R v Shrestha [1991] HCA 26

High Court of Australia Brennan, Deane, Dawson, Toohey and McHugh JJ. R v Shrestha [1991] HCA 26

ORDER Application for special leave to appeal refused with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1991, June 20 Brennan and McHugh JJ.

On 10 November 1989, his Honour Judge Viol sitting in the District Court of Western Australia sentenced the respondent, Ramesh Shrestha, to a term of imprisonment. Shrestha had been convicted of three offences against s. 233B(1) of the Customs Act 1901 Cth, namely, conspiracy to import a trafficable quantity of heroin, importing a (lesser) trafficable quantity of heroin and having that lesser quantity of heroin in possession without reasonable excuse. Shrestha, two co-accused and another man had arrived in Perth from Nepal via Bangkok on 5 March 1989. Each had a quantity of heroin in plastic bags concealed within his body. They were couriers bringing in the heroin for distribution within Australia. Shrestha was sentenced to twelve years imprisonment on the count of conspiracy and to seven years imprisonment on each of the other counts, the latter sentences to be served concurrently with each other and with the sentence for conspiracy. His Honour declined to order that Shrestha be eligible for parole, saying:

I have given consideration to the question of your eligibility for parole. The matters concerning the facts of the case, your personal circumstances and the fact of your immigration status in my view prevent me in this case from making you eligible for parole. You will therefore not be eligible for parole.

Shrestha was given leave to appeal against the severity of his sentence by the Court of Criminal Appeal and, on 21 June 1990, the appeal was allowed. The sentence for conspiracy was reduced to nine years and the Court ordered that he be eligible for parole in respect of each of the sentences imposed. The present application for special leave to appeal is made in order to challenge the order that Shrestha be eligible for parole. To appreciate the issue for determination, it is necessary to trace the statutory framework affecting the parole of federal offenders.