Fakhreddine v R [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 Act 1912 (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)