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Court of Criminal Appeal 31 March 2023

AE v R

[2023] NSWCCA 74

Drugs
CRIME SENTENCE “ TOTAAN ERROR”

Citation: AE v R [2023] NSWCCA 74
Court: Court of Criminal Appeal
Date: 31 March 2023
Judge(s): Button J, Wilson J, N Adams J

Background

The applicant was sentenced in May 2019 to 10 years and 6 months imprisonment with a non-parole period of 6 years and 6 months for importing a commercial quantity of cocaine into Australia, contrary to s 307.1 of the Commonwealth Criminal Code Act 1995. The offence carried a maximum penalty of life imprisonment. The cocaine, approximately 20,091.5 grams at an average purity of 76.43%, was concealed in hollowed-out granite tile blocks shipped from Spain.

The applicant had arranged for the containers to be delivered to an industrial premises, was present at delivery, and actively searched for the concealed drugs after Australian Border Force had already removed them. His role was found to be essential and fundamental to the importation, though he was not identified as the financier or intended distributor.

In October 2022, well outside the standard appeal period, the applicant sought leave to appeal his sentence. His sole ground relied on the change in law brought about by the Court of Criminal Appeal's decision in Totaan v R [2022] NSWCCA 75, which had overturned the requirement that only "exceptional hardship" to family could be considered when sentencing federal offenders.

Legal Issues

  • Whether the applicant should be granted an extension of time and leave to appeal out of time based on the "Totaan error"
  • Whether the sentencing judge erred by applying the exceptional hardship principle when considering the impact of the sentence on the applicant's family
  • Whether, on re-sentence, a less severe sentence was warranted once the Totaan error was corrected
  • What "new" evidence of family hardship an applicant may adduce before the Court of Criminal Appeal in post-Totaan appeals

Decision

Ground 1: Totaan Error

The Court confirmed that a "Totaan error" was established. At the time of sentencing, both parties and the sentencing judge proceeded on the now-overruled understanding that the probable effect of a sentence on a federal offender's family could only be considered if it amounted to "exceptional hardship." The sentencing judge acknowledged the impact on family but expressly declined to find exceptional hardship, meaning the evidence was not given its full potential weight under the correct legal framework (at [31]-[36]). This constituted an error of principle within the meaning of House v The King, and the Crown conceded the point. The Court granted the extension of time and leave to appeal accordingly (at [36]-[37]).

Admissibility of Fresh Evidence

The applicant sought to place additional evidence before the Court, including material predating the original sentence, arguing he had felt constrained by the exceptional hardship threshold from adducing it below. The Court rejected that argument (at [39]). The evidence of family impact placed before the sentencing court had already been extensive, including the applicant's own evidence, a lengthy personal letter, and correspondence from multiple family members, friends, and colleagues. Wilson J observed that it was difficult to see what more could have been placed before the sentencing judge (at [41]). Evidence unrelated to family hardship was admitted on the re-sentence question to the extent it post-dated the original sentencing (at [43]-[50]).

Re-sentence: Whether a Less Severe Sentence Was Warranted

On re-sentence, the Court concluded that no less severe sentence was warranted. The sentence imposed at first instance was, if anything, lenient given the gravity of the offence and the life imprisonment maximum (at [52]). The sentencing judge had not ignored the family impact evidence; rather, his Honour gave full weight to the "big" and "devastating" effect on the applicant's parents and children and factored it into the sentence imposed (at [52]). The additional evidence of family hardship placed before the Court of Criminal Appeal did not justify a greater mitigatory discount than was already allowed (at [53]-[54]). The Court noted the applicant was an intelligent individual in a financially and socially privileged position, motivated by greed, and appeared to have limited insight into his offending (at [54]).

Additional Observations: Post-Totaan Appeals Generally

N Adams J added observations of broader application. Error being conceded in a post-Totaan appeal does not automatically produce a less severe sentence on re-sentence (at [57]-[58]). The Court exercises the sentencing discretion afresh under Kentwell v The Queen, without treating the original sentence as a starting point (at [58]). Where a re-exercised discretion produces a result no less severe, the appeal is dismissed, consistent with the Court's practice of not imposing a more severe sentence on appeal (at [58]). As to fresh evidence, whether an applicant was truly precluded from adducing family hardship material below depends on the facts: where such evidence was already placed before the sentencing judge and taken into account in the general subjective mix, it will be difficult to establish that the applicant was prevented from doing so (at [59]).

Orders Made

  • Extension of time to file the Notice of Application for Leave to Appeal granted to 24 October 2022
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Establishing a "Totaan error" does not guarantee a reduced sentence on appeal. The Court of Criminal Appeal exercises the sentencing discretion afresh and, where the re-exercised discretion produces a sentence no less severe than the original, the appeal is dismissed without imposing a heavier sentence (at [51], [58]).

  • Where family hardship evidence was already placed before the sentencing judge and taken into account as part of the subjective case (even if not formally recognised as "exceptional hardship"), an applicant in a post-Totaan appeal will face difficulty arguing they were constrained from adducing that material below (at [39]-[41], [59]).

  • Under the correct interpretation of s 16A(2)(p) of the Crimes Act 1914 (Cth) confirmed in Totaan, the probable effect of a federal sentence on an offender's family is a relevant sentencing consideration without any threshold requirement of exceptional hardship (at [29]).

  • A sentence that was lenient at first instance, where every favourable conclusion was already drawn and family impact was genuinely weighed, is unlikely to be reduced further on re-sentence merely because the exceptional hardship label was not applied (at [52]-[53]).

  • The admissibility of fresh evidence in post-Totaan appeals is fact-specific: applicants who were genuinely precluded from adducing family hardship evidence below may adduce it before the Court of Criminal Appeal, but applicants who presented extensive such material at first instance are in a materially different position (at [59]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth)

Cases
- Ahmed Mohamed v The Queen [2022] VSCA 136; 367 FLR 482
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hutchison v The King [2022] VSCA 217
- Kaveh v R [2017] NSWCCA 52
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Girard [2004] NSWCCA 170
- R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405
- R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369
- R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
- R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
- Rodgerson v The Queen [No 2] [2022] VSCA 154
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4