AE v R

Case [2023] NSWCCA 74 31 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AE v R [2023] NSWCCA 74
Hearing dates: 15 February 2023
Decision date: 31 March 2023
Before: Button J at [1]
Wilson J at [2]
N Adams J at [56]
Decision:
(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.

Catchwords:
CRIME – SENTENCE – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” – evidence taken into account on sentence in general mix of subjective features

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited:
Ahmed Mohamed v The Queen [2022] VSCA 136; 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 vTogias (2001) 127 A Crim R 23; [2001] NSWCCA 522
R vZerafa (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; [2018] NSWCCA 4

Category: Principal judgment
Parties: AE (Applicant)
Rex (Respondent)
Representation:
Counsel:
C Parkin / J Lang (Applicant)
A Chhabra / J Fennel (Respondent)
Solicitors:
Miers Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2017/00341164
Publication restriction: None. Note that applicant may not be identified.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 May 2019

Before:

Hunt DCJ

File Number(s):

2017/00341164

JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AE v R

Details

AGLC: AE v R [2023] NSWCCA 74
Case: [2023] NSWCCA 74
Decision Date: 31 March 2023

CaseChat Overview and Summary

AE was convicted of drug importation offences and was sentenced to a term of imprisonment. AE sought leave to appeal against the sentence out of time. The appeal was based on the sole ground that the sentencing judge had made an error by not accepting the hardship to AE's family as an exceptional circumstance. AE submitted that the sentencing judge had committed a "Totaan error" by not taking into account the hardship to AE's family as an exceptional circumstance. The Crown opposed the application, submitting that the sentencing judge had properly exercised his or her discretion in sentencing AE and that the "Totaan error" did not apply.

The court found that the sentencing judge had considered the hardship to AE's family but had concluded that it was not exceptional. The court found that the sentencing judge had properly exercised his or her discretion in sentencing AE and that the "Totaan error" did not apply. The court found that the sentencing judge had considered all of the relevant factors in sentencing AE, including the hardship to AE's family, and had concluded that the appropriate sentence was a term of imprisonment. The court found that the sentencing judge had not erred in law or fact in sentencing AE and that the appeal should be dismissed.

Orders