Court of Appeal cuts criminal’s jail time because original sentence could have seen him deported
A LEBANESE criminal with a string of assault and fraud convictions has had his sentence reduced in the Court of Appeal to avoid possible deportation.
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A LEBANESE criminal with a string of assault and fraud convictions has had his sentence reduced to avoid possible deportation.
The Victorian County Court initially jailed Mohamed Allouch for 12 months — a sentence which triggered the mandatory cancelling of his Australian visa.
But the Court of Appeal recently overturned that decision and replaced it with a seven month jail term.
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That brought the sentence under the threshold where his visa would be automatically cancelled so he could be kicked out of Australia.
The Herald Sun this week revealed the Morrison Government is introducing tough new legislation aimed at preventing magistrates and judges handing out sentences which result in offenders avoiding mandatory visa cancellation.
That legislation would see the visas of any non-citizens — including children — being able to be scrapped if they are convicted of an offence punishable by at least two years jail.
It will apply regardless of whether the foreign-born criminal is jailed for less than a year — as many are — or not jailed at all.
Allouch pleaded guilty in the County Court in February to nine charges relating to fraudulent credit card transactions.
The court was told he used cards cloned using data obtained from modified EFTPOS machines installed in taxis.
When a passenger paid their fare using a credit card the modified machine recorded the details, which were then used to create fake cards and those cloned cards used to obtain cash and goods.
The court was told Allouch was an ice user who had several assault convictions as well as a large number of convictions for driving offences, failing to answer bail on 13 occasions and breaching Community Corrections Orders.
He appealed his 12-month jail term and that appeal was heard last month in the Supreme Court of Victoria’s Court of Appeal.
Justices David Beach and Mark Weinberg were told Allouch thought he was an Australian citizen at the time of his County Court case and as such the judge had not taken into consideration the mandatory visa cancellation Allouch would face if jailed for 12 months.
“The belated discovery that the applicant (Allouch) is not, as apparently had been thought, an Australian citizen is a matter of real significance,” Justices Beach and Weinberg said.
“The prospect that an offender is liable to deportation following sentence is, or course, a relevant sentencing factor.
“A sentence of less than 12 months’ imprisonment would almost certainly have been imposed had the judge been made aware of the true facts.
“We consider that justice will be best served if the 12 month sentence and six month non-parole period are now set aside on the basis of the additional evidence currently before this court.
“In lieu thereof, there should be a straight sentence that will expire at about the same time as the date of his projected release. In effect, that means a sentence of seven months’ imprisonment.”
Allouch was due to be freed this week.
Victorian Liberal MP Jason Wood, who is chairman of the Joint Standing Committee on Migration, was the driving force behind the new legislation, working closely on it with Home Affairs Minister Peter Dutton.
Commenting on a recent decision, the former Victoria Police officer on Tuesday said it was vital that every person should be judged equal before the courts.
“A more lenient sentence should not be handed out to foreign-born criminals to avoid deportation,” Mr Wood said.
He told the Herald Sun the Police Federation of Australia submission to the migration committee said it had anecdotal evidence that some judges and magistrates had sentenced offenders to less than 12 months in jail so as to avoid the mandatory visa cancelling provisions applying under the character test. The Herald Sun is not suggesting this happened in the Allouch case.
“The Labor Party Dissenting report, which was co-signed by Opposition Immigration Minister Shayne Neumann, dismissed the police federation view,” Mr Wood said.
“It claimed there was no evidence to support that judges and magistrates were handing out lesser sentences to foreign- born criminals to avoid the mandatory visa cancellations under the character test, despite concerns raised by police and now increasing evidence of it happening.
“Furthermore, when it came to the fear in Victoria of violent Sudanese or other youth gangs, again Labor dismissed my concerns as fear mongering.
“By doing so they ignored the victims of home invasions, riots, carjacking and serious assaults.
“Unlike Labor, coalition MPs have the very strong view that a person on a visa does not have the same rights as an Australian citizen.
“If a person on a visa commits a serious or violent crime they forfeit their journey to become and Australian citizen and should be deported.
“The new legislation being introduced into federal Parliament will make it easier for that to happen.”
The Herald Sun has previously reported on a controversial case involving Iranian refugee Behzad Bashiri, who was free to unleash chaos in Victoria and Queensland after a magistrate gave him a light sentence so he wouldn’t be deported.
Queensland magistrate Joan White talked openly in court about ensuing Bashiri didn’t lose his visa before giving him a suspended sentence for terrorising staff at an employment provider by splashing petrol on himself and threatening to burn the building down.
Bashiri later moved to Victoria and faced more charges after threatening to commit terrorist offences by blowing up Australians and mowing down police with a truck.
Victoria Police was so concerned the threats were imminent and credible it appealed directly to the then Immigration Minister, Peter Dutton, to kick Bashiri out of the country.
The force agreed in March this year to withdraw the charges against Bashiri so the deportation process could be expedited.
Another Iranian, Reza Yazdan Parast, 32, avoided likely deportation over the brutal bashing of two strip club patrons in Dandenong in 2016.
The bouncer avoided a conviction and was given community service, with the court hearing he would almost certainly have been kicked out if he had been sentenced to jail.
Mr Wood said his committee had received evidence that strongly suggested some judges were of the opinion they should consider whether the sentence they handed down could lead to the offender being deported.
His committee’s No one teaches you to become an Australian report, which was tabled in December last year, cites a National Judicial College of Australia guide on deportation for judicial officers and practitioners.
The guide states that while the judiciary must not reduce a sentence to avoid risk of deportation, “there is conflicting authority as to whether an offender’s liability to be deported is a relevant factor in sentencing federal offenders”.
It cites several precedents where some judges have commented that the risk of deportation may be a relevant consideration prior to sentencing.
Mr Wood said the new legislation would prevent judges and magistrates being able to sentence offenders in a way which avoids the cancelling of the offender’s visa.