OFFENDERS RISKING DEPORTATION DESERVE A SENTENCING DISCOUNT - BUT THE REDUCTION SHOULD BE PROVISIONAL.

• Date: 01 December 2019
• Author: Bagaric, Mirko

I Introduction II Analysis of Existing Law A Overview of the Sentencing Legal Landscape B Overview of Circumstances where Offenders Can Be Deported 1 Non-Citizens with Substantial Criminal Record Risk Deportation 2 Not Tenable to Anticipate at Sentencing if Visa Cancellation Will Be Revoked 3 Summary of Relevant Deportation Provisions for Sentencing Purposes C The Unsettled and Contradictory Existing Law Relating to the Connection between Sentencing and Deportation 1 Deportation Risk Mitigates Only in Victoria, Queensland and the Australian Capital Territory 2 No Guidance from the High Court or Scholarly Commentary regarding Deportation and Sentencing III Evaluation of Existing Law and Connection between Deportation and Sentencing, from the Perspective of Existing Mitigating Factors and the Principle of Proportionality A Coherency with Other Mitigating Factors 1 Main Categories of Mitigating Factors 2 Deportation and Other Incidental Sanctions 3 Coherency with the Approach to Other Incidental Sanctions Provides Qualified Support for Deportation Risk as a Mitigating Factor B The Principle of Proportionality: Deportation Is Normally a Hardship and Hence Should Mitigate 1 Overview of the Proportionality Principle 2 Doctrinal Problems Associated with Proportionality Do Not Undermine Assessment of the Role of Deportation Risk to Sentencing IV Reform Proposal: The Risk of Deportation Should Mitigate Sentence Severity A Risk of Deportation Should Mitigate but Account Should Be Taken of Conditions in the Other Country and Location of Offender's Balance of Family B The Presumptive Position: The Risk of Deportation Mitigates Sentence C The Reform Framework: Rescinding the Discount when Deportation Is Not Ordered D The Reform Framework Provides a Degree of Relative Clarity to Sentencing Law E The Two Stages to the Proposed Reform Can Operate Independently F Miscellaneous Matters Arising from the Link between Deportation and Sentencing 1 No Discount for Offenders without Visas 2 Anxiety of Deportation Should Not Mitigate 3 Offenders Who Receive No Discount but Are Deported V Conclusion I INTRODUCTION

Offenders who are not Australian citizens or permanent residents can be deported if they fail a 'character test'. (1) There are a number of circumstances which can result in a person failing to meet the character test, including if they are sentenced to a term of imprisonment of one year or more. (2) Thus, the sentencing of an offender can trigger a visa cancellation, which ultimately leads to the offender being removed from Australia. The decision about whether an offender will actually have their visa cancelled is made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs or their delegate. (3) Offenders who are deported at the expiration of their sentence may experience a greater hardship than offenders who resume life back in the Australian community when they are released from prison. (4) Hence, courts in some Australian jurisdictions have held that deportation can be a mitigating sentencing consideration. (5)

However, the decision regarding whether an offender will be deported is made after the sentencing determination. Thus, sentencing courts are required to speculate whether offenders will be removed from Australia once their sentence is completed. This requires judges to engage in a complex decision-making process. Not surprisingly, a considerable divergence has occurred across Australian jurisdictions regarding whether the risk of deportation should impact on the severity of the sanctions that are imposed on offenders.

There is no settled position regarding the role that the risk of deportation has in the sentencing of offenders. Appellate courts in Victoria, the Australian Capital Territory and Queensland have held that the risk of deportation can mitigate penalty. (6) The contrary position has been taken in New South Wales, the Northern Territory and Western Australia. (7) The position in Tasmania and South Australia is not settled. (8) The inconsistency in approach is undesirable and in fact untenable from the rule of law perspective. (9) The common law in Australia is supposedly uniform and should apply consistently throughout Australia. (10) Whether an offender receives a discount on account of the risk of deportation should not be contingent upon the happenstance of which jurisdiction they happen to be sentenced in.

Part of the reason why a divergence of approach exists relating to the impact that the risk of deportation should have in sentencing is that courts have not engaged in considered jurisprudential analysis of the role that this consideration should have in the context of the objectives of sentencing. (11) Further, the issue has not been considered at length by scholars.

In this article, we analyse the manner in which the risk of deportation should be factored into the sentencing calculus, with a view to providing a coherent framework for this area of the law. The analysis is grounded in an assessment of mitigating factors and the principle of proportionality. Deportation in the sentencing context is directly linked to the crime for which offenders are punished. (12) We contend that offenders who are deported at the end of their sentence generally experience greater hardship than offenders who resume life in the Australian community once their prison term has been served. (13) Accordingly, we suggest that the risk of deportation should normally mitigate the sentence.

The problem with this approach is that, as noted above, courts at the time of sentencing are not certain that an offender will be deported after their sentence. Offenders who receive a reduced sanction on account of the risk of deportation, but are not ultimately removed from the country, receive an unwarranted benefit. The ideal solution is to remove the speculation associated with whether an offender will be deported at the end of their sentence. This can be done by adopting a similar framework to that adopted for another mitigating factor that also involves a degree of uncertainty at the time of sentencing--cooperation with authorities.

Defendants who undertake to cooperate with authorities and give evidence against other offenders receive a sentencing discount. (14) The discount is normally quantified, (15) and if an offender does not fulfil the undertaking, the discounted portion of the sentence is retracted. (16) The same methodology should be applied in relation to offenders who are at risk of deportation. Thus, when an offender is at risk of being deported, courts should stipulate the size of the sentencing discount being accorded. This should be rescinded if deportation does not occur. This approach requires a degree of coordination between prosecution authorities and the Minister, but it is a relatively straightforward system to implement--certainly, it is no more complex than the protocols between prosecution officials and police relating to offenders who promise to assist the police.

In the next part of this article, we examine the existing law relating to the connection between the risk of deportation and sentencing, and explore the different approaches that exist in the respective Australian jurisdictions. This is followed in Part III by an evaluation of the role that the risk of deportation should have in the sentencing of offenders from the perspective of coherency with other relevant mitigating factors, and against the backdrop of the principle of proportionality. In Part IV, we make reform recommendations for how the prospect of deportation should be dealt with in the sentencing calculus. The reform proposals are summarised in the concluding remarks.

II ANALYSIS OF EXISTING LAW

Prior to examining the role of the risk of deportation in sentencing, we provide a brief overview of the sentencing legal landscape, and the circumstances in which offenders can have their visas cancelled.

A Overview of the Sentencing Legal Landscape

Sentencing law in Australia is a combination of statute and common law. Although each jurisdiction has its own statutory scheme, the broad considerations that determine sentencing outcomes are similar throughout Australia. The key sentencing objectives are set out in the main sentencing statutes in each of the nine jurisdictions (ie the six states, two territories, and the federal jurisdiction). (17) They consist of: community protection (which is most commonly pursued by incapacitation); (18) rehabilitation; (19) retribution; (20) specific or general deterrence; (21) and denunciation. (22) The nature and severity of the punishment imposed by the courts is principally determined by the principle of proportionality, which provides that the seriousness of the crime should be matched by the hardship imposed by the sanction. (23)

In arriving at a sentence, courts are also required to take into account a large number of aggravating factors (which increase penalty severity) and mitigating factors (which operate to reduce penalty severity). The source of aggravating and mitigating considerations varies considerably throughout Australia. The sentencing legislative schemes in two jurisdictions--the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Penalties and Sentences Act 1992 (Qld)--each set out around 30 aggravating and mitigating considerations, (24) whereas the sentencing statutes in the other jurisdictions identify a smaller number of such factors. (25) Despite this, there remains a considerable convergence regarding the mitigating and aggravating factors that operate throughout Australia, because most of these considerations stem from the common law. (26) There are in fact more than 200 mitigating and aggravating factors in sentencing law. (27) The role of deportation in the sentencing decision-making process is not set out in any statutory provision and hence is governed by the common law, which is supposed to operate in a uniform manner...