R v UE [2016] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION: R v UE [2016] QCA 58

PARTIES: R v UE (applicant)

FILE NO/S: CA No 55 of 2015 / SC No 231 of 2014 / SC No 372 of 2013

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: 23 March 2015

DELIVERED ON: 11 March 2016

DELIVERED AT: Brisbane

HEARING DATE: 5 August 2015

JUDGES: Morrison and Philippides JJA and North J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The application for leave to appeal against sentence should be refused.

CATCHWORDS: CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – OTHER MATTERS – where the applicant pleaded guilty to one count of importing a marketable quantity of a border controlled drug – where the applicant was sentenced to six years imprisonment with a parole release date after serving three years and four months – where the applicant submitted the sentencing judge erred in treating the risk of deportation as an irrelevant consideration – where the applicant submitted he would suffer hardship if he were to be deported – whether deportation is a relevant consideration in mitigation – whether it was demonstrated that deportation would be a hardship upon the applicant – whether sentencing judge failed to consider effect of deportation / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of importing a marketable quantity of a border controlled drug – where the applicant was sentenced to six years imprisonment with a parole release date after serving three years and four months – where the applicant submitted the sentence was not imposed according to law – where the sentencing judge indicated methodology for reducing the sentence pursuant to the Crimes Act 1914 (Cth) s 21E in camera – where the applicant submitted the sentencing judge erred in not stating the s 21E reduction in pronouncing sentence – whether the sentencing discretion miscarried for non-compliance with s 21E / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of importing a marketable quantity of a border controlled drug – where the applicant was sentenced to six years imprisonment with a parole release date after serving three years and four months – where the applicant was entitled to a discount pursuant to the s 21E of the Crimes Act 1914 (Cth) – where the applicant was more than a bare courier – where the applicant pleaded guilty – where the applicant submitted the sentence was manifestly excessive – whether the sentence was manifestly excessive / Crimes Act 1914 (Cth), s 21E / Criminal Code (Cth), s 307.2(1) / Migration Act 1958 (Cth), s 501(3A), s 501(6)(a), s 501(7), s 501CA / Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, cited / Guden v The Queen (2010) 28 VR 288; [2010] VSCA 196, approved / R v Chi Sun Tsui (1985) 1 NSWLR 308, distinguished / R v Khem (2008) 186 A Crim R 465; [2008] VSCA 136, cited / R v Klein (2001) 121 A Crim R 90; [2001] NSWCCA 120, cited / R v Maya & Kennedy [2012] QCA 123, considered / R v Oprea [2009] QCA 184, considered / R v Shahrokhey-Zadeh [2006] QCA 4, considered / R v S [2003] 1 Qd R 76; [2001] QCA 531, not followed / R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, considered / TAN v The Queen (2011) 35 VR 109; [2011] VSCA 427, cited

COUNSEL: S C Holt QC for the applicant / M J Woodford for the respondent

SOLICITORS: Fisher Dore for the applicant / Director of Public Prosecutions (Commonwealth) for the respondent

1. MORRISON JA: I have read the reasons of Philippides JA and agree with those reasons and the order her Honour proposes.

2. PHILIPPIDES JA: The applicant sought leave to appeal against a sentence imposed on his plea to one count of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth). The applicant contended that the learned sentencing judge erred in imposing a sentence of six years imprisonment with a parole release date after serving three years and four months (with 11 days pre-sentence custody declared as time already served), the grounds of appeal being:

(a) the sentence was manifestly excessive;

(b) the sentence did not proceed according to the law;

(c) there was error in treating the likelihood of the applicant’s deportation at the end of the custodial portion of his sentence as an irrelevant consideration.

3. It is convenient to address the grounds relating to specific error before turning to the ground that the sentence was manifestly excessive.

Background

4. The applicant was 29 years old when the offence was committed and 31 when sentenced. He is a Canadian citizen but at the time of the offending had lived and worked in Australia for some 10 years, having first come to Brisbane to study at a university.

5. The offence concerned the importation of 629.7 grams of pure methamphetamine at a level of purity of 63.1 per cent, having an estimated wholesale value of between $100,000 and $165,000. The applicant was brought into the importation by another person. He was an investor in a legitimate business that the applicant was trying to establish. Before the offending, the applicant had moved into that person’s house, following the breakdown of the applicant’s marriage. In November 2012, the applicant travelled to Malaysia and helped to deliver the relevant package to a DHL office for it to be sent to Brisbane. The consignment was addressed to a fictitious name. The applicant was unaware that Customs had intercepted the package and replaced the contents with an inert substance. The applicant proceeded to help another person to pick up the package from a motel in Brisbane and was arrested shortly afterwards.

6. In sentencing the applicant, the sentencing judge accepted the prosecution submission that the applicant’s role was more than that of a bare courier or passive recipient. His Honour found that the applicant’s role was significant. A measure of planning was necessarily involved in the applicant’s role and he had played an important part in the facilitation of the actual importation itself. Further, the applicant was engaged in the importation for financial gain. The applicant was sentenced on the basis that he did not know the precise nature of the illicit substance imported but was well aware of the risks that it might indeed be methamphetamine (that is, he was reckless as to its identity).

7. The sentencing judge referred to the absence of a criminal history but noted that it was not suggested on behalf of the applicant that it should be inferred that he had not previously committed a serious criminal offence before. His Honour also had regard to the applicant’s timely plea and other extensive cooperation which his Honour commented was much to the applicant’s credit.

8. Although he had initially declined to be interviewed when first arrested, the applicant engaged with the Australian Federal Police three months later and provided a statement. The matter proceeded by full hand up committal and, following amendment of the indictment, the applicant entered a plea of guilty.¹ The applicant’s cooperation extended to the giving of an undertaking pursuant to s 21E of the Crimes Act 1914 (Cth).

The learned sentencing judge erred in treating the risk of deportation as an irrelevant consideration on sentencing

(a) Erroneous approach to consideration of the risk of deportation?

9. It was contended on behalf of the applicant that the sentencing judge appeared to have rejected a submission that the likelihood of the applicant’s deportation at the end of the custodial part of his sentence was a relevant consideration. That was said to be apparent from certain exchanges between his Honour and counsel during the sentencing submissions and the fact that the only reference to the topic in his Honour’s sentencing remarks was the observation that the applicant was “a foreigner likely to suffer deportation at the conclusion” of his sentence. This submission was said to be strengthened by his Honour adopting the following passage of Wood CJ at CL in R v Klein:²

“For foreign offenders, the fact of their separation from their homeland and family is of very little relevance. Those who choose to run the risk of bringing drugs into this country must accept the consequences of being imprisoned here, with all the disadvantages entailed.”

10. The applicant contended that, notwithstanding the sentencing judge’s reference to deportation, his Honour treated that matter as irrelevant or failed to give it any consideration.

11. To the extent that reliance is placed on his Honour’s reference to Klein as indicative of error in failing to consider the factor of deportation, it does not assist the applicant. It was submitted before this Court that separation from Canada was no hardship given that the applicant had lived in Australia for 10 years, so the reference to Klein was not applicable. However, the reference to Klein simply reflected submissions made by both counsel on the relevance in the sentencing process of the difficulties experienced by foreign offenders in Australia. The implicit criticism of the sentencing judge’s reference to Klein is unwarranted.

12. The primary submission was that the applicant’s deportation was relevant for two reasons. Firstly, because it had the punishing effect of removing the applicant from his home and life in Australia of 10 years. Secondly, it was submitted that any discount that was applied to the head sentence for the purposes of s 21E gave the applicant no practical benefit, given that he would be deported once paroled. Thus, the benefit of the s 21E factor ought to have been visited entirely on the non-parole period. Given that the applicant had lived in Australia for 10 years at the time of sentence, being deported was a “serious punishing consequence”. The learned sentencing judge failed to take that consequence into account, and, accordingly, failed to take into account a factor that would have reduced the sentence and non-parole period imposed.

13. As to the relevance of deportation, counsel appearing for the applicant at sentence had been unable to assist the sentencing judge with any authority in support of the proposition that the likelihood of deportation is to be taken into account in mitigation of penalty. Before this Court, the applicant’s counsel referred to the Victorian Court of Appeal decision of Guden v The Queen.³ It was there held by Maxwell P (with whom the other members of the Court agreed) that the prospect of deportation of an offender was a proper matter for consideration in determining an appropriate sentence. Adopting what was said in Khem v The Queen,⁴ Maxwell P observed⁵ that the prospect of deportation, like other factors personal to an offender, is a factor which may bear on the impact which a sentence of imprisonment will have on the offender both during the currency of the incarceration and upon release. His Honour identified two ways in which that prospect could be relevant in mitigation:

“… the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, … in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach ... this may well be viewed as a serious ‘punishing consequence’ of the offending.”

14. The respondent accepted the applicant’s submission that the principle that emerges from Guden ought to be accepted as correct. This Court should not depart from a decision of another intermediate appellate court unless satisfied that the decision is plainly wrong. Far from being plainly wrong, the reasoning that led the Victorian Court of Appeal to its conclusion in Guden is compelling and has been adopted in subsequent decisions of that Court.⁷

15. The starting point for a discussion of the relevance of deportation is often the statement of Street CJ in R v Chi Sun Tsui⁸ that “… the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society”. As Maxwell P explained in Guden,⁹ that statement was made in the context of whether the prospect of deportation was relevant when considering if a non-parole period should be specified under legislation which prohibited the Parole Board from refusing to release a prisoner on parole “by reason, only that, in the opinion of the Board, the prisoner may become liable to be deported”. The statement is not to be regarded as one of general application. To the extent that the decision of this Court in R v S¹⁰ suggested in obiter remarks otherwise, it ought not to be followed.

16. It is undoubtedly correct that, in an appropriate case, the prospect of deportation may be a relevant factor, personal to the offender, to be considered in mitigation of sentence. The prospect of deportation may affect the impact of a sentence of imprisonment, because it makes the period of incarceration more burdensome, and also because upon release, the fact of imprisonment will result in the offender being deprived of the opportunity of permanent residence in Australia. While the prospect of deportation may be a relevant mitigatory factor, the sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender. Proof that deportation will in fact be a hardship for the particular offender will be required.¹¹

17. As to the prospect of deportation, the following observations in Guden are pertinent:

“If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed … as ‘a completely speculative possibility’.”

18. Counsel for the applicant contrasted the position of the applicant with that of the offender in Guden, where a sentence of more than 12 months’ imprisonment only enlivened the power of the Commonwealth Minister to cancel a person’s visa leading to his or her deportation. It was pointed out that Migration Act 1958 (Cth) had been amended¹³ since Guden was decided. Relevantly, s 501(3A) of the Migration Act had been inserted into the Act, which provides that the Minister must cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full time custodial sentence. Pursuant to s 501(6)(a), a person does not pass the character test if the person has a “substantial criminal record”. Section 501(7) declares that a person has “substantial criminal record” if they have been sentenced to a sentence of 12 months imprisonment or more. While it was accepted that it was possible for the Minister to revoke a decision to cancel a person’s visa pursuant to s 501CA, the applicant argued that the presumptive position is that the applicant’s visa will be cancelled on his release. Returning to the language of Guden, the applicant submitted that the only “speculative possibility” under the new regime is the possibility that a person will not be deported rather than the possibility that they will be. It was thus contended that deportation was “essentially certain” for the applicant. The prospect of deportation is clearly a real one, but that was referred to by the sentencing judge and counsel for the applicant accepted that there was no error in his Honour’s formulation of the risk in stating that the applicant was “likely to be deported”.

19. However, the real difficulty with the applicant’s contention as to error by the primary judge concerned the deficiency in the evidence before his Honour as to hardship. As was stated in Guden, in relation to the evidence that was required to be placed before the court:¹⁴

“… in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken*. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship*.” (emphasis added)

20. The only matter relied upon before the sentencing judge to demonstrate that the applicant would suffer hardship if he were to be deported was that the applicant had chosen to live in Australia for 10 years, where he had “carved out a life for himself”, he had “married someone here” and had “established a career here”. It was on that basis that the sentencing judge was urged to infer that there would be a substantial loss for the applicant in being deported. When that proposition was made the sentencing judge observed that he did not consider he was in a position on the evidence to determine whether a conclusion of hardship followed in the circumstances of the present case. His Honour observed “for all I know [the applicant] may have decided that the life choices he made in Australia haven’t worked out well” and he was looking forward to going back to Canada. No adjournment was sought to place further material before the sentencing judge.

21. The evidence before his Honour indicated that during the applicant’s period in Australia, he had married but the relationship had failed and he had separated from his wife. And although he had made efforts to establish a business, it also had failed. The applicant’s parents and siblings lived in Canada and the applicant had a close relationship with his father who had travelled from Canada to provide surety. When the considerable difficulties experienced by the applicant during his time in Australia are considered and contrasted with the evidence of his close continuing ties with his family in Canada, the sentencing judge’s approach in indicating to counsel that he was not in a position to determine that being deported from Australia would be likely to result in hardship for the applicant cannot be said to have proceeded on an erroneous basis.

(b) Erroneous approach in failing to take into account the effect of deportation when considering the s 21E discount

22. Counsel for the applicant made a further submission that the effect of deportation was to render practically irrelevant any discount to the head sentence to reflect the s 21E factor¹⁵ which applied at the time. Counsel submitted that the full effect of the discount warranted by that factor ought to have been visited upon the non-parole period rather than the head sentence as had been urged below. It was submitted that the language of s 21E(1) supported the proposition that a sentencing judge was able to apply the discount flexibly as between the head sentence and the non-parole period. It did so by the separation of the requirement to specify the discount given to the head sentence and the non-parole period and by using the word “if” in relation to each and the word “or” in the preamble. Section 21E provides:

“(1)Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:

(a)if the sentence imposed is reduced—specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and

(b)if the non-parole period is reduced—specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.”

23. The applicant submitted that the policy imperative underlying s 21E was to encourage people to give evidence against people involved in criminal offending. A discount to a head sentence for a person who would be deported did not advance that policy goal. It was thus submitted that either both the head sentence and the non-parole period should have been reduced more than they were, or the s 21E factor ought only have been applied to the non-parole period resulting in it being lower than it otherwise would be.

24. Given that no error can be demonstrated on the evidence before his Honour in failing to consider adequately the effect of deportation, there is no substance to the further complaint made that the sentencing judge ought to have applied the s 21E discount only to or primarily to the non-parole period. Care must be taken not to structure a sentence so as to deliberately circumvent legislation and thus fall into the error identified by Street CJ in Chi Sun Tsui. But, in any event, the sentencing judge made it clear that he was applying the discount to both the head sentence and non-parole period. No error is demonstrated in his Honour’s approach.

The sentence was not imposed according to law

25. Section 21E(1) requires a sentencing judge to specify that the sentence and/or non-parole period are being reduced because of a s 21E factor and to specify what the sentence or non-parole period would have been but for the reduction. During the in camera part of the proceeding, the learned sentencing judge indicated his proposed methodology. His Honour indicated that, after allowing for mitigating factors other than the s 21E factor, the starting point ought to be nine years’ imprisonment with a five year non-parole period. His Honour then stated that, allowing credit for the s 21E factor, the head sentence would be reduced to six years and the non-parole period to three years and four months. His Honour heard submissions directed both to the indicated “but for” sentence and the reduction to be applied from any starting point. This course was taken with the agreement of counsel.

26. The applicant submitted that in pronouncing the sentence imposed, the sentencing judge did not return to the “but for” numbers, or specify the reduction as required by s 21E. Counsel for the applicant at the end of the sentencing remarks briefly raised the issue but the learned sentencing judge responded that “it’s already been done”. It was submitted that his Honour erred in so stating, as it had not in fact been done, contrary to the mandatory requirement in s 21E(1), such that the sentencing process miscarried.

27. It was evident, from the course taken in stating in closed court, what sentence and non-parole period his Honour would impose absent the s 21E factor and what the reduction would be. There could be no doubt about those matters were it to become pertinent for the purposes of s 21E(3). It is preferable for the reduction to be stated in open court. But having adopted that approach with the concurrence of counsel, there was no error such that the sentencing discretion miscarried for non-compliance with s 21E. His Honour was not required in those circumstances to reiterate the reduction from nine to six years in the head sentence and from five years to three years and four months in the non-parole period. Nor was there any complaint that his Honour failed to give counsel the opportunity to make fulsome submissions.

The sentence imposed was manifestly excessive

28. It was submitted that comparisons with other cases were sensibly undertaken against the learned sentencing judge’s indication of what the sentence would have been but for the s 21E factor. The applicant submitted that a review of comparable cases indicated that the “but for” sentence and non-parole periods imposed on the applicant were excessive given the level of cooperation, the applicant’s role and his plea of guilty. In support of those contentions, particular reliance was placed on R v Maya & Kennedy,¹⁶ R v Shahrokhey-Zadeh¹⁷ and R v Oprea,¹⁸ which all concern cases where sentence was imposed after trial.

29. As to Maya & Kennedy, sentences of 11 years with a non-parole period of seven years imposed on Maya and her de facto partner, Kennedy, were not interfered with on appeal, although the sentences were described as being at the “high end of the range”. The importation in that case involved 1.865 kilograms of cocaine by offenders whose roles were more than couriers or passive receivers. Their offending was of a more serious nature than the applicant’s. That factor and the lack of any benefit of pleas was however reflected in the sentence and non-parole period imposed (being respectively in each case two years longer than that which would have been imposed on this applicant but for the s 21E factor). That case is not discordant with the sentencing judge’s approach to the indicative sentence in this case.

30. In Shahrokhey-Zadeh, this Court upheld a sentence of 12 years with a non-parole period of six years. The offending there involved four kilograms of cocaine, being a commercial quantity attracting a maximum penalty of life imprisonment. The offender used another person to act as his courier and did not have the benefit of a plea or cooperate with the authorities in any way. The non-parole period in that case was one year more than the indicative non-parole period in this case for much more serious offending with no plea of guilty. However, the offender did have the benefit of youth (being 21 years old when he offended) as well as having made commendable efforts to rehabilitate himself. He had partially completed a Bachelor of Business which he interrupted to set up a business which at the time of his arrest employed five people.

31. The sentence of 10 years with a non-parole period of six and half years in R v Oprea¹⁹ was also said to be difficult to reconcile with that imposed in the present case. The amount of cocaine involved in was 1.5 kilograms and sentence was imposed after a trial on an offender with relevant prior convictions, albeit 15 years earlier. However, the decision is not a particularly useful case by way of comparison, given that Oprea’s role in the importation, although conducted on a commercial basis, was as a mere courier.

Order

36. The application for leave to appeal against sentence should be refused.

37. NORTH J: I have read the reasons for judgment of Philippides JA. I agree with the order proposed by her Honour for the reasons given by her Honour.

Footnotes

1. The history of the matter is set out in full by counsel for the application on the sentencing. ↩

2. (2001) 121 A Crim R 90 at 95. ↩

3. (2010) 28 VR 288 at 295 [26]. ↩

4. (2008) 186 A Crim R 465 at 472 [31]. ↩

5. (2010) 28 VR 288 at 294 [25]. ↩

6. (2010) 28 VR 288 at 295 [27]. ↩

7. See Director of Public Prosecutions v Peng [2014] VSCA 128 at [23]; TAN v The Queen (2011) 35 VR 109 at [126]. ↩

8. (1985) 1 NSWLR 308 at 311C-E. ↩

9. (2010) 28 VR 288 at 292 [16] – 294 [24]. ↩

10. [2003] 1 Qd R 76 at 78 [5]. ↩

11. Guden (2010) 28 VR 288 at 295 [28]-[29]; Peng [2014] VSCA 128 at [23]; TAN (2011) 35 VR 109 at [126]. ↩

12. (2010) 28 VR 288 at 295 [28]. ↩

13. Section 501 of the Migration Act was amended by Migration Amendment (Characters and General Visa Cancellation) Act 2014 (Cth). Commenced 11 December 2014, inserting s 501(3A).