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Cases

MIGRATION - judicial review - New Zealand citizen - cancellation of visa - failure to pass character test under s 501(7)(d) of the Migration Act 1958 (Cth) – whether applicant has a substantial criminal record – sentences imposed to operate concurrently - effective term of imprisonment ten months - nominal total of sentences twenty five months - whether concurrent sentences to be totalled for purposes of character test - concurrent sentences not to be totalled - totalling of concurrent terms constituted jurisdictional error – appeal dismissed

Minister for Immigration & Multicultural & Indigenous Affairsv Hicks [2004]

Minister for Immigration & Multicultural & Indigenous Affairsv Hicks [2004] FCAFC 114 (7 May 2004)
Last Updated: 7 May 2004

FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural & Indigenous Affairs v Hicks

[2004] FCAFC 114


MIGRATION - judicial review - New Zealand citizen - cancellation of visa - failure to pass character test under s 501(7)(d) of the Migration Act 1958 (Cth) – whether applicant has a substantial criminal record – sentences imposed to operate concurrently - effective term of imprisonment ten months - nominal total of sentences twenty five months - whether concurrent sentences to be totalled for purposes of character test - concurrent sentences not to be totalled - totalling of concurrent terms constituted jurisdictional error – appeal dismissed

JUDGES AND COURTS - circumstances in which the decision of a differently constituted Full Court should be followed

WORDS AND PHRASES – ‘substantial criminal record’ – ‘terms of imprisonment’ – ‘sentence’


Sentencing Act 1995 (WA) s 77, 80, 88
Migration (Reform) Act 1994 (Cth)
Migration Act 1958 (Cth) s 5(1), 20(1)(d)(iii), 501(1)(d), 501(7), 501(7)(d), 501(12)
Judiciary Act 1903 (Cth) s 39B
Migration Amendment Bill (No 2) 1992 (Cth)
Migration Amendment Act (No 2) 1992 (Cth)
Migration (Reform) Act 1994 (Cth)
Migration Reform Act 1992 (Cth) s 26A
Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) s 5
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)
Sentencing Act 1991 (Vic) s 9(1)


Attorney-General v Tichy (1982) 30 SASR 84 cited
Ball v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 199; [2003] FCA 699 referred to
Botany Municipal Council v Jackson (1985) 2 NSWLR 1 applied
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60 considered
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 affirmed
Johnson v The Queen [2004] HCA 15 cited
Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 followed
Minister for Immigration & Ethnic Affairs v Sciascia (1991) 31 FCR 364 explained

R H McL v The Queen (2000) 203 CLR 452 cited
Sciascia v Minister for Immigration & Ethnic Affairs (1991) 24 ALD 128 cited
Smith v Corrective Services Commissioner of NSW (1980) 147 CLR 134 cited
Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264 considered
Winsor v Boaden (1953) 90 CLR 345 discussed












MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v STEPHEN EDWARD HICKS
W 165 OF 2003




HILL, CARR & HELY JJ
7 MAY 2004
PERTH




IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 165 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: STEPHEN EDWARD HICKS
RESPONDENT
JUDGES: HILL, CARR & HELY JJ
DATE OF ORDER: 7 MAY 2004
WHERE MADE: PERTH



THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.












Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.



IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W165 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: STEPHEN EDWARD HICKS
RESPONDENT


JUDGES: HILL, CARR AND HELY JJ
DATE: 7 MAY 2004
PLACE: PERTH


REASONS FOR JUDGMENT

HILL J:

1 The appellant, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") appeals against the judgment of a Judge of this Court which quashed a decision made by the Minister to cancel the visa class TY444 held by the respondent, Stephen Hicks.

2 I have had the benefit of reading the judgment in draft of Hely J in the appeal and gratefully adopt his Honour’s statement of the relevant facts.

3 The issue in the present appeal is, as Hely J notes, identical to the main issue decided by another Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 judgment in which appeal was delivered on 22 April 2004. That judgment was adverse to the Minister. If this Court follows it then the present appeal must be dismissed.

4 I am of the view that a Full Court of this Court should follow the decision of another Full Court unless it is of the view that the decision is clearly wrong. It may be said that that approach may not be appropriate where the two cases are virtually decided at the same time as it gives greater weight to the decision which is delivered first in time. Despite that view which I concede has some merit, I think it is outweighed by the desirability that Full Courts not diverge from the reasons given by other Full Courts, except in the extreme case where the view is held that the other Full Court is "clearly" or "plainly" wrong: Transurban City Link Ltd v Allan (1999) 95 FCR 553; (1999) 168 ALR 687. I am not of that view. It seems to me to be clear that while the issue for decision is one on which minds might well differ, either view is clearly arguable and neither is clearly wrong. It follows that I would dismiss the appeal. However, because I would have come to a contrary view and would have upheld the Minister’s appeal but for the judgment in Ball, I set out here why I am of that opinion in case the matter should go further.

5 The issue, stated shortly, is whether sentences ordered to be served concurrently are to be counted by reference to the term of the concurrent sentence or are to be counted cumulatively in determining for the purposes of section 501(7) of the Migration Act 1958 ("the Act") whether the respondent was a person who had been sentenced to two or more terms of imprisonment where the total of those terms is two years or more.

6 That subsection provides relevantly:

"For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more"
7 If the respondent is a person to whom s 501(7) applies, he does not pass the character test (s 501(6) of the Act) and, in consequence, the Minister may determine to cancel the visa previously issued to the respondent.

8 Uninstructed by authority I would have found the issue relatively simple to determine. The question which is posed by s 501(7) may be put quite simply. Assume (it is not the present case where the facts are slightly more complicated) that a defendant is sentenced in respect of three different offences, each for a term of 9 months. The sentencing Judge orders that the three terms are to be served concurrently or perhaps the legislation, as here, mandates that result unless a contrary order is made. Was the defendant sentenced for three terms of imprisonment which together total 27 months or was the defendant sentenced for three terms of imprisonment which, because they are to be served concurrently total only 9 months. On the first view the defendant would fail the character test. On the second the defendant would not fail the character test. In my view the answer which a person familiar with the criminal law would give is clear, and that is that the defendant has been sentenced for three terms of imprisonment which together total in excess of two years, notwithstanding that the period served is a lesser period.

9 When a Judge finds a defendant guilty of more than one offence, that Judge will then proceed to sentence the defendant. The procedure adopted may differ from State to State, or for that matter, from country to country because s 501(7) is not limited to sentences imposed only by Courts in Australia. Normally, however, in Australia the sentencing Judge will have a discretion to order that the sentences imposed be served either concurrently or consecutively. Further, within Australia, it is clear from the decision of the High Court in R H McL v The Queen (2000) 203 CLR 452 at 458 citing Mill v The Queen (1988) 166 CLR 59 at 63, that sentences should first be fixed by the sentencing Judge having regard to the period of imprisonment which is appropriate for the particular offence. However thereafter, the aggregate of sentences should be considered by the sentencing Judge and either made wholly or partially concurrent, having regard to the "totality principle" so as to ensure that the aggregate sentence is ‘just and appropriate’, or by lowering the individual sentences below what otherwise would be appropriate in order to reflect the fact that a number of sentences are being imposed.

10 Assuming that a sentencing Judge acts in accordance with the view of the High Court in R H McL, it seems to me to follow that the sentencing Judge in this case, before considering the aggregate of the sentences, first sentenced the respondent to terms of imprisonment which together totalled in excess of two years. The sentences imposed were sentences appropriate to each particular offence committed by the respondent. The question of whether the terms should be served concurrently then arose for consideration. Under the scheme of the legislation in Western Australia, a person who is convicted and sentenced to two fixed terms of imprisonment is, by statute, (s 88 of the Sentencing Act 1995) to serve the two sentences concurrently, unless the sentencing Court orders otherwise. That requires the sentencing Court to consider the aggregate of the two terms to determine whether to make an order that the two terms not be served concurrently.

11 The language of section 88 is instructive, notwithstanding that the provisions of s 501 of the Act must be capable of operating in jurisdictions where the procedure differs from that enshrined in s 88. The section provides:

(1) "An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).
(2) An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).
(3) If at the time an offender is sentenced to a fixed term –
(a) the offender is serving or has yet to serve another fixed term imposed previously; or
(b) the offender is then also sentenced to serve another fixed term, the sentencing court may order that –
(c) the fixed term is to be served cumulatively on the other fixed term; or
(d) the fixed term is to be served partly cumulatively on the other fixed term."
12 The language of s 88 makes it clear that there will only ever be two or more sentences for a term – whether or not those sentences are ultimately to be served wholly or partially cumulatively. The impact of the section, but subject to an order which may be made by the sentencing Court, is that where two or more sentences are required to be served concurrently it is not that there ceases to be two or more sentences or that those sentences are by statute commuted into lesser sentences. What happens is that the statute operates to direct the manner in which the initial sentences are to be served.

13 In practice, it must be said, there is little difference between the situation which prevails in Western Australia where the sentencing Judge is required to consider making an order that the terms of imprisonment be not served concurrently and the situation which prevails in other jurisdictions where the sentencing judge has the power to order that the terms of sentence be served concurrently. Neither procedure will affect the sentence which is initially ordered. That is, the sentence which the sentencing Judge has ordered, whether that sentence is served concurrently or not. The order made relating to whether the term is to be served concurrently is an order which relates to what period is served, just as is the early release for good conduct considered in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, and will not affect the actual sentence. One thing will, however, be clear. The statutory language, "sentence for a term of imprisonment", does not mean the same thing as the term of imprisonment which the accused in fact serves or even is required to serve.

14 It is, perhaps, important to bear in mind that the expression "term of imprisonment" has a well established meaning which equates with the normal meaning of the expression, that is to say, that it denotes the term of imprisonment that is imposed by the sentencing judge and not the period for which the prisoner is in fact detained. That follows from the decision of the High Court in Winsor v Boaden (1953) 90 CLR 345. See also Husson v Slattery [1983] 3 NSWLR 389 at 393 and Smith v Queensland Community Corrections Board [2001] QCA 30 at [1] per McPherson JA.

15 The context in which Winsor v Boaden was decided was different from the present context. There the legislation required an office to be deemed to be vacated if the office holder was sentenced to imprisonment "for any term exceeding six months". The respondent was convicted of three offences; on each of two offences he was sentenced to imprisonment for three months, with those sentences to be served concurrently. On the third count he was sentenced to three month’s imprisonment "to commence at the expiration of the imprisonment" for the other two offences. The issue was whether the third count was to be accumulated with the period to be served cumulatively in respect of the other two offences. The High Court agreed that the legislation should be interpreted as requiring there to be one sentence of at least six months rather than an aggregation of sentences totalling six months or more. However, Dixon CJ said at 347:

"The word ‘sentence’ connotes a judicial judgment or pronouncement fixing a term of imprisonment. A term of imprisonment is the period fixed by the judgment as the punishment for the offence."

16 It seems to me that what his Honour there said supports the position of the Minister. Even although terms of imprisonment may be directed to be served cumulatively, each term of imprisonment is for the period initially fixed by the sentence as the punishment for the offence.

17 The question, however, is whether there is something in the legislative history or in the case law which requires a different conclusion in the present context.

18 As to the context it is, I think, the case, as the Full Court of this Court said in Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264, that attention is directed, in determining whether the visa holder does or does not satisfy the character test, to the quality of the offence or offences as reflected in the sentence which has been imposed as appropriate for the particular offence or offences of which the visa holder has been found guilty. If anything, that rather supports the view of the Minister. The fact that two or more offences are committed by an accused which are sufficiently proximate in time to permit the order to be made that they be served concurrently in no way affects the underlying "quality" of the offence for which the sentence originally imposed has been deemed appropriate by the sentencing Judge. It would be strange if the outcome of the character test differed just because the offences were sufficiently proximate so as to permit the sentences to be concurrently served. The contrary argument is that the real "quality" of the offence is only to be discovered when the totality principle itself has been applied and an overall term of imprisonment has been established. However, there is something strange about the suggestion that the quality of an offence for which an appropriate sentence has been imposed changes as a result of another offence being committed for which again an appropriate sentence has been imposed where the two sentences are then required to be served concurrently. The quality of that first offence is marked for the purposes of s 501 by the sentence imposed with respect to it.

19 The problem for the view favourable to the Minister is the majority judgment in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364.

20 That case concerned a provision of the Act which deemed a person to be an illegal immigrant if, at the time the person entered Australia, the person had been convicted of "2 or more crimes and sentenced to imprisonment for a period totalling at least one year". It may be said that there could be a difference in policy between the situation on entry and the situation which arises after entry when the discretion to be exercised involves cancellation. Be that as it may, it was held in Sciascia that the provision did not permit the adding together of several sentences for several offences that were given on separate occasions so as to form a period of imprisonment totalling at least one year.

21 The real decision in the case turned upon whether sentences ordered on separate occasions could be totalled. That is not now in issue. Hence any comments regarding sentences to be served concurrently were dicta. Secondly, it may be said that there was a difference in language between the provision considered in Sciascia and that under consideration here. The former was concerned with whether there was a sentence of imprisonment "for a period." The latter is concerned with whether there was a sentence "for a term of imprisonment". Perhaps the word "period" is more apt to describe the period to be served, whereas concentration on the "term" of imprisonment which is the subject of the sentence looks rather at the sentence itself and not the period actually served.

22 It is important, however, to note that in Sciascia the Court placed reliance upon the principle that legislation which has great impact on the civil rights of a person affected, rights which may be called "accrued rights", should be construed narrowly and so as to confine the operation of the legislation. That principle is equally applicable to the context of s 501 of the Act.

23 In the course of a discussion directed at showing that the drafting of the provision under consideration had failed to provide an exact criterion and that the drafter had failed to exercise real care in an area where the legislature was, in effect, altering rights which had accrued, their Honours noted the problem which arose because there was no express distinction drawn between cumulative and concurrent sentences. Their Honours said at 375:

"Yet the slightest reflection will show that an express reference was at least very desirable, in order to avoid uncertainty. Has a person, who has been sentenced to two sentences of six months of imprisonment, to be served concurrently, been "sentenced to imprisonment for periods aggregating not less than one year"? In our opinion, that would be a strange conclusion. The theory of the criminal law is that several charges which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident: see R v Melville (1956) 73 WN (NSW) 579. Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved. A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed. Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction."

24 As has been pointed out by the learned Primary Judge in the present case, their Honours were wrong in suggesting that concurrent sentences could only arise where there was the "one enterprise". That is a not insignificant error on their Honours’ part. As Dowsett J pointed out in his dissenting judgment in Ball, concurrent or partially concurrent sentences are often passed in connection with numerous offences of a broadly similar kind committed often over an extended period of time. However, the difficulty created by failing to deal specifically with the distinction between concurrent and cumulative sentences is not removed merely by excising the error. Further, if it matters, the context in which the problem arose in Sciascia was the liability of an illegal entrant to deportation. An illegal immigrant was a person who at the time the person entered Australia had been convicted and sentenced, inter alia "to imprisonment for a period totalling at least one year".

25 In 1992 Parliament amended s 20(1)(d) by way of a response to Sciascia in a way which dealt specifically with concurrent sentences and directed, in essence, that two sentences directed to be served concurrently were to be treated as involving only one period of imprisonment and were not to be totalled. The subsequent history of s 20(1)(d) is set out in the judgment of Hely J.

26 The history of the present s 501 is also outlined by his Honour. That history does not need to be repeated here. It might, however, be significant to emphasise that in the Second Reading Speech to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character & Conduct) Bill of 1999, the Minister said that it was intended that "sentences be ‘totalled’ irrespective of the time and place at which each sentence was imposed." However, neither the legislation itself, nor the Second Reading Speech made reference to the question whether concurrent sentences should be totalled or treated as if the sentences to be served concurrently were but one sentence. Further, this was in the context that parliament intended to "provide more certainty as to who is able to pass the character test."

27 The question which now arises is whether there is any implication caused by the enactment of the 1992 amendments to s 20(1)(d) in the context of illegal immigrants that Parliament should be taken to have enacted into law in the different context of visa cancellation (ie s 501) what their Honours had said about cumulative or consecutive sentences. No doubt, there is a principle of interpretation that if the legislature re-enacts a provision then it will be presumed to have intended that that provision will be given the same interpretation as its predecessor was given: Pillar v Arthur (1912) 15 CLR 18; Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 and the cases in Pearce & Geddes Statutory Interpretation in Australia 5th ed at 3.40. Likewise it is common sense that if Parliament amends a statute to overcome a particular case then the amending statute will be interpreted, so far as that is possible, so as to achieve the Parliamentary purpose. But there is no rule of interpretation of which I am aware that says that when Parliament enacts a law in a related context it must be assumed to have adopted as correct what is said in a previous case in dicta by reference to another section and to have enshrined that dicta as part of the interpretation of the amended law. This must particularly be the case where the language of the legislation differs in other respects from that discussed in the prior case. While Parliament dealing with an amendment to s 20(1)(d) may be said to have in its mind the case law decided on that section, it is somewhat of a fiction to suggest that when amending s 501 Parliament necessarily had in mind the case law decided with respect to a previous version of s 20(1)(d).

28 That leaves, however, the question whether the general principle of construction applied in Sciascia that legislation affecting, and affecting adversely important accrued rights should be interpreted narrowly when applied to s 501, which would operate to bring about the result that concurrent sentences not be aggregated. That the principle of construction (perhaps it may be called a presumption) is important is beyond doubt. However, I do not think the presumption has much work to do when the language of the section is on its face quite clear and particularly when the language used is language which has a well-settled legal meaning.

29 It follows that I have the misfortune to disagree with the majority judgment in Ball and with those of my colleagues in the present case who take a contrary view. That being said, however, I do accept, as Hely J says, that either construction is debateable particularly when consideration is given to the legislative history, notwithstanding that I do not, perhaps, find the legislative history as compelling as, it would seem, Hely J does.

30 I join, accordingly, in the order that the Appeal be dismissed with costs.


I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Hill.


Associate:

Dated: 7 May 2004






IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W165 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: STEPHEN EDWARD HICKS
RESPONDENT


JUDGES: HILL, CARR AND HELY JJ
DATE: 7 MAY 2004
PLACE: PERTH


REASONS FOR JUDGMENT

CARR J:

31 The factual, procedural and legislative context of this appeal is set out in Hely J’s reasons for judgment.

32 When I joined in reserving our judgments, I had formed the fairly strong but provisional opinion that, subject to what might emerge from the decision of a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 (heard eleven days earlier in Melbourne), this appeal should be allowed. I still think that the appeal should be allowed.

33 The reasoning of Dowsett J in Ball and that of Hill J in paragraphs [5] to [28] of his reasons in this case coincide with my provisional opinion. I find their reasoning compelling and I agree with their view of the law. But that does not mean that I would describe the reasoning of the majority in Ball as being at the higher range of being wrong, i.e. "clearly" or "plainly" wrong. I see no reason why the principles which guide our doctrine of precedent should oblige me to go that far before I respectfully decline to follow Ball, just because the majority judgment in Ball is a few days older than this one.

34 In my opinion, a more principled and logical approach, where two separately-constituted Full Courts have heard appeals in the same Full Court session on the same point of statutory construction, is to regard the judges who comprise the two Courts as effectively sitting at the same time.

35 This situation is not likely to occur very often. To give precedence to the majority judgment in Ball in the above circumstances because the judgments in the case, heard a few days previously in the same Full Court session, happened to be handed down first (again by a few days) in my view does nothing for the doctrine of settled precedent, or the principles which underpin it. In these unusual circumstances the members of both Full Courts should be free to express their view of the law. A general rule often needs the strength of an exception or exceptions. This is one of those situations where such an exception would strengthen the validity of the rule rather than possibly bring it into question. I think that is unlikely that anyone will have altered their position during the last few days in reliance on the construction point decided in Ball.

36 For the reasons referred to in paragraph 33 above, I would allow the appeal with costs, set aside the judgment at first instance and substitute for it an order that the application be dismissed with costs.




I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.



Associate:

Dated: 7 May 2004




IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 165 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: STEPHEN EDWARD HICKS
RESPONDENT


JUDGES: HILL, CARR & HELY JJ
DATE: 7 MAY 2004
PLACE: PERTH


REASONS FOR JUDGMENT

HELY J:

37 The respondent to this appeal is a citizen of New Zealand who was born on 8 July 1972. He migrated to Australia with his mother and stepfather on 18 December 1986 when he was 14 years old. The family settled in Kambalda in Western Australia. Apart from a number of short absences, the respondent has remained in Australia ever since.

38 On 22 February 2000 the respondent was convicted at the Karratha Court of Petty Sessions on two charges of ‘Assault Public Officer’ and on one charge of ‘Resist Arrest’. He was sentenced to ten months imprisonment on the first of the assault charges, and to six months imprisonment on the second. In each case the imprisonment was suspended for a period of two years. He was also sentenced to a community based order (‘CBO’) for a period of twelve months on the charge of resisting arrest.

39 The respondent committed further offences on 22 December 2000. On 31 January 2001 the respondent pleaded guilty at the Court of Petty Sessions, Perth to one charge of ‘Refuse Name and/or Address’ for which he was sentenced to one month’s imprisonment, and to one charge of ‘resist arrest’ for which he was sentenced to four months imprisonment. He was also ordered to serve the terms of imprisonment which had been suspended on 22 February 2000. The CBO was cancelled and a sentence of four months imprisonment was substituted for it. The magistrate ordered that each of the prison terms was to be served concurrently with the other terms. This resulted in an effective period of ten months imprisonment to be served in respect of all charges.

40 The effect of suspending imprisonment is specified in s 77 of the Sentencing Act 1995 (WA) (‘the Sentencing Act’) as follows:

‘77(1) An offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless –
(a) during the suspension period he or she commits an offence (in this State or elsewhere) the statutory penalty for which is or includes imprisonment; and
(b) a court makes an order under s 80.’
41 Section 80 provides for the case in which a person re-offends during the period of suspension. In particular, s 80 relevantly provides:

‘80(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended;
(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d) it may fine the person not more than $6,000 and make no order in respect of the suspended imprisonment.
(2) The powers in subsection (1) may be exercised as often as is necessary.
(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.’
The other subsections of s 80 are not relevant for present purposes.

42 The effect of s 88 of the Sentencing Act is that a fixed term of imprisonment is to be served concurrently with any other terms which the offender is serving or has yet to serve unless the sentencing court orders the terms to be served cumulatively.

43 The respondent was deemed to be the holder of a visa Class TY 444 Special Category Visa as a result of the Migration (Reform) Act 1994 (Cth). That visa provided the sole authority for the respondent to remain in Australia. On 26 November 2002 the Minister decided to cancel the respondent’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’). Section 501(2) authorises the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that the person passes the character test.

44 In a Notice of Visa Cancellation dated 29 November 2002 addressed to the respondent, it was stated:

‘The particular ground under which you do not pass the Character Test is subsection 501(6)(a) of the Act which states; the person has a substantial criminal record (as defined by subsection 7). Section 501(7)(d) of the Migration Act 1958 states that a person is deemed to have a substantial criminal record if the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.’

45 In a submission to the Minister dated 12 November 2002 seeking the Minister’s decision in respect of the cancellation of the respondent’s visa, a departmental officer identified the sentences imposed by the Perth Court of Petty Sessions on 31 January 2001 as those which enabled the Minister to find that the respondent had been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is 2 years or more. The submission also recorded a submission by the respondent that he had only been sentenced to a total imprisonment of 14 months when concurrent sentences are taken into account. In fact the respondent was sentenced to a total period of imprisonment of 10 months (not 14) for all of the charges made on 22 February 2000 and 31 January 2001, if concurrent sentences are regarded as giving rise to only one period of imprisonment. If the concurrent terms are aggregated, then the total of the terms is 25 months.

46 The respondent sought review of the Minister’s decision under s 39B of the Judiciary Act 1903 (Cth) on a number of grounds. One such ground was that on the proper construction of s 501(7)(d) of the Act, only terms of imprisonment which are other than concurrent are to be totalled for the purpose of determining whether a person has a substantial criminal record, and thus does not pass the character test. The primary judge held that although the position is not without doubt, the language of s 501(7)(d) does not readily lend itself to the totalling of concurrent terms of imprisonment. His Honour held that the preferable construction was that which counts only terms of imprisonment which are other than concurrent (see Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [65]).

47 It followed that the Minister purported to exercise his power to cancel the respondent’s visa upon an erroneous construction of s 501(7)(d) of the Act and thus committed a jurisdictional error. His Honour ordered that certiorari issue to quash the Minister’s decision to cancel the respondent’s visa, and that the Minister be prohibited from acting upon that decision. His Honour found that the other grounds argued by the respondent were either unnecessary to decide or without merit.

48 The same issue as to the proper construction of s 501(7)(d) of the Act was considered and decided by Ryan J in Ball v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 699 (‘Ball’) in a judgment delivered after the present case was argued at first instance. Ryan J held that the plural expression ‘terms of imprisonment’ in s 501(7)(d) is not apt to refer to the same period for which several sentences have been directed to be served concurrently. The primary judge agreed with the views expressed by Ryan J in that respect.

The appeal

49 The only question which arises on this appeal is whether the primary judge erred in holding that on the proper construction of s 501(7)(d) of the Act the Minister was required to count only terms of imprisonment that were otherwise than concurrent. The Minister did not contend that if there was a mistake as to the proper construction of s 501(7)(d), it did not amount to a jurisdictional error.

50 The Minister also appealed from the decision of Ryan J in Ball. That appeal was argued before a Full Court, differently constituted. At the time that argument was heard in the present appeal, the judgment of the Full Court in Ball was reserved.

51 Shortly prior to the date fixed for the hearing of the present appeal, the Minister applied by notice of motion to vacate the scheduled hearing date, and for the appeal to be relisted for hearing after the delivery of judgment in Ball. After some vacillation, the respondent opposed the Minister’s application. As the Minister was not prepared to undertake to be bound by the decision in Ball, this Court thought that the preferable course was to proceed with the scheduled hearing, although indicating that the Court proposed to reserve its decision and to afford the parties the opportunity of putting written submissions with respect to the decision in Ball which was anticipated to be given shortly. That is the course which has been followed.

The authorities prior to Minister for Immigration & Ethnic Affairs v Sciascia (1991) 31 FCR 364 (‘Sciascia’)

52 In Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 (‘Drake’) the Full Court held (by majority) that a sentence of imprisonment for one year accompanied by a direction that the plaintiff be released after three months on entering into his own recognisance of $200 to be of good behaviour for two years meant that the plaintiff was a person who had been sentenced to imprisonment for one year or longer within the meaning of the then s 12 of the Act notwithstanding the terms of the direction which formed part of the sentence. Bowen CJ and Deane J acknowledged (at 417) that the sentence actually imposed was different in both its incidence and severity from a sentence unaccompanied by the order of release. Nonetheless the terms of the direction did not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. That was sufficient to attract the operation of s 12 of the Act.

53 The decision in Drake was not referred to in Sciascia. In Te v Minister for Immigration & Ethnic Affairs (1998) 88 FCR 264 the Full Court declined an invitation to overrule Drake, because the Court was not persuaded that the majority judgment in Drake was wrong. In Te the issue was whether a conviction carrying a sentence of imprisonment of 12 months, three months of which was suspended, was nonetheless a conviction for an offence for which the offender was sentenced to imprisonment for a period of not less than one year within the meaning of the then s 201(c) of the Act, sufficient to found an order for deportation. Their Honours observed that s 201(c) of the Act must refer to the sentence of imprisonment imposed on a non-citizen and not to the term of imprisonment which is actually served. The Court said (at 272-273):

‘The language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the court. It requires the offence to be one for which the non-citizen was sentenced to imprisonment for a period of not less than one year. It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence. The County Court in the present case was not entitled to impose a suspended sentence of imprisonment on the appellant unless the sentence of imprisonment, if unsuspended, was regarded as appropriate in the circumstances: Sentencing Act, s 27(3). Thus the offence for which the appellant was sentenced was one for which the court considered a sentence of imprisonment for 12 months to be appropriate. This strongly suggests that the offence for which the appellant was sentenced was "an offence for which [he] was sentenced ... to imprisonment ... for a term of not less than one year", within the meaning of s 201(c) of the Migration Act.’

(emphasis in original)

54 In Winsor v Boaden (1953) 90 CLR 345 the High Court was concerned with a section of an Act which provided that if an officer was sentenced to imprisonment for any term of or exceeding six months, he should be deemed to have vacated his office. It was held that for the section to apply there must be one sentence and that the sentence must be for a term of six months or more. The period of six months could not be made up of independent sentences of smaller terms.

55 Dixon CJ observed (at 347) that the section was one which destroyed accrued rights, and provisions of that kind ‘are not to be given a wider or more ample operation than the literal, natural or grammatical meaning’ that the words convey unless there is a context or a subject matter which so demands. As the majority recognised in Sciascia (at 372-373) those principles of construction are of application to a case such as the present.

56 Dixon CJ went on to consider what the literal or natural meaning of ‘sentence’ was (at 347):

‘The word "sentence" connotes a judicial judgment or pronouncement fixing a term of imprisonment. A term of imprisonment is the period fixed by the judgment as the punishment for the offence.’

Sciascia

57 In the form in which the Act was cast in 1991, an illegal entrant was liable to deportation. A person to whom s 20(1) applied was an illegal entrant. Section 20(1) applied to a non-citizen who had entered Australia, if:

‘ ...
(d) when the person entered Australia, the person was
...
(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year;
(iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling at least one year.’

58 The precursor to s 20(1)(d)(iii) was s 16(1)(c)(iii) which applied to:

‘a person who has been convicted of two or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year; ...’

59 Mr Sciascia came to Australia from New Zealand in 1975. Prior to his entry into Australia he had been convicted and sentenced to imprisonment in New Zealand in respect of a number of offences. The terms of the sentences were:

- six months for a conviction in 1967;
- three months each for three convictions in 1969, each sentence commencing on the same date;
- six months for a conviction in 1970, beginning on 30 January 1970, and cumulative periods of imprisonment of three months and two months respectively on two other convictions in 1970, the first of these sentences to begin on 30 January 1970.
60 At first instance, French J held that s 20(1)(d)(iii) of the Act was directed to situations where one period of imprisonment resulted from multiple convictions and that Mr Sciascia did not fall within the terms of s 20(1)(d)(iii) of the Act: Sciascia v Minister for Immigration & Multicultural Affairs (1991) 24 ALD 128. An appeal from that decision was dismissed by Burchett and Lee JJ, Sheppard J dissenting: Minister for Immigration & Multicultural & Indigenous Affairs v Sciascia (1991) 31 FCR 364. The majority (at 373) held that s 20(1)(d)(iii) did not authorise the adding together of quite unconnected minor sentences in order to determine whether a person had been sentenced to imprisonment for a period totalling at least one year. The subsection applied where a sentencing court dealt with a series of crimes and ordered that sentences be consecutive so as to provide a single period of imprisonment which totalled more than one year although there was no one sentence so long.

61 At 375 their Honours made some comments in relation to concurrent sentences in support of their conclusion that s 20(1)(d)(iii) was ambiguous:

‘There is a further ambiguity in the amendment, which we should mention. It is sufficient, in itself, to indicate that the draftsman may have been somewhat less than careful to make an exact statement. If so, there is all the more reason why the court should not hesitate to apply the appropriate presumptions in the construction of the legislation. The point is that subpar (iii) makes no express distinction between cumulative and concurrent sentences. Yet the slightest reflection will show that an express reference was at least very desirable, in order to avoid uncertainty. Has a person, who has been sentenced to two sentences of six months of imprisonment, to be served concurrently, been "sentenced to imprisonment for periods aggregating not less than one year"? In our opinion, that would be a strange conclusion. The theory of the criminal law is that several charges which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident: see R v Melville (1956) 73 WN (NSW) 579. Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved. A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed. Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction. Similarly, the draftsman appears not to have adverted to the possibility that a sentence may have involved periodic detention, rather than a continuous period of imprisonment. It has been held judicially, and we respectfully agree with the decision and think it must have been acknowledged by the draftsman of the 1989 amendments who made no relevant change, that periodic detention does not fall within the provision: see Mere Akuhata-Brown v Chesley (unreported, Gallop J, 20 March 1981).’

The ‘appropriate presumptions’ to be applied in the construction of the legislation, as appears at (1991) 31 FCR 372, are that laws of the nature of s 20(1)(d)(iii) are to be read with scrupulous care, and in their narrowest rather than some wider sense: cf Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139.

62 Sheppard J was of the view that prior to Mr Sciascia’s arrival in Australia he had been sentenced to a total period of 15 months imprisonment. Whilst his Honour does not expressly address the issue of concurrent sentences in his judgment, it is implicit in the calculation of 15 months imprisonment that sentences to be served concurrently are counted only once. Otherwise the sentences would have totalled 23 months.

Subsequent amendments to the Act

63 Section 20(1)(d)(iii) was amended in 1992 in response to the decision in Sciascia. In the second reading speech for the Migration Amendment Bill (No 2) 1992 (Cth) the Minister said:

‘The amendment proposed to this section is in response to a Federal Court decision which has limited the power of the Commonwealth to decide who may enter and stay in Australia with regard to persons with criminal records. The intention of the Government has always been that a person who has committed a series of unrelated crimes which have resulted in that person being sentenced, in total, to a period of 12 months or more imprisonment should be categorised as a person to whom section 20 applies. The court decision, however, requires that this provision be interpreted very narrowly. It would apply only to a person in circumstances where there is a court order that several sentences of imprisonment are to be served consecutively so as to make up one continuous period of detention of at least one year. The amendment proposed to section 20 will make this longstanding policy of the Government clear in the legislation and overcome the narrow interpretation of the court.’
64 After the amendment (by the Migration Amendment Act (No 2) 1992 (Cth)) s 20(1)(d)(iii) read as follows:

‘(iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for periods that add up to at least one year if:
(A) any period concurrent with part of a longer period is disregarded; and
(B) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(C) the crimes were of the same kind; or
(D) the crimes were committed at the same time; or
(E) the convictions were at the same time; or
(F) the sentencings were at the same time; or
(G) the periods were consecutive.’
65 Section 20(1)(d)(iii), as amended, expressly addressed both the totalling of sentences for disparate offences, as well as the question of how concurrent sentences should be dealt with. Concurrent periods which are shorter than a further concurrent period of imprisonment are to be disregarded and therefore not totalled (Par A). Periods which are concurrent with each other are treated as one period and therefore not totalled (Par B).

66 Section 20 of the Act was repealed by the Migration Reform Act 1992 (Cth) which commenced on 1 September 1994. The amending Act also introduced into the Act s 26A; a provision in relation to special category visas which is now s 32. Section 32(2) currently provides that a criterion for a special category visa is that the Minister is satisfied that the applicant is:

‘(a) a non-citizen:
(i) who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen.’

67 That Act also introduced the definition of a ‘behaviour concern non-citizen’ which is currently found in s 5(1) of the Act. The definition is stated to include a non-citizen who:

‘ ...
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the periods were consecutive.’

68 The Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) also commenced on 2 September 1994. By s 5, this amending Act introduced s 180A into the Act, which was the predecessor to s 501. In its initial form. s 180A(1)(a) authorised the Minister to cancel a visa if s 180A(2) applied to a person. By s 180A(2) the subsection applied if the Minister ‘having regard to ... the person’s past criminal conduct ... is satisfied that the person is not of good character ...’. Section 180A was later renumbered as s 501.

69 On 1 June 1999 the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) commenced. It repealed s 501 and re-enacted the section in its present form. Section 501(7)(d), in its present form, relevantly provides:

‘(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions) where the total of those terms is 2 years or more.’

By s 501(12) ‘sentence’ is defined to include ‘any form of determination of the punishment for an offence’.

70 In the Second Reading Speech given in the House of Representatives on 2 December 1998, the Minister stated that decision making in routine cases will be improved by:

- requiring applicants to show that they are of good character;
- deeming that certain levels of criminal sentences will lead to an automatic finding that the non-citizen concerned is not of good character.
Under the heading ‘Deeming Provisions’ the Minister said:

‘This bill also seeks to establish clear benchmarks for criminal behaviour that would automatically lead to a non-citizen failing the character test. Non-citizens who have been convicted to a single sentence of detention of 12 months or more, or where the length of several sentences aggregates to two years or more, will fail the character test. This will truncate the character assessment process and cover most non-citizens of character concern who come to notice. This will provide more certainty as to who is able to pass the character test.’

71 The Minister also explained that a ‘substantial criminal record’ for the purposes of the new character test includes:

‘a total sentence of 2 years or more where the person has been sentenced to 2 or more terms of imprisonment. It is intended that sentences be "totalled" irrespective of the time and place at which each sentence was imposed.’

The submissions on appeal

72 In the Minister’s submission, s 501(7) of the Act does not call for any consideration of whether terms of imprisonment are cumulative or concurrent. When a sentence is ordered to be served concurrently with another sentence, the new sentence does not affect the length of time a person is required to spend in prison. That does not mean, however, that the person has not been ‘sentenced to a term of imprisonment’ in relation to that offence. The amount of time a person is required to spend in jail does not determine the length of the ‘term of imprisonment’ to which the person is sentenced: Drake (supra) at 417; Te (supra) at 272-273. The focus is on whether the sentencing court judged that the offence warranted a sentence of imprisonment, even if that sentence is not required to be served, or does not increase the time which the person is required to spend in prison.

73 That approach is reinforced, in the Minister’s submission, by the fact that a sentencing court is required to impose the sentence which is appropriate in relation to each conviction: R H McL v The Queen (2000) 203 CLR 452 at [34], [75]. The fact that sentences are ordered to be served concurrently does not suggest that the sentence in respect of any individual offence was inappropriate. Concurrent sentences are, instead, used in order to comply with the ‘totality principle’ which is designed to ensure that the overall custodial sentence imposed upon a particular offender having regard to his or her criminality. To accommodate that consideration it may be necessary, as a second step, to order that some sentences be served concurrently. Such an order does not, however, detract from the fact that each individual offence has been judged by the sentencing court to warrant the particular sentence that is imposed in respect of it.

74 Further, the Minister submitted that the observations of the majority in Sciascia in relation to concurrent terms were obiter, made with respect to a different legislative provision, and appear to suffer from the difficulty that such a view seems to assume a single coherent theory underlying concurrent sentencing, namely that such sentences are imposed in respect of a plurality of offences arising out of one or connected criminal incidents. As the primary judge observed, in many cases that may be so, but such sentences may derive from a statutory or common law presumption in favour of concurrency, or as a means of limiting the total burden of the sentences imposed on an offender at one time.

75 In the respondent’s submission, whilst Parliament has addressed aspects of the decision in Sciascia in enacting s 501 in its current form, it has implicitly accepted the observations of the majority in relation to concurrent sentences. As a consequence, the decision of the majority in Sciascia should be followed in this respect, as should the decision of Ryan J in Ball. In Ball Ryan J said (at 75 ALD 218) that it was of significance that the words ‘(whether on one of more occasions)’ have been inserted in s 501(7)(d) to overcome the result in Sciascia and subs (8) has been included to accommodate periodic detention to which attention was drawn in that case in the passage quoted above, yet no attempt has been made to remove the ambiguity which the majority identified in relation to concurrent sentences.

76 Section 501(7)(d) applies, in the respondent’s submission, where a person is sentenced to terms of imprisonment (whether on one or more occasions) and the total of the terms of imprisonment imposed (meaning the actual period of punitive detention ordered to be served by the court) is two years or more. On this basis the only term of imprisonment to which the respondent was ordered to serve was a period of ten months imprisonment in consequence of the sentences passed on 21 January 2001. The order that one period of imprisonment is to be served concurrently with another is part of the sentence, and the sentence therefore results in the imposition of but one term of imprisonment equivalent to the longest of the sentences ordered to be served concurrently.

77 In the respondent’s submission, the construction advanced by the Minister produces, at least, ‘a tension’ between the criteria for the grant of visas for New Zealand citizens in s 32 of the Act, and their cancellation for failure to pass the character test in s 501 of the Act. As an example, using the Minister’s construction of s 501(7)(d), the respondent is not disqualified by reason of his convictions from obtaining a special category visa, but he fails the character test by reason of those convictions, hence that visa is liable to immediate cancellation. As the primary judge held, and as this example demonstrates, the proposition that what is expressly provided for in one section of an act was intended to be excluded from another where no such provision is made is thus to be treated with caution.

78 The respondent also points out that, on the construction put forward by the Minister, the operation of the character test could vary between jurisdictions, depending upon the applicable criminal law of that jurisdiction. For example, s 9(1) of the Sentencing Act 1991 (Vic) provides:

‘Aggregate sentence of imprisonment
(1) If an offender is convicted by the Magistrates’ Court of two or more offences which are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character, the Court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate offence of imprisonment in respect of each of them.’

79 A person sentenced by a magistrate in Victoria to an aggregate term of imprisonment of ten months on three charges would not fail the character test by reason of those convictions, however, a person sentenced in circumstances where there is no provision for aggregate sentences, to a term of imprisonment of 10 months on each of three charges, with the sentences to be served concurrently, would fall within s 501(7)(d).

80 Finally, because s 501(7) operates to deprive persons of their right to remain in Australia, the provisions should be construed strictly, as was recognised by the majority in Sciascia.

Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91

81 In Ball the respondent was sentenced in respect of 25 convictions to 11 months for each conviction, each sentence to commence on 28 April 1994. In respect of a further 24 convictions, the respondent was sentenced to imprisonment for 2 months for each conviction, each sentence to commence on 28 April 1994. The practical effect of the sentences imposed upon the respondent was that she was committed to prison for 11 months, although the terms of the concurrent sentences added up to over 26 years of imprisonment.

82 By majority (Jacobsen and Bennett JJ) the Full Court dismissed the appeal from the decision of Ryan J and endorsed the views expressed both by Ryan J in Ball, and by French J in the present case as to the proper construction and application of s 501(7)(d) of the Act in relation to sentences ordered to be served concurrently: Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 at [70].

83 Their Honours saw (at [65]) ‘some force’ in the submission that what is to be totalled are the sentences imposed, rather than to look to the way in which numerous sentences are to be served, but came to the conclusion that s 501(7)(d) is not clear, and that the construction to be preferred is the one which does not derogate from the respondent’s rights.

84 In his dissenting judgment, Dowsett J rejected the proposition that s 501(7)(d) is ambiguous. Insofar as the observations of the majority in Sciascia might be said to apply to s 501(7)(d), his Honour did not agree with them. In his Honour’s view (at [9]):

‘The expression "two or more terms of imprisonment" means the terms of imprisonment fixed for multiple offences. The section contemplates there being terms of imprisonment for two or more offences and prescribes that such terms be totalled. It says nothing about the period to be served pursuant to each sentence or in totality. Clearly, the respondent was sentenced to a separate term of imprisonment for each offence. The only remaining question is whether the terms totalled two years or more. They plainly did so. To enquire further as to the effect of the sentences is to proceed in the way which was disapproved in Drake.’

Decision

85 The sentencing court decided that the appropriate sentences for the crimes of which the respondent was convicted were terms of imprisonment of 10 months, 6 months, 4 months, 4 months and 1 month respectively. The total of those terms is 25 months. However, the question is whether the order that the sentences imposed be served concurrently (which is part of the sentences) has the result that the respondent was sentenced to one term of imprisonment (of 10 months) or to five terms of imprisonment (of varying lengths).

86 The majority in Ball proceeded upon the basis that, for the purposes of the Act, a term of imprisonment is the period for which the convicted person is ordered to be imprisoned, even though more than one sentence may be served by imprisonment for that period. The assumption implicit in this approach is that subsection 501(7)(d) has as its focus the term of imprisonment to which the prisoner has been sentenced, rather than upon the number of offences which attract or contribute to that term. The necessary conclusion, when the statute is viewed in this manner, is that concurrent terms of imprisonment should not be totalled for the purposes of subsection 501(7)(d).

87 There are two factors that imply that the conclusion reached by the primary judges in Hicks and Ball, and the majority of the Full Court in Ball, should be favoured. First, Parliament’s attention was drawn to the ambiguities inherent in the former s 20(1)(d)(iii) in 1991 by the decision in Sciascia. Amendments to the section were made in explicit response to the decision in Sciascia. These amendments provided for the accumulation of separate periods of imprisonment, but not for the accumulation of concurrent terms. It is clear, as Ryan J observed in Ball, that the amendments to s 501 displace the result in Sciascia inasmuch as the subsection allows for the period of two years to be made up of independent sentences for smaller terms. However, s 501 still does not deal explicitly with concurrent sentences. If the former s 20(1)(d)(iii) was unclear in relation to its application to concurrent sentences, as the majority in Sciascia expressly held, then s 501(7)(d) in its present form exhibits a similar lack of clarity.

88 The second factor that casts doubt on the interpretation favoured by the applicant is the consequential mismatch between the provisions regulating the grant of special category visas to ‘behaviour concern non-citizens’ in Part 2 of the Act and the criteria relating to visa cancellation in s 501. This matter has been addressed more fully by the majority of the Full Court in Ball at [58], and that discussion need not be reproduced here.

89 In any event, this Court should follow the decision of the majority in Ball unless satisfied that it is clearly wrong. I am not so satisfied. Section 501(7)(d) is capable of bearing both the construction for which the Minister contends as well as the construction for which the respondent contends. Which of the two constructions is correct is debatable, particularly when account is taken of the legislative history of the subsection. As a consequence, a construction which may deprive the respondent of his right of community should not be favoured if another construction is available and compatible with the literal, natural and grammatical meaning of the statutory provision, which does not have that effect: Botany Municipal Council v Jackson (1985) 2 NSWLR 1 at 9 (per Kirby J) (citing Winsor v Boaden (1953) 90 CLR 345).

90 I therefore agree with the construction favoured by the majority of the Full Court in Ball, namely that the phrase ‘term of imprisonment’ used in s 501(7)(c) and (d) should be interpreted as the period for which a convicted person is ordered to be imprisoned, regardless, in the case of par (d), of whether that period is the consequence of aggregation or concurrency in respect of sentences for two or more separate offences.

91 In adopting this approach, I note that the proper construction of the Act cannot be ascertained by an analysis of sentencing principles or policies as these may vary from jurisdiction to jurisdiction, and as French J pointed out at first instance there is no single coherent theory underlying concurrent sentencing. Nevertheless, concurrent sentences are often imposed where a number of technically identifiable sentences are committed, when the reality is that the convicted person was in truth engaged upon ‘one multi-faceted course of criminal conduct’ (per Wells J in Attorney-General v Tichy (1982) 30 SASR 84 at 92-93, cited by Gleeson CJ in Johnson v The Queen [2004] HCA 15 at [4]). Whilst there are circumstances where concurrent sentences may be passed in connection with offences not forming part of one ‘enterprise’, in situations where that is the case the totalling of concurrent sentences would present a distorted picture of the extent of a person’s criminal record. That at least raises a question as to whether the Parliament intended that sentences which are not to be aggregated for the purposes of the criminal law should be totalled for the purposes of the Act.

92 The appeal should be dismissed with costs.


I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Hely.



Associate:

Dated: 7 May 2004



Counsel for the Appellant: Mr P R Macliver



Solicitors for the Appellant: Australian Government Solicitor



Counsel for the Respondent: Mr T V Hurley



Solicitors for the Respondent: Messrs Mark Andrews & Associates



Date of Hearing: 20 February 2004



Date of Judgment: 7 May 2004



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