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Afful v The Queen [2021] NSWCCA 111

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Commonwealth Criminal Code. Offence related to 7.45kg of pure methamphetamine. Original sentence imposed 8 years imprisonment with a 4 year and 6 month non-parole period. Offender sought leave to appeal on basis that prospect of deportation should have ameliorated the sentence imposed, that offender’s mental condition was not sufficiently taken into account and that the offender experienced unanticipated hardship in custody.  
Deportation: The fact of possible or pending deportation is not a relevant factor in sentencing in New South Wales. Offender is bound by the manner in which they ran their case before the sentencing judge. The fact that the offender’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.  

Mental Condition: Sentencing judge expressly stated they would moderate offender’s sentence to a modest degree due to offender’s mental health problems. Co-offender was found to be marginally lower in hierarchy than offender. All other findings were broadly the same as between the two offenders. The fact that the same sentence was imposed on both is explicable on this basis. Imposition of ratio of 56% between non-parole period and head sentence based on offender’s mental health was very generous. Offence reflected grave criminality and offence carries maximum of life imprisonment.  

Hardship to Offender: Court of Appeal is a court of error. No error is disclosed in offender’s sentence by virtue of the fact that they suffered the losses experienced after they were sentenced. The sentence imposed on the offender was a lenient one.  

Application for extension of time refused.
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