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[2025] NSWCCA 86
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-06-06
Adamson JA at [1]Dhanji J at [2]Weinstein J at [76]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Wilson v R [2025] NSWCCA 86
Hearing dates: 12 May 2025
Date of orders: 6 June 2025
Decision date: 06 June 2025
Before: Adamson JA at [1]
Dhanji J at [2]
Weinstein J at [76]
Decision: (1) Leave to appeal is granted.
(2) The appeal is dismissed.
Catchwords: CRIME – appeals – appeal against sentence – offence of supply prohibited drug not less than commercial quantity – offence of deal with property reasonably suspected to be proceeds of crime – self-represented applicant – complaints with respect to backdating, cumulation, parity – further issues – manifest excess – failure to specify non-parole period in indicative sentence for offence with standard non-parole period – grounds of appeal not established – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 193C(2)
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24(a), 25D, 44(2C), 47, 53A(2)(b), 54B(4), 54B(7), 101A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), 29
Cases Cited: Afu v R [2017] NSWCCA 246
Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
Clarke v R [2013] NSWCCA 260
Daw v R [2017] NSWCCA 327
Elmir v R [2023] NSWCCA 260
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Ibrahim v R [2022] NSWCCA 161; (2022) 371 FLR 30
Jones v Stephens (Supreme Court (NSW), McInerney J, 8 October 1985, unrep)
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kitson v R [2022] NSWCCA 166; (2022) 300 A Crim R 469
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
MO v R [2023] NSWCCA 26
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Parris v R [2013] NSWCCA 5
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v English [2000] NSWCCA 245
R v Farrugia [2022] NSWCCA 98
R v McHugh (1985) 1 NSWLR 588
R v Tuncbilek [2004] NSWCCA 139
R v Wahabzadah [2001] NSWCCA 253
R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
See v R [2020] NSWCCA 272
Smith (a pseudonym) v R [2022] NSWCCA 123
Tatana v R [2006] NSWCCA 398
Tuesley v R [2021] NSWCCA 58
ZZ v R [2024] NSWCCA 25
Category: Principal judgment
Parties: Christopher Steven Wilson (Applicant)
Rex (Respondent)
Representation: Counsel:
Self-represented (Applicant)
A Isaacs (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00363071
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant, Christopher Steven Wilson, who was self-represented, sought leave to appeal against the aggregate sentence imposed on him by McGuire SC DCJ of 2 years imprisonment with a non-parole period of 1 year and 2 months, commencing on 17 June 2023. The applicant was sentenced in relation to one count of supply prohibited drug not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“commercial supply offence”) and one count of deal with property reasonably suspected to be the proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW) (“proceeds offence”).
The applicant raised three grounds of appeal. Ground 1 contended that the sentencing judge could have backdated his sentence by up to 199 days. Ground 2 contended that the indicative sentences could have been set so that they ran concurrently. Ground 3 was a complaint of parity with respect to the indicative sentence nominated for the applicant’s commercial supply offence.
While not specifically raised as a ground of appeal, the applicant in his submissions complained that the sentence nominated in relation to the proceeds offence was excessive. Another issue arising, which was not averted to by the parties, was that the sentencing judge failed to specify a non-parole period for the commercial supply offence, which was subject to a standard non-parole period.
Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 applied.
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 considered, Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 applied, R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 cited.
R v Wahabzadah [2001] NSWCCA 253, Tatana v R [2006] NSWCCA 398 and R v Farrugia [2022] NSWCCA 98 cited.
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 and He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 cited.
R v Tuncbilek [2004] NSWCCA 139 and Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550 cited.
Ibbotson (a pseudonym) v R [2020] NSWCCA 92 considered, Tuesley v R [2021] NSWCCA 58 and See v R [2020] NSWCCA 272 cited, Benn v R applied.
ADAMSON JA: I agree with the orders proposed by Dhanji J and, with one exception, with his Honour’s reasons. I would prefer not to express a view about the potential consequence of a sentencing judge omitting to specify a non-parole period in respect of an offence for which a standard non-parole period was specified ([64]-[74] of Dhanji J’s reasons) as this question was not the subject of argument in the present appeal.
DHANJI J: The applicant, who is self-represented, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him in the District Court of New South Wales at Sydney on 12 April 2024 by his Honour Judge McGuire SC.
The applicant was sentenced with respect to the following offences:
Sequence 2: Supply prohibited drug, not less than the commercial quantity, being 409.9 grams of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”) (“commercial supply offence”).
Sequence 5: Deal with property reasonably suspected to be the proceeds of crime, being $5,940.00 of Australian currency, contrary to s 193C(2) of the Crimes Act 1900 (NSW) (“proceeds offence”).
The applicant was sentenced to an aggregate sentence of 2 years imprisonment commencing on 17 June 2023 and expiring on 16 June 2025, with a non-parole period of 1 year and 2 months, which expired on 16 August 2024.
The maximum penalty applicable to the commercial supply offence was a fine of $385,000 and/or imprisonment for 20 years. A standard non-parole period of 10 years is prescribed. The maximum penalty for an offence against s 193C(2) of the Crimes Act is imprisonment for 3 years. The proceeds offence had, however, been referred to the District Court as a related offence pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). As a result, the jurisdictional limit applicable in the Local Court of 2 years imprisonment applied.
Indicative sentences for each of the two offences were specified in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). The applicant was afforded a discount of 25 percent with respect to each offence for his early plea of guilty pursuant to s 25D of the CSPA. Following the application of the discount, the indicative sentences nominated were, for the commercial supply offence, 1 year and 10 months imprisonment, and for the proceeds offence, 4 months imprisonment.
The grounds of appeal on which the applicant seeks to rely are as follows:
“1. Could [have] been backdated up to 199 days
- Both sentences could [have been set so they] ran concurrent[ly]
- It was agreed that I was the least serious of the 4 co offenders and I should [have received] less of a sentence than [one of those co-offenders who received a sentence of] 1 y 10m”
“In about July 2021 the New South Wales Police commenced investigating a group of people involved in the suspected supply of prohibited drugs throughout greater Sydney and in the Newcastle area. That group included Asaad Alahmad, Trent Jeske, and Abraham Zreika.
On 3 April 2022 authorities intercepted communication between members of the group that indicate that the group, acting pursuant to a joint criminal enterprise, had agreed to supply a quantity of methylamphetamine to the [applicant] in the Newcastle area. Telephone records indicate that on that same day, 3 April 2022, Abraham Zreika travelled from Sydney to the Newcastle area and he supplied to the [applicant] a quantity of methylamphetamine being not less than 409.9 grams.
The agreed facts indicate that a number of unanswered calls were made by members of the group to the [applicant] on 9 April 2022 and 10 April 2022. A recording made by a police surveillance device recorded a conversation between Trent Jeske and his mother, during which Mr Jeske indicated that he was angry with the [applicant] because he had disappeared for a period of days and was concerned that the [applicant] had ripped him off. The recorded conversation includes Jeske saying, ‘He’s fucking smoking my gear...I’m gonna kick his little head in.’ It was agreed that the references in this conversation were to concerns that the [applicant] was consuming part of the methylamphetamine that had been supplied to him instead of onselling it and had fallen out of telephone communication with the co-offenders.
The co-offender Jeske then travelled to the Newcastle area, retrieved the methylamphetamine from the [applicant] and hid it in a motor vehicle. When that vehicle was subsequently searched the police located and seized the methylamphetamine, which was later analysed and determined to be 409.9 grams of methylamphetamine with a purity of 76%.
About two months after the seizure by the police the [applicant] attended the Raymond Terrace Police Station, where he was questioned in relation to the present offences. A search warrant was then executed at the house of the [applicant]’s mother, where the police located a bundle of $5,940 in cash under a mattress in one of the bedrooms.”
The proceedings on sentence took place on 4 March 2024. Both parties provided written submissions and made oral submissions to the Court.
The Crown tendered a bundle comprising, amongst other things, the agreed facts, the applicant’s NSW criminal history, documents relating to the applicant’s breach of parole and a sentencing assessment report dated 26 February 2024. Tendered on behalf of the applicant was a letter from Don Cameron & Associates dated 15 November 2023 and handwritten letters authored by the applicant dated 7 August 2023 and 13 October 2023.
The applicant gave evidence during the sentencing proceedings and was cross-examined.
The sentencing exercise was complicated as a result of the applicant’s recent custodial history.
The applicant was arrested in relation to the current offences on 1 December 2022 and remained in custody from that date. At the time of his arrest, he was on parole in relation to an aggregate sentence of 2 years imprisonment with a non-parole period of 10 months, commencing on 30 December 2020, for offences of assault occasioning actual bodily harm and intimidation. That sentence was imposed by the Newcastle District Court on 6 July 2021 (following the applicant’s successful appeal from the sentence imposed on him in the Local Court). The applicant’s parole was revoked with the result that, from the date of his arrest on 1 December 2022 until 29 December 2022, the applicant was also serving the balance of parole with respect to this sentence.
The applicant was also before the Newcastle District Court on 9 December 2022 when he received an aggregate sentence of 2 years and 6 months with a non-parole period of 1 year and 3 months, commencing on 18 March 2022. That sentence related to offences of aggravated enter dwelling with intent (with two offences of assault on a Form 1), assault occasioning actual bodily harm and two offences of breaching an apprehended domestic violence order. It should be noted that this sentence was backdated to a date when the applicant was not in custody, presumably referable to earlier pre-sentence custody. (That backdating had the result that the sentence covered the period over which the present charges were committed.) The applicant’s non-parole period in relation to this sentence expired on 17 June 2023. He was, however, not released to parole as a result of the present matters. As the sentence was less than 3 years, the applicant would have been entitled to be released to parole had he not been in custody in relation to the present offences: Crimes (Administration of Sentences) Act 1999 (NSW), s 158.
The above history is set out in the following graph:
The sentencing judge took into account the authorities that indicate sentences for drug supply offences should reflect the need for general deterrence and give effect to the lengthy maximum penalties prescribed for such offences: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284. His Honour also acknowledged that general deterrence and punishment are significant considerations in sentencing offenders for drug supply offences and will generally outweigh subjective circumstances: Parris v R [2013] NSWCCA 5 at [35].
His Honour found that the objective seriousness of the commercial supply offence fell below the mid-range of offences of that type and that the proceeds offence fell towards the lowest end of the range. In doing so, his Honour took into account the following considerations:
“In relation to the drug supply count the quantity of methylamphetamine, namely 409.9 grams, is towards the upper limit of the commercial quantity applicable to that type of drug and over 1.6 times the commercial quantity for that drug. However, I also take into account the [applicant]’s evidence, which I accept, that he had no intention of selling the drugs but instead intended on consuming them. In this case there is no evidence of actual supply of drugs by the [applicant] and there is no evidence of any financial reward paid to him once they had come into his possession. I also take into account that the other co-offenders, who form part of the organised group, engaged in objectively more serious conduct than the [applicant], who appears to be at the bottom of the proposed supply chain.
However, the authorities establish that those who engage in drug supply networks, at any level, require denunciation by significant deterrent sentences: R v Shi [2004] NSWCCA 135 at [34]. Without the involvement of those engaged in physical tasks, such as couriers, warehousemen and possessors, illicit drug supply networks would collapse.
Here, although the drugs were retrieved by the authorities prior to any dissemination by the [applicant], that does not mean that the [applicant]’s moral culpability is reduced: AB v R [2013] NSWCCA 273 at [92].
I also take into account that, although addiction to drugs is not, itself, a matter of mitigation on sentence, the fact that a particular offence may be motivated by such a need can be taken into account as a factor relevant to the objective criminality of the offence, insofar as it may throw light on the impulsivity of the conduct and the non-existence of any alternative reason including any financial motivation, to have committed the offence: R v Henry (1999) 46 NSWLR 346 at [273]. I take the [applicant]’s addiction to drugs into account in that manner in the circumstances of this case. Accordingly, I find that the sequence 2 offence, being the drug supply offence, falls below the mid-range of objective seriousness for offences of that type.
In relation to the proceeds of crime offence (sequence 5), as was requested by both counsel, I intend to disregard the [applicant]’s evidence that he did not know that that money existed. I rely on the assurances made by counsel for the [applicant] that his client acknowledged the elements of the offence, had provided instructions in writing that he accepted responsibility for the offence and wished to be sentenced for it. In light of those submissions, I do not consider that the [applicant] has traversed his plea to that count.
In light of the circumstances relating to, and the amount of cash involved in sequence 5, I find that the objective seriousness of the proceeds of crime offence is towards the lowest end of the range of objective seriousness for offences of that type.”
“The offences were committed while the offender was on conditional liberty, s 21A(2)(j).”
His Honour found that the applicant’s conduct in relation to the commercial supply offence was not sophisticated nor planned. Additionally, his Honour found that while the applicant had a criminal history which involved offences of violence and road traffic offending, it was not such as to warrant an increase in the sentence, but was instead to be taken into account as disentitling the applicant to the leniency that he would otherwise have been allowed.
The sentencing judge, by reference to s 21A(3) of the CSPA, found that the applicant had expressed remorse (s 21A(3)(i)), despite having indicated in the proceedings that such a finding would be precluded in relation to the proceeds offence as a result of the applicant’s evidence denying possession of the money. His Honour found the applicant had “some prospects of rehabilitation (s 21A(3)(h))” but referred to those prospects as “guarded”, having regard to the “early and tentative steps” that the applicant had taken on his path to recovery, together with the applicant’s community support, desire to maintain a positive relationship with his young daughter, the offers he had received to return to his previous employment as a concreter and his desire to continue on the road to recovery.
His Honour found that the principles articulated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 reduced the applicant’s moral culpability and moderated the significance of the need for general and specific deterrence in the circumstances. His Honour highlighted the difficult circumstances of the applicant’s childhood:
“The subjective material tendered on behalf of the [applicant] establishes a degree of deprived and difficult circumstances of the [applicant]’s childhood. In addition, the material establishes that the [applicant] was introduced to methylamphetamine at a very early age by a family member, his uncle, and was the subject of childhood trauma at the hands of his stepfather and a schoolteacher.
…
I accept that the evidence in this case establishes that the [applicant] experienced a childhood of some disadvantage and deprivation and that the disadvantaged background had a bearing on the deterioration of his ability to lead a law-abiding life and his descension into drug usage.”
The sentencing judge considered the period that the applicant had spent in pre-sentence custody, that being from 1 December 2022 until the date of sentencing, 12 April 2024, and proposed to backdate the sentence to commence on 17 June 2023. The sentencing judge noted that, in this respect, there was a need for some cumulation to take into account the additional criminality involved. When backdating the applicant’s sentence, his Honour (erroneously) proceeded on the basis that s 47(5) of the CSPA constrained his sentencing discretion, with the effect that 17 June 2023 was the latest possible start date for any sentence imposed.
The sentencing judge considered that a degree of “cumulation” of the indicative sentences was necessary, applying Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.
The sentencing judge had regard to the principle of parity with respect to the sentences imposed on the applicant’s co-offenders. This issue is discussed further in the context of the applicant’s grounds of appeal.
The sentencing judge found special circumstances on the basis of the applicant’s guilty plea, his relatively young age, the recent and positive steps he had taken towards addressing his drug dependency issues and his strong pro-social support. Accordingly, his Honour indicated that he would adjust the usual ratio between the head sentence and the non-parole period to reflect that finding.
The applicant represented himself at the hearing. He set out three grounds of appeal, as extracted above. He provided a short outline of submissions filed on 11 February 2025, together with his grounds. He subsequently filed a more detailed written argument titled “final submissions” on 3 April 2025. Subsequent to receiving the respondent’s submissions which were filed on 30 April 2025, the applicant filed a three-page reply.
It is plain from the written and oral submissions that the applicant is highly motivated to return to the community and lead a law abiding life. He clearly put a great deal of thought into his submissions. His submissions before the Court were respectful and to the point. The applicant’s approach to the appeal was such as to engender some confidence in his ability to rehabilitate himself. The nature of an appeal to this Court has, however, been restated many times. It does not allow for a second presentation of the applicant’s case: see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. Rather, some proper basis for this Court’s intervention must be shown. It is necessary then to turn to the applicant’s grounds of appeal to determine if any such basis is established in the present case.
As set out above, the applicant was arrested on 1 December 2022 and remained in custody from that date. As a result, the applicant had been in custody for a total of 499 days by the time he came to be sentenced on 12 April 2024.
The applicant was not, as at the date on which he was sentenced, serving the non-parole period of any other sentence. As a result, the latest date on which the sentence could commence was the date on which it was imposed: s 47(4) and (5), CSPA.
In deciding whether the sentence should commence on some date earlier than the date on which the sentence was imposed, the sentencing judge was required to take into account “any time for which the [applicant had] been held in custody in relation to the offence”: s 24(a) CSPA. As noted above, the applicant had been held in custody in relation to the offence from 1 December 2022.
However, the applicant’s custody from that date was not solely referable to the present matters. As represented in the graph at [16], from 1 December to 29 December 2022, the applicant was serving the balance of parole in relation to an earlier offence. The applicant was also serving the non-parole period of another sentence, of 2 years and 6 months imprisonment with a non-parole period of 1 year and 3 months, commencing on 18 March 2022. The present sentence was ordered to commence at the expiry of that earlier non-parole period.
Had the applicant’s custody from the date of his arrest been solely referable to the present matters, he could have expected his sentence to date from the date of his arrest: R v McHugh (1985) 1 NSWLR 588; R v English [2000] NSWCCA 245. Where, as here, an offender’s custody is referable both to the present offences and the earlier sentences, a sentencing judge has a broad discretion as to whether to backdate a sentence, and if so, the extent to which it should be backdated: see Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145. In the present matter, the sentencing judge was entitled to commence the sentence at the date on which he did.
While the sentence the subject of this appeal commenced on the date on which the applicant would otherwise have been entitled to be released to parole, it is not irrelevant that the entirety of the non-parole period of the present sentence was set so as to run concurrently with the parole period of the sentence imposed by the Newcastle District Court in December 2022. That was, in part, owing to the finding of special circumstances in relation to that sentence, with the result that the non-parole period was set at 50 percent of the total sentence. Indeed, on the applicant’s release to parole on 16 August 2024 with respect to the current sentence, he was still subject to parole with respect to the earlier sentence, demonstrating the significant overlap in the sentences, albeit with respect to the parole period rather than any period of mandatory custody.
Nor is it irrelevant that the offences resulting in the present sentence were committed whilst the applicant was on bail with respect to the offences which led to the Newcastle District Court sentence imposed in December 2022. Ultimately, the sentencing judge was required to set a commencement date that had proper regard to the applicant’s circumstances, including any previous sentences imposed. In making this determination, his Honour was erroneously informed that the latest date on which the sentence could commence was 17 June 2023. This was based on a misunderstanding of s 47(5) of the CSPA (as s 47(2)(b) is only concerned with setting a date after the date of sentence). This error was in the applicant’s favour. It has not otherwise been shown that the sentencing judge made any error of principle or fact in determining the commencement date, or that that date was otherwise unreasonable. In short, the commencement date set by his Honour was open to him in the exercise of his discretion. No error has been shown and this ground must, in my view, be dismissed.
The applicant argues that the aggregate sentence ultimately imposed could have been of the same length as the indicative sentence nominated for the commercial supply offence, that is, 1 year and 10 months. In other words, the sentence could have been set such that the proceeds offence resulted in no additional penalty.
The applicant’s complaint is essentially one based on the principle of totality, which is concerned with the relationship between the total sentence and its component parts. While the sentence ultimately imposed was a single aggregate sentence, its determination was based on the indicative sentences nominated for each of the individual offences. The sentencing judge (effectively) cumulated the indicative sentences by two months. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Bell and Keane JJ said (at [37]):
“Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The [CSPA] does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary. The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant’s offending behaviour. As the Court of Criminal Appeal correctly said, the question of concurrency or partial accumulation required consideration of whether the sentence for the manslaughter offence could encompass the criminality of both offences.” (footnotes omitted)
The question has also been expressed in terms of whether the overall sentence is sufficient to comprehend the total criminality of the offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. See also R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52].
Whilst the applicant may have been arrested in relation to both offences at the same time, and there was arguably some relationship between the offences, the criminality encompassed in each was distinct. The criminality involved in the commercial supply offence was in the applicant’s possession of the drug for the purposes of supply, a matter further elaborated below in the context of ground 3. The criminality involved in the proceeds offence was the applicant’s possession of the money which was reasonably suspected of being stolen or otherwise unlawfully obtained. Even if the view was taken (contrary to the applicant’s case) that the money could reasonably be suspected of being proceeds from the supply of drugs that the applicant had received from his co-offenders, those proceeds would have been the product of drugs which had already been supplied, which were distinct from what was found in the applicant’s possession for the purposes of the commercial supply offence. On the applicant’s case, there was no relationship between the offences at all, he denying possession of the money, albeit accepting that this denial must necessarily be rejected as it was inconsistent with his plea.
I am of the view that it was open to his Honour to set the aggregate sentence such that it was two months longer than the indicative sentence for the commercial supply offence, in order to comprehend the criminality involved in both offences. No error has been demonstrated and this ground must be dismissed.
Three other offenders were convicted and sentenced in relation to the drugs the subject of the commercial supply charge against the applicant. Those offenders were responsible for the supply of drugs to the applicant (and their retrieval from the applicant). It was accepted that they were to be treated as co-offenders for the purposes of the application of the parity principle.
In Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26, Dawson and Gaudron JJ said that “[e]qual justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them”.
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ said (at [28]-[29] and [31]):
“28 ‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order’. It has been called ‘the starting point of all other liberties’. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’
(Emphasis in original.)
Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
29 General concepts of ‘systematic fairness’ and ‘reasonable consistency’ in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is ‘consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.’ That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of ‘co-offenders’, albeit the limits of that term have not been defined with precision.
…
31 Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: ‘the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.’ The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” (footnotes omitted)
| Offender | Charges Pleaded Guilty to | Age / Priors / Discount | Sentence Details | Sentence | | Asaad ALAHMAD | 2 x Supply CQ Prohibited Drug (methylamphetamine) 1 x Knowingly Deal with Proceeds of Crime FORM 1: 1 x Deal with Suspected Proceeds of Crime 1 x Direct Criminal Group 1 x Affray (Accessory Before the Fact) | 28-29 years of age at time of offences Road Traffic Offence Priors, Affray, Common Assault, Prohibited Drug Possession 25% Discount for Plea of Guilty | Sentenced by Beckett DCJ on 20 February 2024 | AGGREGATE SENTENCE: 3 years 6 months, NPP of 2 years 2 months Indicative Sentence for Supply to WILSON (with 2 Form 1 charges): 3 years, 2 months, NPP 2 years | | Trent JESKE | 2 x Supply CQ Prohibited Drug (methylamphetamine) FORM 1 1 x Deal with Suspected Proceeds of Crime | 24-25 years of age at time of offences Supply (Indictable Quantity), Possess Firearm, Affray – on bail at time of offences 25% Discount for Plea of Guilty | Sentenced by Beckett DCJ on 20 February 2024 | AGGREGATE SENTENCE: 2 years 6 months, NPP of 20 months Indicative Sentence for Supply to WILSON (with Form 1 charge): 2 years, 4 months NPP 18 months | | Abraham ZREIKA | 2 x Supply CQ Prohibited Drug (methylamphetamine) 1 x Possess Offensive Weapon with Intent to Commit Indictable Offence FORM 1 1 x Possess Prohibited Drug 1 x Possess Restricted Substance 1 x Knowingly Deal with Proceeds of Crime 1 x Participate in Criminal Group 1 x Deal with Suspected Proceeds of Crime 1 x Possess Ammunition | 20-21 years of age at time of offences Road Traffic Offence Priors 25% Discount for Plea of Guilty | Sentenced by Colefax DCJ on 15 December 2023 | AGGREGATE SENTENCE: 3 years, NPP of 18 months Indicative Sentence for Supply to WILSON (with 3 Form 1 charges): 1 year, 10 months, NPP 11 months |
Some understanding of the role of the applicant’s co-offenders could also be gleaned from the agreed facts tendered by the Crown.
I pause to note that the sentencing judge was not provided with the remarks on sentence for any of the applicant’s co-offenders, nor any of the material tendered in their respective cases. Nor was any attempt made to provide that material to this Court. The absence of that material limited the capacity of the sentencing judge, and in turn this Court, to compare the circumstances relevant to the various sentences that were imposed. I have paused to consider whether this Court should have that material. That question, at one level, involves another question as to the nature of an appeal based on parity, and in particular, whether the court is concerned with the establishment of error, or simply the question of the presence of a justifiable sense of grievance.
In Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Gibbs CJ (at 609-610) and Mason J (at 611) were explicit in rejecting the notion that disparity was a species of error. Dawson J was less explicit, at one point stating that the difference between the sentences must be “manifestly excessive”. Other aspects of Dawson J’s reasons however support the proposition that intervention is not error based, such as his Honour’s reference (at 625) to the adjustment made by the Court of Criminal Appeal in that case being to “diminish disparity … rather than to correct the sentence because it was otherwise inappropriate”. Wilson J (at 616) agreed with Gibbs CJ and Dawson J, providing a clear majority for the views of Gibbs CJ and Mason J. Brennan J, perhaps in contrast, spoke of the disparity disclosing an “error” (at 617-618). In Green v The Queen; Quinn v The Queen, the plurality spoke of disparity being “appealable error” (at [32]), however in the same paragraph said that “[i]t is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself” (footnotes omitted).
By way of contrast, see Daw v R [2017] NSWCCA 327 at [10]-[23] per Basten JA where his Honour expressed the view that, at least where the question of parity has been considered at first instance, error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 must be established. That approach was approved in MO v R [2023] NSWCCA 26 at [102] per Bell CJ (Davies and Fagan JJ agreeing). See also Afu v R [2017] NSWCCA 246 at [15] and Smith. Cf Kitson v R [2022] NSWCCA 166; (2022) 300 A Crim R 469 at [52].
It is, in my view, unnecessary to consider this question further in order to determine the material to which this Court should refer for the purposes of resolving the applicant’s complaint. That is because the issue is to be decided at a more fundamental level. The applicant was represented at sentence. No objection was raised to the tender of the table. No complaint was made as to the absence of any further material in relation to the sentences imposed on the co-offenders. Nor was any attempt made to put that material before this Court. In these circumstances, this Court should proceed on the basis that a forensic decision was made by the applicant to proceed based on the material tendered. It is not for this Court to go behind that forensic decision.
The applicant’s complaint is raised solely by reference to his co-offender, Mr Zreika. As can be seen from the table, Mr Zreika received an aggregate sentence of 3 years for a number of offences. Critically, however, in relation to Mr Zreika’s commercial supply offence, a sentence of 1 year and 10 months with a non-parole period of 11 months would have been imposed, had an aggregate sentence not been set.
It is true, as the applicant submits, that the sentencing judge found the objective gravity of the applicant’s offending to be less than that of his co-offenders. The applicant complains that in those circumstances, he should have received a lesser sentence than that nominated with respect to Mr Zreika.
While the sentencing judge assessed the applicant’s offending to be objectively less serious than that of Mr Zreika, there were significant differences in their subjective cases. As the authorities referred to above indicate, all differences and similarities relevant to the sentences imposed on each offender must be put in the balance when weighing the sentence imposed on one offender against another. Mr Zreika, at “20 to 21 years old”, was significantly younger than the applicant. He had a criminal history limited to traffic offences. In those circumstances, he was entitled to a greater focus on rehabilitation and a degree of leniency to which the applicant was not. Further, the applicant was subject to the aggravating feature that his offence was committed whilst he was on conditional liberty. Those differences alone are, in my view, capable of counterbalancing any difference in the objective case in favour of the applicant.
There is an additional factor which is relevant. The applicant gave evidence that he was in possession of the drug with the intention of consuming it himself in order to sustain his addiction. The sentencing judge sentenced him on this basis. This was inconsistent with his guilt. The applicant was found to be in possession of the drug. He was, however, charged, not with possession, but with supply of a prohibited drug contrary to s 25(2) of the DMTA. There was no evidence of any actual supply. The prosecution case was clearly dependent on the extended definition of supply in s 3 of the DMTA to include “keeping or having in possession for supply”. While the prosecution was entitled to rely on the applicant’s possession of an amount in excess of the “traffickable quantity” such that its possession was deemed to be for the purposes of supply pursuant to s 29 of the DMTA, this did not change the nature of the charge. Had the applicant wished to, it was open to him to defend the charge on the basis that he was in possession of the drug other than for the purposes of supply (such as for his personal use), the onus being on him to establish this on the balance of probabilities in accordance with s 29.
The above error was one which benefited the applicant both at the stage of the assessment of the objective seriousness of the offence and at the stage of parity. There was no doubt that the applicant was himself a drug user. Had the applicant’s offence been properly understood, he was likely to have been regarded as a small-time dealer, supplying to end-users and consuming some of the drug himself. That some of the drug was intended to be consumed by him was not inconsistent with him being in possession of the drug for the purposes of supply: see Jones v Stephens (Supreme Court (NSW), McInerney J, 8 October 1985, unrep) and more recently ZZ v R [2024] NSWCCA 25 at [40].
While Mr Zreika appears to have been engaged in a serious organised criminal enterprise, his role appears to have been limited to transporting the drugs, making him something more in the nature of a courier. Were the applicant sentenced on the basis that he was in possession of the drug for the purposes of supply (as he should have been) it might be doubted that his criminality would be assessed as objectively less serious than that of Mr Zreika, or at least differentiated to the same degree.
The applicant, by reference to Mr Zreika’s sentence, also raises a complaint with respect to his non-parole period. He compares the non-parole period of 11 months nominated in the context of Mr Zreika’s indicative sentence, with his own non-parole period of 14 months. The applicant reasons that, as he was found to be “on par” with Mr Zreika, and as Mr Zreika’s indicative sentence was expressed as having a non-parole period of 11 months, an extra three months was added to his non-parole period as a result of the proceeds offence. He further reasons that that additional three months represents 75 percent of the indicative sentence for the proceeds offence which, in turn, is indicative of error as it fails to reflect the sentencing judge’s finding of special circumstances, at least insofar as it applied to that offence.
The non-parole periods of sentences are relevant for the purposes of parity, but that is not to say that direct comparison is appropriate. Differentiation in non-parole periods may be justified by the particular circumstances of each offender and the manner in which those circumstances feed into the determination of the non-parole period: see R v Wahabzadah [2001] NSWCCA 253 at [15]-[16], Tatana v R [2006] NSWCCA 398 and more recently R v Farrugia [2022] NSWCCA 98 at [21]. To take an obvious example, where special circumstances are found in favour of one offender solely on the basis of the impact of cumulation between the sentence for the common offence and sentences imposed for other offences, a co-offender sentenced on the common offence alone could not, without more, argue for direct parity with the non-parole period imposed, even if the same head sentence for the common offence was considered appropriate.
The assumption made by the applicant that the non-parole period in relation to his commercial supply offence, which was not specified (a matter to which I return below), was necessarily to be the same as that indicated in the case of Mr Zreika is not sound. While the same sentencing considerations relevant to the determination of the head sentence apply in determining the non-parole period, those considerations will be given different weight. In the case of Mr Zreika, his age and relative lack of criminal history were likely to result in a more generous finding of special circumstances. While, ultimately, special circumstances were found in the applicant’s case and applied to the aggregate sentence, it did not follow that the ratio would necessarily have been the same as that applied in favour of Mr Zreika.
There is, in my view, no foundation for the applicant’s complaint based on parity.
While not specifically raised as a ground of appeal, the applicant in his submissions raised a complaint that the sentence nominated in relation to the proceeds offence was excessive. It is unnecessary to consider whether an indicative sentence is amenable to a complaint of manifest excess in the present instance. That is because the indicative sentence, had it been imposed as an actual sentence, would not have been excessive.
A summary of the principles to be applied in a complaint of manifest excess was set out by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] and elaborated upon more recently by Bell P in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42] (Gleeson and McCallum JJA agreeing, McCallum JA in separate reasons). It is unnecessary to repeat those well-established principles here. It suffices to say that there is no single correct sentence for an offence. That a lesser sentence could have been imposed will not establish error.
The maximum penalty available for the offence was three years. The applicant was entitled to a 25 percent discount, with the result that the starting point was something over five months. Objectively, it was not the most serious offending having regard, primarily, to the amount of money involved and noting that there is no upper limit to the value of the property covered by the offence provision. Against that, it was accepted that the applicant, in denying possession of the money, had not provided any explanation mitigating the offence, nor shown any remorse. When coupled with the commission of the offence being in breach of his conditional liberty and his disentitlement to leniency based on his prior record, the sentence was, in my view, within the available range.
As noted above, the commercial supply offence was subject to a standard non-parole period of 10 years. Even though his Honour was imposing an aggregate sentence, he was required to specify a non-parole period in relation to this offence: s 54B(4), s 44(2C), CSPA.
Whilst his Honour’s failure to nominate a non-parole period for the indicative sentence where a standard non-parole period applied did not, by operation of s 54B(7), invalidate the sentence, that provision does not preclude a finding of error: s 101A CSPA, and see R v Tuncbilek [2004] NSWCCA 139 at [33]; Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550 at [148].
While the sentencing judge erred in his failure to comply with the dictate in s 54B(4), it does not automatically follow that that error impacted on the sentencing discretion such that his Honour’s exercise of the discretion was vitiated and must, as a result, be re-exercised by this Court: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
In Ibbotson (a pseudonym) v R [2020] NSWCCA 92, Leeming JA said (at [18]):
“… the failure to specify a non-parole period for the “indicative” sentences can have no effect upon the ultimate aggregate sentence which was imposed in the present case. Indeed, I struggle to think of any case where it is at all likely that the power to impose an aggregate sentence would be exercised where it could make any difference.”
“I am unable to see how a failure to state the non-parole period on an indicative sentence has the capacity to influence the aggregate sentence imposed. The applicant did not rely upon any decision in which it has been found that such an error is amenable to intervention by this Court.”
Rothman J, dissenting, found that the error required the Court to re-sentence the applicant.
Ibbotson has since been cited with approval, resulting in the dismissal of grounds of appeal based on the failure to specify a non-parole period for an indicative sentence for an offence with a standard non-parole period: see eg, Tuesley v R [2021] NSWCCA 58 at [68] per Davies J (Hoeben CJ at CL and Fagan J agreeing) and See v R [2020] NSWCCA 272 per Harrison J (Hoeben CJ at CL and Bellew J agreeing).
I am not of the view that the failure to indicate a non-parole period for a standard non-parole period offence could never, or even necessarily rarely, result in an error requiring this Court to resentence. It follows that I would not state the matter as emphatically as Leeming JA and N Adams J did in Ibbotson. In my view, a failure to state the non-parole period for a standard non-parole period offence may reflect, or result in, a failure to advert to the non-parole period that might have been imposed, had individual sentences been imposed. It is to be borne in mind in this context that, as Leeming JA pointed out in Ibbotson (at [9]), “the court’s decision to exercise the power to impose an aggregate sentence should not alter the outcome”. Such a failure may have the capacity to impact on the total sentence imposed, given the limitation in s 47(4) of the CSPA which does not allow a sentence to be served consecutively to commence later than the date of the expiry of the preceding non-parole period.
By way of example if, for two offences, indicative sentences of 12 years imprisonment were nominated, and an aggregate sentence of 22 years was imposed, it would be difficult, without some explanation in the reasons, to escape the conclusion that the failure to advert to the non-parole periods that would have been set, had individual sentences been imposed, had the capacity to (and in fact did) impact the outcome. That is because in the absence of some explanation, non-parole periods set at three-quarters of the head sentence would be expected. If, as a result, a non-parole period of 9 years was set, even if the second sentence was made fully cumulative to the first, the total would be 21 years. The same conclusion is, of course, likely to result, whether the offences bore standard non-parole periods or not. But, nonetheless, where standard non-parole period offences are involved it could not, in my view, be said that the failure to comply with s 54B(4) of the CSPA did not have the capacity to affect the outcome.
The reasoning above is similar to that of Gleeson JA in Benn (at [146]-[149]). In Benn, the Court was also concerned with a failure to comply with s 54B(4) of the CSPA. His Honour, without reference to Ibbotson, did not accept that the error had any impact on the sentencing discretion, but appeared to accept that was as a result of the circumstances that pertained in the individual case, rather than it being something that could not, or was even unlikely to have such a result in other cases. N Adams and Ierace JJ agreed with Gleeson JA, with N Adams J giving separate reasons.
Returning to the present matter, it is clear that his Honour could have imposed the same aggregate sentence by nominating the same indicative sentences but specifying a non-parole period for the commercial supply offence of 1 year. That sentence, had it actually been imposed, could have been ordered to commence 2 months into the sentence for the proceeds offence, resulting in a total sentence equivalent to the aggregate sentence set by his Honour. That the same result could have been reached does not, however, answer the question of whether the error had the capacity to affect the result. However, in the circumstances here, where the ultimate result is achieved by the nomination of a non-parole period that, as a proportion of the total sentence, is very favourable to the applicant, it is possible to positively conclude that the failure to indicate a non-parole period had no bearing on the result. I am of the view that there is no basis, in these circumstances, to depart from the result in Ibbotson.
The errors in the sentencing of the applicant were either in his favour or had no impact on the exercise of the sentencing discretion. The applicant has failed to establish any of his grounds of appeal or any complaint that would otherwise warrant the intervention of this Court. I propose the following orders:
Leave to appeal is granted.
The appeal is dismissed.
WEINSTEIN J: I agree with Dhanji J.
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Wilson
R [2025] NSWCCA 86
(2016) 258 CLR 420
(2013) 249 CLR 571
(2011) 244 CLR 462
(2021) 104 NSWLR 518
(1936) 55 CLR 499
(2022) 371 FLR 30
(2014) 252 CLR 601
(1984) 154 CLR 606
(2016) 256 CLR 656
(2017) 96 NSWLR 155
(2017) 96 NSWLR 633
(1998) 194 CLR 610
(1997) 189 CLR 295
(1985) 1 NSWLR 588
(1999) 46 NSWLR 346