Nitin Giri
26 This prisoner was born on 17 September 1976. I draw on his pre sentence report dated 19 November 1999 to record his background. He too was born in Nepal and he too comes from a privileged background. His family own a tea plantation and the family has developed a reputation for generosity, benevolence and support of community projects in Nepal. It seems that the prisoner himself was involved in community projects before he left Nepal. The prisoner studied to year ten level at a college in Kathmandu but then came to Australia in February 1996 to study for his Higher School Certificate. He enrolled at the TAFE at Granville College for this purpose and he obtained part time work at a fast food outlet where it seems he was well regarded because he was promoted (after the commission of this offence) to the position of Trainee Manager.
27 The author of the pre sentence report has concluded that the prisoner is a young man who "apart from his involvement in this offence appears to have led a responsible and dutiful lifestyle". The author added that the prisoner "appears conscientious and devoted to his family with concern about them being foremost in his thoughts."
28 The prisoner gave evidence on the hearing on sentence. He too expressed his contrition and his shame concerning his involvement in this offence. I accept that the expression of these sentiments was genuine.
29 This prisoner has been supported since the commission of this offence by his brother, Nabin Giri, who has come to Australia and who gave evidence on the hearing on sentence. According to Nabin Giri, his brother will not be left completely without support after sentence is imposed because there is a cousin living in Australia who will afford, with friends, some measure of support. Nabin Giri however will be returning to Nepal.
30 Dr Waters, psychiatrist, assessed this prisoner on two occasions, in July 1996 and again in November 1999. On the first of these assessments the prisoner expressed shame for what he had done and the dishonour he has caused his family. He also expressed his contrition. When last seen, the prisoner presented with what Dr Waters has assessed to be an adjustment disorder with depression. In the doctor's opinion, this prisoner will have particular difficulty in serving his sentence.
31 It has been submitted that I should find special circumstances in the case of Nitin Giri. Like Ivesh Karki this prisoner is a man of previous good character with no prior convictions. He is a young man who is about to be sentenced to a lengthy term of imprisonment. In the interests of his rehabilitation he will need an extended period of supervision when he is released. As in the case of Ivesh Karki, I am satisfied that there are special circumstances for the purpose of s 5(2) of the Sentencing Act.
32 Evidence was introduced concerning the fact that the prisoner co-operated in providing a statement and subsequently in giving evidence under subpoena at a criminal trial in the District Court. The subject matter of the statement and the trial was an offence of a sexual nature committed in premises in which the prisoner was living at the relevant time. It was not suggested that the prisoner was in any way involved in this offence and it was another person who stood trial for it. From the material placed before me, the evidence which the prisoner was able to give assisted neither the prosecution nor the accused. Mr Walsh did not contend that the prisoner's involvement in this matter is of great significance nor do I consider this to be the case. I suppose that it does show a measure of responsibility in that it reflected a willingness on the part of the prisoner to co-operate with the police and to give evidence when called upon to do so. I take this into account.
33 Each prisoner has been in custody continually since the jury returned with its verdict on 15 September 1999. Each prisoner was taken into custody for one night during the trial in circumstances and for reasons which it is unnecessary to state for present purposes. Each prisoner had spent time in custody between the date of arrest and the date of the grant of bail. Nitin Giri was arrested on 24 June 1996 and was granted bail on 8 August 1996. He then remained on bail until the trial. Ivesh Karki was in custody following his arrest on 24 June 1996 until 24 October 1996 when he was admitted to bail. He then remained on bail, like Nitin Giri, until the date of his trial. It is to be observed then that Ivesh Karki has spent longer in custody so far than Nitin Giri. However assessing overall the objective and subjective features in both cases, I have concluded that I should impose the same sentence in each case. I do so alert to the periods each prisoner spent in custody before being admitted to bail and I do so intending to backdate each sentence to commence on 15 September 1999.
34 It has been urged on behalf of each of these prisoners that imprisonment will impose exceptional hardship because each prisoner is going to be incarcerated away from home in a foreign country. The Crown acknowledged that this is a relevant consideration as was urged by both Mr Cusack and Mr Walsh.
35 In Ferrer-Esis (1991) 55 A Crim R 231 Hunt J, as he then was, with whose judgment the Chief Justice and the Chief Judge at Common Law agreed, said at 239 that the fact that the respondent in that case was to be incarcerated in a foreign country was not a circumstance to be attributed "very much weight". In that case however the offender appears to have come to Australia for the purpose of importing a prohibited drug. More recently in Jelks (unreported, NSWCCA, 1 December 1995), Hidden J, with whom the other members of the court agreed, commenting upon the fact of incarceration in a foreign country, said:
"As to the undoubtedly invidious position of a foreign national in prison in this country, the most anyone in this court has ever said is that very little weight can be given to that fact: see Ferrer-Esis in the judgment of the Chief Judge at Common Law at 239."
36 In Kogelbauer (1993) 65 A Crim R 357, a decision to which Hidden J referred in Jelks, it was submitted that the prisoner should have attracted a shorter sentence because, being a foreign national, his security progression through the gaol system would be restricted, and he could never progress beyond a C1 classification, with the consequence that he would have to serve his entire period in custody quite confined by a physical barrier. The members of the Court of Criminal Appeal in that case were not in agreement about the significance of this for sentencing purposes. Meagher JA considered this ought not to be taken into account. Hunt CJ at CL considered it was relevant to take into account loss of the usual progression through the prison system. Sully J appears to have agreed with Meagher JA.
37 The only other authority to which I have been referred is Brown (unreported, NSWCCA, 13 July 1993). This case went on appeal on the issue of the severity of the sentence imposed at first instance. The appeal was dismissed. One of the matters that had been taken into account by the sentencing judge was that a sentence would be more onerous upon him because of his race and culture and the appellate court did not conclude that the trial judge had erred in this approach.
38 I have regard to the concession of the Crown to which I referred earlier and I recognise that the facts in the present case can be distinguished from Ferrer-Esis because neither of these prisoners came to this country for the purpose of committing a crime. I am satisfied that in the case of each prisoner incarceration is going to be more difficult for him away from his native land. This I will take into account.
39 The pre sentence reports in the case of each of these prisoners disclose that the Department of Immigration has stated that each prisoner will be deported once he is released from custody. However, as I understand the authorities, this prospect of deportation ought not influence the sentence which I pass. In R v Shrestha (1990-91) 173 CLR 48, the offender, coincidentally a resident of Nepal, was convicted in Western Australia of three drug offences against s 233B of the Customs Act. The judge at first instance declined to order that the prisoner become eligible for parole but the Court of Criminal Appeal determined otherwise. An application for special leave to appeal to the High Court was refused. It was determined that there was no rule that it was inappropriate for a foreign offender, who had no ties in Australia and whose only purpose in entering Australia was to commit serious crime, to be eligible for parole. It was pointed out in that case also that policy may change between the date of sentence and the date of expiration of sentence. Moreover in the course of their joint judgment Deane, Dawson and Toohey JJ said at 69:
"It would be closing one's eyes to reality to deny that the parole system is sometimes abused and is often ineffective. Nonetheless, in a society where imprisonment for the punishment of crime is accepted as being sometimes unavoidable, the parole system represents an important influence for the reform and rehabilitation of those in gaol. In a case where subsequent eligibility for parole is not precluded by order of the sentencing judge, the indeterminate nature of the period (within the confines of the head sentence) which will actually be served in custody provides the offender with 'a basis for hope of earlier release and in turn an incentive for rehabilitation' (see Bugmy v The Queen (1990) 169 CLR 525 at 536). From this flow two significant and valuable consequences. The first is that the prisoner is likely to be better behaved while in confinement. The second is that a prisoner who retains at least some degree of control over his future fortunes and who has a real incentive to reform is more likely to retain basic self respect and to enjoy some real prospects of eventual rehabilitation. In the harsh context of a prison environment, the potential advantages - in terms of hope, self esteem, incentive for reform and rehabilitation - which eligibility for release on parole offers a prisoner in an Australian gaol should not be underestimated.
The mitigation of sentence which the parole system allows is ordinarily directed towards rehabilitation. It is not, however, exclusively so. Circumstances can arise in which mitigation of sentence by release on parole is justified upon purely compassionate grounds. An obvious example is where a prisoner who has become eligible for release on parole is terminally ill. Another example is where the severe illness or other unusual needs of the spouse or infant children of a prisoner are strong grounds for release. It is true that it is only in exceptional circumstances that the mitigation of punishment for reasons of compassion, rather than rehabilitation, will justify release on parole. Where those reasons exist, however, they can be all-important. An inability on the part of the authorities to take them into account at all may devastate an individual and brutalize the prison system. It is a real benefit of the parole system that it enables some compassion to be exercised, if necessary, when a prisoner has reached the stage of eligibility for release on parole."
40 Their Honours went on to say:
"This country has a direct and significant interest in the well-being and rehabilitation of all who are detained within its gaols, whether or not their origins, ties or future prospects lie in this or in some other country. It also has a responsibility, both moral and under international treaty, to treat all who are subjected to criminal proceedings in its courts or imprisonment in its gaols humanely and without discrimination based on national or ethnic origins (see e.g. International Convention on the Elimination of All Forms of Racial Discrimination: (1965), Art. 5(a); Reg v Binder [1990] VR 563 at 569-570). To deny foreign offenders of the kind in question the opportunity for the amelioration of their situation and the incentive for reform and rehabilitation which the parole system offers is not to differentiate by reference to degrees of criminality or prospects of rehabilitation. It is to discriminate against prisoners of that class because of their origins, their place of residence and their family ties."
41 In Liang (unreported, NSWCCA, 2 June 1995) the prisoner was illegally in the country. Sully J, with whom the other members of the court agreed, said at p 4 of his judgment:
"There is clear law to the effect that the court is not entitled to take the respondent's immigration status into account in actually determining what it considers to be an actual sentence warranted in law…"
42 More recently in Jap (unreported, NSWCCA, 20 July 1998) Sully J, with whose judgment Smart J agreed, said this at p 3:
"I think that the course of authority dealing with that vexed and difficult question of liability to deportation of foreign nationals committing criminal offences in this country, has settled, at least broadly, the principle that whether such a person will or will not be deported at the end of an appointed minimum term is not a matter for the courts, but is a matter for the executive government; and that, so far as the courts are concerned, such a person should be dealt with as though he or she were a national of this country, it being left to the proper processes of the executive government, and the public administration machine otherwise, to deal with the question of deportation."
43 There has been unanimity at the Bar table in the course of submissions that whether or not these prisoners face deportation at the end of any minimum term which I fix is not a relevant consideration for me any more than it would be a relevant consideration for the Parole Board when eventually considering their release: as to the position of the Board see s 17(2) of the Sentencing Act. In my opinion the correct approach requires that I proceed to sentence putting aside consideration of possible deportation of either prisoner upon release from custody.
44 Having weighed the objective and subjective circumstances concerning each of these prisoners, I have concluded that the appropriate total sentence in each case is one of penal servitude for seventeen years. Finding as I do special circumstances in each case, I fix a minimum term in each case of twelve years and an additional term of five years.
45 Accordingly in the case of each prisoner I impose sentence as follows: I sentence each prisoner to a minimum term of twelve years penal servitude commencing on 15 September 1999 and to expire on 14 September 2011 and an additional term of five years to commence on 15 September 2011 and to expire on 14 September 2016. I specify 15 September 2011 as the first date upon which the prisoner is to be eligible for release upon parole.
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