AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 7 June 2021

Afful v R

[2021] NSWCCA 111

Drugs
EXTENSION OF TIME REQUIRED NO ERROR FOUND EXTENSION OF TIME REFUSED

Citation: Afful v R [2021] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 7 June 2021
Judges: Hoeben CJ at CL, N Adams J, Hidden AJ

Background

The applicant, a Canadian citizen and permanent resident of Australia, was convicted after trial of attempting to possess a commercial quantity of unlawfully imported methamphetamine (7.45kg of pure methamphetamine), contrary to the Criminal Code (Cth). The offence carries a maximum penalty of life imprisonment. He was sentenced in June 2017 to eight years imprisonment with a non-parole period of four years and six months.

More than three and a half years after sentencing, the applicant lodged an application for leave to appeal against his sentence. The delay arose because his visa had been cancelled following his conviction, and he sought to argue that the prospect of deportation and related hardships should have reduced his sentence. His non-parole period was due to expire on 25 July 2021.

The applicant represented himself in the Court of Criminal Appeal. The Crown opposed the extension of time on the basis that the grounds lacked merit.

  • Whether an extension of time to appeal against sentence should be granted, given the delay of over three years
  • Whether the sentencing judge erred by failing to give sufficient weight to the applicant's status as a foreign national facing likely deportation, and the additional burdens that would cause
  • Whether the applicant's inability to access rehabilitation programs in custody, due to his visa cancellation, vitiated the exercise of the sentencing discretion
  • Whether the sentencing judge failed to adequately identify how mitigating factors were incorporated into the sentence
  • Whether post-sentencing hardships (including a parent's death, a parent's illness, and estrangement from children) constituted a ground of appeal

Decision

Ground 1: Deportation risk and program access

The court examined whether the prospect of deportation should have operated as a mitigating factor at sentencing. N Adams J noted that, at the time of sentence, the applicant's deportation was not a certainty, and the sentencing judge had in fact considered the applicant's status as a foreign national. The applicant's visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) occurred automatically upon his conviction for an offence attracting a sentence of 12 months or more, but cancellation does not inevitably lead to deportation because revocation is possible under s 501CA.

The court reviewed the relevant authorities, including the Victorian Court of Appeal decisions in Ye Zhao and Konamala, and the Queensland Court of Appeal decision in R v Schelvis, as well as NSWCCA decisions such as AC v R and Kristensen v R. These cases confirm that likely (as opposed to certain) deportation is a factor that may be taken into account in mitigation, but that its weight depends on the particular circumstances. The sentencing judge had taken into account the applicant's status as a foreign national, and no error in that approach was demonstrated. Similarly, the court found no error in the sentencing judge's treatment of rehabilitation prospects: the judge had expressly acknowledged the applicant's rehabilitation potential and had even identified a program the applicant could undertake in custody.

Ground 2: Adequacy of reasons for mitigating factors

The applicant contended that the sentencing judge failed to articulate how mitigating factors had been incorporated into the sentence, drawing a parallel with Xiao v R. The court rejected this ground. The sentencing remarks clearly disclosed the judge's reasoning and explained how individual subjective factors were addressed. The non-parole period represented only 56% of the head sentence, a ratio the court described as generous, and the overall sentence was lenient given the gravity of the offending.

Ground 3: Post-sentencing personal hardship

The applicant described significant personal hardship arising after he was sentenced, including the death of his father shortly after he entered custody, his mother's cancer diagnosis, and estrangement from his children. The court acknowledged these as genuine difficulties but confirmed that the Court of Criminal Appeal is a court of error. It can only intervene where a sentencing error existed at the time the sentence was imposed. Events occurring after sentence is passed do not, of themselves, disclose any such error. No error was established, and this ground also failed.

Orders Made

  • Application for an extension of time refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed it can only intervene in a sentence where an error of principle, or a mistake of fact or law, can be identified in the original sentencing exercise. Post-sentencing hardship does not, of itself, constitute a ground of appeal.
  • Likely (as opposed to certain) deportation of a foreign national is a factor that may be considered in mitigation at sentencing, but the weight it attracts depends on the specific circumstances of each case, including whether revocation of visa cancellation remains a live possibility.
  • Automatic visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) does not make deportation certain, because the cancellation may be revoked under s 501CA. This distinction matters when assessing the claimed mitigatory effect of deportation risk.
  • In dismissing the appeal, the court underscored that a sentencing judge who expressly considers a foreign national's status and who imposes a non-parole period reflecting a generous ratio to the head sentence will be difficult to challenge on appeal.
  • A failure to enumerate precisely how each mitigating factor reduced a sentence will not constitute error where the sentencing remarks, read as a whole, adequately disclose the judge's reasoning.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes Act 1914 (Cth), s 19AK
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), ss 11.1(1), 307.5(1)
- Migration Act 1958 (Cth), ss 254, 501(3A), 501CA
- Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Cases
- House v The King (1936) 55 CLR 499
- The Queen v Shrestha (1991) 173 CLR 48
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Guden v R [2010] VSCA 196
- Zreika v R [2012] NSWCCA 44
- AC v R [2016] NSWCCA 107
- Konamala v The Queen [2016] VSCA 48
- Schneider v The Queen [2016] VSCA 76
- R v Schelvis; R v Hildebrand [2016] QCA 294
- Xiao v R [2018] NSWCCA 4
- Kristensen v R [2018] NSWCCA 189
- Ye Zhao v The Queen [2018] VSCA 267
- R v Arrowsmith [2018] SASCFC 47
- R v Mirzaee [2004] NSWCCA 315
- R v Van Hong Pham [2005] NSWCCA 94