of legal principle to suggest that the reasoning in Drake v Minister, insofar as it deals with the construction of s 201(c) of the Migration Act, requires reconsideration. 29 Moreover, Parliament has in substance repeated the words judicially construed in Drake v Minister. Section 12 of the Migration Act, in the form it took at the time Drake v Minister was decided, was amended by s 10 of the Migration Amendment Act 1983. Among other changes, the expression "offence for which he has been sentenced to imprisonment for one year or longer" was replaced by a very similar expression, namely "offence for which the person was sentenced...to imprisonment...for a period of not less than one year". Section 12 as amended in 1983, was subsequently renumbered and amended in minor respects not presently relevant: Migration Legislation Amendment Act 1989 (Cth), s 35; Migration Reform Act 1992 (Cth), s 38, Schedule, Part 1; Migration Legislation Amendment Act 1994 (Cth, s 7. All of the post-1983 versions of what is now s 201(c) took the same form. 30 In Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96, a unanimous High Court said (at 106) that "[t]here is abundant authority for the proposition that where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to [them]'." The Court noted that the validity of this proposition had been questioned, but nonetheless applied the presumption having regard to the history of the legislation with which they were concerned. The present case is not as strong as Re Alcan, but the re-enactment by Parliament of substantially the same language as that construed in Drake v Minister provides at least some support for the contention that that decision should not be reopened. 31 In any event, we are not persuaded that the majority judgment in Drake v Minister was wrong and should not be applied to the circumstances of the present case. There are a number of factors which suggest that, upon the proper construction of s 201(c) of the Migration Act, the sentence imposed on the appellant brought him within the section. · First, as Bowen CJ and Deane J said, s 201(c) must refer to the sentence of imprisonment imposed on a non-citizen and (contrary to Mr Tehan's submissions) not to the term of imprisonment actually served by the non-citizen. It would have been very simple for Parliament to say that the precondition for the issue of a deportation order is to actual imprisonment for a term not less than twelve months. Indeed, where Parliament intended to refer to a term of actual imprisonment it has said so directly. For instance, in assessing the period of time for which a person has been present in Australia for the purpose of s 201 and s 202(1) any period for which "a person was confined in prison" is to be disregarded (s 204(1)). · Secondly, the language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the court. It requires the offence to be one for which the non-citizen was sentenced to imprisonment for a period of not less than one year. It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence. The County Court in the present case was not entitled to impose a suspended sentence of imprisonment on the appellant unless the sentence of imprisonment, if unsuspended, was regarded as appropriate in the circumstances: Sentencing Act, s 27(3). Thus the offence for which the appellant was sentenced was one for which the court considered a sentence of imprisonment for twelve months to be appropriate. This strongly suggests that the offence for which the appellant was sentenced was "an offence for which [he] was sentenced...to imprisonment...for a term of not less than one year," within the meaning of s 201(c) of the Migration Act. · Thirdly, as we have explained, the circumstances of the present case provide an even stronger argument for the application of s 201(c) of the Migration Act than those in Drake v Minister. When the appellant was sentenced, it could not be said that he would actually be incarcerated for a period of less than twelve months. Whether he would be required to serve the full term of twelve months imprisonment depended upon whether he re-offended and, if so, whether a court would have considered it unjust to restore that part of the sentence held in suspense. · Fourthly, on the appellant's argument it is necessary for the Minister to wait for a considerable period after a suspended sentence has been imposed before being able to determine whether an offender is within s 201(c) of the Migration Act. Under Victorian law, as in force in 1992, that period could be up to four years from the date of the order: see Sentencing Act, ss 27(6), 31(1)(b), and definition of "operational period" in s 3(1). It would be surprising if the Parliament intended that the deportation process provided for in the Migration Act should be held in suspense for up to four years after a sentence of imprisonment has been pronounced on a non-citizen. · Fifthly, in considering the proper construction of s 201(c) of the Migration Act, it is appropriate to take account of the terms of s 27(8) of the Sentencing Act. This sub-section provides that a partly suspended sentence of imprisonment must be taken for all purposes to be a sentence of imprisonment for the whole term stated by the court. The proper construction of Commonwealth legislation cannot be determined by a State enactment unless the Commonwealth law incorporates by reference the provisions of the State legislation. Nonetheless, Parliament must have contemplated that s 201(c) of the Migration Act would apply to offenders whose sentences are imposed by State courts under State law. In the absence of clear words indicating a contrary intention, it would be strange if s 201(c) of the Migration Act did not apply to an offender who, under State law, is taken "for all purposes" to have been sentenced to imprisonment for a term of not less than twelve months. For these reasons we think that the primary Judge was right to follow Drake v Minister. There was therefore no basis for setting aside the decisions challenged by the appellant. 32 Conclusion The appeal must be dismissed, with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, North & Merkel JJ.

Counsel for the Applicant: Mr P Tehan QC with Mr D Perkins

Solicitor for the Respondent: Australian Government Solicitor