Fakhreddine v The King - [2024] NSWCCA 74

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fakhreddine v R [2024] NSWCCA 74
Hearing dates: 11 March 2024
Date of orders: 15 May 2024
Decision date: 15 May 2024
Before: Ward P at [1];
Rothman J at [2];
Wright J at [20]
Decision:
(1)   Grant leave to the applicant to bring his application for leave to appeal out of time.
(2)   Grant leave to the applicant to appeal.
(3)   Allow the appeal.
(4)   Quash the sentence imposed on the applicant by the District Court on 22 June 2020.
(5)   In lieu, sentence the applicant to imprisonment for a non-parole period of 6 years and 11 months commencing on 8 August 2017 and expiring on 7 July 2024, with a balance of term of 4 years and 7 months expiring on 7 February 2029.

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 and held it thus did not operate to reduce significantly the otherwise appropriate penalty – Crown conceded “Totaan error” – hardship to family and dependents taken into account – parity with co-offenders considered – applicant resentenced

Legislation Cited:
Crimes Act 1914 (Cth), ss 16A(1), 16A(2)(p)
Criminal Appeal Act1912 (NSW), s 5(1)(c)
Criminal Code (Cth), ss 11.1(1), 11.2A(1)(a), 11.2A(1)(b)(ii), 307.1(1)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Ahmad v R [2023] NSWCCA 294
Dib v R [2023] NSWCCA 243
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Ibrahim v R [2022] NSWCCA 161
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020] NSWDC 370
R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286
R v Sinclair (1990) 51 A Crim R 418
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Category: Principal judgment
Parties: Hassan Fakhreddine (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Edwards SC (Applicant)
C Tran (Respondent)
Solicitors:
Zahr Partners (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/00241867
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 370

Date of Decision:

22 June 2020

Before:

Yehia SC DCJ

File Number(s):

2017/00241867

HEADNOTE

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

Mr Hassan Fakhreddine (the applicant) pleaded guilty to an offence 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). On 22 June 2020, Yehia SC DCJ sentenced the applicant for that offence to imprisonment for 13 years and 7 months with a non-parole period of 8 years. The applicant sought leave to appeal, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW),…

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 Fakhreddine v The King

Details

AGLC: Fakhreddine v The King [2024] NSWCCA 74
Case: [2024] NSWCCA 74
Decision Date: 15 May 2024

CaseChat Overview and Summary

In the matter of Fakhreddine v The King, the respondent, Fakhreddine, appealed against his sentence following a conviction for attempting to import a commercial quantity of a border-controlled drug. The case was heard by the Court of Appeal, which was required to determine whether the original sentencing judge erred in not sufficiently considering the hardship caused to the offender’s family and dependents as a mitigating factor, and whether the penalty imposed was commensurate with that of co-offenders.

The central legal issue was whether the sentencing judge's failure to adequately consider the exceptional hardship to the family constituted a Totaan error, warranting a re-sentencing. This question arose in light of the decision in Totaan v R, where the NSW Court of Criminal Appeal held that when exceptional hardship to family and dependents is not accepted as a mitigating factor, it can result in a sentence being manifestly inadequate. The Crown conceded that the original sentencing judge had indeed erred in this respect.

The Court of Appeal found that the sentencing judge did not appropriately acknowledge the exceptional hardship to Fakhreddine's family as a mitigating factor, which, according to the Crown’s concession, was a Totaan error. The appeal court accepted that the hardship should have been considered and re-sentenced Fakhreddine, taking into account the hardship to his family and dependents. The court also reviewed the parity with co-offenders to ensure that the re-sentenced penalty was appropriate and balanced.

The final orders of the court included a re-sentencing of Fakhreddine, with explicit consideration of the exceptional hardship to his family and dependents as a mitigating factor. The court ensured that the re-sentenced penalty was proportionate to the crime committed and aligned with the sentences of co-offenders.

Orders