Duncan v R [2026] NSWCCA 19 | Case summary

Duncan v R [2026] NSWCCA 19 | Case summary | Zoe

STERN JA: I agree with Hamill J.
HAMILL J: Daniel John Duncan seeks leave to appeal against an aggregate sentence imposed in the District Court on 6 February 2025. He was sentenced by Judge Gallagher following his early pleas of guilty to four offences (or “sequences”) being two counts of possessing prohibited weapons (a taser and a set of knuckledusters) and two counts of supplying prohibited drugs (18.67 and 10.5 grams of methylamphetamine). Her Honour imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 4 months.
The offences were committed in January and March of 2022 and, at the time of sentencing, the applicant was serving a pre-existing sentence imposed by a different judge (Judge Harris) on 9 May 2023 for an offence of armed robbery committed on 6 March 2022, that is six weeks after the weapons offences and about a week before the drug supply offences (not “five weeks” before the supply offences as stated at one stage in the sentencing judgment). I will refer to the sentence imposed by Judge Harris as “the armed robbery sentence”. In those circumstances, questions of totality, the appropriate commencement date of the sentence and the extent to which the sentence should be served concurrently with the pre-existing sentence, loomed large. Judge Gallagher ordered that the sentence be served largely concurrently with the armed robbery sentence. However, the commencement date and structure of the aggregate sentence had the effect of increasing the total effective sentence by 2 months and extended the pre-existing non-parole period by 6 months.
Her Honour found that there were “special circumstances” pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Ac**t 1999 (NSW) (“the Sentencing Procedure Act*”*) justifying a parole period (balance of term) greater than one-third of the non-parole period. Because of the reasons provided for that finding, and the impact the sentence had on the total effective sentence (and continuous period of incarceration), the applicant argues that the sentencing Judge failed to give effect to the finding under s 44. Reflecting that contention, he raised a single ground of appeal:

On 25 January 2022, the applicant was subject to a traffic stop and police searched his vehicle. The officers located a black taser capable of firing two prongs and a set of black knuckledusters. At the time, Mr Duncan was subject to a weapons prohibition order. The possession of the taser, which was in working order, was sequence 1 and the possession of knuckledusters was sequence 2.
On 11 March 2022, police obtained a telephone intercept warrant and commenced monitoring Mr Duncan’s communications. On 12 March, he spoke with a person called Sam about the supply of a “half ball” of methylamphetamine for $450. Later that night the applicant supplied Sam with 1.75 grams of the drug for the price discussed. On 13 March, a similar transaction took place, this time for a “full ball” (3.5 grams) at the cost of $900. On 14 March, the applicant supplied 5.25 grams of methylamphetamine and was heard telling people on the ‘phone that he was staying at the Holiday Inn in Parramatta. On 15 March, police executed a search warrant on his room at the hotel. They located 18.67 grams of methylamphetamine, electronic scales and clear resealable plastic bags. The three discrete supplies totalling 10.5 grams constituted a “rolled up” charge in sequence 6 and the (deemed) supply of 18.67 grams of methylamphetamine was charged in sequence 5. On 7 December 2022, the applicant was arrested and charged with the drug offences.
Mr Duncan pleaded guilty in the Local Court and was entitled to, and ultimately received, a 25% discount from his sentence. There was a lengthy delay in sentencing which Judge Gallagher accepted resulted from the tardiness of the Prosecutor’s election to have the matter dealt with on indictment. As the sentencing Judge said, had there been no delay, the weapons and drug charges could have been dealt with by Judge Harris at the same time as the armed robbery offence. However, the proceedings on sentence were not conducted until 2 December 2024 and the case was adjourned for sentence on 6 February 2025.
The applicant has a criminal record dating back to 1993 when he was a child. His Children’s Court record included offences of assault and resisting police. His adult record includes several driving offences, drug offences, possession of prohibited weapons, goods in custody and one offence of dealing with proceeds of crime. In 2014, the applicant was sentenced to 9 years imprisonment with a 5 year and 5-month non-parole period for two armed robbery offences (with a third robbery offence taken into account in sentencing). After his release to parole in 2018, the applicant had ongoing brushes with the law and has been in and out of custody up until his arrest on 15 March 2022 in relation to the armed robbery offence.
Both of the weapons offences carried a maximum penalty of 14 years imprisonment with a standard non-parole period of 5 years while the drug offences each attracted a maximum penalty of 15 years imprisonment.
Judge Gallagher assessed each of the offences as falling below the mid-range of objective seriousness. Her Honour was satisfied that Mr Duncan’s moral culpability was reduced because he experienced “profound deprivation as a child” and suffered from post-traumatic stress disorder arising from him being sexually abused at school and exposed to domestic violence at home. Her Honour was not satisfied that the applicant had good prospects of rehabilitation but thought those prospects might improve if he engaged in drug treatment on release.
When he stood to be sentenced the applicant was serving the armed robbery sentence. Apart from the date of that offence (6 March 2022) and the charges themselves, Judge Gallagher was provided with very little information about the facts and circumstances of that offence. The armed robbery sentence (5 years and 9 months imprisonment, with a non-parole period of 3 years and 9 months) was imposed on 9 May 2023 and backdated to commence on 15 May 2022. The non-parole period expired on 14 February 2026.
For the drug and weapons offences, Judge Gallagher imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 4 months. After the application of the 25% discount for the early plea of guilty her Honour indicated the following individual prison sentences for the purpose of s 53A(2)(b) of the Sentencing Procedure Act:
Sequence 1 – 18 months imprisonment with a non-parole period of 12 months.
Sequence 2 – 14 months imprisonment with a non-parole period of 9 months and 2 weeks.
Sequence 5 – 2 years and 2 months imprisonment.
Sequence 6 – 20 months imprisonment.
The 4-year aggregate sentence included a healthy amount of notional accumulation, particularly in view of the temporal proximity between the weapons offences and the drug offences. In deciding on the non-parole period, her Honour found that there were special circumstances pursuant to s 44(2B) of the Sentencing Procedure Act and reduced what would have been a 3-year non-parole period to one of 2 years and 4 months.
Considering the nature of the weapons, the relatively small quantities of drugs involved and the extent of notional accumulation on the indicative sentences identified, the aggregate sentence was a severe one. However, there is no suggestion that it was excessive in all of the circumstances. Further, because of the commencement date of the sentence and the extent to which it is to be served concurrently with the armed robbery sentence, its total effect is to extend the applicant’s non-parole period by 6 months and his total effective sentence by 2 months.
After considering issues of totality, and noting the sequence of events between January 2022 (the weapons offences) and March 2022 (the armed robbery and drug offences), Judge Gallagher determined the aggregate sentence should commence on 14 April 2024. The non-parole period will expire on 13 August 2026 and the total sentence will expire on 13 April 2028.

As I have observed, the applicant was serving the armed robbery sentence when the sentence was imposed by Judge Gallagher. The armed robbery sentence in turn overlapped with an earlier 6-month sentence imposed at the Parramatta District Court following a successful sentence appeal. That fixed term was backdated and ordered to commence on 2 December 2021 and expire on 1 June 2022 although, as the facts of the present case demonstrate, Mr Duncan was at liberty during some of that period, at least until his arrest for the robbery on 15 March 2022. The commencement date was chosen to take into account the period of pre-sentence custody.
The slightly intricate chronology of the case leading to this 6-month sentence is as follows:
19 February 2020: The applicant was placed on a 2-year community correction order (“CCO”) by the Local Court in relation to offences including the possession of housebreaking implements. The CCO commenced on 19 February 2020 and was to expire on 18 February 2022. However, the applicant breached this order (including, it seems, by the commission of the present weapons offences).
3 March 2023: Upon proof of the breach, the CCO was revoked and the applicant was re-sentenced to an aggregate fixed term of 6 months imprisonment commencing on 12 May 2022 and expiring on 11 November 2022. As well as the offences to which the CCO related, this aggregate sentence also encompassed one count of goods in custody and two counts of possessing a prohibited drug.
8 May 2023: The District Court allowed in part an appeal against the sentence. The 6-month sentence was confirmed but it was ordered to commence on 2 December 2021 and expire on 1 June 2022.
The custodial record shows that the applicant was released from prison on 28 January 2021, returned to custody on 27 February 2022 but released on bail later that day. He was arrested for the armed robbery offence on 15 March 2022 and bail was refused. He has been in continuous custody since that date although, as the foregoing chronology shows, the 6-month fixed term sentence was backdated to a period during which he was at liberty. The sentencing for the armed robbery occurred on 9 May 2023, the day after the severity appeal against the 6-month fixed term. The applicant was arrested for the weapons offences on 25 January 2022 (the day of the offence) and released that day. He was not charged with the drug offences until 7 December 2022 (9 months after they were committed), by which time he was on remand for the armed robbery offence.

In view of the confined nature of the ground of appeal, it is worth making some observations about the impact of this sentence on the applicant’s overall custodial situation and the way in which it altered the ratio between the total period of custody and the period on parole:
The sentence is largely concurrent with the pre-existing armed robbery sentence. Of the 4-year aggregate sentence, 3 years and 10 months was ordered to be served concurrently with the armed robbery sentence. The expiry date of the total sentence was extended by 2 months (from 14 February 2028 to 13 April 2028).
However, the total non-parole period was increased by 6 months. The earliest release date was extended from 14 February 2026 until 13 August 2026.
The balance of term (or parole period) on the armed robbery sentence was 2 years. Upon the imposition of the aggregate sentence, the parole period was reduced by 4 months to 1 year and 8 months.
In relation to the armed robbery sentence, the non-parole period was around 65.2% of the total sentence.
In relation to the aggregate sentence imposed by Judge Gallagher, the non-parole period was about 58.3% of the total sentence.
Following the imposition of the aggregate sentence, the accumulated sentence became 5 years and 11 months (5 years, 10 months and 30 days) and the total effective non-parole period became 4 years and 3 months (4 years, 2 months and 30 days). The total effective non-parole period is 71.8% of the total accumulated sentence.
The applicant also drew the Court’s attention to the proportion of 73.8% which arises if one includes the complicating factor of the 6-month fixed term. Including that in the calculation increases the total effective sentence to 6 years, 4 months and 12 days and the total non-parole period to 4 years, 8 months and 12 days (73.8% of the total accumulated term). However, it is to be remembered that the applicant was not actually in custody on the date that sentence was ordered to commence.

Ms Roy also relied on the judgment of Beech-Jones CJ at CL (Yehia and Weinstein JJ agreeing) in Harris v R [2023] NSWCCA 44. His Honour said at [15] that, although there was “nothing to suggest any connection between the two sets of offences” it remained the case that “the applicant was still serving his existing sentence, [so] the necessity to consider imposing wholly or partially concurrent sentences on account of totality still pertains.” In that case, the question “reduced to whether or not it could be concluded that the sentencing judge considered or adverted to the fact that the effect of accumulating the sentences was that the ratio of the total effective non-parole period exceeded 75% of the total sentence”: Harris v R at [19].
The respondent submitted that the record of the proceedings in the District Court did not support the proposition that the sentencing Judge failed to advert to the practical effect of the accumulation. Reference was made to the explanation that Judge Gallagher provided to Mr Duncan at the conclusion of the remarks on sentence and to the simplicity of the accumulation with its obvious impact on the existing sentence and non-parole period. Counsel took the Court to cases where this Court has rejected similar arguments: see, for example, Islam v R [2020] NSWCCA 236 and Al Shamari v R [2025] NSWCCA 236. The respondent argued that the period of 1 year and 8 months on parole remains substantial and sufficient to serve the purpose for which the sentencing Judge made the finding of special circumstances. On the respondent’s submission, the Court could not infer on the record of proceedings that Judge Gallagher was not fully aware of the impact of the accumulation.
Counsel for both parties provided helpful analyses of a number of the authorities and agreed that, as in the case of Harris v R, the issue on the appeal reduces to the question of whether the Court is satisfied that the 4 month reduction in the parole period (and resultant increase in the percentage proportion of the non-parole period to the total sentence) was an inadvertent result of the accumulation of the sentences or whether, as the respondent submitted, her Honour must have been conscious of those matters.

The present case echoes a recurring theme running through many of the cases. That is, it is a case where the accumulation of the sentence has a natural impact on the structure of the sentence and on the ratio or proportion between the non-parole period and the total sentence. While some general principles can be stated, the application of those principles will turn on the facts of the case and what the sentencing judge communicates through their sentencing judgment or in explaining the sentence. A survey of the large body of authorities shows that there is some tension between the outcomes in some of the cases decided by this Court. However, on close examination, there is usually some subtle difference in the language employed by the primary judge, or in the arithmetic and structure of the sentence, which explains any apparent inconsistencies in the outcomes.
Rather than undertaking a comprehensive review, I will attempt to collect some general and established principles in short form:
Section 44 itself provides that unless there are “special circumstances” the additional term must not exceed one-third of the non-parole period (or, put the other way, the non-parole period must not be less than 75% of the total sentence).
Special circumstances ought not to be rigidly defined: see, for example, the lengthy discussion by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 at 710-719; [2001] NSWCCA 534 at [27]-[67].
The statutory duty to give reasons arises where the additional term exceeds one-third of the minimum term. There is no such statutory duty to give reasons where the non-parole period exceeds 75% of the total sentence: R v GDR (1994) 35 NSWLR 376 at 379.
However, and speaking generally, when the non-parole period exceeds 75% of the total sentence, the sentencing judge is expected to acknowledge that they are conscious of that outcome and the reason for diverging from what is sometimes called – rightly or wrongly – the “statutory ratio” or “statutory norm” (3:1 or 75%). See, for example, R v GDR at 379, McKittrick v R [2014] NSWCCA 128; (2014) 243 A Crim R 155 at [36]-[37] (Simpson J) and [154] (Adamson J) and GP v R**egina [2017] NSWCCA 200 at [17]-[21] (Hamill J).
Where the non-parole period exceeds 75% of the total sentence, or where the result of an accumulated sentence interferes significantly with the proportions of an existing sentence, “it is incumbent on a sentencing judge to consider or advert to the effect of accumulated sentences they may impose”: Lonsdale v R [2020] NSWCCA 267 at [65] and Sabongi v R at [85].
The accumulation of sentences, whether imposed at the same time or in separate proceedings, will often justify a finding of special circumstances in and of itself: R v Simpson (1992) 61 A Crim R 58 at 60-61, R v Close (1992) 31 NSWLR 743 at 748, Matthews v R [2014] NSWCCA 185 at [27] and R v Danishyar [2025] NSWCCA 46 at [8], [48]-[51]. This is because the accumulation will impact on the ratio between the total sentence and the non-parole period.
“Whenever sentences are accumulated, careful consideration must always be given to the principle of totality” and “in such circumstances, all of the sentences which are accumulated should usually be adjusted downwards in order to produce an acceptable total sentence”: R v Close at 748.
The question in such cases usually comes down to “whether the record of proceedings leads to an inference that the matter was considered or adverted to or not”: GP v R**egina at [22] adopted in Lonsdale v R at [65].
The “focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term, the actual periods involved are equally, ‘and probably more’ important”: see, for example, Al Shamari v R at [61] and [65]-[66] applying MD v R [2015] NSWCCA 37 at [41].
Where there is an existing term of imprisonment, the “sentencing judge is not required to perform a calculation to ascertain what proportion of the sum of the non-parole period and the period already spent in custody bore to the total term”: Lonsdale v R at [32]. Nevertheless, when such a calculation is made and acknowledged by the primary judge, it is easier to dispel any suggestion that any unusual proportion in those terms was the result of inadvertence.
Finally, questions of accumulation and concurrence, findings of special circumstances and the extent of any adjustment to the non-parole period are matters within the province and wide discretionary judgment of the sentencing judge.
The respondent argued that the authorities can be divided into cases where there was accumulation in a single sentencing exercise and those where a judge is accumulating upon an existing sentence. I am not satisfied that such a clear and strict dichotomy exists. Cases such as R v Close and R v LWP [2003] NSWCCA 215 do not support the view that there is any difference in principle between a series of sentences imposed at the same time and a sentence accumulated upon an existing sentence. In neither circumstance does s 44(2) of the Sentencing Procedure Act have any “direct application” (see Lonsdale v R at [65]) and the principle of totality applies equally in both situations. In both circumstances, the judge must be seen to “advert” to the impact of the accumulation and to determine the commencement date, and the extent of any adjustment to the non-parole period, by reference to the principle of totality. As the High Court explained in Mill v The Queen (1988) 166 CLR 59 at 66-67; [1988] HCA 70 at [16]:

It may have been preferable for her Honour to state plainly that she was aware that the proportion of the non-parole period to the head sentence would only be a little below 75%, an omission that sometimes leads this Court to intervene in such cases, and to acknowledge that the length of the potential period on parole was reduced by a few months as a result of the accumulation. However, it was not necessary for the sentencing Judge to do so in circumstances where her Honour’s explanation to the applicant included specifically the impact the sentence would have on the existing sentence.
On an examination of the whole of the record, I am not satisfied that Judge Gallagher failed to advert to the effect of the accumulation on the ratio between the non-parole period and the total sentence. Nor, in the particular circumstances, is it established that her Honour erroneously and unwittingly allowed the accumulation to nullify her finding of special circumstances. The record of the proceedings in the District Court does not establish that her Honour failed to give effect to her intentions by adjusting the structure of the sentence by reference to the special circumstances arising from the applicant’s need for an extended period of supervision because of his drug problems. The reduction in the parole period was relatively small and the effect of the accumulated sentence was to allow the applicant (subject to decisions of the State Parole Authority) a period of 1 year and 8 months on parole. I am satisfied that Judge Gallagher was conscious of these things and concluded that the length of parole was sufficient in the circumstances of the case. While the minds of sentencing judges may differ on that question, there was no legal error in her Honour reaching that conclusion.
For those reasons the single ground of appeal, while arguable and convincingly argued, is not established.
I would grant leave to appeal against the sentence but dismiss the appeal.
HUGGETT J: I agree with Hamill J.

Duncan v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

JUDGMENT

Relevant facts on sentence

The complicating, earlier 6-month fixed term

The impact of this sentence practically and arithmetically

The finding of special circumstances and the thrust of the parties’ arguments under the sole ground of appeal

Consideration and determination

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (3)