‘Unlawful non-citizen’ shouldn’t be treated better than Australians in sentencing, judges say

A former Adelaide man given a suspended sentence for growing hundreds of cannabis plants will be re-sentenced after a court found his deportation to Italy should not have been considered when deciding his punishment.

Police found 204 plants growing in three houses Nikolin Fati was connected to in Croydon Park, Croydon and Camden Park between 2013 and 2015.

He pleaded guilty in April this year to two counts of cultivating a commercial quantity of cannabis and one count of cultivating a large commercial quantity of cannabis. He was given a suspended sentence of five years, two months and 16 days, along with a 12-month good behaviour bond.

Fati arrived in Australia in 2012, on a tourist visa after earlier migrating from Albania to Italy, where he gained citizenship.

He was in immigration detention when sentenced and was deported to Italy in May.

He is now living in Italy with his wife and children.

Community protected via deportation

In her sentencing remarks, District Court judge Liesl Chapman agreed with Fati’s lawyer that his “certain deportation” should be considered in his sentencing.

“I agree with your counsel’s submissions, that there seems to be little utility in keeping you here in gaol (sic),” she said.

“Your imminent deportation will achieve the paramount consideration in sentence; mainly protecting the community from any future offending by you.”

The Director of Public Prosecutions (DPP) then appealed the sentence, which it said was to “clarify proper sentencing principles for the guidance of sentencing courts”.

The Court of Appeal found there was “no submission or evidence demonstrating any particular hardship associated with repatriation to Italy” presented during sentencing submissions.

More lenient treatment for non-citizen

Judges Mark Livesey, Sam Doyle and Sophie David agreed in their judgement handed down last week there was no “good reason” to suspend the sentence because of Fati’s imminent deportation.

They said it was “wrong in principle to impose a lesser sentence than is appropriate” because the defendant would soon be deported.

“That approach cannot be justified in principle or in the circumstances of this case.

“The principles of equality and consistency in sentencing have been ignored and undermined.”

They said there was also no way for the Department for Correctional Services or the Parole Board to know if Fati had breached his good behaviour bond in Italy. 

Fati was not represented in the appeal but an “independent contradictor” was appointed to act in his interests.

His case will be sent back to the District Court for re-sentencing.