Mitigating a Sentence: Case Study of a Young International Student facing deportation due to criminal charges.

Introduction

The criminal justice system in Australia considers various factors while sentencing offenders, such as the nature and seriousness of the crime, aggravating and mitigating factors, the offender's personal circumstances, and the need for general and specific deterrence. In this case, we discuss several mitigating factors that could influence the sentence of a relatively youthful offender in Melbourne

Early Guilty Plea

The accused entered a plea of guilty at the first available opportunity, which shows remorse and saves the court's time and resources. Recent court decisions in Australia have emphasized the utilitarian value of early guilty pleas, particularly during the coronavirus pandemic, where the court's operations have been disrupted.

Remorse

The accused presented himself to the police and confessed to the assault, except for the injury caused to the victim. He expressed contrition for his actions, and his time in custody had allowed him to reflect upon his conduct. It was put to court that this demonstrated his remorse and willingness to take responsibility for his actions.

The accused was a 25-year-old individual who had no prior criminal record. They had come to Australia in January 2020 on a student visa and were originally from India.

Before moving to Australia, the accused had experienced a serious health condition that resulted in a significant weight loss and depression. As a result, they were prescribed an anti-depressant for a brief period to assist with sleeping. However, there were no diagnosed mental conditions.

Mitigating Factors

In regards to mitigating factors, the accused entered an early guilty plea, which holds high utilitarian value given the disruption caused by the COVID-19 pandemic to the court's operations. They also expressed remorse for their actions, having presented themselves to the police and given full admissions to the offense, apart from the injury caused to the victim.

Relatively Youthful Offender

As a 25-year-old offender, the accused was relatively youthful. However, it was acknowledged that the age of 25 falls within the upper limit for determining youthful offenders. Rehabilitation was considered to outweigh deterrence as a sentencing consideration for young adult offenders, according to R v Mills [1998] 4 VR 235, 241.

Deportation from Australia

The accused was not an Australian citizen and held a student visa prior to the offense. They had worked hard and invested a considerable amount of money to build a constructive life in Australia. Deportation from the country would undermine every effort that they had made to migrate to Australia and lead a better life. The risk of deportation can mitigate the penalty, as the Victorian Court of Appeal has consistently held, including in the case of Guden v The Queen.

 Due to COVID-19, imprisonment had become more burdensome for prisoners, as they were unable to see their families and access rehabilitation programs. The accused had elderly parents awaiting their release in India and had spent a long time without communicating with them, which made their time in custody more burdensome than usual. Additional stress and concern would result if they remain incarcerated.

 Sentence

The accused had spent 200 days in custody and would be immediately detained by immigration officials upon release. They were, therefore, not a suitable candidate for a community correction order. Given the seriousness of the offense, the only available sentence was a term of imprisonment. The time spent in custody was deemed sufficient to satisfy the sentencing principle of general deterrence, denunciation, and community protection