Federal Court. Section 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) read: "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires." Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth)?
The applicant was sentenced in NSW to a term of imprisonment of 12 months imprisonment, to commence on 14 January 2016 and expiring on 13 January 2017.
Section 47(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) provided that a sentence of imprisonment 'commences … on the day on which the sentence is imposed'. Section 47(6) provided (emphasis added): "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires."
The Federal Court (FCA) said as follows:
61 As to the nature and seriousness of offending (being a primary consideration), Direction 90 provides that in considering the nature and seriousness of criminal offending of the person whose visa has been cancelled, decision-makers must have regard to various matters listed in the direct (para 8.1.1(1)). One such matter is expressed as follows (para 8.1.1(1)(a)):
without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
Some of the questions to the FCA were as follows:
Question 1: Must any state of satisfaction on the part of the Minister that is formed for the purposes of s 501(3A) be based upon a correct understanding of the law as to the duration of sentence of imprisonment that is seen to enliven ss 501(7)(c) or (d) and therefore s 501(3A)(a) of the Migration Act 1958 (Cth)?
Answer: Yes.
Question 2: Can it be said that the period of 12 months referred to in ss 501(7)(c) or (d) "included the whole of the commencement day and the whole of the day that concluded immediately before the anniversary of the commencement day"?
Answer: Yes.
Question 3: As the applicant was sentenced in NSW, was the duration of her sentence to be determined according to the law of NSW?
Answer: That was common ground.
Question 4: Do the terms 'at the end of the day' in s 47(6) of the Sentencing Procedure Act mean the end of daylight hours "or otherwise allow for the possibility that the end of the day is not the precise moment before the next day", with the result that the applicant was sentenced to less than 12 months' imprisonment?
Answer: No.
Question 5: In Plaintiff M1, the High Court held at [25] that the requisite level of engagement that is required with a matter that is identified in the representations to the Tribunal in the context of s 501CA(4) "will vary, among other things, according to the length, clarity and degree of relevance of the representations' and there is no requirement to consider 'claims that are not clearly articulated or which do not clearly arise on the materials before [the decision-maker]". Can it be said that "the references to the statutory expression 'representations' must allow for the fact that, before the Tribunal on merits review, in the usual course, it is the statement of facts, issues and contentions that will comprise the matters that are clearly articulated"?
Answer: Yes.
Question 6: Can it be said that "material that is before the Tribunal but is not addressed in any way, will be unlikely to be able to be characterised as representations that were clearly articulated and especially so in circumstances were an applicant for review is legally represented before the Tribunal"?
Answer: Yes.
Question 7: Was the Tribunal required to form its own assessment as to whether any of the types of crimes or conduct described in para 8.1.1(1)(a) should be considered as 'serious'?
Answer: Yes.
The FCA answered those questions as follows:
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