AE v R [2023] NSWCCA 74

AE v R [2023] NSWCCA 74

The sentencing judge acted on a wrong principle because the applicant was sentenced before Totaan and the judge proceeded on the then-understood exceptional hardship approach to family hardship under s 16A(2)(p). However, the sentencing judge in fact took the evidence of hardship to the applicant's family into account as part of the sentencing discretion, and the further admissible evidence did not warrant any greater mitigating allowance. Having regard to the seriousness of the federal drug importation offence, the maximum penalty, and the objective and subjective circumstances, no less severe sentence was warranted, so the appeal was dismissed after time was extended and leave granted.

Jurisdiction
Australia
Judgment Date
31 March 2023
Procedural Posture
Application for Leave to Appeal Against Sentence Out of Time / Court of Criminal Appeal Application for Extension of Time, Leave to Appeal and Sentence Appeal From the District Court of NSW
Outcome
Time extended, leave to appeal granted, appeal dismissed.
Legal Topics
['importing a Commercial Quantity of a Border Controlled Drug' 'hardship to Family and Dependants on Sentence' 'totaan Error' 'application for Leave to Appeal Out of Time' 're Sentencing After Sentencing Error']
['criminal Law' 'sentencing' 'criminal Appeals' 'federal Offences'] ['importing a Commercial Quantity of a Border Controlled Drug' 'hardship to Family and Dependants on Sentence' 'totaan Error' 'application for Leave to Appeal Out of Time' 're Sentencing After Sentencing Error']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence Out of Time / Court of Criminal Appeal Application for Extension of Time, Leave to Appeal and Sentence Appeal From the District Court of NSW

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to file the Notice of Application for Leave to Appeal to 24 October 2022.' 'Whether leave to appeal should be granted.' 'Whether the sentencing judge acted on a wrong principle by treating evidence of hardship to family and dependants as limited unless exceptional hardship was demonstrated.' 'Whether, despite the established sentencing error, some less severe sentence was warranted on re-sentence.']

Ratio Decidendi

The sentencing judge acted on a wrong principle because the applicant was sentenced before Totaan and the judge proceeded on the then-understood exceptional hardship approach to family hardship under s 16A(2)(p). However, the sentencing judge in fact took the evidence of hardship to the applicant's family into account as part of the sentencing discretion, and the further admissible evidence did not warrant any greater mitigating allowance. Having regard to the seriousness of the federal drug importation offence, the maximum penalty, and the objective and subjective circumstances, no less severe sentence was warranted, so the appeal was dismissed after time was extended and leave granted.

Court Disposition

Time extended, leave to appeal granted, appeal dismissed.

Orders

  • ['Extend the time in which to file the Notice of Application for Leave to Appeal to 24 October 2022.' 'Grant leave to appeal.' 'Dismiss the appeal.']