Afful v R

1. [1]

   HOEBEN CJ at CL: I agree with N Adams J and the orders which she proposes.

2. [2]

   N ADAMS J: The applicant, Mr Andrew Afful, is a Canadian citizen who arrived in Australia in 2008. He became a permanent resident in 2011.

3. [3]

   On 15 May 2014, the applicant was charged with one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 7.45kg of pure methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth). That offence carries a maximum penalty of life imprisonment.

4. [4]

   The applicant defended the charge and a trial proceeded before Jeffreys DCJ and a jury of twelve. He was found guilty. Proceedings on sentence were conducted on 16 June 2017.

5. [5]

   On 20 June 2017, Jeffreys DCJ sentenced the applicant to 8 years imprisonment commencing on 26 January 2017 and expiring on 25 January 2025, with a non-parole period of 4 years and 6 months expiring on 25 July 2021.

6. [6]

   The applicant was charged, convicted and sentenced with a co-offender, Mr Jay Luke Campbell. Mr Campbell received the same sentence as the applicant.

7. [7]

   On 1 February 2021, 3 years and 7 months after he was sentenced, the applicant lodged an application for leave to appeal against his sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). He requires an extension of time to do so. The lateness of the appeal is explained by the fact that a recent change to his visa status has led the applicant to now complain that the prospect of his deportation should have ameliorated his sentence.

8. [8]

   The applicant’s non-parole period will expire on 25 July 2021.

9. [9]

   The Crown opposed an extension of time on the basis of a lack of merit.

Grounds of appeal

1. [10]

   The applicant was self-represented in this Court. He seeks leave to appeal on the following grounds:

Factual background

1. [11]

   Judge Jeffreys found the following facts for the purposes of sentence:

Proceedings on sentence

1. [12]

   A Crown bundle was tendered including written submissions, the applicant’s criminal history, and a schedule of cases. The applicant did not give evidence and relied instead on a report of Ms Laura Durkin, who is a clinical and forensic psychologist. The applicant also tendered seven character references.

2. [13]

   Ms Durkin outlined in her report the applicant’s history, including an upbringing “marred by violence (physical and sexual) and psychological abuse.” Ms Durkin noted a history of drug and alcohol use commencing at the age of 12, including alcohol, cannabis, cocaine, amphetamines and other substances. In relation to the applicant’s mental health, Ms Durkin opined as follows:

3. [14]

   A psychologist’s report was also tendered in relation to Mr Campbell. That report did not disclose any diagnosed mental illness or other psychological condition.

4. [15]

   Reliance was placed on the applicant’s upbringing and mental health diagnoses as mitigating factors on sentence. It was not submitted on behalf of the applicant that this would reduce his moral culpability. Rather, it was submitted that the applicant’s time in custody would be more onerous due to his psychological conditions and that he may need a longer period on parole to obtain psychological assistance and ensure he did not engage in any “thrill-seeking” behaviours such as those said to relate to the offending.

5. [16]

   Significantly, the applicant’s counsel noted that the fact that the applicant would be deported at the end of his non-parole period was not a matter to which the Court could have regard. The transcript reflects that the sentencing judge confirmed, “Schroeder says I can’t”. An issue arose in this Court as to which case his Honour in fact referred to at this point. The applicant submitted that his Honour referred to Schneider v The Queen [2016] VSCA 76 (“Schneider”) while the Crown submitted that his Honour most likely referred to The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26 (“Shrestha”). I shall return to this issue below.

6. [17]

   The Crown submitted that the applicant’s success in his social interactions and employment would suggest that his time in custody would not be significantly more onerous by reason of his psychological conditions. The Crown suggested that any moderation “would be so insignificant that it wouldn’t make a difference”. The Crown otherwise suggested that there was “really nothing to distinguish” the two offenders in relation to the sentences to be imposed.

7. [18]

   Relevantly to ground 2, the following exchange took place during the proceedings on sentence:

Remarks on sentence

1. [19]

   After finding the facts as set out above, the sentencing judge outlined the subjective cases for each offender.

2. [20]

   It was noted that the applicant’s upbringing was “economically disadvantaged” and destabilised by physical and psychological violence from the applicant’s father, who also abused alcohol. This caused the applicant to seek security elsewhere. As a result, the applicant was sexually abused by the father of his friend when he was between 10 and 12 years old. The applicant became involved in anti-social behaviour and left school at the age of 17. He subsequently completed his education and worked consistently after leaving school.

3. [21]

   His Honour observed that the applicant had been employed in several roles since his arrival in Australia in 2008, including as a sales representative for a financial products company. It was noted that the applicant had not seen his two sons (then aged 4 and 7) from a previous relationship since entering custody as their mother did not want to bring them to prison. The sentencing judge noted that the applicant had been in a relationship with a new partner for about two years.

4. [22]

   The applicant was aged 32 at the time of the offending and 35 at the date of sentencing. The applicant had a minor criminal history for public urination and flight while being pursued by a police officer.

5. [23]

   His Honour referred to the evidence in relation to the applicant’s mental health in Ms Durkin’s report and, after stating the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, his Honour observed that:

6. [24]

   In relation to Mr Campbell’s subjective case, the sentencing judge outlined that Mr Campbell grew up in Australia and had a close relationship with his mother and siblings, his father having died in 2012. Mr Campbell left school in Year 12 and became a full-time army reservist, and then worked in various other roles up to the time of his arrest. Mr Campbell was aged 26 at the time of the offending and 29 at the date of sentence. It was noted that Mr Campbell had a seven-year-old daughter with whom he hoped to have contact in due course. Mr Campbell had a minor criminal record. It was further noted that Mr Campbell’s mother had a heart attack about one week before the trial, but had since recovered, although Mr Campbell still held concerns for her health.

7. [25]

   The sentencing judge found that both offenders were of previous good character, noting that that is of less importance in offences of this type. In relation to parity, his Honour found that both offenders were “significantly lower in the hierarchy than Solano Faura”. As between each other, his Honour found that “Mr Campbell is marginally lower in the hierarchy than Mr Afful.”

8. [26]

   In relation to the offenders’ respective involvement his Honour found that:

9. [27]

   The sentencing judge found in relation to each offender that their role was in the lower midrange of objective seriousness. The sentencing judge found that both offenders had excellent prospects of rehabilitation.

10. [28]

    Both offenders were sentenced to imprisonment for 8 years, with a non-parole period of 4 years 6 months.

The application

1. [29]

   The applicant filed supporting documentation with his written submissions. It included material relevant both to his immigration status and his security classification and access to courses in custody. This evidence was not in existence prior to his sentencing, nor could it have been. The Commonwealth Director of Public Prosecutions did not object to the admission of any of this evidence but maintained the position that none of it could disclose error on the part of the sentencing judge.

2. [30]

   The material filed by the applicant discloses the following.

3. [31]

   On 21 March 2019, the applicant was notified that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to his offending. That section provides for the mandatory cancellation of a person’s visa if they have a substantial criminal record (which is defined to include a term of imprisonment of 12 months or more). It is in these terms:

4. [32]

   By letter dated 25 July 2019, the applicant was notified that under s 254 of the Migration Act he would be held in immigration detention upon his release from custody until his removal or deportation from Australia.

5. [33]

   The applicant subsequently made representations to the Minister requesting a revocation of the cancellation under s 501CA of the Migration Act. That section provides that the Minister may revoke a visa cancellation based on representations made by the person subject of the cancellation.

6. [34]

   Both ss 501(3A) and 501CA were enacted by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) and commenced on 11 December 2014.

7. [35]

   At the date of his hearing before this Court, the applicant was still awaiting the outcome of his request to the Minister seeking revocation of his visa cancellation. It was common ground in this Court that in the event that the applicant’s request for revocation was denied by the Minister the applicant would have a right of judicial review in respect of that decision.

8. [36]

   At the date of hearing, the applicant held a Bridging Visa E.

9. [37]

   Prior to his visa cancellation, the applicant had obtained certificates in custody in first aid, electrical safety, asbestos removal, food hygiene, safe work practices and forklift operation. The most recent of these was completed in February 2019.

10. [38]

    A letter from the Serious Offenders Review Council dated 27 August 2020 stated that the applicant’s C2 security classification was confirmed, despite his application to progress to a C3 security classification. This letter also confirmed the Corrective Services NSW policy which prevents inmates who have submitted an appeal against deportation from participating in early leave programs while their appeals are pending.

Extension of time

1. [39]

   In support of his application for an extension of time the applicant stated that his intention to appeal was not formed until late 2020 when he obtained the above “new evidence”, being the notice of visa cancellation dated 21 March 2019. He applied for a Legal Aid grant, was refused, and appealed the refusal. That appeal was rejected on 21 January 2021.

2. [40]

   The Crown opposed the extension of time on the basis that no explanation had been provided for the delay of 1 year and 10 months between the applicant’s visa cancellation on 21 March 2019 and his application for an extension of time.

3. [41]

   For the reasons I have set out below I am satisfied that this application has no merit and on that basis the extension of time should be refused. In order to assess whether an extension should be granted it was necessary to assess the merit of the application. On that basis, although I would refuse an extension of time, it was necessary to consider each of the grounds in order to arrive at that conclusion.

Ground 1

1. [42]

   This ground concerns the applicant’s pending deportation.

2. [43]

   It was submitted that deportation had become a “certainty” and that was making the applicant’s time in custody more burdensome than the sentencing judge could have predicted and thus his sentence was manifestly excessive. It was submitted that his anticipated deportation and separation from his Australian children had been traumatic for him personally and had a substantial impact on his family. Reliance was placed on the decision of Ye Zhao v The Queen [2018] VSCA 267 (“Ye Zhao”), which I will consider below.

3. [44]

   The applicant was designated as a “Public Interest Inmate” by reason of his pending immigration matter. This designation was said to have hindered his progress and rehabilitation by restricting access to certain prisons and programs. The applicant has also suffered because he is no longer able to participate in educational programs or to progress to a C3 classification which has stymied his rehabilitation.

4. [45]

   It was submitted that if the sentencing judge had been aware of these hardships at the date of sentence he could have moderated the sentence accordingly.

5. [46]

   The applicant further submitted that the sentencing judge had erred in not giving appropriate weight to the finding that he had excellent prospects of rehabilitation. The nub of this submission appeared to be that the sentencing judge had assessed the applicant’s prospects of rehabilitation on the basis that he would be able to participate in programs while in custody, but that this was no longer the case due to the applicant’s immigration status. This was submitted to constitute a change of circumstances amounting to manifest excess or substantial hardship in the applicant’s sentence.

6. [47]

   These additional hardships were further submitted to constitute new evidence that was not considered by the sentencing judge. The applicant also submitted that the above matters were significant additional punishments imposed on him, and not his co-offender, who is an Australian citizen.

7. [48]

   The Crown distinguished Ye Zhao on two bases and relied upon the decision of Kristensen v R [2018] NSWCCA 189 (“Kristensen”) which I will consider below.

8. [49]

   The Crown further submitted that the applicant’s risk of deportation was merely speculative as his request to have his visa cancellation revoked was still under consideration. The Crown observed that, even if the Victorian approach was adopted, the risk of deportation would need to be assessable, rather than merely speculative. It was further submitted that no submission was made on this issue in the proceedings on sentence and that the applicant should be bound by the case run below.

9. [50]

   To the extent that this ground asserted manifest excess, the Crown submitted that the issue of weight in relation to this finding could not raise House v The King error: House v The King (1936) 55 CLR 499; [1936] HCA 40. The Crown submitted that any claims of manifest excess should be assessed by reference to the schedule of cases tendered by the Crown in the proceedings on sentence.

Consideration: Ground 1

1. [51]

   The fact of possible or pending deportation is not a relevant factor in sentencing in New South Wales. As Wood CJ at CL (with whom Hislop and Johnson JJ agreed) observed in R v Van Hong Pham [2005] NSWCCA 94 at [13]:

2. [52]

   Similarly, in AC v R [2016] NSWCCA 107, Schmidt J (with whom Bathurst CJ and Wilson J agreed) said at [79]:

3. [53]

   Consistent with this well settled principle, the applicant’s counsel at his proceedings on sentence noted that the fact of deportation could not be taken into account in mitigation of sentence. The sentencing judge accepted that as it was a correct statement of New South Wales law on this issue. The applicant is bound by the way he ran his case below unless a miscarriage of justice can be identified. As Johnson J observed in Zreika v R [2012] NSWCCA 44 (“Zreika”) at [81]:

4. [54]

   Contrary to the position taken by his counsel before Jeffreys DCJ, the applicant now contends that his deportation should have been taken into account to reduce his sentence even further below that which was imposed. In support of this argument he relies upon decisions of the Victorian Court of Appeal. The difficulty is that Victoria takes a different approach to NSW on the question of the relevance of deportation in sentencing.

5. [55]

   In Guden v R (2010) 28 VR 288; [2010] VSCA 196 (“Guden”), the Victorian Court of Appeal determined that the prospect of an offender being deported upon completion of the custodial portion of his or her sentence was a proper matter for consideration in determining an appropriate sentence, it being relevant in two ways: as making the burden of imprisonment greater than for citizens and, in some cases, as resulting in the offender losing the opportunity of settling permanently in Australia. At [28] the Court noted that evidence would be required to establish that deportation was more than “a completely speculative possibility” before it could be taken into account in one or both of these ways. The Court held at [29] that:

6. [56]

   This Court (Payne JA, with whom R A Hulme and Button JJ agreed) noted the different approach taken by Victoria on this issue in Kristensen. In Kristensen the Court found error of the kind identified in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 (“Xiao”) and proceeded to re-sentence Mr Kristensen. It was common ground that Mr Kristensen’s visa would be cancelled on character grounds due to his offending but there was no evidence in Kristensen as to whether there had been any application to the Minister for revocation of that decision.

7. [57]

   Payne JA summarised the divergent authorities. By way of background, at [24] it was noted that since Shrestha, a non-citizen who commits a serious offence should be the subject of an order for release on parole in the same way a citizen would. Section 19AK of the Crimes Act 1914 (Cth) now requires such a course be taken. At [25] his Honour noted the decision of R v Mirzaee [2004] NSWCCA 315 in which Kirby J (with whom Sperling J and Newman AJ agreed) noted at [21] that if an offender qualifies for a finding of special circumstances (such as under what is now s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), such a course should be taken even if the offender may be deported at the end of the non-parole period. His Honour then went on to set out both the NSW position and the position taken in Victoria following the decision in Guden.

8. [58]

   His Honour then noted at [30] that the different positions in Australia were summarised by Fraser JA in R v Schelvis; R v Hildebrand [2016] QCA 294; (2016) 263 A Crim R 1 at [72] as follows:

9. [59]

   Justice Payne noted that in R v Arrowsmith [2018] SASCFC 47 the Full Court of the Supreme Court of South Australia found it unnecessary to resolve the issue as the evidence disclosed that the appellant’s request for revocation of the cancellation was still being considered. Payne JA concluded as follows in Kristensen (at [34]-[35]):

10. [60]

    The applicant relied upon the decision of Ye Zhao. The appellant in that case, like Mr Afful, had received notice under s 501(3A) of the Migration Act that his visa had been cancelled on character grounds. However, unlike Mr Afful, the appellant, Mr Zhao, did not respond to the letter within 28 days seeking the revocation of that cancellation. Mr Zhao thus became an “unlawful non-citizen” under the Migration Act. The Crown in Ye Zhao conceded that the appellant’s immigration status was “new evidence” that had the effect of vitiating the exercise of the sentencing judge’s discretion. The Court followed the usual practice in Victoria and mitigated the sentence on the basis that the appellant’s custody would be more onerous given his ending deportation.

11. [61]

    There are two difficulties with the applicant’s reliance upon Ye Zhao. First, it can be distinguished factually. The parties in that case agreed that the applicant would not be released on parole. The Crown submitted that there was no such evidence or concession by the Crown in the present case. The second problem is, as I have already stated, the decision in Ye Zhao is a Victorian decision, in which a different approach was taken on the question of the relevance of deportation in sentencing. In effect, the applicant contends that this Court should adopt a new approach to this question.

12. [62]

    Further, as the Crown submitted, the principles in Xiao were also not relevant to the applicant’s case to the extent that the appellant in that case experienced hardship in custody because he was a foreign national with no family in Australia (Xiao at [286]-[288]). The Crown submitted that this kind of hardship was not relevant to the applicant’s case and was not raised by counsel for the applicant in the proceedings on sentence.

13. [63]

    Finally, the applicant contended that the exchange between Jeffreys DCJ and the applicant’s counsel meant that his Honour was aware of the Victorian decision of Schneider. In that decision the sentencing judge had refused to ameliorate the sentence due to pending deportation given the state of the evidence but did state the following (at [21]):

14. [64]

    On appeal it was contended that the sentencing judge had given “insufficient consideration” to the appellant’s prospect of deportation. Reliance was placed on the 2014 amendments to the Migration Act which meant that, because of his visa status, the appellant would not be able to undertake parole in the community and would be deported upon his release. The ground was dismissed as the Court was satisfied that the sentencing judge took into account the appellant’s possible deportation in the only manner in which he was entitled. As for the 2014 amendments, the Court noted that the principles stated in Guden are unchanged by those amendments. Priest JA then quoted (at [25]) what his Honour had earlier stated in Konamala v The Queen [2016] VSCA 48 at [34]-[37] as follows (footnotes omitted):

15. [65]

    I make the following observations regarding the applicant’s reliance upon this decision. First, I am not satisfied that this was the decision referred to by Jeffreys DCJ when his Honour mentioned a case which was recorded on the transcript as “Schroeder”. Given that the relevant High Court decision of Shrestha is so well known, I am satisfied that is the decision his Honour mentioned. Second, the decision in Schneider does not represent the approach taken to this question in New South Wales, or for that matter the rest of Australia. Thirdly, the appeal in Schneider failed anyway based on the evidence.

16. [66]

    As stated above, the applicant is bound by the manner in which he ran his case before the sentencing judge. Furthermore, the fact that the applicant’s deportation is still subject to revocation by the Minister or, failing that, judicial review, is another matter that means that this is not an appropriate vehicle to challenge the longstanding practice in New South Wales regarding the relevance of deportation on sentence.

17. [67]

    This ground has no merit.

Ground 2

1. [68]

   The applicant submitted that the sentencing judge’s stated intention to reduce the applicant’s sentence due to his mental health conditions was not reflected in the sentence ultimately imposed, and that this was evidenced by the fact that both offenders received the same sentence.

2. [69]

   The applicant submitted that, because their offending was otherwise indistinguishable, the fact that the two offenders received exactly the same sentence indicated that the sentencing judge had not applied the finding of special circumstances. The applicant submitted that the sentence Mr Campbell received should have been the starting point from which his own sentence was reduced by reason of the finding of special circumstances.

3. [70]

   The Crown submitted that the sentencing judge’s finding that the applicant would experience hardship in custody was reflected in the imposition of a ratio of 56% between the non-parole period and the head sentence.

4. [71]

   It was further submitted that the sentencing judge was not bound to take a mathematical approach of making deductions for each mitigating factor and that no error was disclosed in his Honour’s process of instinctive synthesis. His Honour clearly took into account the applicant’s mental health diagnoses.

Consideration: Ground 2

1. [72]

   His Honour expressly stated that he would moderate the applicant’s sentence “to a modest degree” due to his mental health problems. He also found that Mr Campbell was “marginally lower” in the hierarchy than the applicant. All other findings were broadly the same as between the two offenders. The fact that the same sentence was imposed on both offenders is explicable on this basis.

2. [73]

   In any event, his Honour’s imposition of a ratio of 56% between the non-parole period and the head sentence based on the applicant’s mental health was very generous. The applicant was convicted after trial of attempting to possess 7.45kg of pure methamphetamine. This reflected grave criminality and the offence carries a maximum penalty of life imprisonment. The applicant was sentenced to a non-parole period of only 4 years and 6 months.

3. [74]

   This proposed ground is without merit.

Ground 3

1. [75]

   The applicant submitted that during his time in custody he experienced unanticipated hardship which had made his time in custody more onerous than that foreseen by the sentencing judge. It was submitted that a combination of the following factors had triggered the applicant’s anxiety and depression while in custody:

   1. (1)

      The applicant’s father died unexpectedly on 5 April 2017, around three weeks after the applicant entered custody. The applicant was unable to attend his father’s funeral as he was in custody at the time;

   2. (2)

      The applicant’s mother had been diagnosed with breast cancer and he was constantly anxious about her health.

   3. (3)

      The applicant’s children had been severely affected by his time in custody. He had not seen them since 2016. The applicant said that the children’s mother wanted to support a relationship between the applicant and his children but that she would not bring them into the custodial environment.

2. [76]

   All of these factors were said to have caused increased stress and hardship to the applicant while in custody, such that his time in custody had been more traumatic and burdensome than for other inmates.

Consideration: Ground 3

1. [77]

   As Johnson J observed in Zreika at [79]:

2. [78]

   No error is disclosed in the applicant’s sentence by virtue of the fact that he suffered the losses referred to above after he was sentenced.

3. [79]

   The sentence imposed on the applicant was a lenient one.

4. [80]

   This proposed ground is without merit.

ORDERS

1. [81]

   I would propose the following order:

   1. (1)

      Application for an extension of time is refused.

2. [82]

   HIDDEN AJ: I agree with N Adams J.