Fakhreddine v R [2024] NSWCCA 74

Fakhreddine v R [2024] NSWCCA 74

The sentencing judge treated hardship to the applicant's family as not exceptional and therefore not operating to significantly reduce the otherwise appropriate penalty. In light of Totaan, applying a requirement of exceptional hardship to family or dependants in sentencing for a Commonwealth offence was erroneous. Because ground 1 was established, leave was granted, the appeal was allowed, the sentence was quashed, and the Court resentenced the applicant, taking into account family hardship, parity with co-offenders, the sentencing judge's unchallenged findings, post-sentence evidence, the 20% plea discount, and the requirement of s 16A(1) that the sentence be of appropriate severity.

Jurisdiction
Australia
Judgment Date
15 May 2024
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Bring Application for Leave to Appeal Out of Time and for Leave to Appeal; Appeal Allowed and Applicant Resentenced
Outcome
Leave to bring the application for leave to appeal out of time granted; leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.
Legal Topics
['attempt to Import a Commercial Quantity of a Border Controlled Drug' 'commonwealth Sentencing' 'hardship to Family and Dependants' 'parity With Co Offenders' 'leave to Appeal Out of Time' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['attempt to Import a Commercial Quantity of a Border Controlled Drug' 'commonwealth Sentencing' 'hardship to Family and Dependants' 'parity With Co Offenders' 'leave to Appeal Out of Time' 'resentencing']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Bring Application for Leave to Appeal Out of Time and for Leave to Appeal; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether leave should be granted to bring the application for leave to appeal out of time.' "Whether the sentencing judge erred by failing to take into account hardship to the applicant's family or by applying a wrong principle requiring exceptional hardship." 'Whether the applicant had a justifiable sense of grievance in light of sentences imposed on co-offenders.' 'What sentence should be imposed on resentencing.']

Ratio Decidendi

The sentencing judge treated hardship to the applicant's family as not exceptional and therefore not operating to significantly reduce the otherwise appropriate penalty. In light of Totaan, applying a requirement of exceptional hardship to family or dependants in sentencing for a Commonwealth offence was erroneous. Because ground 1 was established, leave was granted, the appeal was allowed, the sentence was quashed, and the Court resentenced the applicant, taking into account family hardship, parity with co-offenders, the sentencing judge's unchallenged findings, post-sentence evidence, the 20% plea discount, and the requirement of s 16A(1) that the sentence be of appropriate severity.

Court Disposition

Leave to bring the application for leave to appeal out of time granted; leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced.

Orders

  • ['Grant leave to the applicant to bring his application for leave to appeal out of time.' 'Grant leave to the applicant to appeal.' 'Allow the appeal.' 'Quash the sentence imposed on the applicant by the District Court on 22 June 2020.' 'In lieu, sentence the applicant to imprisonment for a non-parole period of 6...