R v Shrestha

R v Shrestha - [1991] HCA 26 - HCA 1989 case summary — Zoe

[34]

When a party, seeking special leave to appeal, submits that an issue is worthy of consideration on appeal but the raising of the issue depends on the operation of a complex of statutory provisions, the party seeking the grant of special leave should demonstrate, not assume, that the operation of the statutory provisions does in truth give rise to the issue. The applicant omitted to demonstrate that proposition in this case. It is unsatisfactory for this Court to declare the law on an assumption as to the operation of statutes when the assumption might, on closer analysis, be flawed. However, in Western Australia a construction has been placed on par. (d) which excludes consideration, for the purpose of determining whether an eligibility-for-parole order should be made, of the likelihood of deportation of a federal offender who is a foreign national and resident on the expiration of a custodial sentence for a serious crime committed in this country [11] . If we leave out of account pars. (d) and (e) in deciding whether that matter is within the range of relevant considerations, this case can be decided by reference to pars. (a), (b) and (c) of s. 37A(3) which identify the matters to which reference might legitimately be made under that Act in terms which correspond with s. 19AE(1) of the Crimes Act as amended. Those matters at least are common to the laws of a majority of the States which confer on their courts a discretion in respect of eligibility-for-parole orders [12] . The Queensland provisions (Pt IV of the Corrective Services Act 1988 Q.) provide for automatic eligibility for parole after serving a period of imprisonment as specified by s. 166(1) (a period which might be varied by a judicial recommendation specifying a shorter or longer period). It is possible to determine this application by reference only to the matters referred to in pars. (a), (b) and (c) of s. 37A(3) of the Offenders Probation and Parole Act, and it is desirable to grant special leave to appeal in order to do so. On that footing, the determination of this case can assist in the application of the laws of the States (other than Queensland) where eligibility for parole depends upon the making of a judicial order and in the application of s. 19AE(1) of the Crimes Act as amended which empowers a court to decline to make an eligibility-for-parole order where it is satisfied that it is not appropriate to do so "having regard to the nature and circumstances of the offence or offences and to the antecedents of the person". Except in marginal cases (and this is not such a case), the sentencing judge's decision as to whether an eligibility-for-parole order is appropriate will not turn on the form of the discretion, that is, on whether the discretion is to make such an order or to decline to make such an order.

[41]

Judicial views as to the appropriateness of making eligibility-for-parole orders in favour of offenders in the nominated category have differed. The question has arisen in a series of cases similar to the present case, that is, cases where a foreign offender has entered Australia for the purpose of importing or distributing a trafficable quantity of a prohibited drug and who would have left Australia after completing his criminal purpose had he not been apprehended. In Reg. v. Chapman [14] the Court of Criminal Appeal refused to specify a non-parole period, following the view, first expressed in Reg. v. Hull [15] and affirmed in Reg. v. Macaulay [16] , that many aspects of parole are not appropriate in the case of an offender who will be deported so soon as he is released from custody. However, in Reg. v. Riche [17] , the same Court rejected the proposition that Hull , Macaulay and Chapman had laid down any general proposition that "non-parole periods should not be specified where aliens are sentenced to imprisonment or penal servitude in such circumstances as to expose them to the prospect of being deported" [18] . Riche, though an alien, had been an Australian resident for some years and was apprehended carrying drugs on his return to Australia from an overseas holiday. However, the rejection of the general rule, for which the earlier cases had been thought to be authority, that non-parole periods would not be specified in the case of an alien offender whose crime had rendered him liable to deportation was taken a step further in Reg. v. Mesdaghi [19] , where it was held that, under s. 4(3) of the Parole of Prisoners Act 1966 N.S.W., the prospect of deportation is not an admissible or relevant factor to be considered in the exercise of a discretion to withhold the specification of a non-parole period [20] . It was said that that factor did not fall within either of the statutory grounds for withholding specification of a non-parole period, namely, the nature of the offence or the "antecedent character" of the offender. Thereafter the Probation and Parole Act 1983 N.S.W. added a further ground for declining to specify a non-parole period: "any other reason which the court considers sufficient" [21] . Nevertheless, in Reg. v. Chi Sun Tsui [22] , the same view as that expressed in Mesdaghi was embraced by reason of a provision in the Act which declared that parole should not be refused "by reason only that the prisoner may become liable to be deported". Street C.J. [23] held that - "the prospect of deportation is not a relevant matter for consideration , in that it is the product of an entirely separate legislative and policy area of the regulation of our society".

[57]

It has been said that "[t]he intention of the legislature is that a minimum term is a benefit to the prisoner": Iddon & Crocker v. The Queen [38] ; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: Corrections Act 1986 Vict., s. 74(1); Community Welfare Services Act 1970 Vict., s. 195(1), since repealed. But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation. Power v. The Queen [39] put paid to that notion. Barwick C.J., Menzies, Stephen and Mason JJ. observed [40] : "In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention." After pointing out that the fixing of the non-parole period was concerned with deterrence [40] , their Honours went on to say [41] : "To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence." That comment was repeated in the unanimous judgment of the Court in Deakin [42] . See also Reg. v. Paivinen [43] ; Reg. v. Watt [44] . Their Honours approved [45] the observation of Jenkinson J. in Reg. v. Morgan and Morgan [46] . His Honour there said: the minimum term is fixed by reference to both misericordious and utilitarian considerations. Nor is the minimum term fixed without regard to all those other interests of the community which imprisonment of offenders is designed to serve They will be considered again when the minimum term is being fixed, when they will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice. Dawson, Toohey and Gaudron JJ. said [47] : The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole: Corrections Act, s. 74(1). That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v. The Queen. Referring to Power, this Court said in Deakin v. The Queen [48] : "The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence." Their Honours cited with approval [49] another passage from the judgment of Jenkinson J. in Morgan [50] : The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify. It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public. 1. (1990) 169 C.L.R., at pp. 530-531. 2. (1987) 32 A. Crim. R. 315, at pp. 325-326. 3. (1974) 131 C.L.R. 623. 4. ibid., at p. 628. 5. ibid., at p. 628. 6. ibid., at p. 629. 7. (1984) 58 A.L.J.R. 367, at p. 367; 54 A.L.R. 765, at p. 766. 8. (1985) 158 C.L.R. 489, at p. 495. 9. (1988) 165 C.L.R. 474, at p. 481. 10. (1990) 169 C.L.R., at p. 531. 11. (1980) 7 A. Crim. R. 146, at p. 155. 12. (1990) 169 C.L.R., at p. 536. 13. (1984) 58 A.L.J.R., at p. 367; 54 A.L.R. at p. 766. 14. (1990) 169 C.L.R., at p. 538. 15. (1980) 7 A. Crim. R., at p. 154.

[62]

Apart from the statutory provisions, the prospect of an offender's benefiting from parole and the Australian community's interest in the rehabilitation of a non-citizen non-resident who has committed a serious crime cannot be assessed without reference to the likelihood of the offender's deportation on release from custody. To take cognizance of the policy which affects the exercise of a power to deport is to have regard to a circumstance relevant to the evaluation of these matters. To say that the policy may change is merely to say that the prospect of deportation is not a certainty. If, forming the opinion that the offender is likely to be deported were he released on parole, the court determines that an eligibility-for-parole order should not be made, the court has not subordinated its function to the executive power; it has simply taken account of the effect of a likely and valid exercise of an executive power on the offender's availability to serve the remainder of his sentence on parole - a consideration which is material to the proper exercise of the court's discretion. When the offender is in the category of federal offenders identified in the submission of counsel for the applicant, the material considerations which bear on the exercise of the court's discretion to make or to decline to make an eligibility-for-parole order will generally preclude the making of an eligibility-for-parole order, at least where the offender is involved in the planned importation or distribution of a trafficable or commercial quantity of a prohibited drug. In such a case, the nature and circumstances of the offence will be serious, the antecedents of the offender will seldom warrant the extending of mercy beyond that reflected in the head sentence, and the likelihood of the Australian community's benefiting from the rehabilitation of the offender will be remote. Any benefit which the offender may derive from early release will be simply by reason of the mitigation of his punishment, but it will not be mitigation "in favour of his rehabilitation through conditional freedom".

[70]

The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody. In some cases, of course, those considerations may be so compelling at the time of sentencing that, consistently with the need for punishment and deterrence, any sentence of imprisonment should be suspended or deferred upon entry into a good behaviour bond or recognizance, with the result that imprisonment may never take place. In most cases, however, a suspension or deferral of the appropriate term of imprisonment will not be justified. In such an event and subject to some exceptions where a prisoner is automatically entitled to release on parole at the expiry of the non-parole period upon conditions then determined by the parole authority [56] , the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner's conduct while in custody his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole. Obviously, a reviewing authority with that up-to-date information should be in a better position to determine whether it is appropriate that the prisoner be then released on parole than the sentencing judge would have been at the time, often years before, when the head sentence of imprisonment was imposed and a minimum non-parole period was fixed. Thus, and subject to the above-mentioned exceptions, it is a central aspect of the working of parole systems in this country that the function performed by the sentencing judge in relation to parole is to determine whether it is appropriate or inappropriate that the convicted person be eligible to be considered by the parole authority for release on parole at some future time. Even in the exceptional case where an offender is, at the expiry of the non-parole period, entitled to be released on parole on conditions then fixed by the parole authority, the power of the parole authority to determine the applicable conditions [57] provides real scope for determining at that stage what is appropriate in all the circumstances of the particular case. It is not, however, necessary to consider the extent to which the function of a sentencing judge differs in those exceptional cases and we put them to one side for the purposes of the present judgment.

[78]

It can be said at once that we find both aspects of the submission unpersuasive. In so far as the submission involves an assertion that the community is not concerned with the rehabilitation of a prisoner who has no ties with this country and who will be deported when released from gaol, it takes a blinkered view of community concerns and interests and unjustifiably confines them within strict territorial limits. 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 [62] . 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. There is, for example, no necessary difference in degrees of criminality between, on the one hand, a New South Wales resident, with no ties in Western Australia, who travels to that State solely for the purpose of committing a serious crime there and, on the other hand, a New Zealand resident, with no such ties, who travels to Western Australia solely for the purpose of participating in that crime. Indeed, the circumstances could well be such that the criminality of the New South Welshman was much greater, and the potential for rehabilitation much less, than that of the New Zealander. A Western Australian legal system which provided that, regardless of the degrees of criminality or prospects of rehabilitation, the advantages of eligibility for release from custody on parole should be available to the New South Wales resident but unavailable to the New Zealand resident would plainly discriminate between them by reference to the place whence they came, that is to say, on the grounds of residence or origin.

[81]

The first reason is that the compulsory deportation of a prisoner released on parole is something which is beyond the control of the prisoner. It lies within the control of government. It is far from evident that the disadvantages to the community which would be involved in allowing a person released on parole to remain within Australia under the supervision of the relevant parole authority until the expiry of his parole would necessarily outweigh the disadvantages involved in keeping him in gaol throughout the whole of the period in which, if he were not a foreigner, he would be released on parole. Moreover, the inadequacy of the parole system to provide proper supervision and enforcement of parole conditions in the case of a prisoner who is released on parole and then deported is likewise something which is beyond the control of the prisoner. It is also arguably within the control of government, since it is not immediately apparent that it is beyond government initiative to negotiate arrangements with other countries pursuant to which persons released on parole could be supervised in those countries and, if necessary, returned to imprisonment in this or that other country in the case of breach of parole conditions. Even if a foreign prisoner will inevitably be deported upon being granted parole and be placed beyond supervision, that is no reason why he should be denied eligibility for parole. There could obviously be cases where compassionate considerations might justify release on parole notwithstanding that adequate supervision was impossible and that an involuntary return to custody would be impracticable. The case of the terminally-ill prisoner whose physical incapacity represents an effective confinement of his activities provides an obvious example. Other circumstances, such as reform while in prison and the likelihood of rehabilitation, could plainly arise in which, notwithstanding prospective deportation, the release on parole of a prisoner would be obviously more in the interests of both the prisoner and the community than would be his continued imprisonment at community expense. In that regard, the absence of arrangements with another country for supervision or enforcement of parole conditions does not mean that the fact that a person was on parole would be irrelevant in that country. One would, for example, expect that it would be a highly relevant consideration in the sentencing process in that other country if the person concerned was convicted of a crime in that country while on parole.

[95]

In these circumstances, particularly the respondent's co-operation with the authorities and the fact that the respondent's part in the offences was that of "an inept and inexperienced criminal" who had no previous convictions and who had been "manipulated by others", it seems obvious that an order that he be eligible for parole would have been made under s. 37A if he had been an Australian citizen. The learned trial judge refused to make an order that the respondent be eligible for parole on the ground that he was prevented from so doing by "the facts of the case, your personal circumstances and the fact of your immigration status". A unanimous Court of Criminal Appeal disagreed with the trial judge's conclusion in that regard. The Court of Criminal Appeal considered that the fact that the respondent was a foreigner, with no ties to this country, who had come to this country solely for the purpose of his criminal activities, did not make it inappropriate, in all the circumstances, that such an order be made. In our view, the Court of Criminal Appeal was correct in that conclusion. The respondent's status as a foreigner with no ties to this country was, as the Court of Criminal Appeal clearly recognized, a relevant consideration in deciding whether an order should be made, under s. 37A, that he be eligible for parole. It would, as their Honours doubtless appreciated, be a factor to be taken into account by the parole authority when the time came to consider whether the respondent should actually be released on parole or on licence. The fact, if it were then the fact, that, if released, the respondent would almost certainly be deported would also be a relevant factor [70] . There would, however, also be other factors which would be relevant at that future time. The likelihood of rehabilitation would be one such factor. Any mitigating circumstance, including the then plight of the respondent's children, could be another. At the time when the Court of Criminal Appeal dealt with the matter, however, it was simply impossible to say that the circumstances in the future would not be such as would, on balance, justify the respondent's release on parole. Nor was it a case in which it could be said that the requirements of justice - including punishment and deterrence - dictated that the respondent serve in custody the whole of the sentence imposed. That being so, it was appropriate that an order that the respondent be eligible for parole be made.

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