Monday, June 1, 2020
Mirko Bagaric (Swinburne Law School) has posted Offenders Risking Deportation Deserve a Sentencing Discount – But the Reduction Should Be Provisional (Melbourne University Law Review, Vol. 43, No. 3, 2019) on SSRN. Here is the abstract:
Offenders who are not Australian citizens and are imprisoned for one year or more risk being deported at the expiration of their sentence. There is considerable divergence across Australia regarding the impact that this should have in the sentencing of offenders. In Victoria, Queensland and the Australian Capital Territory, the risk of deportation can mitigate penalty but in New South Wales, Western Australia and the Northern Territory, the courts have refused to follow this position. The law relating to the connection between the risk of deportation and sentencing is unclear in South Australia and Tasmania. This article analyses the role that the prospect of deportation should have in the sentencing calculus, with a view to harmonising this area of law. We conclude that deportation at the expiration of an offender’s sentence is a hardship and hence should mitigate the sentence that is imposed by the court. The decision whether or not to deport offenders is, however, generally not known until after the sentence is imposed. This necessarily introduces a degree of uncertainty into the sentencing process. This speculation can be ameliorated by rescinding the discounted portion of the sentence in circumstances when the offender is not ultimately deported at the completion of the sentence. This is consistent with the approach that is taken to another speculative mitigating factor, namely a promise by offenders to assist authorities. Implementing this framework in relation to offenders who are at risk of being removed from Australia at the expiration of their sentence would enhance the coherency and doctrinal soundness of this area of the law.