Citation: Chan v Director of Public Prosecutions (Cth) [2025] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 10 December 2025
Judges: Mitchelmore JA (with Ierace J and Chen J agreeing)
Background
The applicant was convicted after a jury trial in the District Court of three offences connected to a large-scale methamphetamine importation and manufacture operation in 2015. The offences involved importing over 72 kg (pure weight) of methamphetamine concealed in bottles of aloe juice, participating in the extraction of up to 400 g of the drug, and dealing with approximately $62,000 in proceeds of crime. The sentencing judge described the operation as a well-organised international criminal syndicate based in Hong Kong and China.
In November 2018, the applicant received a total effective sentence of 23 years imprisonment with a non-parole period of 16 years. The principal sentence, for the importation offence under the Commonwealth Criminal Code, was 20 years with a 13-year non-parole period.
The applicant sought leave to appeal against the sentence on count 1 only. His sole ground was that the sentencing judge had failed to properly consider the effect of the sentence on his family and dependants, as required by s 16A(2)(p) of the Crimes Act 1914 (Cth), in light of the Court of Criminal Appeal's 2022 decision in Totaan v R.
Legal Issues
- Whether the sentencing judge erred by applying the pre-Totaan approach to family hardship, which required "exceptional" circumstances before s 16A(2)(p) considerations could be taken into account.
- Whether, given the error was established, the Court of Criminal Appeal's fresh exercise of the sentencing discretion warranted a lesser sentence.
- Whether an extension of time should be granted for an application filed approximately six years and seven months after sentence was imposed.
Decision
The respondent (the DPP) properly conceded that error was established. The sentencing judge had applied the law as it stood before Totaan, treating family hardship as a relevant consideration only where "exceptional" circumstances existed. Following Totaan, that requirement no longer applies, and failure to consider family hardship without imposing that threshold condition constitutes acting upon a wrong principle. The Court confirmed this was an error calling for resentencing.
The Court then exercised the sentencing discretion afresh, as required by Kentwell v The Queen. Mitchelmore JA considered the applicant's submissions and evidence on both objective and subjective factors, including his maintenance of employment while in custody and completion of courses. However, her Honour remained cautious about his rehabilitation prospects, noting that his affidavit did not address the offending conduct and showed no apparent insight or remorse.
After considering all relevant matters under ss 16A(1) and (2) of the Crimes Act 1914 (Cth), the maximum penalties, and applicable sentencing purposes, the Court concluded that no lesser sentence was warranted in law. The appeal was accordingly dismissed notwithstanding the established error.
On the extension of time, the Court accepted that gaps in the applicant's pursuit of the appeal existed but declined to treat those gaps as disentitling him from bringing the application. Given the Crown's concession of error and the consequent obligation to resentence, the interests of justice supported the grant of the extension.
Orders Made
- Extension of time to file the application for leave to appeal against sentence granted, to 26 June 2025.
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
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Following Totaan v R, sentencing courts dealing with Commonwealth offences are required to consider the probable effect of a sentence on the offender's family and dependants under s 16A(2)(p) of the Crimes Act 1914 (Cth) without first requiring "exceptional" circumstances. Applying the pre-Totaan threshold remains an error of principle.
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Where such an error is established, the Court of Criminal Appeal must exercise the sentencing discretion afresh under Kentwell rather than simply adjusting the original sentence downward. This process can result in no reduction even where error is conceded.
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In dismissing the appeal despite the established error, the Court applied the principle that a fresh exercise of the sentencing discretion may produce a result equal to or potentially higher than the original sentence, in which case the appeal is dismissed on the basis that no lesser sentence is warranted in law.
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A significant delay in filing a notice of appeal (here, over six years) will not automatically disentitle an applicant where the Crown concedes error on a ground that would require resentencing, and the interests of justice favour granting the extension.
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An affidavit that does not address the offending conduct or demonstrate insight and remorse may limit the weight a court places on rehabilitation as a mitigating factor at resentencing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 16A (sentencing factors, including s 16A(2)(p) regarding family and dependants)
- Commonwealth Criminal Code, ss 307.1, 400.5
- Drug Misuse and Trafficking Act 1985 (NSW), s 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- AE v R [2023] NSWCCA 74
- Green (a pseudonym) v R [2025] NSWCCA 16; 393 FLR 339
- Ozgen v R (Cth) [2025] NSWCCA 65
- Saab v R [2025] NSWCCA 58; 394 FLR 410
- McLaughlin v R [2025] NSWCCA 13; 393 FLR 349
- Fakhreddine v R [2024] NSWCCA 74
- Flower v R; Mafiti v R [2024] NSWCCA 76
- Turnbull v R [2019] NSWCCA 97
- Heng v R [2019] NSWCCA 317
- Parker v R [2020] NSWCCA 206
- R v Hinton [2002] NSWCCA 405; 134 A Crim R 286
- R v Togias [2001] NSWCCA 522; 127 A Crim R 23