Last updated: 8 February 2008

List of subheadings:

Crimes Act 1914 (Cth)
- Fixing a Non-Parole Period
- Imposing a Sentence
- Effect of dependants

Commentary on Liability for Deportation under the Crimes Act 1914 (Cth)

The issue of an offender's liability for deportation has arisen in sentencing in respect to a) fixing a non-parole period, b) imposing an appropriate sentence, and c) taking into account its effects on the offender's dependants.

Section 19AK of the Crimes Act 1914 (Cth) is the only section that expressly deals with the issue of an offender's liability for deportation. The common law principles that have developed on these issues are applicable to federal sentencing.

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A) Fixing a non-parole period

Section 19AK provides that a court is not precluded from fixing a non-parole period in respect of a federal sentence merely because the person, is or may be, liable to be deported from Australia.

In R v Shrestha [1991] HCA 26 Deane, Dawson and Toohey JJ identified two reasons why a federal offender's liability for deportation should not compel a sentencing judge to find that the fixing of a non-parole period is inappropriate. The majority judges said:

[First,] ...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. [1]

[Second,] ...a sentencing judge is not ordinarily required or empowered to determine whether a convicted person should in fact be released on parole at some future time. He or she is concerned to decide whether a prisoner should be eligible to be considered for release on parole at that future time. The likelihood of deportation, the lack of ties with this country and the difficulty or even impossibility of effective supervision and enforcement of parole conditions are all factors which will properly be taken into account by a parole authority when considering, at that time, whether the prisoner should be actually released on parole. [2]

In Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370, 386 the Court said:

It is possible, indeed likely, that the respondent will be deported from Australia immediately after completing the non-parole period fixed by the Court. However, this is not certain. Moreover, it is something which is outside the control of the Court. We should therefore proceed to determine the period of sentence which he should serve on parole in the same way as we would in the case of an equivalent Australian prisoner returned to the community. This is relevant in the present case, for it is tolerably clear that the respondent would benefit from parole and that this would foster his rehabilitation... (emphasis added).

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b) Imposing an Appropriate sentence

In determining the appropriate sentence for a federal offence, a court 'must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence': Crimes Act 1914 (Cth) s 16A(1).

The sentencing court must ensure that the federal offender is adequately punished for the offence (s 16A(2)(k)). A judge must not reduce an otherwise appropriate sentence to avoid the risk of deportation: R v S [2001] QCA 531 applied in R v Mao [2006] QCA 99, [18] and Islam v The Queen [2006] ACTCA 21, [35]; see also R v Kansiz (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, McInerney, Anderson, McGarvie JJ, 7 December 1982) 8-9. [3] As McPherson JA stated in R v S [2001] QCA 531, [6]:

It would in my opinion be quite wrong for the sentencing judge to deliberately impose a lesser sentence in order to avoid the possibility of deportation... That would have the consequence of imposing a sentence that was less severe than that visited upon an Australian citizen who was at no risk of deportation. It would produce a regime under which visitors or non-permanent residents were sentenced more leniently than Australians who had committed the same kind of offence. That cannot be a proper result in the administration of justice (emphasis added).

The decision to deport a person is an executive act: Chu Shao Hung (1953) 87 CLR 575, 583-584. Accordingly, an order imposing deportation is an executive order arising from an administrative decision, it is not a court order, and for that reason it is not punishment for a criminal offence. [4]

Courts sentencing federal offenders have recognised the general sentencing principle that deportation is an irrelevant sentencing factor because it falls outside the control of the courts: Muanchukingkan (1990) 52 A Crim R 354, 358; R v Do [2005] NSWCCA 258, [24].

In R v Chi Sun Tsui (1985) 1 NSWLR 308, 311 Street CJ held (Slattery CJ at CL and Roden J agreeing):

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...

This statement was cited by Brennan and McHugh JJ in R v Shrestha [1991] HCA 26; see also Dauphin v The Queen [2002] WASCA 104, [22]; R v Mao [2006] QCA 99, [18]; R v Mah [2005] NTCCA 17, [41]; R v Binder [1990] VR 563, 571 (citing earlier comments by Street CJ to the same effect).

See also the federal sentencing case R v Berlinsky [2005] SASC 316, [27]. Doyle CJ's comments were cited with approval in Islam v The Queen [2006] ACTCA 21. Doyle CJ said:

... at the end of the day the Judge had to impose an appropriate sentence having regard to the relevant circumstances. It would be wrong for the Judge to impose a lesser sentence than was appropriate on the basis that the shorter the sentence the better the prospects of the Minister permitting Ms Berlinsky to avoid deportation. And as to the fact of deportation, there was really nothing that the Judge could do. The risk was there, whatever the Judge might do. While the risk of deportation is a matter that naturally arouses one’s sympathy, it is difficult to see how it can affect the sentencing process. As Ms Abraham QC, counsel for the respondent, correctly pointed out, deportation is a matter for the Executive Government. It is irrelevant, as such, as a sentencing consideration: R v Shresthra (1991) 173 CLR 48; Giri and Karki (1999) 109 A Crim R 499 at 507; R v Latumetan and Murwento [2003] NSW CCA 70 at [19]; R v Satui [2002] QCA 323; R v Van Hong Pham [2005] NSWCCA 94 (emphasis added).

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c) effect on dependants

Whether liability for deportation may be taken into account in federal sentencing when it impacts upon the offender's family and dependants is unclear.

Section 16A(2)(p) of the Crimes Act 1914 (Cth) requires a court to take into account, where relevant and know, 'the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.'

N.b. See Effect on the Offender's Family or dependants for commentary on the judicial interpretation of 'probable' under s 16A(2)(p).

In Islam v The Queen [2006] ACTCA 21 the Australian Capital Territory Court of Appeal considered the operation of a territory sentencing provision [5] identical to s 16A(2)(p) of the Crimes Act 1914 (Cth). The Court found that it would be contrary to sentencing principles to impose a shorter sentence to avoid the possible consequences of deportation. [6] However, in obiter, the court recognised that deportation is a factor that could impact upon the offender's family or dependants and 'to this extent it may go too far to say that the probability of deportation is an irrelevant consideration in the sentencing process.' [7]

In contrast see the federal case of R v Satwant Singh (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Smith JJ, 26 March 1991). In R v Singh the Supreme Court of Victoria, Court of Criminal Appeal considered whether the 'very real prospect' [8] that the offender and his family would be deported should be taken into account in light of s 16A(2)(p) of the Crimes Act 1914 (Cth) . The joint judgment said:

It might be thought that this [s 16A(p)] requires us to consider whether he or his family is likely to be deported. We note that section 19AK provides that possible deportation does not preclude the Court from fixing a non-parole period. The question, however, is whether the possibility of deportation should be taken into account... This Court in R v Binder [1990] VR 563 held in effect that liability to deportation was irrelevant to the fixing of the appropriate punishment to be imposed and we accordingly disregard it.

A strict application of the general principle that deportation is an irrelevant sentencing factor has been applied in sentencing State and Territory offenders in Dauphin v The Queen [2002] WASCA 104; R v Pham [2005] NSWCCA 94; R v Mah [2005] NTCCA 17; R v Mao [2006] QCA 99. In R v Mao de Jersey CJ (Williams JA and Keane JA agreeing) of the Queensland Court of Appeal held:

Mr Moynihan submitted that the effect of any deportation upon this respondent's children would of itself be relevant to the sentencing process. I do not accept that, and point out that would presumably be a matter which could be considered by the Minister exercising his or her statutory discretion.

It falls to the sentencing court to determine sentence by reference strictly to those matters which are relevant, and any prospect of deportation consequent upon the imposition of an otherwise appropriate penalty is simply irrelevant to that process. That is a matter of concern only to the Executive. [9]

This was a case dealing with State sentencing provisions. The Penalties and Sentences Act 1992 (QLD) does not have a section equivalent to s 16A(2)(p) of the Crimes Act 1914 (Cth).

For further commentary of s 16A(2)(p) see Effect on the Offender's Family or dependants.

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Footnotes

[1] R v Shrestha [1991] HCA 26; (1991) 173 CLR 48, 72.

[2] R v Shrestha [1991] HCA 26; (1991) 173 CLR 48, 73.

[3] R v Kansiz is available from the Victorian Supreme Court Library.

[4] The issue of whether deportation could amount to a form 'extra curial' punishment was was raised in R v Do [2005] NSWCCA 258, [21]. The question was left open, in this case, as no evidence had been put before the sentencing judge ([2005] NSWCCA 258, [26] and [31]) on which to base a conclusion on either the defendant's deportation or whether this action would constitute additional punishment in the relevant sense.

[5] Crimes (Sentencing) Act 2005 (ACT) s 33(o).

[6] Islam v The Queen [2006] ACTCA 21, [35].

[7] Islam v The Queen [2006] ACTCA 21, [37].

[8] The Court's description of the likelihood of deportation for the offender and his family see R v Satwant Singh (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Crockett and Smith JJ, 26 March 1991) 10.

[9] R v Mao; ex parte A-G [2006] QCA 99, [28-29].

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