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Court of Criminal Appeal 17 May 2024

Flower v R; Mafiti v R

[2024] NSWCCA 76

Drugs
CRIMINAL LAW SENTENCING COMMERCIAL DRUG IMPORTATION HARDSHIP TO THIRD PARTIES GROUND OF APPEAL ESTABLISHED APPLICANTS RE

Citation: Flower v R; Mafiti v R [2024] NSWCCA 76
Court: Court of Criminal Appeal, New South Wales
Date: 17 May 2024
Judge(s): Davies J, Hamill J (principal judgment), Sweeney J

Background

Two co-offenders pleaded guilty in the District Court to importing a commercial quantity of cocaine and dealing with proceeds of crime. The offending involved twelve separate importations of cocaine over approximately three years, and each offender received substantial financial reward. Both men were sentenced on 11 February 2022.

The first applicant received concurrent sentences of 28 years (importation) and 4 years (proceeds), with a non-parole period of 17 years. The second applicant received concurrent sentences of 23 years (importation) and 5 years and 6 months (proceeds), with a non-parole period of 14 years.

Both applicants sought leave to appeal against their sentences on several grounds, including that the sentencing judge applied a legally incorrect approach to the question of hardship suffered by family members as a consequence of imprisonment.

  • Whether the sentencing judge erred by requiring the applicants to demonstrate "exceptional" hardship to family members before that hardship could be taken into account as a mitigating factor, rather than applying the plain terms of s 16A(2)(p) of the Crimes Act 1914 (Cth)
  • Whether the first applicant's sentence miscarried due to an incorrect assessment of the objective seriousness of the importation offence
  • Whether the first applicant's sentence for the importation offence was manifestly excessive
  • Whether the second applicant had a justifiable sense of grievance about the disparity between his sentence and that of his co-offender
  • Whether the sentencing judge erred in finding that the second applicant's subjective circumstances did little to reduce his moral culpability

Decision

The central and determinative error concerned the treatment of family hardship. Section 16A(2)(p) of the Crimes Act 1914 (Cth) requires a sentencing judge to take into account the probable effect of a sentence on the offender's family or dependants. At the time of sentencing, New South Wales case law had added a gloss to that provision by requiring offenders to demonstrate that family hardship was "exceptional" before it could carry any real mitigating weight. The sentencing judge applied that prevailing interpretation.

Two months after sentence was imposed, the Court of Criminal Appeal in Totaan v The Queen (2022) unanimously held that those earlier authorities were "plainly wrong" and that the law had taken a "wrong turn." The Crown conceded on appeal that this error infected both sentencing proceedings, and the Court agreed. Because the sentencing discretion had miscarried, the Court was required to re-sentence both applicants afresh.

On re-sentencing, the Court was not satisfied on the evidence that the first applicant was a "principal" in the operation in the sense that expression is generally understood, though it noted his role was substantial and possibly managerial. The remaining grounds of appeal were not determined, as their substance was absorbed into the re-sentencing exercise. The Court generally adopted the sentencing judge's factual findings and approach, including her approach to parity and proportionality between the co-offenders.

The result was a significant reduction in both sentences. The first applicant's head sentence for the importation offence was reduced from 28 years to 21 years and 6 months, with the non-parole period reduced from 17 years to 13 years. The second applicant's head sentence was reduced from 23 years to 16 years, with the non-parole period reduced from 14 years to 9 years and 6 months.

Orders Made

First applicant:
- Leave to appeal granted; appeal allowed
- Sentences imposed on 11 February 2022 quashed
- Re-sentenced to 21 years and 6 months imprisonment for the importation offence (commencing 22 May 2019, expiring 21 November 2040)
- Re-sentenced to 4 years imprisonment for the proceeds of crime offence (commencing 22 May 2019, expiring 21 May 2023)
- Single non-parole period of 13 years (commencing 22 May 2019, expiring 21 May 2032)

Second applicant:
- Leave to appeal granted; appeal allowed
- Sentences imposed on 11 February 2022 quashed
- Re-sentenced to 16 years imprisonment for the importation offence (commencing 22 May 2019, expiring 21 May 2035)
- Re-sentenced to 5 years and 6 months imprisonment for the proceeds of crime offence (commencing 22 May 2019, expiring 21 November 2024)
- Single non-parole period of 9 years and 6 months (commencing 22 May 2019, expiring 21 November 2028)

Key Takeaways

  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), a sentencing court must consider the probable effect of a sentence on an offender's family or dependants without imposing any threshold requirement of "exceptional" hardship. The Court of Criminal Appeal in Totaan (2022) held that prior NSW authorities importing such a threshold were plainly wrong.

  • A sentencing error arising from a subsequently overruled legal principle can ground a successful appeal even where the sentencing judge correctly applied the law as it stood at the time of sentencing. The Crown's concession on this point was accepted as correct.

  • Where an appellate court finds that the sentencing discretion has miscarried, it must re-sentence the offender afresh. In doing so, the Court of Criminal Appeal here generally adopted the original sentencing judge's factual findings and approach rather than conducting a wholly independent assessment.

  • Remaining grounds of appeal need not be determined where their substance is subsumed within a re-sentencing exercise, though the factual matters they raise will still inform that exercise.

  • Whether an offender is properly characterised as a "principal" in a drug importation operation is a fact-sensitive inquiry. Here, the Court declined to make that characterisation for the first applicant despite his substantial and possibly managerial role, as the evidence did not establish it to the requisite standard.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A(2)(p)
- Criminal Code Regulations 2019 (Cth), sch 1

Cases:
- Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hanh Thi Nguyen v R [2011] NSWCCA 92; (2011) 208 A Crim R 432
- Turnbull v R [2019] NSWCCA 97
- Tenenboim v R [2024] NSWCCA 1
- Parker v R [2020] NSWCCA 206
- Tawfik v The Queen (2021) 64 VR 561; [2021] VSCA 289
- Li v R [2021] NSWCCA 100
- Jomaa v R [2022] NSWCCA 112
- Heng v R [2019] NSWCCA 317
- R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54