[1936] HCA 40
Hutchison v The King [2022] VSCA 217
Kaveh v R [2017] NSWCCA 52
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
R v Girard [2004] NSWCCA 170
R v Hinton (2002) 134 A Crim R 286
[2002] NSWCCA 405
R v Nguyen (2006) 166 A Crim R 124
Source
Original judgment source is linked above.
Catchwords
367 FLR 482
House v The King (1936) 55 CLR 499[1936] HCA 40
Hutchison v The King [2022] VSCA 217
Kaveh v R [2017] NSWCCA 52
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
R v Girard [2004] NSWCCA 170
R v Hinton (2002) 134 A Crim R 286[2002] NSWCCA 405
R v Nguyen (2006) 166 A Crim R 124[2006] NSWCCA 369
R v Togias (2001) 127 A Crim R 23[2001] NSWCCA 522
R v Zerafa (2013) 235 A Crim R 265[2013] NSWCCA 222
Rodgerson v The Queen [No 2] [2022] VSCA 154
Totaan v R (2022) 108 NSWLR 17[2022] NSWCCA 75
Xiao v R (2018) 96 NSWLR 1
Judgment (3 paragraphs)
[1]
The Application to this Court
The applicant advances the following ground:
"The sentencing judge acted on a wrong principle, namely, that:
(a) evidence of hardship to family and dependents could not "justify any substantial reduction in sentence" unless the hardship was exceptional and / or,
(b) that the weight to be given to the evidence of hardship in the sentencing process was limited unless the hardship demonstrated was exceptional".
As noted previously, the Crown accepts that ground one can be made out, because of the decision in Totaan. It is convenient to briefly consider that judgment.
The decision in Totaan was handed down by this Court, constituted by Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ, on 11 April 2022. It considered a line of authority that had, consistently with the common law of this and other States, held that a court determining a sentence to be imposed upon a federal offender could not take into account the impact of the sentence upon the offender's family and dependents unless "exceptional hardship" to such persons could be demonstrated. See for example R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522; R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405, and (by majority) R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222, which all refer to the principle of exceptional hardship, the latter with a helpful discussion of its inapplicability in the dissenting judgment of Beech-Jones J (as his Honour then was).
The question of the impact of a sentence upon a federal offender's family was one raised by s 16A of the Crimes Act 1914 (Cth), which relevantly provides:
16A Matters to which court to have regard when passing sentence etc. - federal offences
"(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants".
The argument in Totaan was that s16A(2)(p) of the Crimes Act 1914 (Cth) did not require there to be exceptional hardship to family and dependents before the probable effect on them of a sentence imposed on a federal offender could be taken into account as a feature relevant to the exercise of the sentencing discretion. This Court accepted that argument, holding that the earlier line of authority was plainly wrong and should not be followed: at [77] and [93] per Bell CJ with whom the other members of the Court agreed. The Chief Justice observed, at [82]:
"Not only is there no textual support in s 16A for the requirement that exceptional circumstances be shown or established, the "requirement" to demonstrate "exceptional hardship", as grafted on to s 16A(2)(p) by the series of cases under challenge, in fact runs contrary to the language of the subsection, which provides that the probable effect of the sentence on family members and dependants "must" be taken into account. The gloss defeats this clear statutory direction in all cases other than those which satisfy the somewhat elusive epithet of being "exceptional"."
Thus, the interpretation of s 16A(2)(b) as given in Totaan is that which must apply to all federal sentencing decisions. It has since been considered or referred to elsewhere: Ahmed Mohamed v The Queen [2022] VSCA 136 at [91]; Hutchison v The King [2022] VSCA 217; Rodgerson v The Queen [No 2] [2022] VSCA 154.
The applicant was sentenced well before Totaan was handed down, and at a time when courts in this State followed the previously understood principle of exceptional hardship. Those who appeared in the matter before the sentencing court proceeded on the understanding that the court could not have regard to the likely impact of the sentence on the applicant's family as there was no evidence that exceptional hardship would be occasioned.
Mr Walker SC, appearing with Mr Djemal for the applicant at first instance said, in written submissions:
"It is conceded that there will almost inevitably be hardship to any offender's family and the hardship needs to extend beyond the usual and be sufficiently extreme to operate as a mitigating factor.
It is submitted on behalf of the Offender that the hardship to the Offender's children, mother and father would be taken into account as part of the mix of features in the sentencing discretion."
The Crown Prosecutor, in her written submissions, said:
"It is well established that the reference to "the probable effect that any sentence … will have upon the offender's family or dependents" in s 16A(2)(p) should be read as if it is preceded by the words "in an exceptional case".
Accordingly, hardship to an offender's family or dependents will only operate as a mitigating factor where it is sufficiently extreme, beyond the sort of hardship which inevitably results to a family when a parent is incarcerated, to warrant a non-custodial sentence.
The probable effect of the sentence upon the offender's family and dependents remains a relevant factor to be taken into account as part of the offender's "general mix" of subjective features. However, in the absence of exceptional circumstances, potential hardship to the offender's family must not be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of sentence of imprisonment" (footnotes omitted).
The sentencing judge adopted the approach the parties urged upon him, consistent with the law as it was then understood. In his remarks on sentence his Honour said:
"It is clear that his incarceration has had a big effect on his elderly parents and I am sure quite a devastating effect on each of his children, but most particularly his elder son whose care he shared until he went into custody. The effect on the family and the effect on the offender of having denied himself those most important relationships because of his offending does not reach the level of exceptional hardship but it is part of the range of matters that I need to take into account in arriving at the appropriate penalty in relation to the matter."
That observation was based upon the evidence placed before the sentencing court concerning the wider impact of the applicant's situation upon his family.
Although it is clear that the sentencing judge in fact took into account the evidence relating to the effect of the proceedings and the likely sentence upon the applicant's family, he did so acting upon a "wrong principle", one of the errors referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40, at 505. On that basis, the exercise of the sentencing judge's discretion miscarried, and the ground of appeal is made out.
Error having been established this Court must set aside the sentence under challenge and proceed to re-sentence the applicant "if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW).
On re-sentence, and additional to the evidence that was before the sentencing court, the applicant relied upon his affidavit of 18 January 2023, and an affidavit from his solicitor, Ms Miers, of the same date.
In his 64 paragraph affidavit the applicant deposed largely to matters that post-date his sentencing on 15 May 2019. That evidence is relevant to consideration of whether some other sentence should be passed upon him. To the extent that the applicant has referred to matters that pre-date his sentencing, he argued before this Court that, because he had felt constrained by the exceptional hardship principle in tendering evidence relevant to the impact of sentence upon family members, the evidence at first instance was not as extensive as it might have been. He submitted that the Court should admit and consider evidence that could have been, but was not, placed before the sentencing court. I do not accept that argument and would reject such evidence.
The evidence that was placed before the sentencing court describing or touching upon the impact of the proceedings on family was extensive and does not suggest that the applicant was affected by any feelings of constraint. The applicant described in his oral evidence the impact of his imprisonment on family, referring to his letter to the sentencing court of over two closely typed pages. In that letter the applicant said his wife had been forced to give up the specialist training in medicine that she had been undertaking to care for the couple's children. He said their marriage was at breaking point. He described the death of a grandparent whilst he was on remand, and the adverse effect on his parents' health, finances, and well-being. He referred to the diminishment of his relationship with his children.
The matters referred to by the applicant were amplified and given further detail by individual letters to the sentencing court from the applicant's mother, his father, his younger sister, his sister, his younger brother, his neighbour, his friend Mr Achaechi, his colleague Mr Armitage, his colleague Mr Escamilla, a business associate Mr Salem, the family tutor Ms Meeth, and the family pharmacist Mr Mohamad. Given the detail in this large volume of correspondence it is difficult to see what more there could have been to be placed before the sentencing court.
Much of the questionable evidence sought to be tendered to this Court concerns the applicant's work and educational background, provided as annexure AE-1 to his affidavit. That evidence is entirely unconnected with the probable impact of sentence upon family, and feelings of constraint relating to that aspect of the matter could have had no bearing on the decision to tender evidence of educational and vocational history to the sentencing court, or not.
Of the evidence that is admissible on the question of re-sentence, the applicant deposed that he has actively pursued all opportunities for education, having completed numerous certificate level courses, as well as a Graduate Diploma in Energy and Carbon Studies through Murdoch University, completed with very good academic results in February 2022. He has applied for admission as a doctoral student to the University of Sydney and is awaiting the outcome of his application.
The applicant has also maintained employment whilst in custody, working in the trusted position of sweeper on occasion, as well undertaking clerical, assembly, and machine operation positions. Some of his duties are undertaken outside the prison and, since November 2022, the applicant has worked full-time at a private company located in the community, leaving the prison at which he is housed six days a week for this purpose.
This evidence bears out the conclusions of the sentencing judge that the applicant had the benefit of "very good prospects for rehabilitation".
As with all prisoners, the applicant has been adversely affected by the impact of the COVID-19 virus upon the conditions of his custody. His access to contact visits was suspended between May and June 2022; there have been "lock-downs"; the applicant has been quarantined on occasion; and he contracted the virus and was ill. He has been anxious about his health and that of family. He has felt isolated and depressed. He has had cause to complain to the Ombudsman about the conditions in which he has been held.
The applicant has been concerned for his family since his incarceration, particularly for the effect of his limited contact with them upon his children. Prior to entering custody, the applicant lived with and cared for his (then) two children with his second wife, and had regular access to his eldest child, from his first marriage. Since entering custody his access to his eldest son has been very limited, and the applicant is distressed by the complete absence of contact between his family and the child. His contact with his two children to his second wife, and a third child born to the marriage after the applicant was incarcerated, has also been distressingly limited. The applicant's youngest child was born with health issues affecting his ability to take food, and this imposed an additional burden on the child and on the child's mother that the applicant was unable to share or relieve.
The home the applicant shared with his second wife was under threat when the mortgage holder called in the debt following his imprisonment, but the applicant's brother was able to step in and discharge the mortgage, with that debt now owed by the applicant to his brother. The applicant's sister has taken over the role the applicant formerly played in taking his parents to medical and other appointments. The applicant says that this is exhausting for his sister. She has been further exhausted by the assistance she gives to the applicant, and has become depressed.
The applicant says he has behaved well in custody, with records kept by NSWCS bearing that assertion out. The applicant provided some additional information relevant to the three institutional charges he has faced, for offences of "Fight or other physical combat" (two separate charges), and "Possess Drug".
The affidavit of Ms Miers goes largely to the applicant's security classifications in custody, the applicant having progressed well, reflecting his good behaviour.
[2]
Conclusion
Having considered the evidence that was before the sentencing court, and the further evidence filed in this Court, the sentence that I would impose upon the applicant is not one which is less severe than that imposed at first instance. Despite the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW) it is not the practice of this Court to impose a sentence which is more severe.
The sentence the applicant received in the District Court was one which, having regard to the seriousness of the offence and the maximum penalty that applies, might be regarded as lenient. Every conclusion favourable to the applicant that could have been reached was reached and, whilst the sentencing judge did not regard the evidence concerning the impact of the probable sentence upon the applicant's family as sufficient to constitute exceptional hardship, his Honour did not ignore it or fail to take it into account. The sentencing judge gave full weight to the "big" and "devastating" effect of the legal proceedings and the applicant's inevitable incarceration upon his parents and children and took it into account when determining the sentence to be imposed.
The evidence before this Court as to the impact on family of the sentence imposed on the applicant bears out his Honour's conclusion in that regard. The applicant's family have been adversely affected as the sentencing judge predicted, a matter already given weight in mitigation by him when determining the sentence to be imposed.
The additional evidence of the impact of the sentence upon family members is not such as to attract an even greater mitigatory benefit than that allowed at first instance. The situations respectively of the applicant's youngest child and his sister cannot result in a sentence that breaches the statutory requirement that the sentence imposed is of a severity appropriate in all the circumstances. Those circumstances include the very serious nature of the offence, committed by an intelligent individual who was in a financially and socially privileged position in society and who, in blaming others for his crime, appears to have limited insight into his offending, and its potential consequences, which go well beyond the impact upon him and his family. The drug the applicant imported into Australia could, if distributed, have done the sort of harm to the community that he fled his native Colombia to escape.
Having concluded that the sentence I would pass upon the applicant is not one that is less severe than that imposed in the District Court, the appeal cannot succeed. I propose the following orders:
1. Extend the time in which to file the Notice of Application for Leave to Appeal to 24 October 2022;
2. Grant leave to appeal; and
3. Dismiss the appeal.
N ADAMS J: I agree with the orders proposed by Wilson J for the reasons provided but would like to make some additional observations.
There is potential for offenders sentenced for federal offences prior to the decision in Totaan to seek leave to appeal against that sentence out of time if their incarceration led to hardship to their families which was not "extreme". A similar situation arose following the decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. It should not be presumed that in every such application, error having been conceded, a less severe sentence will inevitably be warranted.
As the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 makes clear, the duty of this Court in each case where error is established is to exercise the sentencing discretion afresh. It is not the duty of this Court to adopt the sentence imposed at first instance as a starting point and consider whether a reduction ought to be made to it. It is inevitable that in some cases this Court, having put the original sentence to one side and proceeded to exercise the sentencing discretion afresh, will arrive at a higher sentence. Thus, even allowing for some amelioration of the sentence to account for the error below, a longer sentence is still arrived at. As Wilson J has observed at [54], despite the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW) it is not the practice of this Court in such cases to impose a sentence which is more severe; rather, this Court would dismiss such an appeal on the basis that no "less severe" sentence is warranted. The question of whether a "less severe" sentence is imposed by this Court (by way of comparison) will depend on the severity of the sentence imposed at first instance.
As for the question of what "new" evidence can be adduced in post Totaan appeals, each case will turn on its own facts. In some cases, the offender may well have felt precluded from adducing any evidence as to hardship to family before the sentencing judge on the basis that such hardship was not "extreme". Clearly, such an applicant will be permitted to adduce evidence of any hardship in this Court. But in other cases, such as the present, evidence of hardship will have already been adduced before the sentencing judge and taken into account as part of the offender's subjective case, consistent with the approach taken in R v Girard [2004] NSWCCA 170 at [21]; R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369 at [27] and Kaveh v R [2017] NSWCCA 52 at [40]. In such cases it may be difficult for an applicant to establish that he or she was somehow prevented from putting material establishing such hardship before the sentencing judge.
In the present case, the applicant was a well-educated intelligent man who, motivated by greed, arranged for the importation of a significant amount of cocaine into this country. He was sentenced for an offence carrying life imprisonment. He received a sentence of 10 years and 6 months imprisonment, with a non-parole period of 6 years and 6 months. There is no doubt that his incarceration has caused hardship to his family. Having regard to all of the objective and subjective factors in this applicant's case, including the hardship to his family, I have not arrived at a less severe sentence on re-sentence.
[3]
Amendments
21 September 2023 - Coversheet - corrected representation.
28 March 2024 - Coversheet - corrected representation.
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Decision last updated: 28 March 2024
BUTTON J: I agree with Wilson J, and with the additional observations of N Adams J.
WILSON J: On 15 May 2019 the applicant, anonymised as "AE", was sentenced by Hunt DCJ to a term of 10 years and 6 months imprisonment, with a non-parole period ("NPP") of 6 years and 6 months, for an offence contrary to s 307.1 of the Commonwealth Criminal Code Act 1995 ("the Code") of importing a commercial quantity of a border controlled drug. An offence of that nature carries a maximum sentence of life imprisonment and a substantial fine. On 24 October 2022, well out of time, the applicant filed a Notice of Appeal accompanied by an application for leave to appeal after the expiry of the appeal period.
There is one issue raised by the proposed appeal, being error following the change to the law brought about by the judgment of this Court in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 ("Totaan"). The Crown concedes that the proposed ground can be made out and does not oppose an extension of time or a grant of leave to bring the appeal. Those concessions are both fair and appropriate, and the necessary orders should be made. For the reasons that follow I would, however, dismiss the appeal.