Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of a number of charges involving fraud or dishonesty - Total effective sentence of 13 months' immediate imprisonment - Appellant an unlawful non-citizen - Appellant held in immigration detention before he was sentenced for the fraud and dishonesty offences - A State criminal justice stay certificate given in respect of the appellant under s 148 of the Migration Act 1958 (Cth) ­ Appellant granted bail in respect of the fraud and dishonesty offences - Appellant not admitted to bail because he was refused a criminal justice stay visa under s 159 of the Migration Act - Whether open to the sentencing judge to backdate the total effective sentence to take into account the time spent by the appellant in immigration detention - Proper construction and application of s 87 of the Sentencing Act 1995 (WA) - Whether in any event a different total effective sentence should not have been imposed

Bail Act 1982 (WA)

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Migration Act 1958 (Cth), s 5(1), s 13, s 14, s 15, s 38, s 142, s 147, s 148, s 150, s 152, s 155, s 156, s 157, s 158, s 159, s 161, s 162, s 164, s 189, s 196, s 198, s 199, s 200

Sentencing Act 1995 (WA), s 87

Chua v The Queen [2001] WASCA 353

Jarvis v The Queen (1993) 20 WAR 201

Kirby v The Queen [2003] WASCA 239

Lim v The State of Western Australia [2010] WASCA 186

Narkle v Hamilton [2008] WASCA 31

Peake v The State of Western Australia [2015] WASCA 239

Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642

1 McLURE P: I joined in the dismissal of this appeal on 3 December 2015 because, in my opinion, a different sentence should not have been imposed for the reasons given by Buss JA.

2 However, contrary to the view of the majority and based on the concessions made by the State, I am satisfied that from the time of the issue of the s 148 certificate on 11 February 2015 the appellant spent time in custody in respect of the offences for which he was being sentenced (the offences) and for no other reason.

3 That is so notwithstanding (1) the appellant's visa was cancelled because of a breach of the conditions of the visa; (2) the appellant was unsuccessful in his application for a criminal justice stay visa; and (3) the absence of any proven connection between the offences on the one hand and the cancellation of his visa and refusal of a criminal justice stay visa on the other. But for the s 148 certificate, the appellant would have been removed or deported from Australia as soon as practicable after he was taken into immigration. The fact and effect of the s 148 certificate provides the relevant connection between the offences and the time the appellant spent in custody from the issue of that certificate. The refusal of the criminal justice stay visa is equivalent in its effect to a refusal of bail. Such a refusal does not prevent a conclusion that the time spent in custody was in respect of the offences and for no other reason. Accordingly, the sentencing judge had power to backdate the sentence under s 87(d) of the Sentencing Act 1995 (WA).

5 On 12 June 2015, the appellant, who is an Irish national, was convicted, on his pleas of guilty in the District Court before Levy DCJ, of two counts in an indictment. Count 1 alleged that on a date unknown between 12 January 2015 and 16 January 2015, at Floreat, the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely $22,000 in money, for himself and others, contrary to s 409(1)(c) of the Criminal Code (WA) (the Code). The count pleaded that the victim of the offence was of or over the age of 60 years. Count 2 alleged that on 15 January 2015, at Karrinyup, the appellant, with intent to defraud, by deceit or fraudulent means attempted to gain a benefit, namely $17,000 in money, for himself and others, contrary to s 409(1)(c) read with s 552 of the Code. The count pleaded that the victim of the offence was of or over the age of 60 years. His Honour imposed sentence on those counts.

6 The sentencing judge also sentenced the appellant, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), for a number of other offences. The other offences comprised two charges of stealing (contrary to s 378 of the Code), three charges of trespassing on a place without lawful excuse (contrary to s 70A(2) of the Code), one charge of gaining a benefit by fraud (contrary to s 409(1)(c) of the Code), one charge of attempting to gain a benefit by fraud (contrary to s 409(1)(c) read with s 552 of the Code), two charges of criminal damage or destruction of property (contrary to s 444(1)(b) of the Code) and one charge of possession of stolen or unlawfully obtained property (contrary to s 417(1) of the Code).

7 His Honour imposed a fine for each of the stealing offences and a term of immediate imprisonment for each of the other offences. The total effective term was 13 months' immediate imprisonment. His Honour ordered that the total effective term commence on 12 June 2015, being the date on which his Honour imposed the sentences. A parole eligibility order, a compensation order and a forfeiture order were made.

8 At the conclusion of the hearing of the appeal, this court ordered that the appeal be dismissed. We said reasons would be published later. These are my reasons.

9 The ground of appeal alleged that the sentencing judge erred by failing to backdate the appellant's total effective term of imprisonment, pursuant to s 87 of the Sentencing Act, 'to take into account the time that the appellant has spent in immigration detention'.

10 On 13 November 2015, Mazza JA and I granted leave to appeal on that ground.

11 The appellant's orders wanted were that the appeal be allowed and that the total effective sentence of 13 months' immediate imprisonment be backdated to 22 January 2015, being the date on which the appellant was taken into 'immigration detention'.

Section 87 of the Sentencing Act

12 Section 87 of the Sentencing Act reads:

If when an offender is being sentenced to imprisonment for an offence -

(a) he or she has previously spent time in custody in respect of that offence and for no other reason (other than a warrant of commitment issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994); and

(b) the sentencing court decides that that time should be taken into account,

the court may take that time into account -

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence. (emphasis added)

The relevant background facts and circumstances including the relevant provisions of the Migration Act 1958 (Cth)

13 Section 5(1) of the Migration Act 1958 (Cth) provides that, in the Act, unless the contrary intention appears:

(a) 'lawful non-citizen' has the meaning given by s 13;

(b) 'migration zone' means, relevantly, 'the area consisting of the States, the Territories'; and

(c) 'unlawful non-citizen' has the meaning given by s 14.

14 By s 13(1), a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. By s 14(1), a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. By s 15, relevantly, to avoid doubt, if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.

15 Section 189(1) of the Migration Act provides that, if an 'officer' (as defined in s 5(1) of the Act) knows or reasonably suspects that a person in, relevantly, any of the States or the Territories of Australia, is an unlawful non-citizen, the officer must detain the person.

16 By s 196(1) of the Migration Act, an unlawful non-citizen detained under s 189 must be kept in 'immigration detention' until, relevantly, he or she is removed or deported from Australia under s 198, s 199 or s 200 of the Act.

17 The term 'immigration detention', as defined in s 5(1) of the Migration Act, includes 'being held ... in a detention centre established under this Act'.

18 As I have mentioned, the appellant is an Irish national.

19 On 22 January 2015, the appellant was taken into 'immigration detention' at the Yongah Hill immigration detention centre near Northam. At all material times, the Yongah Hill immigration detention centre was a detention centre established under the Migration Act. The appellant's visa had been cancelled because he had breached its conditions. He did not hold another visa that was in effect. Accordingly, the appellant was an unlawful non-citizen.

20 It was common cause before the sentencing judge that between 22 January 2015 and 12 June 2015 the appellant was held in 'immigration detention' at the Yongah Hill immigration detention centre.

21 On 3 February 2015, the appellant was arrested by police on suspicion of having committed several of the offences for which he was, on 12 June 2015, convicted and sentenced by his Honour.

22 Section 148 of the Migration Act is concerned with the giving of a State criminal justice stay certificate. By s 148(1):

If:

(a) an unlawful non-citizen is to be, or is likely to be, removed or deported; and

(b) an authorised official for a State considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and

(c) that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia;

the official may give a certificate that the stay of the non-citizen's removal or deportation is required for the administration of criminal justice by the State.

23 The term 'administration of criminal justice' is defined in s 142 of the Migration Act to mean, relevantly, 'the prosecution of a person for an offence' or 'the punishment by way of imprisonment of a person for the commission of an offence'.

24 By s 150 of the Migration Act, if a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported from Australia. However, a criminal justice stay certificate is not a visa and does not render the person the subject of the certificate a lawful non-citizen.

25 By s 152 of the Migration Act, relevantly, if:

(a) a criminal justice stay certificate about a non-citizen is in force; and

(b) the non-citizen does not have a visa to remain in Australia,

the certificate does not limit any power under the Act relating to the detention of the non-citizen.

26 Section 155 of the Migration Act is concerned with criminal justice visas. Criminal justice visas are a class of temporary visas. See s 38 of the Act. Criminal justice visas comprise the kind of visa referred to in s 155(1) and the kind of visa referred to in s 155(2). By s 155(1), a criminal justice visa may be a visa permitting a non-citizen to travel to and enter, and remain temporarily in, Australia, to be known as a criminal justice entry visa. By s 155(2), a criminal justice visa may be a visa permitting a non-citizen to remain temporarily in Australia, to be known as a criminal justice stay visa.

27 Section 156 of the Migration Act specifies a criterion for a criminal justice entry visa for a non-citizen.

28 Section 157(a) of the Migration Act provides that a criterion for a criminal justice stay visa for a non-citizen is that a 'criminal justice stay certificate' about the non-citizen is in force. The expression 'criminal justice stay certificate' is defined in s 142 to mean, in effect, a certificate given under s 147 (being a Commonwealth criminal justice stay certificate) or a certificate given under s 148 (being a State criminal justice stay certificate). A criminal justice stay certificate is given in respect of an unlawful non-citizen. See s 147(1)(a) and s 148(1)(a).

29 The criteria for a criminal justice visa for a non-citizen are set out in s 158 of the Migration Act. Section 158 provides, relevantly:

The criteria for a criminal justice visa for a non-citizen are, and only are:

(a) the criterion required by section ... 157; and

(b) the criterion that the Minister, having had regard to:

(i) the safety of individuals and people generally; and

(ii) ...

(iii) any other matters that the Minister considers relevant;

has decided, in the Minister's absolute discretion, that it is appropriate for the visa to be granted.

30 Section 159 of the Migration Act prescribes the procedure for obtaining a criminal justice visa. By s 159(2), relevantly, if the Minister, after considering the grant of a criminal justice visa for a non-citizen, is satisfied that the criteria for it have been met, the Minister may, in his or her absolute discretion, grant it by causing a record of it to be made and give such evidence of it as the Minister considers appropriate.

31 Section 161(2) of the Migration Act provides that a criminal justice stay visa for a non-citizen:

(a) is permission for the non-citizen to remain in Australia while it is in effect; and

(b) if the non-citizen is in immigration detention, entitles the non-citizen to be released from that detention.

32 Section 161(3) of the Migration Act provides that a criminal justice visa for a person does not prevent the non-citizen leaving Australia, but s 161(4) provides that s 161(3) does not limit the operation of any order or warrant of a court.

33 By s 162(1)(b) of the Migration Act, relevantly, if the presence in Australia of a non-citizen in respect of whom a criminal justice stay certificate has been given is no longer required for the purposes for which it was given then, if it was given under s 148 of the Act, an authorised official is to cancel it.

34 By s 164 of the Migration Act, relevantly, if a criminal justice stay certificate is cancelled, any criminal justice visa granted because of the certificate is cancelled and the Minister is to make a record of the cancellation.

35 On 11 February 2015, the Director of Public Prosecutions (WA) signed a State criminal justice stay certificate in respect of the appellant under s 148 of the Migration Act. The certificate reads, relevantly:

WHEREAS [the appellant], a citizen of Ireland born on 10 August 1995, is an unlawful non-citizen for the purposes of the Migration Act 1958 (the Act);

WHEREAS [the appellant] is to be, or is likely to be removed or deported from Australia;

AND WHEREAS I Joseph McGrath SC, Director of Public Prosecutions for the State of Western Australia, consider that [the appellant] should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against the law of the State of Western Australia; ...

AND WHEREAS I consider that satisfactory arrangements have been made to ensure that the costs of keeping [the appellant] in Australia will be met by the Office of the Director of Public Prosecutions;

NOW THEREFORE I Joseph McGrath SC, Director of Public Prosecutions for the State of Western Australia, a delegate of the Attorney-General of Australia for the purposes of section 148 of the Act, hereby certify that the stay of the removal or deportation of [the appellant] from Australia is required for the administration of criminal justice.

36 The Minister, by his delegate, refused to grant the appellant a criminal justice stay visa (appeal ts 26 - 27, 31 - 32). Consequently, at all material times, the appellant continued to be an unlawful non-citizen. He was therefore required to remain in immigration detention and was not permitted to enter the Australian community.

37 The holder of a criminal justice stay visa who is granted bail in respect of pending criminal charges may reside in the Australian community in accordance with the visa and the grant of bail.

38 Although the appellant was, at all material times, granted bail in the Magistrates Court in respect of the offences for which he was, on 12 June 2015, convicted and sentenced by the sentencing judge, he remained in immigration detention between 11 February 2015 and 12 June 2015 because he did not have a criminal justice stay visa (appeal ts 26 - 27).

The decision in Chua v The Queen [2001] WASCA 353

39 In Chua v The Queen [2001] WASCA 353, the offender applied for leave to appeal against sentence. He was convicted, on his plea of guilty, of having been knowingly concerned in the importation into Australia of 20,833 ecstasy tablets. On 3 October 2000, the primary judge sentenced him to 16 years' imprisonment with a non-parole period of 8 years. The offender appealed to the Court of Criminal Appeal on, in essence, two grounds. First, he was not given sufficient credit for his early plea of guilty. Secondly, he was not given any credit in the sentence for the time he had spent in custody, prior to being sentenced, between 16 June 2000 and 3 October 2000.

40 On 27 May 2000, the offender was arrested by the Federal police in Alice Springs for being an unlawful non-citizen. He admitted that he was an illegal immigrant. The offender was conveyed to Darwin for deportation.

41 On 3 June 2000, the offender was interviewed by the Federal police in Darwin in connection with the drug offence. Between 3 June 2000 and 3 October 2000, he was in custody in respect of that offence.

42 The offender was not granted bail. At the sentencing hearing before the primary judge, defence counsel said that the offender had remained in custody since his arrest for being an unlawful non-citizen (ts 8 - 9). Defence counsel added:

There has obviously been no question of bail raised (ts 9).

The transcript of the sentencing hearing was part of the appeal book prepared for the offender's application to the Court of Criminal Appeal for leave to appeal against sentence.

43 Section 147 of the Migration Act is concerned with the giving of a Commonwealth criminal justice stay certificate. Its provisions are analogous to those of s 148 of the Act which, as I have mentioned, is concerned with the giving of a State criminal justice stay certificate.

44 Section 147(1) of the Migration Act provides, relevantly, that if an unlawful non-citizen is to be, or is likely to be, removed or deported, and, amongst other things, the Attorney-General considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the Commonwealth, the Attorney-General may give a certificate that the stay of the non-citizen's removal or deportation is required for the administration of criminal justice.

45 On 16 June 2000, a delegate of the Commonwealth Attorney-General signed a Commonwealth criminal justice stay certificate in respect of the offender under s 147.

46 The offender was not granted a criminal justice stay visa.

47 The Court of Criminal Appeal allowed the offender's appeal. The court reduced his sentence to 13 years 6 months' imprisonment with a non-parole period of 6 years 9 months 'to be taken to have begun' on 16 June 2000, being the date of the Commonwealth criminal justice stay certificate.

48 As to the backdating of the sentence, Wallwork J (Malcolm CJ and Anderson J agreeing) said:

It was contended for the respondent that pursuant to the provisions of s 196 of the Migration Act, the appellant had, until sentence, remained an unlawful citizen in detention because he had not been deported from Australia or granted a visa. It was conceded that he had not been deported because he was being prosecuted but it was contended that his status as an unlawful non-citizen had not changed. He was being detained for two reasons. He had to be detained under s 196 of the Act as an unlawful non-citizen and he was being prosecuted for the relevant offence. It was agreed that he would have been deported, subject to his rights of appeal, but for the fact of the s 147 certificate.

It is my view that the s 147 certificate, which was signed on 16 June 2000 and which provided that the appellant should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to offences against the laws of the Commonwealth of Australia, has the effect that under s 87 of the Sentencing Act 1995 (WA) the appellant had spent time in custody since 16 June 2000 in respect of the relevant offence 'and for no other reason'. Pursuant to s 87 of the Sentencing Act 1995, a court may then order that a prison term it imposes is to be taken to have begun on a specified day, being the day when that custody began.

In all the circumstances, it is my view that the appellant's term of imprisonment should now be ordered to have commenced on 16 June 2000, being the date of the s 147 certificate [35] - [37].

Information not given to the sentencing judge

49 In the present case, neither the sentencing judge nor the appellant was informed at or before the sentencing hearing that the Director of Public Prosecutions had signed a State criminal justice stay certificate in respect of the appellant.

50 Also, neither the prosecutor nor defence counsel drew his Honour's attention to the decision in Chua.

51 Counsel for the State informed this court that the system within the Office of the Director of Public Prosecutions, which is designed to inform a sentencing judge and an offender of the existence of a State criminal justice stay certificate in respect of the offender, had, on this occasion, failed (appeal ts 29).

The sentencing hearing before the sentencing judge and his Honour's sentencing remarks

52 At the sentencing hearing before the sentencing judge, defence counsel submitted that the appellant had 'received an immediate and significant penalty, that is the time he's spent in immigration detention' (ts 33).

53 His Honour said, in the course of debate with defence counsel:

(a) his Honour was unable to backdate any prison sentence imposed on the appellant to the date on which he was taken into immigration detention;

(b) however, the time the appellant had spent in immigration detention must 'be recognised in the sentencing exercise to the fullest degree possible';

(c) 'had it not been for the charges' the appellant would have been deported; and

(d) 'if [the appellant] for example [got] the full credit of ... five months ... if you backdate it you get a better benefit because you become eligible for parole quicker' (ts 44 - 46).

54 The sentencing judge noted, in his sentencing remarks:

In addition to [other mitigating factors] I'm told that you have been in custody now for five months. That is a significant factor. In relation to that, the Sentencing Act, in my view, does not permit me to backdate your sentence, but the time that you have spent in custody, which is in excess of 142 days, is a very relevant factor in the sentencing exercise (ts 81).

55 His Honour said he wanted to 'make it clear' that, in deciding on the length of the terms of imprisonment, he had taken into account 'all ... relevant sentencing considerations' including 'the five-month period of detention' (ts 87).

56 Later, the sentencing judge stressed that he had 'heavily taken into account the five-month period of detention' (ts 88).

(a) the time spent by the appellant in immigration detention at the Yongah Hill immigration detention centre was time spent 'in custody', within s 87(a) of the Sentencing Act;

(b) the pending charges against the appellant were 'the substantial reason' for the time he spent in immigration detention; and

(c) there was 'no other reason', within s 87(a), for the time the appellant spent in immigration detention.

58 It was argued that the preconditions to the exercise of the sentencing judge's discretionary power to backdate, pursuant to s 87(d), were therefore engaged.

59 Counsel for the appellant contended that the sentencing judge made an error in deciding that he did not have a discretion to backdate the total effective sentence of 13 months' immediate imprisonment instead of reducing, by an appropriate period, the custodial term he would otherwise have imposed.

60 According to counsel for the appellant, this court should intervene by allowing the appeal and imposing a different sentence; in particular, by backdating the total effective sentence of 13 months' immediate imprisonment to 22 January 2015.

61 Counsel for the State conceded, in his written and oral submissions, that the period the appellant was in immigration detention at the Yongah Hill immigration detention centre was time spent 'in custody', within s 87(a) of the Sentencing Act (appeal ts 27).

62 Counsel for the State also conceded that, but for the State criminal justice stay certificate, the appellant would have been removed or deported from Australia as soon as practicable after he was taken into immigration detention on 22 January 2015 (appeal ts 26).

63 The State did not challenge the correctness of the decision in Chua. I will therefore proceed on the assumption that Chua was, on its particular facts, correctly decided.

64 The proper construction and application of s 87 of the Sentencing Act was considered by this court in Narkle v Hamilton [2008] WASCA 31.

65 Recently, in Peake v The State of Western Australia [2015] WASCA 239 [40], I summarised the observations made in Narkle about s 87. In particular, I noted that:

(a) Section 87 is not the source of the court's power (which it has long had) to take into account, if appropriate, when sentencing an offender, time spent in custody on remand.

(b) Section 87 sets out the means by which a sentence can be reduced or backdated where the court has determined, in the exercise of its non-statutory power and as contemplated by s 87(b), that it will take into account, when sentencing an offender, time spent in custody on remand.

(c) Section 87 contains no express or implied limitation on the court's non-statutory power to take into account, if appropriate, when sentencing an offender, time spent in custody, including on remand.

(d) Prior to the enactment of s 87, it was not open to the court to backdate a sentence.

(e) Consequently, s 87 was facilitative and was not intended to limit the court's non-statutory power to take into account, if appropriate, when sentencing an offender, time spent in custody on remand.

(f) The court always has a discretion, when considering time spent in custody, to decide whether it will make an allowance for that time and, if so, how much of an allowance it will make. Even where the time was spent in custody in respect of the offence in question, and for no other reason, the court does not have to give credit for the whole of the time. The manner in which the discretion is exercised will depend upon the individual circumstances of each case.

66 So, in the present case, the sentencing judge's discretion to backdate the appellant's total effective term of imprisonment, pursuant to s 87(d), for the purpose of taking into account the period the appellant had spent in immigration detention, was not enlivened unless that period was:

(a) time spent 'in custody', within s 87(a); and

(b) time spent in custody 'in respect of' the offences in question and 'for no other reason', within s 87(a).

67 I will assume, favourably to the appellant but without deciding, that counsel for the State's concession that the period the appellant had spent in immigration detention was time spent 'in custody', within s 87(a), was properly made.

68 The expression 'in respect of' has a wide meaning. It takes its colour from the context in which it appears. It is the context which determines the matters to which it extends. See Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642, 653 - 654 (Deane, Dawson & Toohey JJ).

69 The expression 'in respect of', in s 87(a), requires the existence of a connection between the time the offender has spent in custody, on the one hand, and the offence or offences for which he or she is being sentenced, on the other. It is unnecessary, in the present case, to determine the precise nature or ambit of the requisite connection.

70 In my opinion, the appellant's period in immigration detention was connected with the offences in question in that, but for the pending charges and the State criminal justice stay certificate, he would have been removed or deported from Australia as soon as practicable after he was taken into immigration detention. The offences were therefore a reason (which was a substantial reason) why the appellant spent the time in immigration detention after he was charged.

71 However, the appellant's period in immigration detention was not time spent in custody 'for no other reason' than 'in respect of' the offences, within s 87(a). At all material times, there was another reason (which was a substantial reason), apart from 'in respect of' the offences, why the appellant spent the time in immigration detention. The other reason was that the appellant was an unlawful non-citizen and the Minister, by his delegate, refused to grant him a criminal justice stay visa. If the appellant had been granted a criminal justice stay visa then he would have become a lawful non-citizen and he would have been released from immigration detention. Also, the grant of bail in the Magistrates Court would have enabled him to enter the Australian community and not be held in custody pending the determination of the criminal proceedings against him. By reason of the appellant's status as an unlawful non-citizen and the Minister's refusal, by his delegate, to grant him a criminal justice stay visa, the appellant was required to remain in immigration detention. Neither the appellant's status as an unlawful non-citizen nor the refusal of a criminal justice stay visa related to the offences. His status as an unlawful non-citizen related to his breach of the conditions of his visa and the consequent cancellation of his visa pursuant to the Migration Act. The Minister's refusal, by his delegate, to grant the appellant a criminal justice stay visa related to the exercise of the 'absolute discretion' conferred on the Minister by s 159(2) of the Migration Act. On the information before this court, there was no connection between the cancellation of the appellant's visa or the refusal of a criminal justice stay visa, on the one hand, and the offences for which he was being sentenced by his Honour, on the other. Accordingly, the offences were not the only substantial reason why the appellant spent the time in immigration detention after he was charged.

72 In Western Australia the discretionary power to grant or refuse to grant bail is conferred by the Bail Act 1982 (WA) on specified courts of this State.

73 A refusal by the Minister under s 159(2) of the Migration Act to grant a criminal justice stay visa for an unlawful non-citizen is not equivalent, in its effect, to a refusal to grant bail to an accused.

74 By s 158 of the Migration Act, the criteria for a criminal justice stay visa for an unlawful non-citizen comprise, relevantly:

(a) the criterion required by s 157(a) of the Migration Act, namely a criminal justice stay certificate about the unlawful non-citizen is in force; and

(b) the criterion specified in s 158(b), namely that the Minister, having had regard to the safety of individuals and people generally and any other matters that the Minister considers relevant, has decided, in the Minister's absolute discretion, that it is appropriate for the visa to be granted.

75 The criteria for the grant of a criminal justice stay visa, as set out in s 158 of the Migration Act, are different from the criteria for the grant of bail under the Bail Act.

76 By s 161(2) of the Migration Act, a criminal justice stay visa for an unlawful non-citizen:

(a) is permission for the non-citizen to remain in Australia while it is in effect; and

(b) if the non-citizen is in immigration detention, entitles him or her to be released from that detention.

77 The legal and practical consequences and effect of a criminal justice stay visa, as set out in s 161(2) of the Migration Act, are different from the legal and practical consequences and effect of a grant of bail under the Bail Act.

78 Although, by s 161(2)(b) of the Migration Act, a criminal justice stay visa for an unlawful non-citizen who is in immigration detention entitles the non-citizen to be released from that detention, the criminal justice stay visa does not entitle the non-citizen to be released on bail in respect of an offence that he or she has allegedly committed. The grant of a criminal justice stay visa for an unlawful non-citizen entitles the non-citizen to be released from immigration detention because, upon the visa being granted, the non-citizen ceases to be an unlawful non-citizen and becomes a lawful non-citizen. See s 13, s 14 and s 15 of the Migration Act. The grant of a criminal justice stay visa for an unlawful non-citizen does not, however, entitle the non-citizen (who has become a lawful non-citizen) to a grant of bail.

79 A refusal to grant a criminal justice stay visa for an unlawful non-citizen constitutes, in essence, a refusal to confer on the non-citizen the status of a lawful non-citizen. If a criminal justice stay visa is refused then the unlawful non-citizen remains an unlawful non-citizen, and he or she is not entitled to be released from immigration detention. That is the legal and practical consequence and effect of a refusal to grant a criminal justice stay visa. A refusal to grant bail to an accused who is in custody awaiting an appearance in court for an offence constitutes, in essence, a refusal to release the accused from custody pending the appearance in court. If bail is refused then the accused remains in custody. That is the legal and practical consequence and effect of a refusal to grant bail. A decision on whether to grant an accused bail does not affect and is incapable, as a matter of law, of affecting the accused's status as a citizen, a lawful non-citizen or an unlawful non-citizen, as the case may be. A refusal to grant a criminal justice stay visa for an unlawful non-citizen is not, either in law or in fact, equivalent in its effect to a refusal to grant bail to an accused.

80 In any event, even if (contrary to my opinion) the refusal of a criminal justice stay visa for an unlawful non-citizen is equivalent, in its effect, to a refusal to grant bail to an accused, on the information before this court there was, as I have mentioned, no connection in the present case between the cancellation of the appellant's visa or the refusal of a criminal justice stay visa, on the one hand, and the offences for which he was being sentenced by his Honour, on the other.

81 The facts of Chua are relevantly distinguishable from the facts of the present case. Most significantly, the offender in Chua was not granted bail whereas the appellant in the present case was granted bail. Also, the offender in Chua was not granted a criminal justice stay visa whereas the appellant in the present case was refused a criminal justice stay visa. In Chua, the reasons of the Court of Criminal Appeal and the appeal book do not reveal any connection between the absence of a criminal justice stay visa, on the one hand, and the exercise by the Minister or his delegate of any power under the Migration Act, on the other. The reasons and the appeal book do not suggest that there was an application for, and a refusal of, a criminal justice stay visa. In Chua, the offender's status as an unlawful non-citizen and the absence of a criminal justice stay visa were not, on the facts of that case, another reason (which was a substantial reason), apart from 'in respect of' the offence, why the offender spent the time in custody. If the offender in Chua had been granted a criminal justice stay visa he would not have been released from custody because he was not granted bail on the drug importation charge. On the facts of Chua, the offence was the only substantial reason why the offender spent the time in custody after he was charged.

83 In any event, even if (contrary to my opinion) the sentencing judge made the error alleged in the ground of appeal, I would have dismissed the appeal under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) because, in my opinion, a different total effective sentence should not have been imposed.

84 The total effective sentence of 13 months' immediate imprisonment was very lenient.

85 His Honour 'heavily [took] into account', in determining the sentencing outcome, the period the appellant had been in immigration detention (ts 88). In other words, his Honour reduced by a period he considered appropriate, as contemplated by s 87(c) of the Sentencing Act, the terms of imprisonment (including the total effective term) he would otherwise have imposed.

86 I am satisfied that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences for which custodial sentences were imposed, viewed in their entirety, and after having regard to the findings of fact made by the sentencing judge and all other relevant circumstances and sentencing factors, including all of the mitigating factors and the circumstances referable to the appellant personally, and the total effective sentences imposed in comparable cases.

87 I note that a head sentence and a total effective sentence must be determined without taking into account the legislative scheme for parole. See Jarvis v The Queen (1993) 20 WAR 201, 208 (Ipp J); Kirby v The Queen [2003] WASCA 239 [26] (Anderson & McLure JJ, Malcolm CJ agreeing); Lim v The State of Western Australia [2010] WASCA 186 [48] (Buss JA, Mazza J agreeing).

88 Further, and in any event, even if (contrary to my opinion) his Honour made the error alleged in the ground of appeal, his Honour was not bound to backdate the total effective sentence pursuant to s 87(d), as distinct from reducing by an appropriate period, as contemplated by s 87(c), the total effective term he would otherwise have imposed, either wholly or partly. If there had been a backdating then there is no doubt that an appropriate total effective sentence would have been significantly in excess of 13 months' immediate imprisonment.

89 It was for these reasons that, on 3 December 2015, I joined in making the order dismissing the appeal.