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Afful v R

Afful v R

Case [2021] NSWCCA 111 7 June 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Afful v R [2021] NSWCCA 111
Hearing dates: 26 April 2021
Date of orders: 7 June 2021
Decision date: 07 June 2021
Before: Hoeben CJ at CL at [1];
N Adams J at [2];
Hidden AJ at [82].
Decision:
Application for an extension of time is refused.

Catchwords:
CRIME — Appeals — Appeal against sentence – extension of time required – where applicant is a foreign national whose visa was cancelled following his conviction – where applicant is seeking revocation of that cancellation – where the applicant’s deportation not yet a certainty – whether likelihood of deportation a relevant factor in sentencing – where applicant has been unable to access programs in custody due to visa cancellation – whether subsequent hardship vitiated exercise of the sentencing discretion – no error found – extension of time refused

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)), s 44(2)
Crimes Act 1914 (Cth), s 19AK
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code (Cth), ss 11.1(1), 307.5(1)
Migration Act 1958 (Cth), ss 254, 501(3A), 501CA
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Cases Cited:
AC v R [2016] NSWCCA 107
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Guden v R (2010) 28 VR 288; [2010] VSCA 196
House v The King (1936) 55 CLR 499; [1936] HCA 40
Konamala v The Queen [2016] VSCA 48
Kristensen v R [2018] NSWCCA 189
R v Arrowsmith [2018] SASCFC 47
R v Mirzaee [2004] NSWCCA 315
R v Schelvis; R v Hildebrand [2016] QCA 294; (2016) 263 A Crim R 1
R v Van Hong Pham [2005] NSWCCA 94
Schneider v The Queen [2016] VSCA 76
The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Ye Zhao v The Queen [2018] VSCA 267
Zreika v R [2012] NSWCCA 44

Category: Principal judgment
Parties: Andrew Kodjo Essilfie Afful (Applicant)
Regina (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
A N Williams (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/147671
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 June 2017

Before:

Jeffreys DCJ

File Number(s):

2014/147671

Judgment

HOEBEN CJ at CL: I agree with N Adams J and the orders which she proposes.
N ADAMS J: The applicant, Mr Andrew Afful, is a Canadian citizen who arrived in Australia in 2008. He became a permanent resident in 2011.
On 15 May 2014, the applicant was charged with one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 7.45kg of pure methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth). That offence carries a maximum penalty of life imprisonment.
The applicant defended the charge and a trial proceeded before Jeffreys DCJ and a jury of twelve. He…

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 Afful v R

Details

AGLC: Afful v R [2021] NSWCCA 111
Case: [2021] NSWCCA 111
Decision Date: 07 June 2021

CaseChat Overview and Summary

In the case of Afful v R, the applicant, a foreign national whose visa was cancelled following his conviction for criminal offences, appealed against the sentence imposed by the trial court. The central issue in the appeal was whether the primary judge had erred in his assessment of the applicant's circumstances, specifically the likelihood of deportation and the subsequent hardship caused by the visa cancellation, when determining the appropriate sentence. The applicant sought revocation of the visa cancellation and argued that these factors should have influenced the sentencing decision.

The court examined whether the primary judge's consideration of the applicant's circumstances, including the uncertain nature of his deportation and the impact of the visa cancellation on his ability to access programs in custody, constituted an error in the exercise of sentencing discretion. The court determined that the primary judge had appropriately weighed the relevant factors and that there was no error in the sentence imposed. The court held that the likelihood of deportation and the hardship experienced by the applicant did not provide a basis for revoking the visa cancellation or altering the sentence.

The court rejected the applicant's argument that the visa cancellation and subsequent hardship should have influenced the sentence. The court found that the primary judge had correctly exercised his discretion and that the sentence imposed was appropriate. The appeal against the sentence was therefore dismissed, and the applicant's application for an extension of time to appeal was refused. The court's decision was that no error was found in the primary judge's assessment of the applicant's circumstances and sentencing discretion.

Orders