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AE v The King [2023] NSWCCA 74

The offender was sentenced following a plea of guilty to 1 count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Commonwealth Criminal Code. Original sentence imposed 10 years and 6 months imprisonment with a non-parole period of 6 years and 6 months. The offender appealed on the ground that the sentencing judge erred in failing to take into account non-exceptional family hardship.

Family and Dependants: Although it is clear that the sentencing judge in fact took into account the evidence relating to the effect of the proceedings and the likely sentence upon offender’s family, they did so acting upon a wrong principle that family hardship must be exceptional. On that basis, the exercise of the sentencing judge’s discretion miscarried, and the ground of appeal is made out. The additional evidence of the impact of the sentence upon family members is not such as to attract an even greater mitigatory benefit than that allowed at first instance. The situations respectively of offender’s youngest child and their sister cannot result in a sentence that breaches the statutory requirement that the sentence imposed is of a severity appropriate in all the circumstances. There is potential for offenders sentenced for federal offences prior to the decision in Totaan to seek leave to appeal against that sentence out of time if their incarceration led to hardship to their families which was not ‘extreme’. It should not be presumed that in every such application, error having been conceded, a less severe sentence will inevitably be warranted.

Leave to appeal out of time granted. Leave to appeal granted. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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