Afful v R

Court of Criminal Appeal (NSW)|2021-04-26|Before: Hoeben CJ, Adams J, Hidden AJ

The application

The applicant filed supporting documentation with his written submissions. It included material relevant both to his immigration status and his security classification and access to courses in custody. This evidence was not in existence prior to his sentencing, nor could it have been. The Commonwealth Director of Public Prosecutions did not object to the admission of any of this evidence but maintained the position that none of it could disclose error on the part of the sentencing judge.
The material filed by the applicant discloses the following.
On 21 March 2019, the applicant was notified that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to his offending. That section provides for the mandatory cancellation of a person's visa if they have a substantial criminal record (which is defined to include a term of imprisonment of 12 months or more). It is in these terms: "(3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory." (emphasis added)

Extension of time

In support of his application for an extension of time the applicant stated that his intention to appeal was not formed until late 2020 when he obtained the above "new evidence", being the notice of visa cancellation dated 21 March 2019. He applied for a Legal Aid grant, was refused, and appealed the refusal. That appeal was rejected on 21 January 2021.
The Crown opposed the extension of time on the basis that no explanation had been provided for the delay of 1 year and 10 months between the applicant's visa cancellation on 21 March 2019 and his application for an extension of time.
For the reasons I have set out below I am satisfied that this application has no merit and on that basis the extension of time should be refused. In order to assess whether an extension should be granted it was necessary to assess the merit of the application. On that basis, although I would refuse an extension of time, it was necessary to consider each of the grounds in order to arrive at that conclusion.

Applicant's submissions

This ground concerns the applicant's pending deportation.
It was submitted that deportation had become a "certainty" and that was making the applicant's time in custody more burdensome than the sentencing judge could have predicted and thus his sentence was manifestly excessive. It was submitted that his anticipated deportation and separation from his Australian children had been traumatic for him personally and had a substantial impact on his family. Reliance was placed on the decision of Ye Zhao v The Queen [2018] VSCA 267 ("Ye Zhao"), which I will consider below.
The applicant was designated as a "Public Interest Inmate" by reason of his pending immigration matter. This designation was said to have hindered his progress and rehabilitation by restricting access to certain prisons and programs. The applicant has also suffered because he is no longer able to participate in educational programs or to progress to a C3 classification which has stymied his rehabilitation.
It was submitted that if the sentencing judge had been aware of these hardships at the date of sentence he could have moderated the sentence accordingly.
The applicant further submitted that the sentencing judge had erred in not giving appropriate weight to the finding that he had excellent prospects of rehabilitation. The nub of this submission appeared to be that the sentencing judge had assessed the applicant's prospects of rehabilitation on the basis that he would be able to participate in programs while in custody, but that this was no longer the case due to the applicant's immigration status. This was submitted to constitute a change of circumstances amounting to manifest excess or substantial hardship in the applicant's sentence.
These additional hardships were further submitted to constitute new evidence that was not considered by the sentencing judge. The applicant also submitted that the above matters were significant additional punishments imposed on him, and not his co-offender, who is an Australian citizen.

Crown submissions

The Crown distinguished Ye Zhao on two bases and relied upon the decision of Kristensen v R [2018] NSWCCA 189 ("Kristensen") which I will consider below.
The Crown further submitted that the applicant's risk of deportation was merely speculative as his request to have his visa cancellation revoked was still under consideration. The Crown observed that, even if the Victorian approach was adopted, the risk of deportation would need to be assessable, rather than merely speculative. It was further submitted that no submission was made on this issue in the proceedings on sentence and that the applicant should be bound by the case run below.
To the extent that this ground asserted manifest excess, the Crown submitted that the issue of weight in relation to this finding could not raise House v The King error: House v The King (1936) 55 CLR 499; [1936] HCA 40. The Crown submitted that any claims of manifest excess should be assessed by reference to the schedule of cases tendered by the Crown in the proceedings on sentence.

Consideration: Ground 1

The fact of possible or pending deportation is not a relevant factor in sentencing in New South Wales. As Wood CJ at CL (with whom Hislop and Johnson JJ agreed) observed in R v Van Hong Pham [2005] NSWCCA 94 at [13]: "It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.'"
Similarly, in AC v R [2016] NSWCCA 107, Schmidt J (with whom Bathurst CJ and Wilson J agreed) said at [79]: "It appears that the applicant is at risk of deportation once his sentence is served. This was not a relevant consideration on sentence, even in fixing the applicant's non-parole period. Deportation is a matter for the Executive Government (see R v Van Hong Pham [2005] NSWCCA 94 referring to Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48)."
Consistent with this well settled principle, the applicant's counsel at his proceedings on sentence noted that the fact of deportation could not be taken into account in mitigation of sentence. The sentencing judge accepted that as it was a correct statement of New South Wales law on this issue. The applicant is bound by the way he ran his case below unless a miscarriage of justice can be identified. As Johnson J observed in Zreika v R [2012] NSWCCA 44 ("Zreika") at [81]: "…in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence." (citations omitted)
Contrary to the position taken by his counsel before Jeffreys DCJ, the applicant now contends that his deportation should have been taken into account to reduce his sentence even further below that which was imposed. In support of this argument he relies upon decisions of the Victorian Court of Appeal. The difficulty is that Victoria takes a different approach to NSW on the question of the relevance of deportation in sentencing.
In Guden v R (2010) 28 VR 288; [2010] VSCA 196 ("Guden"), the Victorian Court of Appeal determined that the prospect of an offender being deported upon completion of the custodial portion of his or her sentence was a proper matter for consideration in determining an appropriate sentence, it being relevant in two ways: as making the burden of imprisonment greater than for citizens and, in some cases, as resulting in the offender losing the opportunity of settling permanently in Australia. At [28] the Court noted that evidence would be required to establish that deportation was more than "a completely speculative possibility" before it could be taken into account in one or both of these ways. The Court held at [29] that: "….in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship."
This Court (Payne JA, with whom R A Hulme and Button JJ agreed) noted the different approach taken by Victoria on this issue in Kristensen. In Kristensen the Court found error of the kind identified in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 ("Xiao") and proceeded to re-sentence Mr Kristensen. It was common ground that Mr Kristensen's visa would be cancelled on character grounds due to his offending but there was no evidence in Kristensen as to whether there had been any application to the Minister for revocation of that decision.
Payne JA summarised the divergent authorities. By way of background, at [24] it was noted that since Shrestha, a non-citizen who commits a serious offence should be the subject of an order for release on parole in the same way a citizen would. Section 19AK of the Crimes Act 1914 (Cth) now requires such a course be taken. At [25] his Honour noted the decision of R v Mirzaee [2004] NSWCCA 315 in which Kirby J (with whom Sperling J and Newman AJ agreed) noted at [21] that if an offender qualifies for a finding of special circumstances (such as under what is now s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), such a course should be taken even if the offender may be deported at the end of the non-parole period. His Honour then went on to set out both the NSW position and the position taken in Victoria following the decision in Guden.
His Honour then noted at [30] that the different positions in Australia were summarised by Fraser JA in R v Schelvis; R v Hildebrand [2016] QCA 294; (2016) 263 A Crim R 1 at [72] as follows: "Guden has been consistently followed in subsequent Victorian decisions: see, for example, Konamala v The Queen [2016] VSCA 48 at [33]-[36], Da Costa v The Queen [2016] VSCA 49 at [24]-[26] and Schneider v The Queen [2016] VSCA 76 at [24]-[26]. I note that in Western Australia it has been held that the prospect of deportation at the conclusion of an offender's sentence is not of itself a relevant consideration in the exercise of the sentencing discretion: Dauphin v The Queen [2002] WASCA 104 at [22] Houghton v Western Australia [2006] WASCA 143; (2006) 32 WAR 260 at [23], Cohen v Western Australia (No 2) [2007] WASCA 279; (2007) 180 A Crim R 348 at [21], Ponniah v The Queen [2011] WASCA 105 at [48] and Hickling v The State of Western Australia (in which Guden was discussed and not followed) [2016] WASCA 124 at [9]-[11], [48]-[60]. I also note that in New South Wales it has been held that the prospect of an offender being deported is generally to be disregarded in formulating the sentence: R v Latumetan and Murwanto [2003] NSWCA 70 at [19], [45], R v Van Hong Pham, R v Mirzaee, and Ali v R [2014] NSWCCA 45 at [1], [47], [51]. I do not propose to analyse those cases or to investigate the position in other jurisdictions. No submission was made upon that topic. The respondent joined with Schelvis in submitting that this Court should apply this aspect of the reasoning in Guden, including the requirement that the risk of removal from Australia be assessable rather than merely speculative before it may be taken into account by way of mitigation. I proceed upon the footing that the applicable law is as set out in the preceding paragraph.' (references added from footnotes in original)"
Justice Payne noted that in R v Arrowsmith [2018] SASCFC 47 the Full Court of the Supreme Court of South Australia found it unnecessary to resolve the issue as the evidence disclosed that the appellant's request for revocation of the cancellation was still being considered. Payne JA concluded as follows in Kristensen (at [34]-[35]): "I see no reason based on the [2014 amendments to the Migration Act] to adopt any different approach to sentencing in New South Wales. It remains the case that, as in Mirzaee, Pham and AC, the applicant here is at risk of deportation once released from prison. True it is that the statute now has an automatic application, subject to safeguards and ultimately to review. The possibility of deportation was not, in Mirzaee, Pham and AC, a relevant consideration on sentence, even in fixing the offender's non-parole period. Deportation was a live issue in cases such as the present under the migration law prior to 2014. After the amendment, deportation remains a matter for the Commonwealth Executive Government, subject to review within the Constitutional structure. Even if the Victorian and Queensland approach to this question were to be adopted, this is a case where the evidence about the applicant's likely deportation does not rise beyond mere speculation. If there is to be a challenge to the long standing New South Wales approach to the relevance of possible deportation to sentencing, this case is not an appropriate vehicle for such a challenge. I do not propose to take the applicant's possible deportation into account."
The applicant relied upon the decision of Ye Zhao. The appellant in that case, like Mr Afful, had received notice under s 501(3A) of the Migration Act that his visa had been cancelled on character grounds. However, unlike Mr Afful, the appellant, Mr Zhao, did not respond to the letter within 28 days seeking the revocation of that cancellation. Mr Zhao thus became an "unlawful non-citizen" under the Migration Act. The Crown in Ye Zhao conceded that the appellant's immigration status was "new evidence" that had the effect of vitiating the exercise of the sentencing judge's discretion. The Court followed the usual practice in Victoria and mitigated the sentence on the basis that the appellant's custody would be more onerous given his ending deportation.
There are two difficulties with the applicant's reliance upon Ye Zhao. First, it can be distinguished factually. The parties in that case agreed that the applicant would not be released on parole. The Crown submitted that there was no such evidence or concession by the Crown in the present case. The second problem is, as I have already stated, the decision in Ye Zhao is a Victorian decision, in which a different approach was taken on the question of the relevance of deportation in sentencing. In effect, the applicant contends that this Court should adopt a new approach to this question.
Further, as the Crown submitted, the principles in Xiao were also not relevant to the applicant's case to the extent that the appellant in that case experienced hardship in custody because he was a foreign national with no family in Australia (Xiao at [286]-[288]). The Crown submitted that this kind of hardship was not relevant to the applicant's case and was not raised by counsel for the applicant in the proceedings on sentence.
Finally, the applicant contended that the exchange between Jeffreys DCJ and the applicant's counsel meant that his Honour was aware of the Victorian decision of Schneider. In that decision the sentencing judge had refused to ameliorate the sentence due to pending deportation given the state of the evidence but did state the following (at [21]): "It was submitted to me by [counsel] that I ought take into account your prospect of deportation. I refuse to do so. It would be impossible and entirely speculative for me to engage in a consideration of whether the Minister would, in the end, revoke your visa and deport you. Nonetheless, this is a matter that weighs upon you, as does the plight of your wife, who is isolated in this community and you have concerns for her. I am satisfied that in the circumstances of this case, for a combination of reasons that I have endeavoured to advert to, your period of imprisonment has been and will be more burdensome than others in similar circumstances in custody. Therefore, I intend to moderate the sentence that I would otherwise have imposed upon you." (emphasis added)
On appeal it was contended that the sentencing judge had given "insufficient consideration" to the appellant's prospect of deportation. Reliance was placed on the 2014 amendments to the Migration Act which meant that, because of his visa status, the appellant would not be able to undertake parole in the community and would be deported upon his release. The ground was dismissed as the Court was satisfied that the sentencing judge took into account the appellant's possible deportation in the only manner in which he was entitled. As for the 2014 amendments, the Court noted that the principles stated in Guden are unchanged by those amendments. Priest JA then quoted (at [25]) what his Honour had earlier stated in Konamala v The Queen [2016] VSCA 48 at [34]-[37] as follows (footnotes omitted): "Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner's personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community. In Guden, it was recognised that - subject always to the state of the evidence before the sentencing judge - the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant's position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so. For the reasons given in Lima Da Costa Jnr v The Queen, the amendments do not require any change to the approach in sentencing. What was said in Guden still applies. It is apparent that the judge directed herself correctly in considering the significance of the risk of deportation. As already mentioned, the judge said that she considered that 'there is the possibility that [the applicant] may lose the opportunity of settling permanently in Australia', and that there 'is a degree of risk that [his] concern and fear of being deported upon serving [his] sentence will make [his] imprisonment more burdensome than it would have otherwise'. The sentencing judge said specifically that she had 'taken these factors into account'." (footnotes omitted)
I make the following observations regarding the applicant's reliance upon this decision. First, I am not satisfied that this was the decision referred to by Jeffreys DCJ when his Honour mentioned a case which was recorded on the transcript as "Schroeder". Given that the relevant High Court decision of Shrestha is so well known, I am satisfied that is the decision his Honour mentioned. Second, the decision in Schneider does not represent the approach taken to this question in New South Wales, or for that matter the rest of Australia. Thirdly, the appeal in Schneider failed anyway based on the evidence.
As stated above, the applicant is bound by the manner in which he ran his case before the sentencing judge. Furthermore, the fact that the applicant's deportation is still subject to revocation by the Minister or, failing that, judicial review, is another matter that means that this is not an appropriate vehicle to challenge the longstanding practice in New South Wales regarding the relevance of deportation on sentence.
This ground has no merit.

Applicant's submissions

The applicant submitted that the sentencing judge's stated intention to reduce the applicant's sentence due to his mental health conditions was not reflected in the sentence ultimately imposed, and that this was evidenced by the fact that both offenders received the same sentence.
The applicant submitted that, because their offending was otherwise indistinguishable, the fact that the two offenders received exactly the same sentence indicated that the sentencing judge had not applied the finding of special circumstances. The applicant submitted that the sentence Mr Campbell received should have been the starting point from which his own sentence was reduced by reason of the finding of special circumstances.

Crown submissions

The Crown submitted that the sentencing judge's finding that the applicant would experience hardship in custody was reflected in the imposition of a ratio of 56% between the non-parole period and the head sentence.
It was further submitted that the sentencing judge was not bound to take a mathematical approach of making deductions for each mitigating factor and that no error was disclosed in his Honour's process of instinctive synthesis. His Honour clearly took into account the applicant's mental health diagnoses.

Consideration: Ground 2

His Honour expressly stated that he would moderate the applicant's sentence "to a modest degree" due to his mental health problems. He also found that Mr Campbell was "marginally lower" in the hierarchy than the applicant. All other findings were broadly the same as between the two offenders. The fact that the same sentence was imposed on both offenders is explicable on this basis.
In any event, his Honour's imposition of a ratio of 56% between the non-parole period and the head sentence based on the applicant's mental health was very generous. The applicant was convicted after trial of attempting to possess 7.45kg of pure methamphetamine. This reflected grave criminality and the offence carries a maximum penalty of life imprisonment. The applicant was sentenced to a non-parole period of only 4 years and 6 months.
This proposed ground is without merit.

Applicant's submissions

The applicant submitted that during his time in custody he experienced unanticipated hardship which had made his time in custody more onerous than that foreseen by the sentencing judge. It was submitted that a combination of the following factors had triggered the applicant's anxiety and depression while in custody: 1. The applicant's father died unexpectedly on 5 April 2017, around three weeks after the applicant entered custody. The applicant was unable to attend his father's funeral as he was in custody at the time; 2. The applicant's mother had been diagnosed with breast cancer and he was constantly anxious about her health. 3. The applicant's children had been severely affected by his time in custody. He had not seen them since 2016. The applicant said that the children's mother wanted to support a relationship between the applicant and his children but that she would not bring them into the custodial environment.
All of these factors were said to have caused increased stress and hardship to the applicant while in custody, such that his time in custody had been more traumatic and burdensome than for other inmates.

Consideration: Ground 3

As Johnson J observed in Zreika at [79]: "This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108."
No error is disclosed in the applicant's sentence by virtue of the fact that he suffered the losses referred to above after he was sentenced.
The sentence imposed on the applicant was a lenient one.
This proposed ground is without merit.

ORDERS

I would propose the following order: 1. Application for an extension of time is refused.
HIDDEN AJ: I agree with N Adams J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2021

Migration Amendment (Character and General Visa Cancellation) Act 2014(Cth)

Grounds of appeal

The applicant was self-represented in this Court. He seeks leave to appeal on the following grounds: "Ground 1: A substantial miscarriage of justice has occurred (such that a different and lesser sentence should now be imposed upon the Appellant) by introduction of New Information/ A Change of Circumstances that result in, by reason and effect, the current sentence imposed being manifestly excessive and inclusive of substantial hardship. Particulars: The Sentencing Judge failed to give sufficient weight to the Applicants status as a foreign national for whom imprisonment will be more burdensome than for someone not facing probable deportation and incarceration in a location isolated from family support (as was the case in Ye Zhao v The Queen [2018] VSCA 267 - where new evidence called to question whether certainty, as distinct from likelihood, that appellant would be deported at the expiration of his sentence, made his incarceration more burdensome than the sentencing judge appreciated); The Sentencing Judge failed to give sufficient weight to the Applicants 'excellent' prospects of rehabilitation and the lack of access available to such rehabilitation and community reintegration programs whilst in long term custody as a foreign national; The sentencing Judge failed to anticipate the full extent of hardships that the Applicant would experience within his circumstances and failed to factor in to the imposed sentence some key elements, which therefore have had the effect of vitiating the exercise of sentencing discretion and guidelines; Ground 2: A sentencing discretion miscarried. Particulars: The Sentencing Judge stated that he intended to moderate (or change) the sentence in acceptance of mitigating factors introduced, however, the changes were not defined or disclosed in the remarks; which raises the issue of if it was in fact applied at all, and how it was factored in and applied as a change to the overall sentence imposed (this is similar in principle to an issue raised in the case of Xiao v R [2018] NSWCCA 4 - where error was found on behalf of the Sentencing Judge for declining to take into account utilitarian value or benefit in favour of the applicant who was being sentenced for Federal Offences); Ground 3: Compounding Excessive Hardship. Particulars: As a subjective factor, separate from and in addition to the aforementioned hardships; in this ground of excessive hardship I wish to bring to the attention of the courts some personal circumstances of relevance that impact the time I am serving."

Proceedings on sentence

A Crown bundle was tendered including written submissions, the applicant's criminal history, and a schedule of cases. The applicant did not give evidence and relied instead on a report of Ms Laura Durkin, who is a clinical and forensic psychologist. The applicant also tendered seven character references.
Ms Durkin outlined in her report the applicant's history, including an upbringing "marred by violence (physical and sexual) and psychological abuse." Ms Durkin noted a history of drug and alcohol use commencing at the age of 12, including alcohol, cannabis, cocaine, amphetamines and other substances. In relation to the applicant's mental health, Ms Durkin opined as follows: "… it is my opinion that he has suffered with bouts of depressed mood, characteristic of a Major Depressive Disorder… and PTSD… as outlined in the [DSM 5]."
A psychologist's report was also tendered in relation to Mr Campbell. That report did not disclose any diagnosed mental illness or other psychological condition.
Reliance was placed on the applicant's upbringing and mental health diagnoses as mitigating factors on sentence. It was not submitted on behalf of the applicant that this would reduce his moral culpability. Rather, it was submitted that the applicant's time in custody would be more onerous due to his psychological conditions and that he may need a longer period on parole to obtain psychological assistance and ensure he did not engage in any "thrill-seeking" behaviours such as those said to relate to the offending.
Significantly, the applicant's counsel noted that the fact that the applicant would be deported at the end of his non-parole period was not a matter to which the Court could have regard. The transcript reflects that the sentencing judge confirmed, "Schroeder says I can't". An issue arose in this Court as to which case his Honour in fact referred to at this point. The applicant submitted that his Honour referred to Schneider v The Queen [2016] VSCA 76 ("Schneider") while the Crown submitted that his Honour most likely referred to The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26 ("Shrestha"). I shall return to this issue below.
The Crown submitted that the applicant's success in his social interactions and employment would suggest that his time in custody would not be significantly more onerous by reason of his psychological conditions. The Crown suggested that any moderation "would be so insignificant that it wouldn't make a difference". The Crown otherwise suggested that there was "really nothing to distinguish" the two offenders in relation to the sentences to be imposed.
Relevantly to ground 2, the following exchange took place during the proceedings on sentence: "[CROWN PROSECUTOR]: Your Honour, in my final submission as to something I didn't specifically put into the written submissions but something that was addressed by Mr Brady [counsel for Mr Afful], that is it's the Crown's position that there really is nothing to distinguish between Mr Afful and Mr Campbell as far as the ultimate sentences that would be imposed. HIS HONOUR: Save for in Mr Afful's favour, if I could use that expression, DPP v De La Rosa moderation. [CROWN PROSECUTOR]: I suppose my submission there is that the degree of moderation would be so insignificant that it wouldn't make a difference. That's as far as I can take it."

Remarks on sentence

After finding the facts as set out above, the sentencing judge outlined the subjective cases for each offender.
It was noted that the applicant's upbringing was "economically disadvantaged" and destabilised by physical and psychological violence from the applicant's father, who also abused alcohol. This caused the applicant to seek security elsewhere. As a result, the applicant was sexually abused by the father of his friend when he was between 10 and 12 years old. The applicant became involved in anti-social behaviour and left school at the age of 17. He subsequently completed his education and worked consistently after leaving school.
His Honour observed that the applicant had been employed in several roles since his arrival in Australia in 2008, including as a sales representative for a financial products company. It was noted that the applicant had not seen his two sons (then aged 4 and 7) from a previous relationship since entering custody as their mother did not want to bring them to prison. The sentencing judge noted that the applicant had been in a relationship with a new partner for about two years.
The applicant was aged 32 at the time of the offending and 35 at the date of sentencing. The applicant had a minor criminal history for public urination and flight while being pursued by a police officer.
His Honour referred to the evidence in relation to the applicant's mental health in Ms Durkin's report and, after stating the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, his Honour observed that: "I am satisfied on balance that the offender suffers from bouts of depressed mood characteristic of major depressive disorder and PTSD. It seems to me that his time in custody will be more onerous and in that regard I propose to moderate the sentence I impose to a modest degree."
In relation to Mr Campbell's subjective case, the sentencing judge outlined that Mr Campbell grew up in Australia and had a close relationship with his mother and siblings, his father having died in 2012. Mr Campbell left school in Year 12 and became a full-time army reservist, and then worked in various other roles up to the time of his arrest. Mr Campbell was aged 26 at the time of the offending and 29 at the date of sentence. It was noted that Mr Campbell had a seven-year-old daughter with whom he hoped to have contact in due course. Mr Campbell had a minor criminal record. It was further noted that Mr Campbell's mother had a heart attack about one week before the trial, but had since recovered, although Mr Campbell still held concerns for her health.
The sentencing judge found that both offenders were of previous good character, noting that that is of less importance in offences of this type. In relation to parity, his Honour found that both offenders were "significantly lower in the hierarchy than Solano Faura". As between each other, his Honour found that "Mr Campbell is marginally lower in the hierarchy than Mr Afful."

At a glance

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