Pre-sentence immigration detention must be taken into account in sentencing in a 'broad and practical way' as part of the instinctive synthesis, with the weight depending on the nature and severity of restrictions and the duration of detention. Where the immigration detention was caused by the criminal charges (e.g., visa cancellation under s 116(1)(g) of the Migration Act), this connection is a relevant factor supporting greater weight being given to the detention period. In the absence of evidence distinguishing the conditions of immigration detention from prison custody, the sentencing judge has no basis for treating them differently. Practitioners must provide full submissions on the legal basis for immigration detention and evidence of its conditions.
The full text is available to signed-in members, including the 19 later cases that cite this judgment.
6 of the 19 citing cases carry a classified treatment. How each court treated it is available to signed-in members.