Consideration
47 In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the plurality (with whom Beech-Jones J agreed) stated at [9] that, where it is alleged in an application for judicial review that a decision is affected by jurisdictional error, two questions must be addressed: "has an error occurred and, if so, was that error material". Here, I am satisfied that an error has occurred and that it was material.
48 In finding that the Tribunal engaged in an error, I accept that the statutory provisions under consideration in this case are not the same as those considered in Thornton and Lesianawai. However, in my view, for relevant purposes, the differences between the statutory regimes do not matter. That is because s 35(4) of the Sentencing Procedure Act expressly provides that an offence taken into account in accordance with the procedure in ss 32 and 33 is not to be regarded "for any purpose" as an offence of which an offender has been convicted. In this respect, s 35(4) is on similar (though not identical) terms as the provisions considered in Thornton and Lesianawai. As in Thornton and Lesianawai, s 35(4) was, and is, picked up by s 85ZR(2)(b) of the Crimes Act such that the Tribunal's reliance upon Charge 5 as having been an offence committed by the applicant, or in respect of which the applicant had been convicted, was contrary to the direction that the applicant was to be taken never to have been convicted of that offence. The Tribunal here took into account this impermissible consideration and thereby engaged in error.
49 The Minister's submissions pointed to the fact that under s 33 of the Sentencing Procedure Act, the Sentencing Judge was permitted to, and did, take into account Charge 5 as a further offence in sentencing the applicant in respect of the principal offence being Charge 2. It was submitted that as a result of this, the Tribunal had to take into account Charge 5 as it was necessarily linked to Charge 2 and was addressed in the sentencing remarks of the Sentencing Judge. The Minister's reliance upon this aspect of the "Form 1" procedure enacted under Division 3 of Part 3 of the Sentencing Procedure Act ignores the effect of s 35(4) (to which I will return). The purpose of the "Form 1" procedure was addressed by a five member Court of the Court of Criminal Appeal of the Supreme Court of New South Wales in Attorney General's Application. There, Spigelman CJ (with whom each of Wood CJ at CL, Grove, Sully and James JJ agreed) explained at [18]-[19] that:
A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. See, eg, R v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 68 at 179, per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.)
These authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted. This can be characterised as a "bottom up" approach.
50 Importantly, as Spigelman CJ explained, the purpose of the process is to impose a sentence in respect of the primary or principal offence (by imposing a longer sentence than that which would otherwise be the case), but this does not result in the offender being convicted or punished for the other or further offence. As the Chief Justice further explained at [23]:
The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (R v De Simoni (1981) 147 CLR 383 at 389, 395-396; R v Olbrich (1999) 199 CLR 270 at 278 [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.
51 The reference to R v De Simoni (1981) 147 CLR 383 at 389 at 395-396 and R v Olbrich (1999) 199 CLR 270 at 278 [18] is significant to the present context. It is axiomatic that an offender is only to be punished (relevantly, here, by way of sentence) in respect of an offence for which he or she has been convicted. Nothing in Division 3 of Part 3 of the Sentencing Procedure Act alters that axiomatic principle of the common law. To the contrary, the provisions of that Division reinforce that the offender is not to be taken as convicted of the other or further offence. Specifically:
(a) s 32(1) makes it clear that the document filed with the sentencing court is to specify the other offences with which the offender has been charged "but not convicted", being the offences which 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"; and
(b) s 35(4), which, as noted above, provides that an offence taken into account under this Division is not "merely because of its being taken into account" to be regarded as a conviction for that offence.
52 It is important to focus on the words in s 35(4) "merely because of it being taken into account" under Division 3. Those words acknowledge that the sentencing court may take into account the other offence in sentencing the offender for the principal offence, but do not by that mere fact alone mean that the offender is to be taken to have been convicted of the other offence.
53 It may be accepted that the procedure in Division 3 of Part 3 of the Sentencing Procedure Act serves a different policy purpose to the provisions considered in Thornton and Lesianawai. In a simplified sense, the Sentencing Procedure Act facilitates a quid pro quo whereby an offender may elect to have a higher sentence imposed in respect of a principal offence in return for a lesser number of convictions. The enactments considered in Thornton and Lesianawai serve different purposes relating to the recording of convictions for juvenile offenders. However, those different purposes have a common element being that the relevant offender is not to be taken as having been convicted when the relevant qualifying conditions are enlivened. As explained by Beech-Jones J in Lesianawai at [39], the statutory provisions in Thornton and Lesianawai provided that a finding of guilt without any conviction being recorded was not, and was not taken to be, a conviction for any purpose. Here, s 35(4) of the Crimes Sentencing Procedure Act has the same effect. The admission of guilt provided for in s 33(2) does not alter the statutory refrain in s 35(4) that the offence is not to be taken to be a conviction for any purpose. This accords with recent observations to similar effect by Hespe J in WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465 at [7]-[9].
54 Contrary to the Minister's contentions, the conclusion I have reached does not place the Tribunal in a position where it is unable to comply with paragraph 8.1.1(1)(c) of Direction 99 or where it cannot have regard to the Sentencing Judge's remarks on sentence. Paragraph 8.1.1(1)(c) of Direction 99 requires the Tribunal to have regard to the sentence imposed by the courts for a crime or crimes and make an assessment of the nature and seriousness of the offending. As a result of s 85ZR(2), the Tribunal must do so without infringing the restriction imposed by the combination of s 35(4) of the Sentencing Procedure Act and s 85ZR(2) of the Crimes Act. That is, it cannot have regard to an offence which, as a result of the statutory provisions, the applicant is taken never to have been convicted.
55 Here, the Tribunal had regard to Charge 5 as an offence of which the applicant had been convicted. Although the Tribunal acknowledged in AAT [36] and in part at AAT [43] that Charge 5 was taken into account as part of Charge 2 and was included on a "Form", the Tribunal elsewhere treated Charge 5 as an offence in respect of which the applicant had been convicted. This is apparent from each of the passages of the reasons relied upon by the applicant, but in particular:
(a) at AAT [49], the Tribunal stated that it considered the applicant's "drug offences" (in the plural) to be at the very least serious. Similarly, at AAT [50] the Tribunal again referred to the "drug supply (and related) offences" (in the plural) as being at least serious. In both paragraphs, the Tribunal referred to and relied upon there being more than one drug offence, which necessarily included Charge 5 as it was the only other drug offence in respect of the applicant's most recent offending;
(b) at AAT [54], the Tribunal referred to the "offences relating to drug supply" (in the plural), together with the other offences, as having resulted in the Sentencing Judge imposing an aggregate sentence of seven years and six months imprisonment in circumstances where Charge 5 was not an offence, and the applicant was not sentenced in respect of that Charge;
(c) at AAT [61] in assessing the cumulative effect and frequency of the applicant's offending, the Tribunal relied upon there being "nine convictions", which impermissibly accounted for Charge 5 as having been a conviction;
(d) at AAT [74] in assessing the applicant's conduct to determine the nature of harm in the event of further criminal conduct, the Tribunal relied upon the fact that the applicant had been able to source and supply large quantities of methamphetamine in circumstances where he was to be taken to have been only charged and convicted of one such supply;
(e) at AAT [227], the Tribunal relied upon the applicant's "criminal offences, particularly those related to the supply of large quantities of methamphetamine" indicating that it had proceeded on the basis that there was more than one such supply offence.
56 While it must be accepted that the Tribunal was not informed by the parties as to the effect of s 35(4) of the Sentencing Procedure Act, I do not accept the Minister's submissions that the Tribunal's references to Charge 5 were merely "loose language" or "unhappy phrasing". I am satisfied that the Tribunal impermissibly took into account Charge 5 as an offence of which the applicant had been convicted.
57 I do not consider that Abraham J's decision in Lee is applicable. First, her Honour was dealing with a Commonwealth offence in respect of which s 85ZR and 85ZS of the Crimes Act had no application. Second, Lee was decided before Thornton and Lesianawai.
58 I am also satisfied that the error here was material. In LPDT, the plurality stated at [14] that:
The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
59 Importantly, in assessing whether the decision could have been realistically different, the inquiry that is posited is "backward-looking" by reference to "the decision that was made and, depending on the nature of the error, how that decision was made": LPDT at [10]. This requires an examination of how the Tribunal in fact made its decision without assuming the "function of the decision-maker": LPDT at [15].
60 The Minister submitted that the Tribunal's reliance on Charge 5 could have made no difference to the decision including because Charge 2 was the more serious charge and involved almost ten times the quantity of drug supplied to the undercover operative. The Minister also submitted that the fact that there were eight and not nine charges could have made no difference to the result. In my view, these submissions paid scant regard to the decision that was actually made by the Tribunal and invited a counter factual enquiry without regard to the Tribunal's reasons. The Tribunal's reasons do not expose that it considered Charge 2 to be the more serious charge, or that Charge 5 was the lesser charge. Nor do the Tribunal's reasons disclose that it considered that the quantity of drug supplied under Charge 2 was far more serious than the quantity of drug supplied in Charge 5. Rather, the Tribunal's reasons disclose that it placed reliance on the two "drug offences" together as being serious, and that it was these "drug offences" that were the most serious of the applicant's recent offences. That this is the case is demonstrated in particular at AAT [49] where the Tribunal stated that it considered "the drug related offences particularly those involving the supply of a commercial quantity of prohibited drug, to be at the very least "serious"". As is apparent from this passage, the Tribunal did not delineate between the two charges, but treated them together as serious. In light of the Tribunal's reasons, the Minister's contention that the addition of Charge 5 could have made no difference to the outcome invites an adoption of the vice identified by the plurality in LPDT at [29] of seeking to apply a different process of reasoning to that of the Tribunal to reach the same end.
61 Nor do I accept the Minister's submission that unlike in Thornton, Charge 5 was of "marginal significance" to the Tribunal's reasoning. As I have noted, the Tribunal had regard to the fact of there being "drug related offences" (in the plural) in arriving at its conclusion as to the seriousness of the applicant's conduct. It also relied upon there being two such offences (in the plural) in its assessment of the frequency and cumulative effect of the applicant's offending: at AAT [58], [59] (final sentence), [60] and [61]. The Tribunal's consideration of the "drug related offences" (in the plural) was not limited to an assessment of Primary Consideration 1, but extended to its final weighing of all the considerations. In this regard, at AAT [227], in weighing all of the considerations, the Tribunal relied upon the applicant's criminal offences "particularly those related to the supply of large quantities of methamphetamine" as being serious.
62 Given the way in which the Tribunal reasoned to its conclusions, I am satisfied that the error here was material in the sense that there is a realistic possibility that the result could have been different. That is, there is a realistic possibility that, if it had complied with the restriction imposed by s 35(4) of the Sentencing Procedure Act and s 85ZR(2) of the Crimes Act, the Tribunal could have come to a different conclusion as to whether to revoke the applicant's visa cancellation. Having regard to the reasons of the Tribunal, it cannot be affirmatively concluded that the outcome would inevitably have been the same: LPDT at [16].
63 Accordingly, I am satisfied that the applicant has established Ground 1 and that the application for judicial review should be upheld on that basis.