R v Butters [2019] ACTSC 143

Supreme Court of the ACT|2019-06-07|Before: Loukas-Karlsson J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - recklessly inflict grievous bodily harm - prospects of deportation - practicality of imposing an intensive corrections order - suspended sentence - good behaviour order

Migration Amendment (Characters and General Visa Cancellation) Act 2014 (Cth)

Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299

Cranfield v The Queen [2018] ACTCA 3

Da Costa Junior v The Queen [2016] VSCA 49; 258 A Crim R 60

Dauphin v The Queen [2002] WASCA 104

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321

DPP (Cth) v Peng [2014] VSCA 128

Elliott v Harris (No 2) (1976) 13 SASR 516

Guden v The Queen [2010] VSCA 196; 28 VR 288

HAT v The Queen [2011] VSCA 427; 35 VR 109

Hickling v Western Australia [2016] WASCA 124; 260 A Crim R 33

Hili v The Queen [2010] HCA 45; 242 CLR 520

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Islam v The Queen [2006] ACTCA 21

Kelly v Johnston [2012] ACTSC 178

Khanchitanon v The Queen [2014] NSWCCA 204

Konamala v The Queen [2016] VSCA 48

Kristensen v The Queen [2018] NSWCCA 189

MAC v Tasmania [2018] TASCCA 19

Magedi v The Queen [2019] VSCA 102

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

Quzag v The Queen (No 4) [2016] ACTCA 27

R v Amosa [2015] ACTSC 34

R v Aniezue [2016] ACTSC 82

R v Arrowsmith [2018] SASCFC 47; 333 FLR 415

R v Bandy [2018] ACTSC 261

R v Bartlett [2016] ACTSC 390

R v Beniamini (No 2) [2017] ACTSC 32

R v Burgess [2017] ACTSC 249

R v Carmody (No 3) [2017] ACTSC 60

R v Chi Sun Tsui (1985) 1 NSWLR 308

R v Cranfield [2017] ACTSC 171

R v Dunn [2017] ACTSC 227

R v Hidic [2017] ACTSC 307

R v Igwebuike [2017] ACTSC 323

R v Kamara [2016] ACTSC 294

R v Kepaoa [2017] ACTSC 414

R v Laipato (unreported Nield AJ, 16 September 2010)

R v MAH [2005] NTCCA 17

R v McBride [2017] ACTSC 102

R v Miller [2018] ACTSC 244

R v Myles [2017] ACTSC 194

R v Norris; Ex Parte Attorney-General (Qld) [2018] QCA 27; 3 Qd R 420

R v Oeti [2018] ACTSC 229

R v Pallier [2017] ACTSC 112

R v Pearson [2016] QCA 212

R v Pham [2005] NSWCCA 94

R v Pumpa [2014] ACTSC 223

R v Rappel [2017] ACTSC 38

R v Rheinberger (No 2) [2016] ACTSC 307

R v Saran [2019] ACTSC 37

R v Seretin [2016] ACTSC 45

R v Sharma [2016] ACTSC 180

R v Sikoulabot [2018] ACTSC 217

R v Smith [2016] ACTSC 330

R v Solomons [2017] ACTSC 384

R v UE [2016] QCA 58

R v Williams [2015] ACTSC 406

R v Williams [2018] ACTSC 354

R v Woods; R v Matthews [2019] ACTSC 33

R v Yildirim [2011] VSCA 219

R v Zamagias [2002] NSWCCA 17

Sharma v The Queen [2017] ACTCA 8

Taylor v The Queen [2015] TASCCA 7

The Queen v Tamawiwy (No 4) [2015] ACTSC 371

The Queen v Wong [2015] ACTSC 389

Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1

Explanatory Statement to the Crimes (Sentencing and Restorative Justice) Bill 2015 (ACT)

1. On 23 November 2018, Daniel Butters (the offender) pleaded guilty to an offence of recklessly inflicting grievous bodily harm contrary to section 20 of the Crimes Act 1900 (ACT) (CC2018/12792).

2. The maximum penalty for the offence is 13 years imprisonment.

3. The agreed facts are set out in the Statement of Facts, which forms part of the Crown tender bundle. The facts are briefly summarised below.

4. In 2018, the victim and offender had known each other for approximately eight years, including that in 2017, the offender had worked for the victim's business. Subsequently, the friendship and working relationship broke down following an incident during a Christmas event in December 2017.

5. On 16 September 2018, the offender saw the victim at a Canberra restaurant where a boxing match was being televised. The victim was at the restaurant with his wife and friends.

6. Later in the evening, the offender invited the victim to approach him. When the victim refused, the offender approached the victim. The offender then punched the victim twice on the side of the face. The victim suffered severe dental injuries, which require the extraction of his wisdom teeth and dental implants. The incident was captured on CCTV footage.

7. The agreed Statement of Facts included a statement that the offender "made full admissions and showed remorse for the incident" when interviewed by police on 15 October 2018.

8. The agreed Statement of Facts included the following:

'[The victim] received dental advice that as a result of the injuries suffered, an extraction of all four wisdom teeth was required as well as an extraction of tooth 47... The tooth will require an implant to replace the missing tooth. He will also require a replacement of the removed second molar with a titanium screw (dental implant).'

9. It is well-established that the two key matters to be considered when assessing the objective seriousness of offences of this type are first, the culpability of the offender's conduct, and second, the relative seriousness of the grievous bodily harm sustained by the victim: R v Bandy [2018] ACTSC 261 (Bandy); R v Hidic [2017] ACTSC 307 (Hidic); R v Myles [2017] ACTSC 194 (Myles); R v Sharma [2016] ACTSC 180 (Sharma); R v Amosa [2015] ACTSC 34.

10. The prosecution submitted that the offence was in the mid-range of seriousness.

11. Counsel for the offender submitted that the offence was at the lower end of the spectrum, noting that the harm involved three teeth and "a significant recovery by the victim."

12. Counsel for the offender referred to Myles, Hidic, Sharma, R v Dunn [2017] ACTSC 227 (Dunn) and R v Sikoulabot [2018] ACTSC 217 (Sikoulabot), and submitted that:

... [I]njuries to eyes and those requiring the insertion of plates and screws and other surgeries are far more grievous than the mere loss of teeth, serious as that still remains. ... [T]he injuries in Myles, Hidic, Sharma, Dunn and Sikoulabot are of a very different - more permanent and more disfiguring and disturbing - order to those in [the instant] matter.

13. It must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, "it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case" (R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo'ua) at [24]). This is a serious offence involving two punches to the face and significant dental injury.

14. The prosecution conceded the offence was not premeditated (T 12 3.5.2019) but nevertheless submitted it was not an entirely "impulsive act that happened spur of the moment" as the offender removed his shoes and motioned to the victim. I note the agreed Statement of Facts refers to earlier communication in August 2018. I accept the act was not premeditated and that the offence occurred in the context of the breakdown of a friendship.

15. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender. The PSR includes the following.

16. The offender is a 35-year-old man who moved to Australia from New Zealand in 2006. His two sisters reside in Australia and his mother resides in New Zealand. He resides in the same apartment building as one of his sisters, and his other sister resides in Queensland. The PSR author noted that, in mid-2018, the offender travelled at short notice to Queensland to support his sister when she suddenly became seriously ill.

17. The offender is married to his partner of several years. They have been trying to start a family for some time. The offender has lived in the same rental accommodation for six years.

18. The offender completed high school and has worked in the concreting industry since coming to Canberra in 2006. His employer stated to the author of the PSR that he has a strong work ethic and works at least six ten-hour days per week. The offender reported that his financial situation is strong, and he has no loans or debts. He reported having a close group of friends who are mainly pro-social.

19. The offender stated to the author of the PSR that he has reduced his alcohol consumption with the assistance of his wife since he lost his licence in 2017. He now has a monthly budget for alcohol and socialising which has assisted his accountability. He reported that on one occasion in August 2018, he felt his drinking was out of control at his birthday celebration, and felt bad about this afterwards. He reports that this level of drinking has not occurred since. His level of drinking over the past twelve months was assessed as "risky" in the PSR. At the time of this offence, the offender reports that he had consumed approximately six standard drinks but denied that this influenced his actions.

20. The offender has been attending counselling to assist with developing strategies for managing anger and adrenaline in future situations.

21. The PSR concluded that the offender was assessed as being at medium-low risk of general reoffending, with his criminogenic risk domains being alcohol use, emotional health, and attitudes towards offending.

22. I take the subjective matters set out above into account on sentence.

23. Counsel for the offender submitted that the offender's strong work ethic, financial situation and "ability to maintain a close-knit group of pro-social friends" indicate a "lesser need" for supervision than for some other offenders. I accept this submission as it coincides with my view of the evidence relating to the offender.

24. The PSR noted that the offender disputed some of the facts of the offence, but did not try to minimise or justify his behaviour. He indicated that the offending was an impulsive, rather than premeditated, act which left him feeling bewildered at his own actions. He acknowledged that he had been drinking but denied intoxication.

25. The PSR also noted that the offender was "unable to express victim empathy" and disputed the cost of the damage to the victim's teeth. He accepted that he should not have assaulted the victim. The PSR stated that the offender did not wish to have any future contact with the victim.

26. Counsel for the offender submitted that the reference in the PSR to the offender having "disputed the cost of the damages to the victim's teeth" is an extension of his shock at the extent of the damage of his actions.

27. The offender gave evidence before me on 1 February 2019. He stated that:

[I]t does make me feel remorse a lot because I realise how easily I could've changed that situation and just walked away with my wife...

I'll be more than happy to talk with him ... I'd say sorry, mate, friend, or ex-friend. But I'd say sorry and he'd know I'd be sincere because he knows what I'm like.

28. When asked whether he would "do anything to hurt [the victim] going forward", he replied "definitely not". He also stated that:

If it makes [the victim] feel better that he can move on, I'll be more than happy to meet with him and apologise ... [and]

I'm more than happy to pay what I need to for him to be fixed up.

29. In their further sentencing submissions, counsel for the offender submitted that:

[T]he prosecution made much of what it said was a lack of remorse from [the offender]. It is submitted this is a misconception. [The offender]'s remorse has been demonstrated, in his evidence, in the reports and in the references tendered in his support. The fact that he remained somewhat astounded by the amount of damage done from what he felt was less than fully forceful action from himself does not detract ... from his real remorse for what he did to a former friend and colleague.

30. It is also noteworthy in this context that the agreed Statement of Facts states that the offender "made full admissions and showed remorse for the incident." I note that remorse was also expressed in the Intensive Corrections Order Assessment Report to which I refer later in these sentence remarks.

31. I accept that the offender is remorseful. In my assessment, having observed him giving evidence before me it was clear that the verbal expression of remorse by the offender was not as easy a process for him as it may be for others. Nevertheless, I formed the clear view that his remorse was genuine. Awkward or stilted verbal expression should not detract from a proper assessment of real remorse.

32. In evidence before me were seven impressive references in support of the offender.

33. First, a letter from the offender's aunt, dated 1 December 2018, that included the following:

One thing I do remember clearly was [the offender] and the victim were such close friends they referred to each other as brothers. I was very surprised when I heard [the offender] had hurt someone even more surprised when I was told his name. [The offender's sister] filled us in on how their relationship had deteriorated in the last couple of years. [The offender] has told me he regretted doing what he did. And he couldn't believe the damage he had inflicted on his victim.

34. Second, a letter from his friend and colleague, dated November 2018, that included the following:

Prior to [employing the offender, he] and I worked together for about five years on a number of building projects in Canberra and surrounds. Over this time I have got to know him well. He is trustworthy, reliable, and hard-working, three characteristics I prize in my business. He has a very good rapport with his workmates, who value his work ethic and friendship highly.

35. Third, a letter from the offender's employment manager, dated 8 November 2018, that included the following:

I am aware of the charges against [the offender] and this has come as a huge shock to myself. In the time I have known [the offender], I have never had any issues with his behaviour and he has always [been] a polite, honest and hardworking individual.

I have spoken with [the offender] since this incident and I believe he is remorseful for what has occurred. He, himself, is in complete shock over the matter.

36. Fourth, a letter from a friend of the offender, dated 12 November 2018, that included the following:

[The offender] expressed to me his extreme remorse and embarrassment at being charged with this offence. He was also embarrassed to ask for a reference, however I am sure he has learnt a valuable lesson and will be a better person in the future.

37. Fifth, a letter from the offender's younger sister, dated 15 November 2018 that included the following:

I understand [the offender] has been charged with a serious offence that is most out of character. [He] is a family man, a hard worker and will give the shirt off his back for anyone in need.

38. Sixth, a letter from a second friend of the offender, dated 10 November 2018, that included the following:

[The offender] has expressed his deepest regrets about the offence, particularly the repercussions for his family. [His] behaviour was out of character and he made an error of judgement. I have never known him to be violent and I do not believe that he will re-offend.

39. Seventh, a letter from third friend of the offender, dated 1 February 2019 that included the following:

I understand that [the offender] has been charged with assault, in the 20 odd years I have spent with [him], all through our adolescence and adulthood I have never seen [him] get into any kind of physical confrontation.

40. I take these references into account on sentence.

41. The PSR indicated that the matter is not suitable for a Restorative Justice referral, given the offender's desire to have no further engagement with the victim. However, the offender's evidence before me indicated that he would be open to a Restorative Justice referral and apology to the victim.

42. The offender has a minor criminal history including a conviction for driving under the influence of alcohol in 2017.

43. In written submissions, counsel for the offender submitted that the criminal history disclosed no matters of relevance.

44. I take the lack of any relevant criminal history into account on sentence.

45. The offender entered a plea of guilty on the second mention in the Magistrates Court, prior to the provision of the brief of evidence.

46. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo'ua at [41]-[48]; see also Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.

47. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [44]. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50].

48. In Cranfield v The Queen [2018] ACTCA 3, the Court of Appeal recently considered the discount applicable where there has been a plea of guilty. It was stated at [37]-[38] that:

The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries ... at [47]:

The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10-15%. A common sense approach to "utilitarian value", the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.

The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a 'normal' discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski.

49. In my view, taking into account the authorities, I will allow a discount of approximately 25% for the plea of guilty.

50. The offender has spent no time in custody referable to this offence.

Intensive Corrections Assessment Report (ICOAR)

51. When this matter originally came before me on 1 February, I determined that I should give consideration to the sentence being served by way of an intensive corrections order (ICO). To that end I referred the offender for assessment.

(a) eight interviews with the offender, and interviews with the offender's partner and clinical counsellor;

(b) the perusal of ACT Corrective Services files and records, ACT Health Information correspondence, a letter from the New Zealand Ministry of Justice, and ACT Policing and ACT Court Protection Unit records; and

(c) use of a Revised Level of Service Inventory, Alcohol Use Disorder Identification Test, Drug Abuse Screening Tool, and Corrections Victoria Treatment Readiness Questionnaire.

53. The report stated that the offender was "polite and compliant" with ACT Corrective Services in preparation of the report and has continued engaging with his counsellor as directed.

54. The report confirmed much of the information already provided to the Court in the PSR regarding criminal history and adds that the offender has no criminal record from New Zealand, where he lived until 2006.

55. An Alcohol Use Disorder Identification Test was administered to the offender on 15 January. His self-reported alcohol consumption over the previous 12 months was assessed at a "risky" level, indicating alcohol related harm. The offender reported to the author that he has been reducing his alcohol consumption to gradually achieve abstinence with the support of his wife. All testing for alcohol in the ICO assessment period returned negative results.

56. The ICOAR notes that the offender's counsellor informed Correctional Services that the offender:

[I]s making good progress with regards to victim empathy, working on how he could have acted differently at the time of the offence and how he could prevent similar circumstances reoccurring if he were overwhelmed in the future.

57. The offender was able to provide adequate responses to questioning from Corrective Services about what would happen if he had a chance encounter with the victim.

[A]ble to express more insight into the impact his behaviour had on the victim than he had been during the earlier Pre-Sentence Report interview. He expressed regret at his actions, and stated he wished he had acted differently. He spoke about the lengths he went to in order to avoid coming into contact with the victim, who resides in the same suburb as him. He also stated that although the PPO [Personal Protection Order] that expires this year, he plans to live his life as if the Order is still in place."

59. Overall, the offender was assessed as at a medium-low risk of general reoffending. His risk areas are alcohol use, emotional coping skills and attitudes towards offending. He was deemed not suitable for a Community Service Work condition as his employment requires him to work six or seven days a week. It was recommended his alcohol abstinence be monitored with referral to an alcohol intervention service should he require the support. He was credited for commencing work with a clinical counsellor to gain some understanding of his offending behaviour, managing his emotions and reducing the risk of a similar incident occurring again. The offender's wife demonstrated to the report's author that she is "supportive of him adhering to the ICO conditions".

60. The ICOAR dated 30 April 2019 concludes with a recommendation the offender has been assessed as suitable for an ICO, on the conditions that the offender not consume alcohol or contact the victim, either directly or indirectly.

[The offender] is not a permanent resident of Australia. There may be immigration implications for him post-sentencing. ACT Policing have informed Border Force will be notified of the sentencing outcome.

62. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences. Cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].

The ACT Sentencing Database records fewer than 40 people having been sentenced by this Court for recklessly inflicting grievous bodily harm in the almost six years until 31 March 2018. All received prison sentences with 30 per cent of those fully suspended.

[O]f the 11 people sentenced by this Court to a fully suspended offence for this charge in the period 1 July 2012 to 31 March 2018, most, like [the offender], were being sentenced for one offence only and had priors of a different type, though some had multiple offences (eg R v Carmody (No 3) [2017] ACTSC 60), while others had both scheduled offences and priors of the same type (eg R v Rheinberger (No 2) [2016] ACTSC 307)."

65. In Bandy, I reviewed a number of relevant cases and sentencing results from this jurisdiction at [77]-[99] including the following: R v Kepaoa [2017] ACTSC 414 and Sikoulabot; R v LT [2017] ACTSC 343, in which a sentence of two years and three months imprisonment, fully suspended with a good behaviour order was ordered; R v Burgess [2017] ACTSC 249, in which a sentence of three years and one month imprisonment was ordered; R v Pallier [2017] ACTSC 112, in which a sentence of 27 months imprisonment was ordered; R v McBride [2017] ACTSC 102, in which a sentence of three years imprisonment was ordered; R v Carmody (No 3) [2017] ACTSC 60 (Carmody), in which a sentence of two years and five months imprisonment, suspended for three years was ordered; R v Rappel [2017] ACTSC 38, in which a sentence of two years and 11 months imprisonment was ordered; R v Beniamini (No 2) [2017] ACTSC 32, in which a sentence of two years imprisonment was ordered_; R v Smith_ [2016] ACTSC 330, in which a sentence of two years imprisonment, fully suspended with good behaviour was ordered; R v Seretin [2016] ACTSC 45, in which a sentence of four years imprisonment was ordered; R v Williams [2015] ACTSC 406, in which a sentence of three years imprisonment was ordered; R v Neish (Unreported, Refshauge J, 24 May 2013), in which a sentence of two years imprisonment, to be served by periodic detention for three months, and suspended thereafter was ordered; R v Pumpa [2014] ACTSC 223, in which a sentence of two years and eight months of imprisonment, served as 12 months of periodic detention and suspended thereafter was ordered; R v Laipato (unreported Nield AJ, 16 September 2010), in which a sentence of three years imprisonment was ordered; R v RC (Unreported, Burns J, 19 October 2012), in which a sentence of six years imprisonment was ordered; R v Cranfield [2017] ACTSC 171, in which a sentence of three years, seven months and five days imprisonment was ordered; R v Bartlett [2016] ACTSC 390, in which a sentence of three years and six months imprisonment to be served by way of ICO was ordered; and R v Rheinberger (No 2) [2016] ACTSC 307 (Rheinberger), in which a sentence of 18 months imprisonment, fully suspended with good behaviour was ordered.

66. Counsel for the offender made additional submissions in further written sentencing submissions in which the present case was distinguished from the cases submitted by the prosecution. It was submitted in this regard that:

(a) Myles: the victim suffered two jaw fractures and had six screws and two plates inserted, plus psychological consequences that were greater than the physical (at [9]), counsel for the offender submitted the injuries were "far more grievous" than the present case. That offender was given an ICO for a period of 1 year and 10 months with 249 hours' community service. This is distinguished, in submissions, to the victim in the instant case, who "lost five teeth".

(b) Hidic: the victim had three teeth chipped and a fractured eye socket that left his presentation "significantly affected'" (at [11]), he was off work for six weeks and never returned to playing futsal. That offender was sentenced to serve a period of 2 years and 7 months under an ICO. This is distinguished in submissions to the victim in the instant case as the injuries were submitted to be less serious in this case, the plea was before trial and the victim here never needed time off work.

(c) Sharma v The Queen [2017] ACTCA 8: the victim lost consciousness, suffered a fractured jaw requiring screws and plates, and was off work for 2-3 months. That offender was sentenced to 2 years and 3 months' head sentence.

(d) Dunn: the victim suffered a loss of the one eye lens and possible retina injury, permanent vision loss in his right eye, required three surgeries and became opiate dependent. That offender received a head sentence of 2 years and 3 months. This is distinguished in submissions to the instant offence, which lacks premeditation, a violent criminal history, and the same extent of injury.

(e) Sikoulabot: the victim was struck numerous times, kneed in the head while on the ground, dropped to the ground and kicked in the jaw and lost consciousness. The victim suffered several chipped teeth, and a broken jaw, requiring a plate and screws. The head sentence was 2 years served by ICO. This is distinguished in submissions to the instant offence, which involved only two blows.

Prosecution's submissions on the prospect of deportation

67. Counsel for the prosecution filed additional written sentencing on the issue of deportation both in respect of extra-curial punishment and regarding the efficacy of an ICO. In respect of extra-curial punishment it was submitted that:

[T]he wording of s 33 [of the Sentencing Act] does not direct/invite the Court to consider the corollary/flow on effects of imprisonment upon the offender, but rather invites considerations as to how an offender should be sentenced.

68. The prosecution then referred to a number of decisions in support of the proposition that the prospect of deportation was an irrelevant consideration in this respect (Khanchitanon v The Queen [2014] NSWCCA 204 at [28]; R v Pham [2005] NSWCCA 94 (Pham) at [13]-[14]).

69. Reference was made to the decision of Hickling v The State of Western Australia [2016] WASCA 124; 260 A Crim R 33 (Hickling), where at [59] Mazza JA and Mitchell J referred to "predictions about how such an administrative discretion" being inappropriate to the exercise of the court's sentencing discretion. It was therefore submitted that:

It is apparent from Hickling that considerations of potential consequences beyond the term of imprisonment or sentence should have no bearing on the courts sentencing exercise. The distinction is subtle and important and by reason of the wording of s 33 of the [Sentencing Act], a conflation of the two discrete considerations would be erroneous.

70. It was submitted that regard could be had to the effect that a sentence would have on the offender's family (s 33(1)(o)) or the offender (s 33(1)(r)), with attention to be paid to the penalty not the structure or consequences of the sentence (Kelly v Johnston [2012] ACTSC 178 at [16]). With respect to family it was submitted that this should only be considered where the imprisonment (not the consequences of imprisonment) are more prejudicial than would otherwise be the case (Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [82]).

71. Counsel for the prosecution compared the instant case to R v Saran [2019] ACTSC 37, where the prospect of deportation was considered a relevant consideration, submitting that "the prospect of deportation and positive evidence that deportation is imminent are two distinction considerations which cannot be conflated" (citing HAT v The Queen [2011] VSCA 427; 35 VR 109 (HAT); R v UE [2016] QCA 58 (UE); R v Oeti [2018] ACTSC 229 (Oeti)).

72. In this respect, the prosecution noted that the affidavit evidence before the Court which considers hardship, does not relate to hardship resulting from imprisonment but rather the speculative effect deportation may have.

73. Counsel for the prosecution ultimately submitted there is no scope for this Court to take into account the prospect of deportation amounting to extra curial punishment in line with s 33 of the Sentencing Act, as "there is no positive evidence that [the offender] will be deported".

Counsel for the offender's submissions on the prospect of deportation

74. Counsel for the offender submitted in further written submissions that "deportation would cause hardship on [the offender's] family (s 33(1)(o)) and would be a "particular hardship" for the offender (s 33(1)(r)) "in respect of the impact it would have on his extensive working life in the Canberra community".

75. Counsel for the offender referred to Saran at [42] that "proof was needed that deportation would be a hardship" (see Guden v The Queen [2010] VSCA 196; 28 VR 288 (Guden)) and enclosed affidavits from the offender's partner and work colleague attesting to those hardships.

76. The statement of the offender's de facto partner included the following:

I am the de factor of the defendant ... If [his] deportation takes place my life will be affected in many ways.

...

I built a life in here, we have plans of buying a property and have children that I desire to raise in Australia.

I came to this country following my dreams and I found my place to finally settle down, so if [the offender] gets deported I will have to leave all the life I worked so hard for behind.

Either way my future will be uncertain.

This will affects me emotionally, without knowing if my relationship will survive and not knowing if I am going to be able to have a family one day, and also financially short and long term as my husband's salary is of great support in contrast with my childcare wage salary, and thanks to that I'm able to go visit my family in Spain every year which is very important to me.

Also the fact of facing to moving to another country and starts from scratch is a big concern for me financially.

All this process has caused me a considerable emotional stress, emotional drain and anxiety, which if deportation takes place, I'm concerned it might get even greater.

77. The statement of the offender's work colleague included:

I am the employer of the defendant ... at my business...

He has been an employee since the business started two and a half years ago. Prior to that we worked together for a different company ... for approximately 5 years.

...

[The offender] has since proved to himself to be an extremely valuable member of our team. Since starting work in our company, [he] has furthered his knowledge and skills in concreting and taken on the role of the leading hand in our business. He plays a large role in our company and takes on a lot of responsibility naturally.

...

[The offender] is admired by not only ... myself, but by all his colleagues. This is a result of the excellent example he sets. [He] is one of the hardest working, reliable, punctual and committed workers I have ever known and he is of great importance to our company.

[He] is what you might say is irreplaceable. It is extremely rare to find someone as loyal, trustworthy and committed to work as he consistently is. It would be devastating our company if we were to lose [the offender], both as colleagues and friends.

78. Counsel for the offender then referred to the decision of R v Norris; Ex Parte Attorney-General (Qld) [2018] QCA 27; 3 Qd R 420 (Norris) where a sentencing judge had taken into account the prospect of deportation when considering the efficacy of court ordered parole, where upon release the offender's rehabilitation might be interrupted by immigration detention. An analogy was made to the present case and it was submitted that, parole and an ICO "both are a gateway back into the full life of the community" (citing also the Explanatory Statement to the Crimes (Sentencing and Restorative Justice) Bill 2015 (ACT)).

79. If this context, counsel for the offender submitted that:

Were [the offender] to be deported after completing an [ICO] ... much of the good of the ICO may be lost, whereas were he able to remain in the Canberra community, he could more quickly and efficiently continue with his work and personal life, galvanised by the very bracing conditions of an ICO.

...

The potentially lost benefits of an ICO were [the offender] to be deported might include the offender's rehabilitation (Sentencing Act s 7(1)(d)) and, through it, the community's protection (Sentencing Act s 7(1)(c)) by having thoroughly deterred the offender (Sentencing Act s 7(1)(b)) and made him accountable (Sentencing Act s 7(1)(e)) and had him properly recognise the harm done (Sentencing Act s 7(1)(g)).

80. Counsel for the offender also referred to a number of decisions where deportation was considered in sentencing (R v Williams [2018] ACTSC 354 (Williams); Oeti at [39] and [51]; Saran; and HAT at [126]). It was accepted that while a sentence could not be crafted to avoid the migration legislation, it was submitted that the prospect of deportation could be taken into account when sentencing the offender, given the burden on the offender (including if a sentence was served by way of ICO) and that it would be a serious punishing consequence for him.

Relevance of deportation as a sentencing consideration

81. As is evident from the submissions from the parties in this case, the approach to the prospect of deportation of an offender in sentencing is inconsistent across Australian jurisdictions.

82. In New South Wales, Western Australia and the Northern Territory, the prospect of deportation is generally considered to be an irrelevant consideration in sentencing an offender.

83. In New South Wales, the fact or likelihood of deportation has been consistently stated to be an irrelevant consideration on sentence, including in respect of fixing a non-parole period, as such matters are said to be exclusively within the domain of the Commonwealth Executive Government (R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311 (Chi); Kristensen v The Queen [2018] NSWCCA 189 at [34]; Pham at [13]; AC v R [2016] NSWCCA 107 at [79]).

84. The same approach has been adopted by Western Australia. In Dauphin v The Queen [2002] WASCA 104 at [22] the court cited with approval the statement by Street CJ in Chi that prospect of deportation is not a relevant matter for consideration by a sentencing judge. In Hickling, the approach in Dauphin was confirmed as the correct state of the law in Western Australia, that is, "without more" deportation is an irrelevant consideration (at [9]). In that case_,_ McLure P proffered two rationales for the approach in that jurisdiction: that deportation of offenders on character grounds reflects an "entirely separate legislative policy" and to treat offenders who are liable to deportation more leniently than others is "an affront to the proper administration of criminal justice" (at [10]).

85. In the Northern Territory, the Court of Criminal Appeal in R v MAH [2005] NTCCA 17 held it was an erroneous approach to sentencing to impose a sentence, which while nevertheless appropriate, incorporates considerations of deportation when fixing a sentence within an appropriate range. In so doing, the court cited with approval Dauphin and several NSW authorities.

86. In other states and territories however, the prospect of deportation has been considered to be a relevant consideration.

At a glance

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