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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: NSW Court of Criminal Appeal
Date: 31 March 2023
Judges: Button J, Wilson J, N Adams J

Background

The applicant (anonymised as "AE") was sentenced in May 2019 by the District Court 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 contrary to s 307.1 of the Criminal Code Act 1995 (Cth). The offence carries a maximum sentence of life imprisonment. Over 20 kilograms of cocaine (at an average purity of 76.43%) had been concealed inside hollow granite tiles shipped from Valencia, Spain.

The applicant was the organiser of the importation scheme. He established a company ostensibly for importing bathroom hardware, travelled to Spain, and arranged the delivery of the containers. After the drugs were removed by the Australian Border Force during inspection, the reconstructed shipment was delivered and the applicant spent several days searching the tiles for the cocaine he believed remained hidden inside.

In October 2022, well outside the standard appeal period, the applicant filed a notice of appeal seeking leave to appeal out of time. The sole ground relied upon was the change in sentencing law brought about by the Court of Criminal Appeal's decision in Totaan v R [2022] NSWCCA 75.

  • Whether leave to appeal out of time should be granted, given the sole ground rested on the post-sentence authority of Totaan v R
  • Whether the sentencing judge fell into "Totaan error" by failing to treat hardship to the applicant's family as a relevant mitigating factor in the general mix of subjective features, rather than requiring that hardship to be "exceptional" before giving it weight
  • Whether, even if such error was established, resentencing by the Court of Criminal Appeal would produce a sentence less severe than that imposed at first instance

Decision

The Crown conceded that the Totaan ground was made out and did not oppose an extension of time or the grant of leave. The Court agreed those concessions were appropriate and granted both. Before Totaan, sentencing courts sometimes required family hardship to reach a threshold of being "extreme" or "exceptional" before it would be considered in mitigation. Totaan clarified that hardship to an offender's family is a legitimate subjective factor to be weighed in the general sentencing mix without needing to meet any elevated threshold.

However, the Court found that granting leave and accepting the error did not mean the applicant was entitled to a reduced sentence. The sentencing judge had, in fact, already taken the applicant's family circumstances into account as part of the broader subjective case, consistent with the approach endorsed in cases such as R v Girard, R v Nguyen, and Kaveh v R. The error was therefore of limited practical consequence in this case.

On resentencing, the Court considered all objective and subjective factors afresh, including the hardship to the applicant's family. N Adams J added that in some post-Totaan appeals, an applicant might be permitted to place fresh evidence of family hardship before the appellate court if they had felt precluded from doing so at first instance. In this case, however, the evidence had already been adduced. The Court did not arrive at a sentence less severe than that already imposed, and accordingly dismissed the appeal.

N Adams J observed that where resentencing would produce a higher sentence, the Court's practice, notwithstanding s 6(3) of the Criminal Appeal Act 1912 (NSW), is not to impose the more severe sentence. Instead, the appeal is dismissed on the basis that no less severe sentence is warranted.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Totaan v R changed the law by removing any requirement that hardship to an offender's family be "extreme" or "exceptional" before it is treated as a relevant subjective factor on sentence; it now falls to be weighed in the general mix.
  • Establishing a "Totaan error" does not automatically produce a lighter sentence on appeal. Where family hardship evidence was already placed before the sentencing judge and taken into account as part of the subjective case, an applicant may struggle to demonstrate any consequential difference in outcome.
  • In post-Totaan appeals where an offender can show they felt precluded from adducing family hardship evidence at first instance, the Court of Criminal Appeal may permit fresh evidence to be led on the appeal.
  • Where resentencing by the appellate court would, on proper analysis, produce a higher sentence than that imposed at first instance, the Court of Criminal Appeal's practice is to dismiss the appeal rather than impose the more severe result.
  • The gravity of the objective criminality remains central: the applicant's role as organiser of a large commercial drug importation, combined with limited subjective mitigation, meant that no less severe sentence was warranted despite the sentencing error.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.1
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW), s 6(3)

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