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Court of Criminal Appeal 1 May 2025

Ozgen v R (Cth)

[2025] NSWCCA 65

Drugs
CRIME SENTENCE APPEAL AGAINST SENTENCE CONTROLLED DRUG “TOTAAN ERROR”

Citation: Ozgen v R (Cth) [2025] NSWCCA 65
Court: Court of Criminal Appeal
Date: 1 May 2025
Judge(s): Payne JA, Fagan J, Coleman J

Background

After a jury trial in August 2019, the applicant was convicted of two offences of attempting to possess a commercial quantity of a border-controlled drug under the Criminal Code 1995 (Cth). The offending involved his participation in a joint criminal enterprise to import 655 kilograms of methamphetamine and 1.3 tonnes of MDMA (ecstasy), both concealed in a single shipping container. Each offence carried a maximum penalty of life imprisonment.

In March 2020, the District Court sentenced the applicant to 16 years' imprisonment with a non-parole period of 10 years. During sentencing, the judge acknowledged hardship to the applicant's family only to the extent that it made custody more burdensome on the applicant personally. This was because no submission was made at the time that the family hardship was "exceptional," which was then the accepted legal requirement before such hardship could be treated as a mitigating factor in its own right.

In April 2022, the Court of Criminal Appeal in Totaan v R changed that approach, holding that hardship to a dependent family member does not need to be "exceptional" to be taken into account under s 16A(2)(p) of the Crimes Act 1914 (Cth). The applicant subsequently sought leave to appeal his sentence, relying on that change in the law. The application was filed out of time.

  • Whether the Court should exercise its discretion to grant an extension of time to file the appeal, given parts of the delay remained unexplained
  • Whether the sentencing judge erred by failing to give proper weight to family hardship under s 16A(2)(p) of the Crimes Act 1914 (Cth), in light of the subsequent Totaan decision
  • Whether any such error warranted the imposition of a lesser sentence
  • Whether the structure of the original sentence complied with s 19AB of the Crimes Act 1914 (Cth), which governs how sentences for multiple federal offences must be structured

Decision

The Court granted the extension of time, finding that the interests of justice favoured doing so. The Crown conceded that a sentencing error had occurred and the applicant had provided evidence explaining the delay, including that a prior conviction appeal was not resolved until November 2021 and the Totaan decision did not emerge until April 2022.

The Court agreed that the sentencing judge's treatment of family hardship constituted a "Totaan error." Although the judge followed the conventional approach at the time, the law as subsequently clarified by Totaan required that family hardship be taken into account on its own terms under s 16A(2)(p), not merely as a factor making custody more onerous for the applicant.

Despite finding the error, the Court concluded that no lesser sentence was warranted. After weighing the objective seriousness of the offending, the applicant's role in the enterprise, the significant need for general deterrence, the applicant's personal circumstances, his time in custody during the COVID-19 pandemic, the impact of the sentence on his family (a dependent mother, younger brother, and partner), and the delay in resolving the matter, the Court determined that the original length and non-parole period remained appropriate.

The Court also identified a separate structural error, not raised by either party. The sentencing judge had imposed a single sentence across both counts, which is not permitted under s 19AB(1) of the Crimes Act 1914 (Cth). That provision requires a single non-parole period to be set across two or more federal sentences of three years or more, but individual sentences must still be imposed for each count. Fagan J also noted that the available alternative of imposing an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) would be imprudent at this time, given that special leave has been granted by the High Court in a related matter. To correct the structural error, the Court re-sentenced the applicant, imposing identical concurrent sentences for each count with the same overall length and non-parole period.

Orders Made

  • Leave granted to the applicant to proceed on his application filed out of time
  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by the District Court on 20 March 2020 quashed
  • In lieu, a sentence of 16 years' imprisonment imposed for each of counts 1 and 2, to be served wholly concurrently
  • Single non-parole period of 10 years specified
  • Sentences to commence 18 July 2019 and expire 17 July 2035
  • First eligible date for release to parole: 17 July 2029

Key Takeaways

  • Following Totaan v R, a sentencing judge applying the pre-Totaan "exceptionality" requirement when considering family hardship under s 16A(2)(p) of the Crimes Act 1914 (Cth) commits a sentencing error, even where that approach was conventional at the time of sentencing.
  • A Totaan error does not automatically produce a lesser sentence: the Court of Criminal Appeal undertook a full resentencing exercise here and found the original length and non-parole period remained appropriate when weighed against the seriousness of the offending, deterrence considerations, and all relevant subjective factors.
  • Under s 19AB(1) of the Crimes Act 1914 (Cth), a sentencing court cannot impose a single head sentence across two federal offences; individual sentences must be imposed for each count, with a single non-parole period set across them where the aggregate term is three years or more.
  • An out-of-time sentence appeal may still be granted where the interests of justice favour it, including where the delay is substantially attributable to a change in the law occurring after the original sentence.
  • Fagan J noted that, pending the High Court's resolution of McGregor v R [2024] NSWCCA 200, resort to the aggregate sentencing provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) as a fix for the s 19AB structural error was considered imprudent in the circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2)(p), 19AB
- Criminal Code 1995 (Cth), ss 11.1(1), 11.2A(1), 307.5(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 10(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Ozgen v R (2021) 291 A Crim R 308; [2021] NSWCCA 252
- Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Taha v The Queen [2022] NSWCCA 46
- AKB v R [2024] NSWCCA 169
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Hinton [2002] NSWCCA 405
- McGregor v R [2024] NSWCCA 200 (special leave granted, High Court)