Huynh v The Queen

[2018] NSWCCA 237

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Huynh v R [2018] NSWCCA 237
Hearing dates:	18 April 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Before:	Hoeben CJ at CL at [1] Fullerton J at [2] Davies J at [55]
Decision:	1. Time for the filing of the Notice of Appeal is extended to 29 January 2018. 2. Leave to appeal is granted. 3. The appeal is dismissed.
Catchwords:	SENTENCE – applicant entered plea of guilty to an offence contrary to ss 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW) – applicant entered plea of guilty to s 7(1) of the Firearms Act 1996 (NSW) – whether the sentencing judge erred in application of the standard non-parole period – whether the sentencing judge erred in his finding of the objective seriousness of the offending – whether the sentencing judge failed to have regard to the parity principle
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26 Firearms Act 1996 (NSW), ss 7(1), 36(1)
Cases Cited:	Carter v R [2018] NSWCCA 138 Elshani v R [2015] NSWCCA 254 Gordon v R [2018] NSWCCA 54 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kremisis v R [2016] NSWCCA 257 Lloyd v R [2017] NSWCCA 303 Matthews v R; New v R [2018] NSWCCA 186 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nguyen v R [2017] NSWCCA 39 R v DW [2012] NSWCCA 66 R v Hinton [2002] NSWCCA 405 R v Shortland [2018] NSWCCA 34 R v Togias [2001] NSWCCA 522 R v Zerafa [2013] NSWCCA 222
Category:	Principal judgment
Parties:	Phoi Nhi Huynh (Applicant) The Crown (Respondent)
Representation:	Counsel: I McLachlan (Applicant) N Adams (Crown)   Solicitors: Blair Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/329530
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 February 2016 Before: Armitage ADCJ File Number(s): 2013/329530

Judgment

1. HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.

2. FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 8 years imprisonment, comprised of a non-parole period of 5 years and an additional term of 3 years, imposed by Armitage DCJ on 12 February 2016 following the applicant’s pleas of guilty to two counts on an indictment presented in the District Court on 2 February 2015. The aggregate sentence was ordered to commence on 30 June 2015 to account for pre-sentence custody. The non-parole period is due to expire on 29 June 2020.

3. The first count alleged a conspiracy to supply a commercial quantity of a prohibited drug (pseudoephedrine) contrary to ss 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 20 years imprisonment.

4. The second count alleged the applicant’s possession of a prohibited pistol contrary to s 7(1) of the Firearms Act 1996 (NSW). That offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years.

5. After allowing 25 per cent for the plea of guilty, and after taking into account two offences on the Form 1 (a further conspiracy to supply a prohibited drug, namely ephedrine, and possession of an unregistered firearm), a sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months was indicated on the first count. After allowing 25 per cent for the plea of guilty a sentence of 2 years and 6 months with a non-parole period of 18 months was indicated on the second count. The aggregate sentence of 8 years imprisonment with a non-parole period of 5 years was imposed after a finding of special circumstances.

6. The notice of intention to appeal against sentence was filed on 2 March 2016 after which a number of extensions were granted. The notice of appeal ultimately filed on 29 January 2018 was out of time. It specified five grounds of appeal as follows (amended for syntax):

1. His Honour erred in taking into account a standard non-parole period in sentencing for Count 1 in circumstances where no non-parole period applied;

2. His Honour erred in his consideration of the standard non-parole period the subject of Count 2 (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39);

3. His Honour erred in finding that the prohibited pistol was “loaded”, and therefore erred in finding that the offence was “of mid-range seriousness”;

4. The applicant has a justifiable sense of grievance by reason of a marked disparity between her sentence and the sentences imposed on the co-offenders; and,

5. The aggregate sentence imposed was otherwise manifestly excessive.

The Crown concedes error

7. The Crown conceded the error the subject of the first and third grounds of appeal and the resulting obligation of this Court to consider the question of sentence afresh and to determine, for itself, whether any lesser aggregate sentence should by imposed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

8. Despite the appeal being brought out of time and despite a number of extensions following the filing of a Notice of Intention to Appeal on 2 March 2016 before the Notice of Appeal was ultimately filed on 29 January 2018 (two years after sentence), error having been conceded, the Crown did not oppose leave being granted to allow the applicant to pursue her application for leave to appeal the aggregate sentence.

The error the subject of Ground 1

9. The non-parole period indicated for the first count was imposed after the sentencing judge accepted the erroneous submission, advanced by the applicant's senior counsel, that a standard non-parole period of 10 years applied. While a standard non-parole period applies to the substantive offence of supplying a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act, it does not apply to a conspiracy to commit that offence under s 26 (see R v DW [2012] NSWCCA 66 at [105]). Although the sentencing judge appeared to use the standard non-parole period applicable to the substantive offence in reasoning to the conclusion that an indicative sentence of 7 years and 6 months with the non-parole period of 4 years and 6 months was appropriate for the conspiracy count, the Crown submitted it was not given prominence in that exercise nor treated proscriptively contrary to the approach mandated in Muldrock.

10. The Crown submitted that when this Court in the re-sentencing exercise synthesises all relevant factors in the appointment of an indicative sentence for the conspiracy count against the maximum penalty of 20 years imprisonment as a legislative guidepost, including taking into account the offences on the Form 1 consistently with s 32 of the Crimes (Sentencing Procedure) Act1999 (NSW) (see also Gordon v R [2018] NSWCCA 54), a sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months would be indicated and that parity principles would not dictate any different outcome.

The error the subject of Ground 3

11. There was no evidence before the sentencing judge that the pistol the subject of the second count was loaded. The agreed facts provided that the pistol was, however, found in a sock which was inside another sock which contained four rounds of ammunition that were suitable for use in the pistol. Error was conceded by the Crown on the basis that the sentencing judge’s finding of mid-range objective seriousness on Count 2 was expressed to be at least partially based upon the pistol being loaded.

12. In its written submissions the Crown maintained the position that a finding of mid-range objective seriousness remained an appropriate finding for this Court on re-sentence for the second count and, that being the case, a sentence of 2 years and 6 months with a non-parole period of 18 months should be indicated.

13. In short, on re-sentence the Crown submitted that despite the errors the subject of Grounds 1 and 3, this Court would not be satisfied that an aggregate sentence other than that imposed by the sentencing judge was warranted in law given the objective gravity of the applicant’s overall offending. This was said to be reflected in the role she performed in furtherance of the conspiracy in which she played a significant part, and in her possession of a firearm (being a prohibited pistol) and ammunition to facilitate its use. The Crown emphasised the need for the sentence indicated for that offence to deter and punish those who possess firearms in recognition of the risk of injury from their possession and potential use.

The second, fourth and fifth grounds of appeal

14. The errors the subject of the second, fourth and fifth grounds of appeal were not conceded by the Crown. However, since on re-sentence this Court will need to consider the issue of parity for itself (Ground 4) and to indicate a sentence for the second count consistently with Muldrock (Ground 2), it was the agreed position of the parties on the hearing of the appeal that it was unnecessary for the Court to determine whether the errors the subject of the second and fourth grounds of appeal were made out. That position also prevailed in respect of the complaint that the aggregate sentence was manifestly excessive (Ground 5).

15. On the issue of parity and its impact on re-sentence it was the applicant’s ultimate submission that she was entitled to be sentenced relative to the sentences imposed on each of three offenders said to be complicit with her in the conspiracy the subject of the first count on the basis that her criminality, as reflected by the role she played in the conspiracy, was less objectively serious when compared with the roles of her co-offenders, and that her subjective circumstances were more favourable, including, in particular, the hardship to her family which would be occasioned by her continued incarceration.

16. The Crown submitted that the sentences imposed by other sentencing judges on each of the three co-offenders complicit with her in the commercial supply of the pseudoephedrine (two of whom were sentenced before the applicant was sentenced) are properly to be understood referable to the marked differences in the roles they each performed in furtherance of the conspiracy to supply, or in the offence of supplying the same drug, even if their subjective circumstances were comparable. The Crown further submitted that this Court would not be satisfied that the hardship suffered by the applicant’s family (to the extent that it was established to be of continuing significance on re-sentence) exceeded, to an exceptional degree, the negative impact of full-time imprisonment on an offender’s immediate or extended family and, for that reason, particular leniency should not be extended to the applicant in the exercise of the re-sentencing discretion.

The proceedings on sentence and the materials relevant to re-sentence

17. The material before the sentencing judge was voluminous. It consisted of a detailed statement of facts supplemented by the tender of a large number of transcripts of intercepted telephone conversations and a record of interview conducted with the applicant upon her arrest comprising 1531 questions. A pre-sentence report was also tendered.

The Crown case on sentence

18. The agreed facts for sentencing purposes can conveniently be summarised as follows. The applicant, with co-offenders Thai Nguyen (Nguyen), Het Thai Ho (Ho) and Robin Xiao (Xiao), agreed to source pseudoephedrine from overseas for the purposes of on-supply upon its importation into Australia. The sentencing remarks of Cogswell SC DCJ of 20 and 23 March 2015 in the sentence proceedings of Xiao and Ngyuen were available to the sentencing judge together with the Crown’s submissions on sentence. The sentencing remarks of Lakatos SC DCJ who sentenced Ho on 11 August 2016, after the sentence proceedings involving this applicant, were available in support of the parity argument advanced by the applicant in this Court on re-sentence.

19. The role the applicant played in the criminal enterprise comprehended by the conspiracy to supply a commercial quantity of pseudoephedrine was not agreed. The Crown asserted that she was a principal. A lesser role was asserted by her legal representatives.

The facts

20. Between April and August 2013 lawfully intercepted telephone conversations between the applicant and Nguyen alerted police to the recruitment of Xiao for the purposes of his travel to Vietnam to acquire pseudoephedrine for importation into Australia.

21. In one such conversation the applicant told Ho of her recruitment of Xiao as a courier by reference to a coded characterisation of him as the “old man” who wants to “mind children”. The applicant asked Ho to meet with the “old man” and to assess his suitability as a courier.

22. In a further coded conversation, after Ho confirmed the suitability of Xiao as a courier, the applicant referred to his “willingness to return with ten children … although there may be only four or five for him to mind”. The numeric reference to “children” is a coded reference to kilograms of pseudoephedrine.

23. Some days later in a coded exchange reference was made to arrangements for the purchase of return airfares for Xiao to be arranged by Ho but paid for by the applicant.

24. After monitoring those conversations, a travel alert was put in place to alert Australian Border Control to Xiao’s international travel movements. On the morning of 3 August 2013 airport surveillance identified him boarding an international flight to China where he would spend some days before flying to Vietnam. Border Control officers identified him on his return to Australia on 20 August 2013 whereupon he was searched by customs. Six containers said to contain a “Herbalife shake powder” and six bags containing “Coconut Candy” returned a positive result for ephedrine. On analysis the total quantity of prohibited drugs comprised 4035.48 grams of pseudoephedrine and 263.31 grams of ephedrine which, mixed together, formed the brown paste contained within the imported vessels.

25. Later that day a number of telephone conversations were lawfully intercepted where the applicant and her co-offenders again spoke in code concerning the late arrival of Xiao, a pre-organised meeting having been arranged where the applicant and co-offenders were to arrange with Xiao the supply to them of the imported drugs. Later that afternoon the applicant was notified by the co-offenders, again in a coded conversation, that Xiao had been spoken to by customs.

26. In October 2013 a search warrant was executed at the offender’s home and business premises. During the search of the applicant’s home the pistol the subject of the second count on the indictment was located. Small quantities of both methamphetamine and ephedrine (respectively, 2.97 grams and 22.1 grams) were located in the garage. These were not the subject of the sentence proceedings.

27. The applicant’s de facto husband was charged with joint possession of the pistol with the applicant as both an unauthorised pistol contrary to s 7(1) of the Firearms Act and an unregistered firearm contrary to s 36(1) of the Firearms Act, together with his possession of 40 rounds of .308 ammunition. All three offences were dealt with in the Local Court and in September 2014, against a jurisdictional limit of 2 years imprisonment, non-custodial penalties were imposed. The standard non-parole period of 3 years has no application if the offence is dealt with summarily (see s 54D(2) of the Crimes (Sentencing Procedure) Act). No issue of parity arises in those circumstances. On re-sentence the applicant did not submit otherwise

28. The applicant was interviewed by arresting police during which interview she identified her co-offenders by photograph. She also identified her voice on a number of recordings of telephone conversations played to her during the interview. She claimed that the “coded conversations” related to currency trades and not drug supply. By her plea of guilty, it must be accepted that that was a false account.

The applicant’s case on sentence in the District Court

29. The applicant gave evidence in the sentence proceedings as did her husband. A large number of documents were tendered by the applicant many of which had no apparent relevance to the sentence proceedings. The only documents which appeared to be the subject of submissions advanced on the applicant's behalf was the report of A/Prof Stephen Woods, clinical psychologist, dated 18 March 2015, and a further psychological report from Dr John Jacmon dated 9 December 2013 which largely mirrored the opinions expressed in the report of A/Prof Woods.

30. It was the applicant's case on sentence (and the case she advanced on re-sentence in this Court) that it was not open to the sentencing judge to appoint her role as that of a principal or organiser of the supply of the pseudoephedrine the subject of the conspiracy count and, that being the case, the objective level of her criminality was below that of her co-offenders Nguyen and Ho; a finding which should be reflected in the sentence indicated for the first count.

31. The applicant further submitted that the intercepted telephone conversations were so ambiguous that this Court would not be satisfied beyond reasonable doubt that they supported the Crown's submission that her level of criminality was greater than that of those with whom she acted in concert. On sentence the applicant’s senior counsel invited the sentencing judge to accept the applicant's evidence as to how she became enmeshed and implicated in the importation of the prohibited drugs, referring his Honour to particular passages of her evidence in support of that submission. In broad terms, counsel submitted that the applicant should be believed when she said that she lent Nguyen $30,000 unaware that those funds would be committed for an illegal purpose and that it was only when the loan was not repaid that Nguyen revealed that the money the applicant had advanced had been squandered and that if she wished to salvage her loss she would need to advance a further $20,000 at which time she was told, for the first time, that the money was being applied to the importation of prohibited drugs.

32. One of the points of distinction said to permit this Court to come to a different view to that of the sentencing judge as to the applicant’s seniority relative to the offenders Nguyen and Xiao was that neither of them had given evidence in the sentence proceedings before Cogswell DCJ and that this Court should accord the applicant’s evidence significant weight on the question as to where she should be positioned relative to her co-offenders for that reason. I am unable to accede to that submission. For my part, I have come to no different conclusion than that reached by the sentencing judge; namely that the evidence compels a finding, beyond reasonable doubt, that the applicant occupied a position of seniority in the notional hierarchy of offenders. In my view, having regard to the facts summarised above, no conclusion is open other than that she was an organiser and financier of the importation and that she gave direction to others, including Nguyen, in carrying out the agreement to supply the drugs. This included her approval for the recruitment of Xiao as courier; conduct which is consistent with a level of supervisory control over the criminal enterprise which had as its ultimate object the supply of a commercial quantity of pseudoephedrine. In my view, nothing in the applicant’s evidence raises any reasonable doubt as to that being the fact.

33. The applicant relied upon the reports of A/Prof Woods and Dr Jacmon in support of proof of a range of subjective circumstances said to operate in mitigation of sentence. Associate Professor Woods gave evidence in the sentence proceedings. He diagnosed the applicant as suffering from a complex post-traumatic stress disorder secondary to trauma associated with a home invasion in 2011 in which her partner sustained a gunshot injury. The persons who carried out the home invasion reportedly wore balaclavas and threatened to shoot everybody if money was not produced. The applicant’s children, then aged 9 and 4, were also the subject of those threats. There was no evidence before the sentencing judge and no submissions advanced on sentence or on the appeal as to what might have precipitated the home invasion. I simply note that although the applicant did not have a criminal record prior to her involvement in the conspiracy in 2013, and although there was no evidence that she had any criminal connections of any kind in 2011 as might have supplied a motive for the home invasion, at least an available inference is that the home invasion may have been drug related.

29. The applicant was also diagnosed by A/Prof Woods with a major depressive disorder which had its aetiology in her brother’s suicide, aggravated by her circumstances current as at the date of assessment as a remand prisoner awaiting sentence and her concern for her own health and that of her children. The diagnosis of post-traumatic stress disorder consequent upon the home invasion in 2011 was said to have manifested in a condition of hypervigilance.

30. A/Prof Woods also assessed the applicant’s two children (aged 14 years and 9 years at the time of sentence in 2016), identifying that they had both suffered emotional trauma with features of post-traumatic stress disorder secondary to the home invasion in 2011; a disorder that was aggravated by the execution of the search warrant over the family home in 2013 after which their mother was arrested. Associate Professor Woods confirmed that both children presented “well” in his assessment and were at least of high average intelligence. They were diagnosed with a separation anxiety disorder which A/Prof Woods said will require individual therapy as they progress through adolescence. I note that there was no evidence on re-sentence to inform the Court of their progress over the last two and a half years, or the current state of their mental health or domestic circumstances. Associate Professor Woods’ oral evidence in the sentence proceedings does not further inform the applicant’s subjective case on re-sentence.

31. In reporting upon the applicant’s psychosocial history, A/Prof Woods noted a disturbed relationship with her mother and maternal aunt, including emotional and physical abuse at the hand of her uncle. She reported not being permitted to attend school in Vietnam but being required to work in a family restaurant for very long hours. The applicant was reportedly illiterate but with good numeric skills. She emigrated to Australia at the age of 19 or 20 whereupon she was reunited with her mother who had earlier emigrated with a new partner. She remained with her mother working in a family owned bread shop before she was ordered from the home with minimal clothing and little financial support. She obtained shared rental accommodation with her brother and obtained employment as a seamstress for which she apparently received little income. Shortly thereafter her brother committed suicide after having been for a time an inpatient at a psychiatric hospital. A de facto relationship with a former partner terminated upon his death in 2008. The relationship with her current partner commenced in 2010. There is one child, aged 2, from that union with the two older children from her union with her deceased former partner.

32. Both on sentence and on the appeal it was submitted that the applicant’s involvement in the conspiracy was influenced by a lengthy history of personal dislocation and family trauma and that, other than her involvement in serious criminal offending in 2013, she had provided a stable home life as a hard working woman of 41 years of age and a mother of three children.

33. It was further submitted on the applicant's behalf that her domestic circumstances at the time of sentence in February 2016 supported a finding that in the event that full-time custody was imposed, her children and her partner would experience exceptional hardship, with the children having already been subjected to trauma additional to what they had been exposed to in the home invasion in 2011 after being separated from their mother upon her arrest in 2013. The applicant’s partner gave evidence that he was unable to work as a result of the physical and psychological damage he suffered as a result of the home invasion. He said that the responsibility of being the sole parent has weighed heavily on him and would continue to do so with the applicant’s imprisonment.

34. It was submitted on the applicant's behalf that it was open to the sentencing judge to direct that she be assessed for an intensive corrections order with the eight months spent in custody prior to sentence being sufficient to address the need for the sentence to reflect general and specific deterrence. Although the sentencing judge was satisfied that the evidence allowed him to find what he described as “a truly exceptional case of hardship to others quite beyond the norm”, he did not consider that allowed for the degree of leniency contended for by her counsel. In this Court it was submitted that after applying the sentencing judge’s findings concerning the exceptional degree of hardship suffered by the applicant’s family, an aggregate sentence should be imposed on re-sentence which will provide for the applicant’s immediate release from custody.

The question of parity

40. The Crown annexed a schedule to its written submissions which analysed the roles of each of the applicant’s co-offenders, as assessed by the judges who sentenced them, against a range of indicia including an assessment of the objective seriousness of the particular offending under consideration, the differences in the offences for which they were each sentenced, and the applicable maximum penalties. The subjective circumstances of each offender were also summarised.

41. It was the Crown’s ultimate submission that after this Court considered all of the evidence informing the objective seriousness of the applicant’s offending relative to that of her co-offenders, and making due allowance for the fact that they were charged with different offences and performed different roles in the drug supply enterprise (including sourcing the drugs that were to be supplied from overseas, and in Xiao’s case importing them into Australia) there was no marked disparity between the sentences imposed on each of them relative to either the sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months indicated by the sentencing judge for the first count or the aggregate sentence imposed on the applicant following the application of totality considerations. The Crown submitted that were this Court to indicate the same sentence for the first count as that indicated by the sentencing judge, this Court would be sentencing consistently with parity principles. The Crown also submitted that it would be consistent with parity considerations were the Court to conclude that no lesser sentence than the aggregate sentence imposed at first instance was warranted at law.

42. The Crown submitted that the appropriate degree of disparity between the sentence indicated for the applicant’s offending on the first count and that of her co-offenders is best illustrated by the sentence imposed on Nguyen (the offender who was charged with the same drug conspiracy as the applicant, including the same offence on the Form 1) and the offender Ho (who liaised with Nguyen in the recruitment of Xiao) and who was charged with the substantive offence of supplying a commercial quantity of the same drug Nguyen and the applicant were charged with conspiring to supply.

43. Nguyen, who was described as an adviser to the applicant contributing what was further described as “judgment, intelligence and advice” in furtherance of the conspiracy, was sentenced by Cogswell DCJ to imprisonment for 6 years with a non-parole period of 3 years and 4 months (a sentence not disturbed on appeal: Nguyen v R [2017] NSWCCA 39). Ho was sentenced to 7 years imprisonment with a non-parole period of 4 years and 6 months against a standard non-parole period of 10 years and a statutory maximum of 20 years for the substantive offence of supply of a commercial quantity of a prohibited drug. A concurrent fixed term of 2 years and 6 months was imposed for the supply of ephedrine. That charge was accounted for both in the sentence of Nguyen and the applicant by its inclusion on a Form 1 in their sentence proceedings.

44. Additionally, in the Crown’s submission, the sentencing judge’s finding that the hardship to the applicant’s family by her imprisonment was of an exceptional kind was not open on the evidence and, for that reason, was not a matter that this Court would treat as justifying any modification to the aggregate sentence on re-sentence.

45. Consistent with the position on sentence and on the appeal, the Crown’s submission was that settled sentencing principles dictate that for an offender to be afforded particular leniency in the sentencing exercise because of the effect of punishment on some third party (usually a family member or members) an exceptional degree of hardship needs to be demonstrated; a “high bar” which the Crown submitted the evidence on sentence did not meet (see the cases collected in R v Shortland [2018] NSWCCA 34 at [115] and cited in Matthews v R; New v R [2018] NSWCCA 186 at [32]). The Crown submitted that with no additional evidence adduced on re-sentence going to the issue of hardship to the applicant’s family, this Court would dismiss the appeal notwithstanding the conceded errors the subject of the first and third grounds of appeal.

Determination of the appeal

46. This Court has repeatedly emphasised the desirability of related offenders being sentenced by the same judge and preferably in the same sentence proceedings. There is no explanation for why that did not occur in this case. The involvement of three sentencing judges in sentence proceedings for four related offenders over seventeen months between March 2015 and August 2016 was clearly undesirable, although not ultimately productive of any appearance of unequal justice in this case.

47. I am not persuaded that the applicant has demonstrated any relevant disparity between her sentence and the sentences imposed on her co-offenders such as to engender in an objective observer a justifiable sense of grievance or an appearance of injustice (see Lloyd v R [2017] NSWCCA 303 at [87]-[88] where the seminal principles that apply in appellate review of a sentence said to offend parity principles are restated). While the sentence indicated on the second count was imposed on the erroneous assumption that the pistol was loaded, the fact that it was concealed with ammunition for its use does not, in my view, displace a finding of objective seriousness in the mid-range, or result in any different sentence to that indicated by the sentencing judge.

48. Neither am I persuaded that the applicant has made good her claim that her family will suffer ongoing hardship of an exceptional kind were she not sentenced to a reduced aggregate sentence as contended for by counsel on the appeal.

49. Consistently with what I consider to be settled common law sentencing principles, before hardship to an offender’s family can be given discrete weight in the exercise of the sentencing discretion so as to substantially reduce a sentence of imprisonment or eliminate it altogether, the offender is required to demonstrate an exceptional degree of hardship to third parties by the prospect of an offender’s incarceration or by a term of imprisonment of a length otherwise appropriate for the objective gravity of the offending after the application of other relevant sentencing principles.

50. Although the applicant is to be resentenced in respect of state offences only, the consideration given to the question of family hardship under the Crimes Act 1914 (Cth) is instructive for sentencing purposes. Section 16A(2)(p) of the Crimes Act operates such that in determining the sentence to be imposed for a Commonwealth offence, the Court is obliged to take into account “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”. Whether s 16A(2)(p) should be interpreted consistently with common law principles was considered in R v Zerafa [2013] NSWCCA 222.

51. In Zerafa, following a review of the authorities in this State and other States, Hoeben CJ at CL (with whom Latham J agreed, Beech-Jones J dissenting) concluded that it was not appropriate to depart from the application of the common law principle stated in R v Togias [2001] NSWCCA 522 and R v Hinton [2002] NSWCCA 405 in the interpretation of s 16A(2)(p). See also Elshani v R [2015] NSWCCA 254 where the question whether Zerafa was wrongly decided was raised but not resolved (see Gleeson JA at [5]-[8], Adams J at [30]-[35] and Beech-Jones J at [39]-[41]) and Kremisis v R [2016] NSWCCA 257 where the question of family hardship under the Crimes (Sentencing Procedure) Act was under consideration (see also the discussion in Carter v R [2018] NSWCCA 138 per McCallum J at [54]).

52. Whether it remains meaningful to describe the evidential burden on an offender seeking particular leniency where hardship to third parties will be occasioned as imposing a “high bar” (see the authorities reviewed in Shortland per Hidden AJ at [105]-[115] where that expression is used) or whether a more nuanced approach is to be preferred to the strict invocation of “high bar” as a general rule (see Basten JA in the same case at [18]), I am not persuaded that such hardship as might be occasioned to the applicant’s family at this time by her continued incarceration so far exceeds the dislocation that is suffered by many family members where a parent or principle carer is imprisoned as to warrant the leniency she seeks. The approach of the sentencing judge and his finding that this was “truly an exceptional case” was, in my view, erroneously influenced in part by his Honour taking into consideration the applicant’s claim that she would suffer considerable hardship (as his Honour described it as “beyond the norm”) as part of that exercise, as distinct from focusing on the effect of imprisonment on the applicant’s children and, to a lesser extent, her partner, in determining whether the hardship that they would suffer was “exceptional”. That is not to say that the evidence of the impact of a sentence of full time custody on the applicant’s children, and to a lesser extent, on her partner, was irrelevant to the sentencing exercise at first instance, or on resentence, simply because the impact on them was unexceptional. Those considerations remain part of the general mix of subjective factors in the applicant’s subjective case and will be treated in this Court on resentence on the same basis. I also accept, as Fagan J noted in Matthews v R; New v R that appropriate caution is required where there is a demonstrated impact on an offender’s family or dependants lest a reduction in sentence undermine the continued application of the general common law principle that hardship of an order beyond the norm must be demonstrated.

53. After appropriate weight is afforded to the applicant’s subjective circumstances in mitigation of sentence (including after taking into account the impact of the applicant’s imprisonment on her family as part of her subjective case) and despite the errors that have been conceded by the Crown, I am of the view that no lesser sentence than the aggregate sentence imposed by the sentencing judge is warranted for the applicant’s overall offending and, for that reason, the appeal should be dismissed.

54. I would propose the following orders:

1. Time for the filing of the Notice of Appeal is extended to 29 January 2018.

2. Leave to appeal is granted.

3. The appeal is dismissed.

55. DAVIES J: I agree with Fullerton J.

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Decision last updated: 19 October 2018