Fakhreddine v R

1. [1]

   WARD P: I have had the benefit of reading in advance Wright J’s reasons, with which I agree. On the question of resentence, I have taken into account the findings of the sentencing judge in relation to the applicant, as identified at [38] of Wright J’s reasons, as well as the evidence relied upon by the applicant on the present application. I agree, for the reasons that Wright J has set out, that the sentence his Honour proposes is appropriate. Accordingly, I agree with the orders proposed by Wright J.

2. [2]

   ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Wright J and examining the proposed sentence that his Honour has indicated. I agree with the orders proposed by Wright J and I seek to make some comments in relation to the matter in issue.

3. [3]

   First, as indicated by Wright J, the applicant would expressly abandon Ground 2 of the appeal if Ground 1 were upheld. Nevertheless, the learned sentencing judge imposed a sentence based on parity between the applicant and his co-offenders. This Court has, subsequently, reduced the sentence imposed upon his co-offenders.

4. [4]

   As a consequence, unless it can be said that the learned sentencing judge was mistaken as to the parity imposed initially, or that the sentence imposed upon the applicant was such that no lesser sentence could be imposed and still comply with the provisions of s 16A(1) of the Crimes Act 1914 (Cth), the applicant’s sentence would require adjustment.

5. [5]

   The consequence that the reduction in a sentence has an impact on the sentence to be imposed upon a co-offender has been dealt with over many years by this Court and is a necessary and appropriate course in most situations. Such a potential impact on co-offenders’ sentences is not a reason to refuse to adjust a sentence on appeal.

6. [6]

   With great respect to the Court in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (Totaan), I agree and adopt fully its construction of s 16A(2)(p) of the Crimes Act. Even if I were not in agreement, I would consider myself bound by the judgment. Exceptional or extraordinary circumstances are not required before the provisions of s 16A(2)(p) of the Crimes Act apply.

7. [7]

   Nevertheless, the provisions of s 16A(2) of the Crimes Act do not require the reduction in a sentence as a result of a consideration. Once the effect on the offender’s family is considered, whether the sentencing judge reduces the sentence is then an exercise of the overall discretion of the sentencing judge.

8. [8]

   The provisions require the Court to consider the issue (or, as the legislation would have it, the “matter”) and to “take it into account”. Unless an offender has no family or dependants, every period of incarceration will influence the offender’s family or dependants. The effect it has on the family or dependants may be adverse or otherwise. One can well imagine, for example, in the case of serious domestic violence and/or brutality, an effect on family and dependants that was positive.

9. [9]

   Assuming and accepting that the incarceration of all or most offenders would have an impact upon the offender’s family and dependants, the issue will always arise as to the degree to which such an effect is to be factored into the sentence and in what manner. Further, if there is a “usual” impact or effect on a prisoner’s family or dependants, does it mean that, if a lesser impact or effect results, it is open to a sentencing judge to increase the sentence?

10. [10]

    For my own part, I would think not. Such an approach would be inconsistent with the provisions of s 16A(1) of the Crimes Act. So too would the notion of increasing a sentence because the incarceration of the prisoner would have a positive effect.

11. [11]

    Such considerations are the basis upon which some judicial officers referred in the past to the effect needing to be extraordinary or exceptional before it resulted in a reduction in sentence. In that respect, such an approach reflected the common law.

12. [12]

    The consequence of the judgment in Totaan is that the point at which an offender has no family or dependants, or there is no effect, is the datum point from which such a factor is considered, not when it is the usual effect. And a less than usual adverse effect does not result in an effect that is not ameliorative.

13. [13]

    The learned sentencing judge did, on one view of her Honour’s Remarks on Sentence, consider the effect of the sentence on the applicant’s family and dependants. Her Honour came to the view that the effect on the applicant’s family and dependants was not such as warranted a “significant” reduction in the sentence.

14. [14]

    As extracted by Wright J, her Honour referred to the hardship as being “not exceptional and [did] not operate to significantly reduce the otherwise appropriate penalty”. Because of that comment, in my view, it may have been open to take the view that her Honour had complied with the Act and considered “the probable effect that any sentence or order under consideration would have on any of the [applicant’s] family or dependants”. As earlier stated, taking a matter into account does not require a reduction in a sentence because of that consideration.

15. [15]

    One reading of her Honour’s Remarks might suggest that her Honour did in fact reduce that which was otherwise under consideration, but not significantly.

16. [16]

    In many respects, it is important to recall the comments of McHugh J in Markarian v The Queen [1] in which his Honour said:

17. [17]

    The difference in the approach of McHugh J and Kirby J in Markarian is a difference between the Aristotelian concept of unconscious expertise and conscious expertise. Instinctive synthesis is the preferred approach.

18. [18]

    When a sentencing judge as experienced as the learned sentencing judge fixes a sentence to be imposed upon an offender, the sentence is imposed as part of the “instinctive synthesis”, which is inherent in the task of sentencing. It is unnecessary, and contrary to principle, to set out factors and the discount that applies because of each such factor, in circumstances where one has already fixed a sentence to be imposed, without considering all of the objective circumstances of the offence and the subjective circumstances of the offender.

19. [19]

    The Crown concedes error, and despite the circumstance that there may be another reading of the Remarks an offender is entitled to know that the sentence has unambiguously been imposed in accordance with the current law. Considering my agreement with the orders proposed by Wright J, it is unnecessary to take the matter further. As stated, I agree with the orders proposed by Wright J.

20. [20]

    WRIGHT J: The applicant, Mr Hassan Fakhreddine, seeks leave to appeal, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed on him by Yehia SC DCJ (as her Honour then was) in the District Court of New South Wales.

Background

1. [21]

   On 29 November 2019, the applicant pleaded guilty to a charge that between about 25 February 2017 and 8 August 2017, he attempted, with Ahmad Ahmad, Hakan Arif, Nejmi Saki, Mostafa Dib, Moustafa Ibrahim and Ryan Watsford, to import a commercial quantity of MDMA, a border-controlled drug, contrary to ss 11.1(1) and 307.1(1) with ss 11.2A(1)(a) and 11.2A(1)(b)(ii) of the Criminal Code (Cth). That offence carries a maximum penalty of life imprisonment.

2. [22]

   On 22 June 2020 and at the same time as sentencing the co-offender, Mr Ahmad, Yehia SC DCJ sentenced the applicant to imprisonment for 13 years and 7 months, commencing on 8 August 2017 and expiring on 7 March 2031, with a non-parole period of 8 years expiring on 7 August 2025: R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020] NSWDC 370. Hardship to the applicant’s family was raised as a relevant consideration but it was held, at [188], that such hardship was “not exceptional and [did] not operate to significantly reduce the otherwise appropriate penalty”.

3. [23]

   On 11 April 2022, a bench of five judges in this Court held in effect that a judge imposing a sentence for a Commonwealth offence was not required to be satisfied that the circumstances of hardship to a family member or a dependant satisfied the epithet ‘exceptional’ before such hardship could be taken into account as required by s 16A(2)(p) of the Crimes Act 1914 (Cth): Totaan at [77], [82], [92]-[93] (Bell CJ with Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing).

4. [24]

   Between August 2022 and 30 November 2023, three of the applicant’s co-offenders have been successful in their appeals against the sentences imposed on them in respect of the same offending.

5. [25]

   In Ibrahim v R [2022] NSWCCA 161, Mr Ibrahim’s appeal was upheld on the basis, inter alia, that the indicative sentence of 21 years (after a discount of 25% for the plea of guilty) for the offence corresponding to the offence committed by the applicant in the present case was manifestly excessive and this contributed to the aggregate sentence also being manifestly excessive. On resentence, the indicative sentence for the relevant offending was 18 years’ imprisonment.

6. [26]

   In Dib v R [2023] NSWCCA 243, Mr Dib had pleaded guilty and was sentenced to imprisonment for 18 years and 2 months with a non-parole period of 12 years for the offence involving both the applicant and Mr Ibrahim and the other co-offenders. On appeal, the sentence imposed was found not to be manifestly excessive but the appeal was upheld on the basis of parity. It was noted that “[o]ne outcome of Ibrahim’s successful appeal is the disruption of the relativities carefully considered and constructed by the sentencing judge, which are not challenged by either party”, given that the sentencing judge had found that Mr Ibrahim played a “slightly more serious role” than Mr Dib, and held a position “slightly higher” in the organisation than Mr Dib. Thus, it was concluded that, by reason of the reduction in the sentence imposed on Mr Ibrahim, and the disparity so created, Mr Dib experienced a justifiable sense of grievance. In these circumstances, it was held to be appropriate to restore the relativity assessed by the sentencing judge, without otherwise re-exercising the sentencing discretion, at [143]-[147]. Consequently, Mr Dib was resentenced to imprisonment for 15 years and 7 months, with a non-parole period of 10 years and 4 months.

7. [27]

   In Ahmad v R [2023] NSWCCA 294, Mr Ahmad pleaded guilty before trial, after initially pleading not guilty and was allowed a discount of 20% for the plea. He was originally sentenced to imprisonment for 15 years and 2 months with a non-parole period of 8 years and 9 months in respect of the offending involving the applicant and the other co-offenders. On appeal, it was not in dispute that as a result of the decision in Totaan, the sentencing judge had erred and the sentence should be quashed and Mr Ahmad should be resentenced. It was found to be inappropriate to deal with a further ground asserting manifest excess and the parity ground was not pressed. Mr Ahmad was resentenced to 12 years and 8 months’ imprisonment with a non-parole period of 7 years and 6 months. As part of his consideration on resentence, Garling J set out at [60] a table of undiscounted starting points of sentences imposed on four of the co-offenders as follows, with the undiscounted sentence adopted by this Court in respect of Mr Ahmad included in square brackets:

Appeal

1. [28]

   The notice of appeal relating to the application for leave to appeal was not filed within time and the applicant requires leave to make his application under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The application for leave was supported by the affidavit of Aisha Lopez which referred, inter alia, to the appeals by the other co-offenders and the steps taken on behalf of the applicant.

2. [29]

   The applicant seeks to rely on two grounds of appeal:

Leave to bring the application for leave to appeal

1. [30]

   Given the grounds relied on, the decision of this Court in Totaan, the successful appeals of three of the applicant’s co-offenders and the position properly adopted by the Crown on this appeal, it is appropriate to grant leave to the applicant to bring his application for leave to appeal out of time.

Ground 1

1. [31]

   In respect of the first ground of appeal, the Crown conceded that the error alleged had been made by the learned sentencing judge. In my view this concession was entirely appropriate.

2. [32]

   As noted above, Yehia SC DCJ observed at [188] of the remarks on sentence in relation to hardship to the applicant’s family, which had been raised as a relevant consideration, that such hardship was “not exceptional and [did] not operate to significantly reduce the otherwise appropriate penalty”. It is apparent, in my view, that the sentencing judgment was seeking to give effect to the principle referred to in the cases mentioned in Totaan at [77] such as R v Sinclair (1990) 51 A Crim R 418 and R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286 which held that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfied the epithet “exceptional”.

3. [33]

   In light of the decision in Totaan which was published after the sentencing judge’s decision, however, giving effect to that principle involved error.

4. [34]

   Since error has been made out, it is appropriate to grant leave to appeal on ground 1, allow the appeal, quash the sentence imposed in the District Court and to resentence the applicant.

Ground 2

1. [35]

   In the event that ground 1 was upheld, the applicant expressly abandoned the second ground of appeal relating to parity, since that would be a matter that would be taken into account on resentencing. The Crown agreed it was unnecessary to consider the second ground in light of the concession concerning ground 1.

Resentence

1. [36]

   Having found that the first ground of appeal has been made out, the Court’s task is then to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Crimes Act and any other Act or rule of law require or permit: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42].

2. [37]

   For this purpose, the Court is to have regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant post-sentence evidence: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Nettle, Gordon and Edelman JJ). In the present case, the applicant did not challenge any of the findings of Yehia SC DCJ except in relation to hardship to the applicant’s family and dependents.

3. [38]

   The unchallenged findings of the sentencing judge in relation to the applicant are set out in the relevant portions of R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020] NSWDC 370 and I shall not repeat them here but I have taken them into account in determining the appropriate sentence. The portions of that decision relating to the applicant and most relevant for present purposes include the following paragraphs:

   1. (1)

      [10]-[116] concerning the largely undisputed facts of the offending;

   2. (2)

      [117]-[129] as to the findings in relation to facts disputed by the applicant, noting that the unchallenged conclusions included that the applicant was not “simply a mindless conduit for the messages being passed between the two groups” but he “was a facilitator who engaged in this criminal activity for financial reward” as well as the other findings made at [120]. [123], and [127] which were favourable to the applicant;

   3. (3)

      [155]-[158] concerning the objective seriousness of the offending, including the assessment that “the offence is objectively very serious”;

   4. (4)

      [159]-[167] concerning the role of the undercover operative which was found to reduce the moral culpability of the applicant to some extent but not to a substantial degree and noting that, once the applicant became involved, he was a very willing participant who engaged in the activity for a significant financial reward;

   5. (5)

      [168]-[170] concerning deterrence and denunciation and the applicant’s criminal record and the finding that “specific deterrence is an important consideration that must be given significant weight in his case”, unlike Mr Ahmad’s situation where it was found that the weight to be given to specific deterrence was moderated having regard to the fact that he had no prior drug related matters and his record was not extensive;

   6. (6)

      [173]-[188] concerning the applicant’s subjective case, except for the finding at [188] that ‘[t]he hardship to the offender’s family is not exceptional and does not operate to significantly reduce the otherwise appropriate penalty”;

   7. (7)

      [228]-[247] concerning parity including the conclusion that:

   8. (8)

      [253] concerning the applicant’s entitlement to a discount of 20% on account of his plea of guilty.

4. [39]

   In addition, the applicant relied on the following affidavits relating to post-sentence matters: his affidavit of 15 February 2014; the affidavit of Aisha Lopez of 15 February 2024; and, the affidavit of Lamese Chahine, the applicant’s wife, of 16 February 2024.

5. [40]

   That evidence established a number of matters which I have also taken into account, including without being exhaustive the following.

   1. (1)

      In custody, the applicant has engaged in employment when available as a cleaner, a wing sweeper, in the furniture unit, as a general and lead hand in buy-ups or upholstery and as Clerk for the Manager of Industries, with generally positive comments on his attitudes and contribution, as well as being assigned as the wing delegate in November 2023.

   2. (2)

      The applicant was subject to significant restrictions in custody because of the COVID-19 pandemic which were difficult for both his family and him.

   3. (3)

      The applicant has expressed remorse, an interest in obtaining further qualifications for the building and construction industries and an intention to modify his lifestyle and choices so as to lead a pro-social life and be there for his wife and children on release.

   4. (4)

      The applicant’s children are now 13, 11 and 9 years old and his wife has struggled physically and mentally in his absence. The family had to leave their rented property and move in with his wife’s elderly mother in cramped accommodation, although she has obtained some work through her brother. As to her mental health, the applicant’s wife has been medicated since he was sentenced for anxiety and depression and her conditions were exacerbated during the pandemic and the children regressed in their schooling and general attitudes. The applicant’s wife has not been able to afford professional counselling or therapy for her mental health. Family contact has improved since the applicant has moved to the correctional centre at Windsor and visits have become more feasible and frequent.

6. [41]

   I have also considered parity in relation to the applicant and the co-offenders, assisted by Yehia SC DCJ’s detailed and helpful analysis and conclusions in that regard, which were unchallenged on this appeal.

7. [42]

   As to parity, Garling J’s comments in Ahmad are also relevant in the present appeal. His Honour said at [64]:

8. [43]

   As a result of the applicant’s success on ground 1, the resentencing exercise also involves the consideration, which also arose in Ahmad, that there is a need to take into account the probable effect that any sentence would have on any of the person’s family or dependants, even though such hardship would properly not be found to be exceptional. I accept that the applicant's incarceration has had and will probably continue to have a negative effect on his family and dependents, including as outlined in Ms Chahine’s affidavit. I have taken those matters into account as a basis for ameliorating the sentence which would otherwise be appropriate.

9. [44]

   Nonetheless, it must also be borne in mind that the Court is required to impose a sentence that is of a severity appropriate in all the circumstances of the offence, by virtue of s 16A(1) of the Crimes Act 1914 (Cth). This is one reason why, in the present case, there will not necessarily be a precise arithmetical ratio or equivalence between the sentences imposed by this Court in relation to co-offenders compared to the sentences originally imposed and the sentence to be imposed in the present case compared to that imposed on the applicant by Yehia SC DCJ. The relevant factors or matters relating to the applicant differ in some instances from those relevant to his co-offenders but the differences do not all point in one direction. I have considered and balanced the factors and matters in arriving at the sentence I propose.

10. [45]

    Having undertaken the task required by Kentwell and bearing in mind the purposes of, and the relevant principles concerning, sentencing, I am of the view that a sentence of imprisonment should be imposed comprising, after allowing a discount of 20% for the plea of guilty, 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.

Orders

1. [46]

   For these reasons, I propose that the orders of the Court should be:

   1. (1)

      Grant leave to the applicant to bring his application for leave to appeal out of time.

   2. (2)

      Grant leave to the applicant to appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Quash the sentence imposed on the applicant by the District Court on 22 June 2020.

   5. (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.

2. [47]

   The applicant will be first eligible for release to parole on 7 July 2024.