Media Release
Embargoed until 6:00 a.m. (AEDT) Tuesday 19 November 2019
The Sentencing Advisory Council today released a report examining how Victorian courts are considering the likely deportation of offenders as a factor in sentencing.
Between 2007 and 2014, about 100 people were deported from Australia each year because they had a substantial criminal record. Changes to federal law in 2014 mean that any non-citizen sentenced to 12 months’ imprisonment or more now has their visa automatically cancelled. Since then, the number of people deported following sentence has risen to almost 1,000 people per year.
This automatic visa cancellation has led to an increasing number of cases that require courts in some jurisdictions (including Victoria) to decide how an offender’s potential deportation should affect their sentence.
The report reviews recent Victorian case law on this topic and finds four ways that potential deportation can reduce an offender’s sentence:
- it may be treated as an additional form of punishment
- it may cause the offender anxiety, making their time in prison more difficult
- it may reduce the offender’s prospects of being granted parole when they are eligible (although legislation prohibits Victorian courts from taking this into account)
- reduced prospects of parole may cause the offender anxiety, also making their time in prison more difficult.
The report further finds that courts face three unanswered questions that would benefit from clarification:
- What test should courts apply when determining the likelihood that an offender will be deported because of their sentence? This issue arises because nearly one in three people whose visa is automatically cancelled following sentence are subsequently successful in having their visa reinstated.
- What steps in the visa review process, if any, constitute ‘fresh evidence’ on which an offender can base a sentence appeal?
- If courts can, with proper evidence, take into account the anxiety an offender experiences over their reduced prospects of parole, what is the legal basis for doing so?
The report also finds that, in many cases, courts must decide on sentence without having much information about whether the offender is on a visa that will be cancelled, or whether the offender plans to apply to have their visa reinstated if it is cancelled.
Quotes Attributable to Council Chair Professor Arie Freiberg
‘This review identifies, for the first time, the different ways that deportation might justify a lower sentence in Victoria, as well as some questions that, if answered, would make the work of the courts more consistent and predictable.’
‘Given the growing number of offenders being deported each year because of their criminal record, sentencing courts are more frequently having to decide what role, if any, a person’s possible future deportation should play in their sentence.’
‘This is a very contentious issue. Australian states and territories are split on whether deportation should play any role in sentencing. And in those jurisdictions like Victoria where deportation is recognised as relevant to sentencing, the issues being faced by courts are very complex.’
Deportation and Sentencing: An Emerging Area of Jurisprudence will be published on the Council’s website.
