What is the Relevance of s 501(3A) to Sentencing Principles


There are a range of cases in the state courts which say that a court should not take into account the prospect of removal from Australia in sentencing a person for a criminal offence. A typical case is R v S [2001] QCA 531, Queensland Court of Appeal case where McPherson AJ said :

  1. 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, only to find that the Minister in fact later exercised his discretion to allow the offender to remain in Australia. 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.

However that reasoning has now been overtaken by the mandatory impact of s 501(3A) although softened by the ability to apply for revocation of the cancellation.

It may be that sentencing principles may now validly take into account what has become a certain event albeit with the possibility of revocation.  It can now be stated with certainty that a sentence of at least one year imprisonment will result in at least some time in Immigration detention.  Realistically a person sentenced to one year imprisonment would face at least a couple of months in detention. This is a relevant matter for sentencing and ought to be re-visited by those practising in criminal law. There is now a valid submission to make that a sentence of one year’s imprisonment now carries with it at some additional months in detention.  The submission of course is only really relevant for shorter sentences and could be crucial in reducing a sentence to below 12 months.