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Court of Criminal Appeal 15 May 2024

Fakhreddine v R

[2024] NSWCCA 74

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE CONTROLLED DRUG CROWN CONCEDED “ TOTAAN ERROR” PARITY WITH CO

Citation: Fakhreddine v R [2024] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 15 May 2024
Judges: Ward P at [1]; Rothman J at [2]; Wright J at [20]

Background

The applicant pleaded guilty to attempting to import a commercial quantity of a border-controlled drug, an offence under the Criminal Code (Cth). On 22 June 2020, a District Court judge sentenced him to 13 years and 7 months' imprisonment with a non-parole period of 8 years.

During sentencing, the applicant raised family hardship as a mitigating consideration. The sentencing judge acknowledged the hardship but held it was "not exceptional" and therefore did not operate to significantly reduce the penalty. That approach reflected the conventional understanding of the law at the time.

In April 2022, the Court of Criminal Appeal in Totaan v R [2022] NSWCCA 75 overturned that conventional approach. It held that a sentencing court dealing with a Commonwealth offence is not required to find that family hardship is "exceptional" before taking it into account under s 16A(2)(p) of the Crimes Act 1914 (Cth). Following Totaan, three of the applicant's co-offenders successfully appealed their sentences. The applicant then sought leave to appeal out of time on related grounds.

  • Whether the sentencing judge erred by requiring family hardship to reach an "exceptional" threshold before it could reduce the sentence, in light of the subsequent decision in Totaan v R
  • Whether the applicant had a justifiable sense of grievance arising from the reduced sentences imposed on co-offenders following their successful appeals (parity ground)

Decision

The Court granted leave to appeal and allowed the appeal. The Crown conceded there was a "Totaan error": the sentencing judge had applied a wrong legal principle by treating the absence of "exceptional" hardship as a barrier to meaningful consideration of the effect of the sentence on the applicant's family and dependants. All three judges agreed that error was established on the first ground.

Because error was established on the first ground, the Court exercised the sentencing discretion afresh. Wright J, with Ward P and Rothman J agreeing, determined it was unnecessary to deal separately with the parity ground, though parity with co-offenders was factored into the resentencing exercise.

Rothman J wrote separately to clarify the proper operation of s 16A(2)(p). His Honour noted that taking family hardship "into account" does not automatically require a reduction in sentence. What the provision requires is genuine consideration of the probable effect on family or dependants. Rothman J observed that the datum point, following Totaan, is the absence of any family impact rather than the "usual" impact of incarceration, meaning any adverse effect on family is capable of being ameliorative even if not exceptional.

On resentencing, Wright J took into account the original sentencing findings, fresh evidence about the applicant's family circumstances, and the sentences imposed on co-offenders. A discount of 20% was applied for the plea of guilty. The resulting sentence was materially shorter than the original, reflecting both the corrected approach to family hardship and the need for proportionality in all the circumstances.

Orders Made

  • Leave granted to bring the application for leave to appeal out of time
  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court on 22 June 2020 quashed
  • In lieu, the applicant sentenced to imprisonment with a non-parole period of 6 years and 11 months commencing 8 August 2017 and expiring 7 July 2024, with a balance of term of 4 years and 7 months expiring 7 February 2029
  • The applicant first eligible for release to parole on 7 July 2024

Key Takeaways

  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), as confirmed in Totaan v R and applied here, a sentencing court is not required to find that family hardship is "exceptional" or "extraordinary" before it can be taken into account as a mitigating consideration.
  • Taking family hardship into account does not compel a reduction in sentence. The obligation is to genuinely consider the probable effect on family or dependants and weigh it within the overall sentencing discretion.
  • The correct datum point when assessing family hardship, following Totaan, is the position where an offender has no family or dependants (or where there is no relevant effect), rather than the "usual" effect of imprisonment on a family.
  • Where co-offenders have had their sentences reduced on appeal, a remaining co-offender's sentence may require corresponding adjustment, and the prospect of that flow-on effect is not a reason to refuse to reduce a sentence on appeal.
  • A sentencing error of the kind identified here, applying a superseded legal test to a statutory mitigating factor, is sufficient to vitiate the original sentence and warrant resentencing by the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2)(p)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), ss 11.1(1), 11.2A(1)(a), 11.2A(1)(b)(ii), 307.1(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases:
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020] NSWDC 370
- Ahmad v R [2023] NSWCCA 294
- Dib v R [2023] NSWCCA 243
- Ibrahim v R [2022] NSWCCA 161
- R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286
- R v Sinclair (1990) 51 A Crim R 418