Flower v R; Mafiti v R [2024] NSWCCA 76

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Flower v R; Mafiti v R [2024] NSWCCA 76 Hearing dates: 22 February 2024 Date of orders: 17 May 2024 Decision date: 17 May 2024 Before: Davies J at [1] Hamill J at [2] Sweeney J at [107] Decision: The orders in Mr Flower's case are as follows: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) The sentences imposed in the District Court on 11 February 2022 are quashed and in lieu thereof, Damion Flower is sentenced: (a) For the importation of a commercial quantity of a border-controlled drug (cocaine), to imprisonment for 21 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2040. (b) For the proceeds of crime offence, to imprisonment for 4 years commencing on 22 May 2019 and expiring on 21 May 2023. (c) There will be a single non-parole period of 13 years commencing on 22 May 2019 and expiring on 21 May 2032. (d) Direct Mr Flower's legal representatives to explain these sentences, and the practical implications of the total effective sentence and non-parole period to Mr Flower. The orders in Mr Mafiti's case are as follows: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) The sentences imposed in the District Court on 11 February 2022 are quashed and in lieu thereof, To'oto'o Mafiti is sentenced: (a) For the importation of a commercial quantity of a border-controlled drug (cocaine), to imprisonment for 16 years commencing on 22 May 2019 and expiring on 21 May 2035. (b) For the proceeds of crime offence, to imprisonment for 5 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2024. (c) There will be a single non-parole period of 9 years and 6 months commencing on 22 May 2019 and expiring on 21 November 2028. (d) Direct Mr Mafiti's legal representatives to explain these sentences, and the practical implications of the total effective sentence and non-parole period to Mr Mafiti. Catchwords: CRIMINAL LAW – sentencing – commercial drug importation – hardship to third parties – no requirement to establish exceptional hardship – gloss on plain language of Commonwealth sentencing statute – where sentencing Judge applied principles established at time of sentencing – where Court of Criminal Appeal subsequently held earlier authorities plainly wrong – ground of appeal established – applicants re-sentenced – whether applicant a "principal" – relevant considerations – not necessary to determine ground of appeal – applicant's role substantial and possibly managerial Legislation Cited: Crimes Act 1914 (Cth), s 16A(2) Cases Cited: Hanh Thi Nguyen v R [2011] NSWCCA 92; (2011) 208 A Crim R 432 Heng v R [2019] NSWCCA 317 Jomaa v R [2022] NSWCCA 112 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Li v R [2021] NSWCCA 100 Parker v R [2020] NSWCCA 206 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 Tawfik v The Queen (2021) 64 VR 561; [2021] VSCA 289 Tenenboim v R [2024] NSWCCA 1 Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 Turnbull v R [2019] NSWCCA 97 Category: Principal judgment Parties: Damion Flower (Applicant) To'oto'o Junior Mafiti (Applicant) Rex (Respondent) Commissioner of Police (Interested party) Representation: Counsel: B Walker SC, A Djemal SC and T Woods (Applicant Flower) K Ginges and R McMahon (Applicant Mafiti) R Ranken and C Brain (Respondent) D Jordan (Interested party)