Daher v R

[2026] NSWCCA 26

Court of Criminal Appeal (NSW)|2026-03-25|Before: N Adams CJ at CL at [1], Fagan J at [26], Boulten J at [68]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-03-25

Before

N Adams CJ at CL at [1], Fagan J at [26], Boulten J at [68]

Catchwords

CRIME – appeals – appeal against sentence – four counts
of drug supply offences – one count of acquiring firearms
contrary to a
firearms prohibition order – whether sentencing judge erred in assessment

Source

Original judgment source is linked above.

Catchwords

CRIME – appeals – appeal against sentence – four countsof drug supply offences – one count of acquiring firearmscontrary to afirearms prohibition order – whether sentencing judge erred in assessmentof objective seriousness of sequence12 – whether scalar classification ofobjective seriousness is necessary – whether it was reasonably open to thesentencingjudge to place the offence at the “mid-range” ofobjective seriousness – appeal dismissed

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Daher v R [2026] NSWCCA 26

Hearing dates: 6 March 2026

Date of orders: 25 March 2026

Decision date: 25 March 2026

Before: N Adams CJ at CL at [1];
Fagan J at [26];
Boulten J at [68]

Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIME – appeals – appeal against sentence – four counts of drug supply offences – one count of acquiring firearms contrary to a firearms prohibition order – whether sentencing judge erred in assessment of objective seriousness of sequence 12 – whether scalar classification of objective seriousness is necessary – whether it was reasonably open to the sentencing judge to place the offence at the “mid-range” of objective seriousness – appeal dismissed

N ADAMS CJ at CL: I agree with Fagan J that this appeal should be dismissed. Despite this, I would grant leave to bring the appeal on the basis that there appears to remain some confusion about the need to make a finding of objective seriousness on a putative range for offences which attract a standard non-parole period (“SNPP”).
I am grateful to Fagan J for his Honour’s summary of the facts, the applicant’s subjective case, the findings of the sentencing judge, the submissions in this Court and the relevant law. My reasons for agreeing with Fagan J that this appeal should be dismissed are as follows.
It is an important part of the sentencing process to assess the objective seriousness of an offence. Such an assessment assists in ensuring that an appropriate sentence is imposed and that the sentence imposed is proportionate to the seriousness of the offending: Veen v The Queen [No 2] (1988) 164 CLR 465 at 486; [1988] HCA 14 per Wilson J; R v Van Ryn [2016] NSWCCA 1 at [134]-[135] (per R A Hulme J, Leeming JA and Johnson J agreeing). Further, assessing the objective seriousness of an offence can assist when comparing a sentence with one or more sentences imposed in previous cases for the purposes of ensuring consistency in sentencing.
The practice of assessing the objective seriousness of an offence by reference to a notional range (as occurred in the applicant’s case) commenced after the enactment of SNPPs in Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) in 2003. This Court considered that such an approach was required for SNPP offences because s 54A of the Sentencing Act provided that a SNPP represented “the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division”.
Following the enactment of SNPPs, a general practice emerged of assessing the objective seriousness of an offence by reference to a notional range for all offences, whether or not an offence attracted a SNPP.
In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court overturned authority in this Court as to the requirement to fix objective seriousness on a range and stated the following at [28]:

I agree with Hamill J. For my part, I consider that it remains helpful to place the objective seriousness of an SNPP offence on a putative range, but I accept that decisions of this Court reflect differing views on the utility of doing so.
To summarise, the effect of the decision in Muldrock v The Queen and s 54B(6) of the Sentencing Act is that there is no requirement to place the finding of objective seriousness on a putative range for an SNPP offence. To be clear, it is neither an error to do so nor an error to fail to do so. What is important is to identify the “facts, matters and circumstances” which bear on the assessment of the gravity of the crime(s).
Turning to the applicant’s sole ground of appeal, two observations made by the sentencing judge are important to its determination. They are extracted by Fagan J at [38]. First, the sentencing judge proceeded on the incorrect assumption that “the law requires that I determine where on the scale of objective seriousness the offence does fall”. Secondly, his Honour clearly stated that he did not intend to impose the SNPPs because to do so would “result in a sentence which is out of proportion to the criminality involved” and would be “an incredibly harsh punishing sentence”.
The applicant stood for sentence in relation to four drug supply offences and asked that two further drug supply offences be taken into account on a Form 1 pursuant to s 33 of the Sentencing Act. A further offence under the Firearms Act 1996 (NSW) was dealt with under s 166 of the Criminal Procedure Act 1986 (NSW). An aggregate sentence of 7 years’ imprisonment with a non-parole period of 3 years and 6 months was imposed.
This application for leave to appeal against sentence is confined to purported error in relation to one of the five indicative sentences: sequence 12. That charge related to supplying a large commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant was found in possession of more than twice the large commercial quantity of methamphetamine (500 g), namely, 1031.1g (I note Fagan J’s query as to whether that amount should have been recorded as 1049.1g but nothing turns on that for the purposes of considering this ground).
The SNPP for sequence 12, as provided for in the table behind s 54D of the Sentencing Act, is 15 years’ imprisonment. The maximum penalty for that offence is life imprisonment. As against these statutory guideposts, an indicative sentence of 4 years’ imprisonment with a SNPP of 2 years was imposed. This indicative sentence reflects his Honour’s intention, foreshadowed at the outset of his reasons, to impose a non-parole period that was nowhere close to the SNPP. Despite this, his Honour went on to assess the objective seriousness of sequence 12 as falling “at the mid range”.
The narrow issue on this appeal is whether it was reasonably open to the sentencing judge to assess the objective seriousness for sequence 12 as “at the mid range”: Hancock v R [2025] NSWCCA 213 at [46], [74]. In the frequently cited passage in Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ observed this about a challenge to such a finding:

The applicant was 46 years old in December 2022 when most of the offences were committed. The learned judge described his record of prior offending as “extensive”. The principal prior offence was that of manufacturing a commercial quantity of methylamphetamine, to which reference has already been made. It was committed when he was aged 26. The judge accepted the applicant’s evidence about a “challenging upbringing” but concluded that “any moderation in this offender’s moral culpability is only slight”. He misused drugs and alcohol from the age of 16. Drug use continued during his marriage, which lasted from around 1999 until separation in 2016. He engaged unsuccessfully in two rehabilitation programs prior to 2016 but his drug use led to separation from his wife and four children.
Whilst on bail following his arrest for these matters the applicant successfully completed a 12 month residential drug rehabilitation program. The judge was satisfied that through the program the applicant had ceased his abuse of illicit drugs and had commenced to engage in prosocial activities. Effusive evidence was given by the Chief Executive Officer of the rehabilitation centre, to the effect that the applicant’s improvement was “a miracle and remarkable”. The judge accepted that evidence. With respect to rehabilitation from criminal activity, his Honour concluded that there were good prospects and that he would be unlikely to reoffend. The learned judge found that the applicant’s unsatisfactory evidence in the sentence proceedings, by which he attempted to minimise his offending, raised questions as to whether he was genuinely remorseful but in the end made a positive finding in that regard.
His Honour made a generous departure from the default ratio of the non-parole period (50% of the head sentence rather than 75%). That was based upon findings that full-time custody should be reduced to prevent interruption of the applicant’s rehabilitation from drug use and that longer time in the community under supervision would be beneficial to his reform.

The sentencing judge’s placement of seq 12 “at the mid-range” of objective seriousness is a characterisation (see Mulato v R at [37] (Spigelman CJ)) or the outcome of a discretionary evaluative process (see Mulato v R at [46] (Simpson J)), rather than a finding of fact. If the applicant’s challenge to the characterisation has to be resolved, the review would be on the principles of House v The King (1936) 55 CLR 499; [1936] HCA 40 ( see Mulato v R at [46]) and would come down to whether it was reasonably open to his Honour to place seq 12 “at the mid-range”. That expression conveys a meaning similar to “the middle of the range”, being the wording used in s 54A(2) of the Sentencing Act to explain what a standard non-parole period represents.
Given the enormous potential range of seriousness of offending against s 25(2) of the Drug Misuse and Trafficking Act, “the mid-range” must comprise a very wide band with respect to that offence. The quantity of drugs involved is a significant factor in assessing objective gravity. The offence of supplying not less than a large commercial quantity may be committed with respect to 500 g of methylamphetamine or any amount in excess thereof, without limit. A single charge may concern, for example, several tons. Such an offence may be committed by a person who is merely taking orders, who has a small role and who derives little benefit. On the other hand, the offender may be an owner and principal who takes a significant active part in holding the drug and/or supplying it, who recruits and directs numerous co-offenders and who uses sophisticated counter surveillance techniques to escape detection.
For the purposes of this leave application I do not find it necessary to wrestle with the breadth and indeterminacy of the concept of offending “at the mid-range” against a provision like s 25(2) of the Drug Misuse and Trafficking Act, with open ended potential gravity. For the reasons that follow I regard his Honour’s characterisation as immaterial to the sentencing outcome. On that view, I need not examine whether it was reasonably open to his Honour to characterise as he did the relative objective seriousness of seq 12.
An immaterial error in finding a primary or an evaluative fact does not lead to a conclusion that the exercise of the sentencing discretion has miscarried: Hancock v R at [79]-[82]. Similarly, adoption of an insupportable characterisation of relative seriousness of offending would not lead to the sentence being set aside if the characterisation is immaterial. For an applicant to show that an error was material, it is not necessary that it should have had an actual effect on the sentence imposed, only that it had the capacity to influence the sentence: Newman (a pseudonym) v R [2019] NSWCCA 157 at [8]-[14] (Basten JA); Benn v R [2023] NSWCCA 24 at [82] (Gleeson JA). In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 the High Court dealt with materiality in cases of jurisdictional error. In Hancock v R at [82] this Court quoted a passage from the High Court’s reasons and appeared to adopt, as a test of the materiality of errors of fact that may vitiate sentencing decisions, the question whether “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”.
By commencing his Remarks with the passage quoted at [38] above, the sentencing judge made clear from the outset that he found the objective gravity of all offences insufficient to warrant standard non-parole periods, including for seq 12. In discharge of his obligation to give reasons for not imposing the standard periods, the judge thereafter recorded findings that both ameliorated objective gravity and provided subjective mitigation, for all matters. It was inconsequential for his Honour to designate a point on a scale of seriousness for seq 12, at the end of his Remarks, when he had already determined with reasons that a non-parole period shorter than the standard should be indicated.
The adoption of a generalised and indeterminate descriptor, after all that had preceded it in the Remarks, had no legal or discretionary significance. It had no capacity to affect the determination of an appropriate indicative sentence. The fact that his Honour adopted for seq 12 the label of “mid-range” does not mean that he had decided, after all, that this was an offence warranting a standard non-parole period. His Honour indicated a period without parole of 2 years, as compared to the standard of 15 years. By the “mid-range” classification his Honour clearly did not mean to retreat from the extensive findings and reasons that caused him not to incorporate the standard non-parole period in the indicative sentence. The incongruity of designating seq 12 “at the mid-range” merely confirms that the classification was redundant.
Scalar classification of each of the offences was sought by both counsel at the sentence hearing. Their submissions in that respect were misdirected. The limit of useful submissions about labelling the relative seriousness of any of the offences would have been for the Crown to identify any count that should be regarded as “in the middle of the range”, “taking into account only the objective factors”, as an implicit invitation to adopt the relevant standard non-parole period. Only if his Honour accepted that one or more of the offences should attract the standard period would it have been relevant for a characterisation of mid-range seriousness to have been expressed in support of that conclusion, and only in respect of the count concerned.
The applicant put the following submissions in oral argument:

Daher v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

JUDGMENT

Agreed facts

Departure from standard non-parole periods

Findings significant to objective seriousness of the drug supply offences

Subjective considerations

Unnecessary scalar classification of the applicant’s offences

The arguments in support of the appeal ground

Parties

Legislation Cited (3)

Cases Cited (5)

Cited By (7)