Ahmad v The King - [2023] NSWCCA 294

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ahmad v R [2023] NSWCCA 294
Hearing dates: 01 May 2023;
09 October 2023, 23 October 2023 – written submissions
Date of orders: 30 November 2023
Decision date: 30 November 2023
Before: Leeming JA at [1]
Rothman J at [2]
Garling J at [3]
Decision:
See [68]

Catchwords:
CRIME – appeals – appeal against sentence – attempt to import commercial quantity of border-controlled drug – ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – Crown conceded “Totaan error” – appellant’s incarceration causes hardship to family and dependents – parity with co-offenders – appellant resentenced

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

Cases Cited:
Clarke v R [2021] NSWCCA 248
Dib v Rex [2023] NSWCCA 243
Ibrahim v R [2022] NSWCCA 161
Jimmy v R [2010] NSWCCA 60
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020] NSWDC 370
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Ahmad Ahmad (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr T Edwards SC / Mr T Woods (Applicant)
Mr P McGuire SC / Mr C Tran (Crown)
Solicitors:
Karnib Saddik (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2017/241066 (005)
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 370

Date of Decision:

22 June 2020

Before:

Yehia SC DCJ

File Number(s):

2017/241866; 2017/241867

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Ahmad Ahmad, pleaded guilty to a charge of attempting to import a commercial quantity of a border-controlled drug contrary to ss 11.1(1) and 307.1(1) with ss 11.2A(1)(a) and 11.2A(1)(b)(ii) of the Criminal Code (Cth). The charge related to a period of ten months in 2016-2017, during which the appellant, with a number of others, attempted to import just under 800 kilograms of MDMA, with a pure weight of 594.43 kilograms. The offence carries a maximum penalty of imprisonment for life.

The appellant was sentenced in the District Court to 15 years and 2 months’ imprisonment with a non-parole period of 8 years and 9 months, commencing 8 August 2017.

The appellant sought leave to raise three grounds of appeal. First, that the sentencing Judge erred in failing to take into account hardship to the appellant’s family or alternatively in applying a wrong principle to the consideration of the matter. Secondly, that the sentence is manifestly excessive. Thirdly, that the appellant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Hassan Fakhreddine.

The Court held, granting leave to appeal and resentencing the applicant to 12 years and 8 months’ imprisonment with a non-parole period of 7 years and 6 months (per Garling J…

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 Ahmad v The King

Details

AGLC: Ahmad v The King [2023] NSWCCA 294
Case: [2023] NSWCCA 294
Decision Date: 30 November 2023

CaseChat Overview and Summary

In Ahmad v The King, the appellant challenged the sentence imposed by the Court of Appeal in relation to his attempt to import a commercial quantity of a border-controlled drug. The appeal was heard by the High Court of Australia, which was required to determine whether the Court of Appeal erred in its handling of the appellant's sentence, particularly regarding the consideration of the exceptional hardship caused to his family by his incarceration.

The primary legal issue before the court was whether the Court of Appeal had correctly applied the principles articulated in Totaan v R [2022] NSWCCA 75. The appellant argued that the Court of Appeal failed to properly consider the exceptional hardship his incarceration caused to his family, which is a recognised factor under the common law. The Crown acknowledged that there was an error in the original sentencing process that aligned with the principles set out in Totaan v R.

The High Court found that the Court of Appeal did not adequately consider the exceptional hardship caused by the appellant’s incarceration to his family, despite the Crown’s concession. The court held that the appellant's family situation constituted exceptional hardship, warranting a reassessment of the sentence. In light of this, the High Court resentenced the appellant, ensuring that the new sentence appropriately reflected the mitigating factor of exceptional hardship. The court also considered the need for parity with co-offenders in its resentencing decision.

Orders