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9
Court of Criminal Appeal 19 October 2015

Elshani v R

[2015] NSWCCA 254

Also reported as (2015) 255 A Crim R 488
Drugs
CRIMINAL LAW APPEAL SENTENCING APPEAL

Citation: Elshani v R [2015] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 19 October 2015
Judges: Gleeson JA, Adams J, Beech-Jones J

Background

The appellant pleaded guilty in the Local Court to trafficking a marketable quantity of heroin (1.053 kg net weight) contrary to s 302.3 of the Criminal Code Act 1995 (Cth), an offence carrying a maximum of 25 years imprisonment. The heroin was part of an organised international supply chain involving contacts in Singapore and Malaysia. The appellant was arrested in Sydney on 1 November 2011 shortly after collecting the drugs.

He was sentenced in the District Court on 14 October 2013 to 6 years imprisonment with a non-parole period of 4 years, with a 25 per cent discount for his early guilty plea. The sentencing judge found "special circumstances" justifying the extended non-parole period ratio, but the Court of Criminal Appeal identified that she had done so by applying the NSW sentencing framework rather than the applicable Commonwealth legislation.

On appeal, the appellant also sought to rely on new material concerning the psychological impact of his imprisonment on his wife and children, arguing this should reduce his sentence.

  • Whether the District Court erred by applying the NSW Crimes (Sentencing Procedure) Act 1999 rather than Part IB of the Commonwealth Crimes Act 1914 when sentencing for a federal offence
  • Whether the failure to find "special circumstances" and explain the sentence in accordance with s 16F(1) of the Crimes Act 1914 (Cth) confirmed that error
  • Whether, on resentencing under s 16A(2)(p) of the Crimes Act 1914 (Cth), the probable effect of imprisonment on the appellant's family required proof of "exceptional hardship" to be taken into account
  • Whether the existing line of authority requiring exceptional hardship under s 16A(2)(p) was wrongly decided and should be departed from

Decision

The Court of Criminal Appeal unanimously found that the District Court erred by applying the NSW sentencing statute to a Commonwealth offence. The sentencing judge's reference to "special circumstances" (a concept under NSW law) and the absence of any reasoning conforming to s 16F(1) of the Crimes Act 1914 (Cth) were indicators of that error. Because the wrong legislative framework had been applied, the Court was required to exercise the sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW), following the High Court's approach in Kentwell v The Queen.

On resentencing, the Court received additional evidence, not before the sentencing judge, about the psychological harm suffered by the appellant's wife and each of his children during his incarceration. Under s 16A(2)(p) of the Crimes Act 1914 (Cth), a sentencing court must take into account the "probable effect" of any sentence on the offender's family. This Court confirmed the established approach that the common law principle applies: only "exceptional hardship" on family members can operate to ameliorate an otherwise appropriate sentence. That requirement reflects the view that s 16A(2)(p) accommodates common law sentencing principles, which give content to expressions used in the subsection.

The appellant argued that the "exceptional hardship" threshold was incorrect and that those prior decisions should be overruled. The Court declined to undertake that analysis, because it found in any event that the material presented on resentencing did demonstrate exceptional hardship, making it unnecessary to determine whether the underlying authority was wrong. To depart from a consistent line of intermediate appellate authority would require the Court to be "convinced" those decisions were "plainly wrong," and no sufficient basis for that conclusion was shown.

All three judges agreed on a head sentence of 6 years and a non-parole period of 3 years and 3 months. The reduced non-parole period, compared to the original 4 years, reflected the good prospects of rehabilitation found by the sentencing judge, together with the weight given to the impact of the appellant's continued imprisonment on his family, particularly his youngest children.

Orders Made

• Head sentence of six years imprisonment
• Non-parole period of three years and three months (with expiry date corrected to 31 January 2016)
• Agreement with the orders proposed by Adams J

Key Takeaways

  • A sentencing court dealing with a Commonwealth offence must apply Part IB of the Crimes Act 1914 (Cth), not the Crimes (Sentencing Procedure) Act 1999 (NSW); applying the wrong framework constitutes an error requiring resentencing afresh.
  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), the Court of Criminal Appeal confirmed the prevailing approach that family members or dependants of a federal offender must be shown to face "exceptional hardship" before that factor can reduce an otherwise appropriate sentence.
  • This "exceptional hardship" requirement has been consistently applied by intermediate appellate courts in NSW, Victoria, South Australia, Western Australia, and Queensland, though it has not been adopted in the Australian Capital Territory.
  • Departing from a settled line of intermediate appellate authority requires the court to be convinced those decisions are "plainly wrong"; where the factual circumstances make it unnecessary to resolve the question, the court will decline to undertake that analysis.
  • In synthesising all relevant sentencing factors, evidence of significant psychological harm to an offender's children can support a reduction in the non-parole period, reflecting the benefit of earlier supervised release while still affording community protection.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 302.3
- Crimes Act 1914 (Cth), Part IB, Div 4, ss 16A(2), 16F(1), 19AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Bui v Director of Public Prosecutions for the Commonwealth of Australia [2012] HCA 1; 244 CLR 638
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
- R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265
- R v Hinton [2002] NSWCCA 405; 134 A Crim R 286
- R v Lin [2014] NSWCCA 254
- Huynh v R [2015] NSWCCA 167
- Markovic v The Queen [2010] VSCA 105; 200 A Crim R 510
- R v Berlinsky [2005] SASC 316
- Nguyen v The Queen [2001] WASCA 119; 160 FLR 284
- R v Huston; Ex parte Director of Public Prosecutions (Cth) [2011] QCA 350; 219 A Crim R 209
- R v Ajelara [2015] QCA 56
- Director of Public Prosecutions (Cth) v Ip [2005] ACTCA 24
- Khoo v R [2013] NSWCCA 323
- MLP v R [2014] NSWCCA 183