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[2026] NSWCCA 62
Court of Criminal Appeal (NSW)
2026-05-22
Mitchelmore JA at [1] Dhanji J at [2] McNaughton J at [67]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Young v R [2026] NSWCCA 62
Hearing dates: 30 March 2026
Date of orders: 30 March 2026
Decision date: 22 May 2026
Before: Mitchelmore JA at [1]
Dhanji J at [2]
McNaughton J at [67]
Decision: Reasons for the following orders made on 30 March 2026:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Set aside the sentence of imprisonment imposed in the District Court on 5 June 2025 and in lieu thereof sentence the appellant to an aggregate sentence of imprisonment of 2 years and 9 months commencing on 26 December 2024 and expiring on 25 September 2027, with a non-parole period of 1 year 3 months and 6 days commencing on 26 December 2024 and expiring on 31 March 2026.
Catchwords: CRIME – Appeal against sentence – possess unauthorised firearm – supply prohibited drugs in commercial quantity – cultivate prohibited plant in an indictable amount – aggregate sentence – indicative sentences – procedural fairness – where sentencing judge indicated firearms offences not of any particular impact – where indicative custodial sentence provided for firearms offence – Parkinson's disease as a shield against sentence – no opportunity for submissions against the finding – failure to address submissions in relation to an intensive correction order – manifest excess – totality – resentencing
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3, Div 3, ss 5, 25D, 47, 53A, 55
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), s 23, 25
Firearms Act 1996 (NSW), ss 7A, 36, 39, 65
Cases Cited: Aryal v R [2021] NSWCCA 2
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Harris v R [2023] NSWCCA 44
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Kember v R [2020] NSWCCA 152
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v XX [2009] NSWCCA 115; 195 A Crim R 38
R v Zamagias [2002] NSWCCA 17
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
The King v McGregor [2026] HCA 3; (2026) 100 ALJR 287
Weir v Regina [2011] NSWCCA 123
Category: Principal judgment
Parties: Daryl Peter Young (Applicant)
Rex (Respondent)
Representation: Counsel:
I Todd (Applicant)
E Curran (Respondent)
Solicitors:
Tully & Chiper Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2024/00070123
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant, Daryl Young, sought leave to appeal against the sentence imposed on him in the District Court following his pleas of guilty to three offences, namely, possess an unauthorised firearm (the firearms offence), supply prohibited drug in a commercial quantity (the supply offence) and cultivate a prohibited plant in an indictable amount (the cultivation offence). Four further offences were taken into account on a Form 1 attached to the firearms offence. The applicant received an aggregate sentence of imprisonment of 3 years and 3 months, with a non-parole period of 1 year and 6 months.
The applicant sought leave to appeal his sentence on the following grounds:
(1) The applicant was denied procedural fairness in respect of:
(a) The opportunity to address the passing of a custodial sentence in respect of the firearms charges; and
(b) the opportunity to answer an assertion, as found by the sentencing Judge, that he committed the offences anticipating he could use his Parkinson’s disease as a shield against sentence.
(2) A failure by the sentencing judge to address the submissions for an Intensive Correction Order (ICO) in his reasons.
(3) That the sentencing judge failed to consider questions of accumulation and concurrency.
(4) That the sentence was manifestly excessive.
The Court (Dhanji J, Mitchelmore JA and McNaughton J agreeing), at the conclusion of the appeal, made orders granting leave to appeal and allowing the appeal with reasons to follow. In giving reasons, the Court held**:**
As to ground (1)(a):
(1) There was no denial of procedural fairness. While an indicative sentence of 3 months was imposed with respect to the firearms offence his Honour’s reasons do not suggest this had any impact on the aggregate sentence: Dhanji J at [29]-[35], Mitchelmore JA agreeing at [1] and McNaughton J agreeing at [67].
As to ground (1)(b):
(2) The sentencing judge’s finding that the applicant committed the offences anticipating he could use his Parkinson’s disease as a shield against sentence was made without the applicant having the opportunity to address the issue. This occasioned practical injustice to the applicant in that the finding was adverse to the applicant and, in being denied the opportunity to address the issue, the applicant lost a realistic possibility of a more favourable outcome: Dhanji J at [36]-[42], Mitchelmore JA agreeing at [1] and McNaughton J agreeing at [67].
As to ground (2), per Dhanji J (Mitchelmore JA and McNaughton J not expressing a concluded view):
(3) Having determined that a custodial sentence was required and subsequently that the appropriate sentence was one of more than three years, it was not open to the sentencing judge to impose an ICO and there was therefore no error: at [43].
R v Zamagias [2002] NSWCCA 17*;* Kember v R [2020] NSWCCA 152, cited.
As to grounds (3) and (4), per Dhanji J (Mitchelmore JA and McNaughton J not expressing a concluded view):
(5) An offender should not be worse off for the decision to impose an aggregate sentence. As a result, principles of totality apply irrespective of whether an aggregate sentence or individual sentences are imposed: at [47]-[52].
Ibbotson (a pseudonym) v R [2020] NSWCCA 92; The King v McGregor [2026] HCA 3; (2026) 100 ALJR 287; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, applied.
(6) The individual indicative sentences for the supply and cultivation offences were not lenient and there was a close connection between these two offences. Absent particularly lenient sentences, a significant degree of concurrence could properly be expected: at [57].
(7) The sentence is manifestly excessive: at [58]
As to resentencing:
(8) The sentencing judge’s indicative sentences were adopted, as was his Honour’s view that the firearms offence should not impact the total sentence: Dhanji J at [60], [64], Mitchelmore JA agreeing at [1] and McNaughton J agreeing at [67].
(9) Significant concurrence was appropriate having regard to the relationship between the offences and a generous adjustment for special circumstances was made, reducing the aggregate sentence to 2 years and 9 months and the non-parole period to 1 year 3 months and 6 days: Dhanji J at [65], Mitchelmore JA agreeing at [1] and McNaughton J agreeing at [67].
MITCHELMORE JA: The Court made orders in this matter on 30 March 2026. They are set out in the reasons of Dhanji J below. I joined in those orders on the basis that the sentencing judge denied the applicant procedural fairness in finding that the applicant committed the offences anticipating that he could use his Parkinson’s disease as a shield against sentence (ground 1(b)). I agree with the reasons of Dhanji J on that ground, and with his Honour’s reasons for rejecting the other basis on which the applicant alleged that he was denied procedural fairness (ground 1(a)). I did not form a concluded view on the other grounds of appeal, the denial of procedural fairness being sufficient of itself to require the Court to re-exercise the sentencing discretion. I agree with the reasons given by Dhanji J for the order on resentence.
DHANJI J: On 30 March 2026, the Court made the following orders:
Grant leave to appeal.
Allow the appeal.
Set aside the sentence of imprisonment imposed in the District Court on 5 June 2025 and in lieu thereof sentence the appellant to an aggregate sentence of imprisonment of 2 years and 9 months commencing on 26 December 2024 and expiring on 25 September 2027, with a non-parole period of 1 year 3 months and 6 days commencing on 26 December 2024 and expiring on 31 March 2026.
These are my reasons for joining in those orders.
The applicant, Daryl Young, sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him in the District Court of New South Wales at Port Macquarie on 5 June 2025 by his Honour Judge King SC.
Following his pleas of guilty in the Local Court, the applicant was sentenced with respect to the following offences:
Sequence 4: Possess an unauthorised firearm, contrary to s 7A(1) of the Firearms Act 1996 (NSW) (the firearms offence).
Sequence 12: Supply prohibited drug, not less than the commercial quantity, being 38.85 kilograms of cannabis leaf, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the supply offence).
Sequence 13: Cultivate a prohibited plant in an indictable amount, being 168 cannabis plants, contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act (the cultivation offence).
The applicant was sentenced to an aggregate sentence of 3 years and 3 months, commencing on 26 December 2024 and expiring on 25 March 2028, with a non-parole period of 1 year and 6 months due to expire on 25 June 2026.
With respect to sequence 4, the following four further offences were taken into account on a Form 1 attached in accordance with Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”):
Sequence 2: Possess an unregistered firearm, contrary to s 36(1) of the Firearms Act.
Sequence 3: Not keep firearm safely, contrary to s 39(1)(a) of the Firearms Act.
Sequence 8: Possess ammunition without licence, contrary to s 65(3) of the Firearms Act.
Sequence 9: Possess ammunition without licence, contrary to s 65(3) of the Firearms Act.
The maximum penalties applicable to the supply offence, the cultivation offence, and the firearms offence were, respectively, a fine of 3,500 penalty units and/or imprisonment for 15 years, a fine of 2,000 penalty units and/or imprisonment for 10 years and imprisonment for 5 years. No standard non-parole period was prescribed for any of the offences for which the applicant was sentenced.
The four further offences on the Form 1 had been referred to the District Court as related offences pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
Indicative sentences were provided in accordance with s 53A(2)(b) of the Sentencing Act. The applicant was afforded a discount of 25 per cent on his sentence in recognition of the applicant’s pleas of guilty in the Local Court, pursuant to s 25D of the Sentencing Act. Following the application of the discount, the indicative sentences nominated were 2 years and 6 months imprisonment for the supply offence, 18 months imprisonment for the cultivation offence and 3 months imprisonment for the firearms offence.
The grounds of appeal on which the applicant sought to rely were as follows:
“Ground 1-That the applicant was denied procedural fairness in respect of
a. The opportunity to address the passing of a custodial sentence in respect of the firearms charges,
b. The opportunity to answer an assertion, as found by the sentencing Judge, that he committed the offences anticipating he could use his Parkinson’s disease as a shield against sentence.
Ground 2-A failure by the sentencing Judge to address the submissions for an Intensive Correction(sic) Order (ICO) in his reasons.
Ground 3-That the sentencing Judge failed to consider questions of accumulation and concurrency.
Ground 4-That in the circumstances of this matter, the sentence was manifestly excessive.”
“12. The property was essentially a dwelling which was at that time partially constructed, with works ongoing. I note not contained in the facts as a description but present by way of the photograph, is a photograph of the premises which appears to be under construction, with a roof in place, but much of the side walls missing and only partially in place.
13. After announcing their office and the terms of the search warrant, NSW Police undertook a search of the dwelling/shed located on the property, locating the following items of relevance:
A .177 calibre rifle, located unsecured, under a door, in a construction area that relates to Sequences 2, 3 and 4.
A metal canister of .177 ammunition, Sequence 8.
2 x .243 Winchester calibre cartridges.
2 x centre fire calibre bolt assemblies, Sequence 10.
Five mobile phones.
A large set of scales.
A vacuum sealer and vacuum sealing bags.
14. Enquiries in relation to the firearm investigation revealed that Daryl Young previously held a Category A/B firearms licence which was suspended by police on 25 October 2023, and was not current as at the date of possession.
15. Preliminary advice received from the police ballistics investigation opined that the rifle was an airgun, and thus a firearm as defined in s 4(1) of the Firearms Act. The .177 pellets or ammunition is defined in s 4(1) of the Firearms Act. The .243 cartridges were ammunitions defined also in the same section. And the calibre bolt assemblies were firearm parts as defined in that section.
In addition to the above, cannabis was found throughout the entirety of the house in the following terms:
On the southeastern deck, a terracotta-coloured barrel containing cannabis plant branches. Three further terracotta-coloured barrels, each containing cannabis plant branches.
On the southeastern deck, 3 x large black plastic trays full of cannabis trimmings with additional trimmings on the floor.
In the kitchen, cannabis bud, head and stem in garbage bags and vacuum sealed bags on a pool table.
In the main bedroom of the dwelling, inside two orange-coloured barrels, in black garbage bags, was cannabis.
The cannabis plant branches located sealed in the barrels were partly stripped, i.e. the leaf/buds removed from the stem/branches by NSW Police prior to being sent for FASS analysis.
The total quantum of the harvested cannabis leaf recovered from the property and the subject of the charge in respect of Mr Young was 38.85 kilograms….
16. Examinations of the broader bushland around the property revealed a site in the dense bushland where cannabis plants were growing in the ground, surrounded by man-made timber borders.
17. All cannabis plants were greater than one metre in height. The total amount of cannabis plants being cultivated was 168 plants. In each case, the facts contain photos of growing cannabis plants which appear to be significantly developed, although I do not pretend to be an expert.
The property was subject to crime scene examination and analysis on 22 February with the following relevant results:
…The fingerprints of Mr Young were discovered at two locations on a dehumidifier. …
Photographs contained in each of the set of facts indicate that there were drying racks set up within the structure, which I would refer to as a hut or shed rather than a house. There were numerous branches of marijuana inverted and hanging from racks above. There were also numerous branches lying on metal racks with wide air spaces to assist in drying.
At least two water bottles were identified with markers and there are two photographs taken in the area where the cannabis branches were being dealt with by way of the head and/or leaves being removed. In the photographs there are what appear to be three car seats, each mounted on a car tyre surrounded by the hanging marijuana being dehydrated and with trays containing what appears to be leaf rather than head. On each of the three car chairs there is a set of scissors, and there is more than one tray of apparent leaf with a large quantity scattered across the floor….
Each of the vacuum-sealed bags appears to contain cannabis head, being the most valuable part of such a crop ...”
The proceedings on sentence took place on 2 June 2025. The applicant and his co-offender, Mr Brustle, were sentenced together. The applicant and the Crown both provided written submissions and made oral submissions to the Court.
The Crown tendered a bundle comprising, amongst other things, the statement of agreed facts, the Form 1, the s 166 certificate, the applicant’s custodial history, the applicant’s criminal history, which indicated the applicant had no prior convictions, and a sentencing assessment report dated 13 March 2025. Tendered on behalf of the applicant was a report of clinical psychologist, Michael Costello, dated 18 May 2025, a letter from Dr S D Harvey dated 26 May 2025, a letter of support from the applicant’s son, Luke Young, and medical documents from the John Hunter Hospital Neurology Unit.
The applicant gave evidence during the sentence proceedings and was cross-examined.
The sentencing judge noted that there had initially been significant conflicts between the agreed facts relied on in the applicant’s and his co-offender’s respective cases. In response to his Honour’s concerns, the Crown, in agreement with the applicant and his co-offender’s representatives, edited the agreed facts to remove the conflicting material. The sentencing judge proceeded to sentence on the basis of what his Honour referred to as the “sanitised” facts, noting that some differences remained.
In considering the evidence the applicant gave on sentence, the sentencing judge did not regard the applicant as an honest and forthright witness. His Honour found that the applicant, along with his co-offender, attempted to diminish their involvement in the operation and continue to protect other participants. The sentencing judge also noted the applicant’s lack of insight into the impact of his offending.
With regard to the objective seriousness of the offences relating to the possession of the air rifle, various cartridges and other items, the sentencing judge found them to be inconsequential to the sentencing process and of a relatively insignificant nature.
The sentencing judge accepted that the applicant was at a low risk of re-offending and found that, despite his Honour’s negative view as to the applicant’s honesty, he was genuinely remorseful and there was a reasonable possibility of rehabilitation.
The sentencing judge proceeded to consider the applicant’s subjective case, turning first to the report of clinical psychologist, Mr Costello. Mr Costello’s report set out at length the applicant’s personal history.
The applicant was 67 years old at the time of sentencing. He was formally diagnosed with Parkinson’s disease in 2012 and began receiving a disability support pension in 2013 as he was no longer able to work.
By 2016, the applicant’s condition with respect to his Parkinson’s disease had deteriorated significantly. Having determined “to have an enjoyable remainder of life to the extent that he could while his condition deteriorated”, the applicant utilised the majority of his superannuation savings renting a two-bedroom condominium in Bangkok and travelling around Thailand.
The applicant returned to Australia in 2020. His condition with respect to his Parkinson’s disease had improved, which he attributed to a herbal regime he was provided in Thailand.
He subsequently experienced a series of injuries, including a broken leg from a motorcycle crash, permanent nerve damage from a snake bite, and an ongoing back injury acquired falling from a ladder. The applicant was also diagnosed as experiencing major depressive disorder and generalised anxiety disorder at the time of offending.
With respect to the applicant’s reference to his “financial plight”, the sentencing judge noted that the applicant owned “not only the properties at Carrai, but also another property elsewhere … and, of course, he has had the ability to assist himself financially by selling off any of those properties”. His Honour later stated that the offending was “caused by his own reduction of his assets by going to Thailand for an extended period and supporting himself there”, with the applicant anticipating that he would be able to use “his Parkinson’s disease as a shield against sentence”.
The sentencing judge acknowledged the time the applicant had already spent in custody prior to being granted bail, being 160 days in total. During this time, the applicant claimed that Justice Health ceased providing two of his medications and that he was unable to access his herbal replacements. The applicant claimed to have experienced an improvement in his physical and mental health since being granting bail and regaining access to his herbal medications.
The sentencing judge accepted that the applicant’s time in custody had been difficult for him, and that a return to custody, while inevitable, would continue to be difficult for the applicant. On this basis, his Honour made a finding of special circumstances for the purposes of imposing the sentence.
“64 It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.
65 The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.
66 The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].
67 One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18].”
“HIS HONOUR: [Counsel], the firearms and the ammunition are clearly offences but they're not of any particular impact or serious impact, shall I say.
[COUNSEL]: I'm grateful to your Honour, and if the Crown doesn't mind I'll just very quickly lead him.”
Consequent upon this, the applicant’s counsel appears to have truncated the applicant’s case in this regard. Following the evidence, counsel made submissions. In doing so counsel addressed the drug charges. He did not address on the firearm charges.
I accept that the sentencing judge intervened in the presentation of the applicant’s case and did so in such a way as to create an expectation of a particular result with respect to the firearms charges. I pause to stress that there is nothing untoward in this process. To the contrary, the efficient conduct of proceedings is aided by the narrowing of issues where this can be conveniently achieved. The applicant’s complaint here is that, contrary to the expectation created, a custodial sentence was imposed in relation to the firearms matter.
The applicant’s complaint with respect to the firearms charge is without merit. In his reasons for sentence, his Honour recounted the facts, including the finding of the firearm and ammunition. Subsequently, in dealing with the applicant’s subjective case, including his explanations for the offences, his Honour said:
“As to the firearms charges, he claimed that he was overseas when there were amendments to the legislation, and he was unaware that what he refers to as a “slug gun” or air rifle was not stored correctly. As to the objective seriousness in relation to the possession of the air rifle and the various cartridges and other items, in my view they are not consequential in relation to the sentencing process in this matter and are of a relatively insignificant nature. There would be, in my view, few rural premises which did not have the odd gun stored inappropriately, or ammunition for rifles and/or slug guns used in the past still sitting around inappropriately.”
It is plain, consistent with the indication given in the course of the proceedings, that his Honour did not regard these offences as objectively serious, they being of “a relatively insignificant nature”, and consequently, in the context of the other offences, “not consequential” with respect to the outcome.
As observed above, his Honour indicated that, were he not imposing an aggregate sentence, a sentence of 3 months would have been imposed for the firearms matter. That indicative sentence is in no way inconsistent with his Honour’s indication to counsel in the course of the proceedings that those offences were “not of any particular impact or serious impact”. It is commonplace as a matter of orthodox sentencing, when sentencing for serious offences, to impose custodial sentences for relatively minor offences and make those sentences wholly concurrent with the longer terms. His Honour’s reasons are entirely consistent with such an approach. That is, while the indicative sentence involved a custodial penalty there is no basis to conclude that it had any impact on the total.
The test for procedural unfairness is one of “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34], [37]. That test is not met with respect to this issue.
“However, [the applicant] was fully aware that what he was doing was illegal, and he sought to commit criminal offences for financial reward to replace the monies, in effect, that he had spent on entertaining himself in Thailand, in full expectation that he would not receive a significant penalty because of his conditions and, in my view, he committed these offences anticipating that he would be able to use, in particular, his Parkinson’s disease as a shield against sentence.”
“He was the land holder and the operator of the business and clearly in charge and control of all that happened, knowing that he was committing a criminal offence while, in my view, seeking to use his medical condition of Parkinson’s as a shield against sentence.”
The respondent did not submit that there was anything in the sentencing proceedings which suggested the applicant might have anticipated such a finding. The finding that the applicant committed the offences “anticipating” or “while … seeking to use” his disease as a “shield against sentence” was, consequently, made without the applicant having been given the opportunity to address the issue. There remains the question of whether the finding occasioned practical injustice to the applicant. This question hinges on two considerations. Firstly, whether the finding was adverse to the offender so as to negatively impact his sentence, and secondly, whether the applicant lost a realistic possibility of a more favourable outcome.
With respect to the first issue, his Honour did not articulate any logical connection between the finding and a sentencing purpose or a matter obviously relevant to a sentencing purpose. Nonetheless, I am of the view that the finding was taken into account in a manner adverse to the applicant and inferentially impacted the sentence in his Honour’s synthesis of what he regarded as relevant considerations. The first observation to be made is perhaps, obvious. His Honour was giving reasons for sentence, and unless clearly indicated to be a matter not to be taken into account, the inference to be drawn is that his Honour regarded the matter as relevant to the outcome. This inference is reinforced by the repetition of the finding, distinguishing it from a passing remark of no consequence.
Further, the second reference by his Honour to the applicant’s use of his illness as “a shield” was in the context of observations addressing the applicant’s culpability, he being in “control of all that happened”. The availability of protection from punishment in this context suggests a calculated approach to the offending, adding to the applicant’s culpability. Consistent with this, the finding likely informed the sentencing purposes of retribution and denunciation. It may be that it also informed the need for both general and specific deterrence by making it clear to the applicant and others that a condition such as the applicant’s would not protect them from the consequences of committing a serious criminal offence.
As to the second issue, had the applicant been given the opportunity, submissions could have been made against the making of the impugned finding. The most obvious submission would have been that there was, on the evidence, no foundation for the finding. That submission, had it been made, should have been accepted. While it was a possibility that the applicant believed his Parkinson’s diagnosis would assist him should he be caught, a positive finding in this regard was a matter of pure speculation. There was no evidence that the applicant knew of the penalties ordinarily imposed for the offences he was engaging in, the relevance of subjective considerations on sentence, or even contemplated the possibility he might be caught.
I am satisfied that ground 1(b) has been established.
These grounds are, as will be seen, related and are more conveniently considered together.
With respect to ground 3, an aggregate sentence having been imposed, there was no question of any actual cumulation or concurrency. The ground should be understood to be a complaint with respect to totality based on the relationship between the indicative sentences and the aggregate sentence. The indicative sentences were of 2 years and 6 months, 18 months and 3 months respectively. The sum of those sentences is 4 years and 3 months. It follows that in imposing an aggregate sentence of 3 years and 3 months, it cannot be said that questions of totality were not considered at all. In this context the complaint is, presumably, of a failure to properly consider principles of totality, or perhaps the appropriate degree of notional concurrence between the indicative sentences. A ground in these terms is difficult, though not necessarily impossible, to establish.
With the exception of the sentence imposed for the firearms offence, his Honour did not address issues of totality, other than by what is reflected in the result itself. This was, perhaps responsive to the fact that the applicant did not make any submissions with respect to totality. The Crown, in written submissions, did make reference to the existence of the principle. It may have been that the Crown having raised the principle, it was considered uncontentious and unnecessary for the applicant to address.
Irrespective of the submissions of the parties, when imposing a sentence encompassing punishment for multiple offences the principle of totality cannot be avoided. This is so whether individual sentences (requiring commencement dates) are imposed, or an aggregate sentence is imposed. The necessity of addressing the question in the context of orthodox sentencing is made plain by the fact that the Sentencing Act assumes that individual sentences will be served concurrently unless otherwise ordered: Sentencing Act, s 55(1). That necessity is not avoided by the imposition of an aggregate sentence for reasons discussed further below.
The decision to impose an aggregate sentence, as the respondent properly conceded in the course of argument, should not have the result that an offender is worse off: Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [9]. It follows that it is necessary to apply principles of totality, and in particular to consider whether and to what degree notional concurrence should be provided between indicative sentences, so as to produce an outcome functionally equivalent to that which would have resulted from the imposition of individual sentences. Or, as it was put in The King v McGregor [2026] HCA 3; (2026) 100 ALJR 287 by Gageler CJ, Gleeson and Beech-Jones JJ at [43]:
“ … aggregate sentences do not alleviate sentencing judges from considering the individual offences, the individual offender and his or her circumstances, and the totality of criminality involved as part of the process of ‘instinctive synthesis’ referred to in Markarian v The Queen. Even where it has been determined that no penalty other than a sentence of imprisonment is appropriate for multiple offences, a court is not obliged to impose an aggregate sentence of imprisonment for multiple offences and, even if an aggregate sentence is imposed, the appropriate length of that sentence cannot be determined until that process of instinctive synthesis is undertaken. In the end result the ‘aggregate sentence ought to be the same as the total effective sentence [that would have resulted] from the imposition of individual sentences’.” (footnotes omitted)
“Section 53A was not intended to substantially change the sentencing process or impact the overall length of sentences. It was intended to relieve the court from the task of fixing separate start and end dates and non-parole periods for offences, and specifying the precise detail of any overlap between sentences.”
A similar observation was made by Jagot J at [175].
So understood, principles of totality must operate in the same way irrespective of whether an aggregate sentence or individual sentences are imposed. That principle was described in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, by Bell and Keane JJ as follows, 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 Sentencing Act 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)
It was, therefore, necessary in the present case to make, by the process of instinctive synthesis, a principled decision as to the length of each indicative sentence, to then apply the appropriate discount for the plea of guilty and then to determine, in light of the indicative sentences, and on an assessment of the total criminality involved, an appropriate aggregate sentence.
In undertaking this final step, it was not necessary that each indicative sentence contribute to the aggregate. A shorter sentence may be subsumed by a longer sentence or a combination of sentences where the total is sufficient to “encompass the criminality” of other offences or is sufficient to comprehend the total criminality: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52]; see also Harris v R [2023] NSWCCA 44 at [15]. The principle applies in the same way when considering whether, if a sentence cannot properly be wholly subsumed, the degree to which it should be subsumed. The answer to that question is also affected by the non-linear increase in the severity of a sentence as it gets longer, particularly in the case of long sentences: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16].
Having regard to the above, there is an interdependence between the length of the individual sentences and the degree of cumulation or concurrence that may be appropriate. A high degree of cumulation may be entirely appropriate if the individual sentences are at the lower end of the available range for the offending to which they relate, or, have, as is permissible, been reduced for the purposes of totality: see Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70. Conversely, if the individual sentences are at the upper end of the range, a higher degree of concurrency will be required.
Returning to the present case, the sentence for the firearms offence can be put to one side on the basis of his Honour’s assessment (with which I agree) that, had it stood on its own, a sentence of imprisonment would not have been warranted. That is to say, the firearms offence ought not to have affected the aggregate, the indicative sentence being the equivalent of a sentence wholly subsumed within a total capable of reflecting the overall criminality. Thus, his Honour arrived at a sentence of 3 years and 3 months through a combination of the two indicative sentences of, respectively, 2 years and 6 months and 18 months for the supply and the cultivation offences. Care must be taken not to treat the sentence of 3 years and 3 months as involving a “reduction” of 9 months from the arithmetic total of the two indicative sentences (that is, 4 years) based on totality principles. Had individual sentences been imposed, those sentences would ordinarily be comprised of a non-parole period and a balance of term. When imposing a consecutive sentence, the latest date which the sentence may commence is at the expiry of the earlier non-parole period: Sentencing Act, s 47(4). When imposing aggregate sentences, there is (with the exception of standard non-parole period offences) no requirement that the indicative sentences be expressed to include a non-parole period. There is a danger of failing to appreciate the significance of the absence of a non-parole period and the limitation it would ordinarily impose on the cumulation of sentences. There is a resulting capacity for the sentencing process to be distorted by the use of an aggregate sentence.
In the present matter, if individual sentences were imposed and the statutory ratio of 75 per cent applied, the sentences would have had non-parole periods of 22.5 months (for the supply offence) and 13.5 months (for the cultivation offence). Had these sentences been imposed, the longest sentence that could have been achieved, with full cumulation, would have been 43.5 months, the result of cumulating the sentence of 30 months (for the supply) on the non-parole period of 13.5 months (relating to the cultivation). That, in the context of a total sentence of 39 months, suggests a much lower degree of concurrence than may have first appeared. Further, there were powerful matters which contributed to a finding of special circumstances. In making this observation it must be noted that, when imposing multiple individual sentences, there is significant flexibility available in setting non-parole periods to achieve an appropriate total.
None of this is to suggest that sentencing judges (or appellate courts) should engage in the type of granular analysis set out above. In the present case, however, it is instructive in identifying a likely source of error in the process. That is the result of two factors. Firstly, in my view, neither the indicative sentence for the supply offence, nor that for the cultivation offence can be described as lenient. Secondly, while they were separate offences, involving different cannabis (in the form of leaf and plants respectively) there was a close connection between the two offences. They were part of the same criminal enterprise. What was still in plant form and what was prepared for supply was largely a product of the point at which the enterprise was interrupted. The applicant’s culpability in relation to one offence was very much tied to the other. Absent particularly lenient sentences, a significant degree of concurrence could properly be expected. In the particular circumstances of this case, the degree of cumulation is surprising.
The extent to which the sentencing judge was entitled to notionally cumulate the sentences to produce the aggregate was, however, limited only by the requirement that the aggregate be within the available range – or in other words, not manifestly excessive. So understood, ground 3 folds into ground 4. Nonetheless, in the circumstances of this case, the transparency afforded by indicative sentences assists in arriving at my conclusion that the sentence was manifestly excessive. I do not regard this as inconsistent with what was decided in Aryal v R [2021] NSWCCA 2 (“Aryal”), relied on by the respondent. In short, having regard to the objective and subjective circumstances relevant to the determination of the individual sentences (discussed below in the context of resentence), the applicable discounts, and the proper relationship between those indicative sentences and the total, I am of the view that the sentence imposed by the sentencing judge is manifestly excessive and would uphold ground 4. It is unnecessary to decide ground 3 given the relationship between the issues raised under that ground and ground 4. It is undesirable to do so given the terms in which the ground is expressed which are inapt in the context of an aggregate sentence.
The applicant having established error it was necessary to re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. That exercise produced a lesser sentence as set out in the Court’s orders.
I share the sentencing judge’s view, for the reasons he gave, that the sentence for the firearms offence should not impact the total sentence.
The cultivation offence carried a maximum sentence of imprisonment for 10 years and/or a fine of $220,000. The offence involved a total of 168 plants each over 1 metre tall. They were planted and tended for financial gain. The applicant had engaged at least one other person in the enterprise. The offence was substantially more serious than a cultivation arising from, for example, the result of scattering seeds on a rural property. Seedlings were planted in organised rows, each with an adjacent pipe by which it could be watered such that the water would more quickly reach the roots of the plant. This was a serious offence for which, despite the applicant’s subjective case, there was no alternative to a sentence of imprisonment. That said, the number of plants was well short of the commercial quantity of 250 plants. It was also not a particularly sophisticated operation having regard to the total number of plants and the absence of more sophisticated watering systems or surveillance. While the applicant and at least one other were involved, it was not suggested either was engaged on a full-time basis or were even required to devote substantial time to the enterprise.
The supply offence was, again, a serious offence. The maximum penalty, at 15 years, is higher than that for the cultivation offence. The quantity of cannabis, 38.5 kilograms, was substantial. It had been processed by the use of the dehumidifier and packaged in vacuum sealed bags for the purposes of commercial supply. Again, at least one other person had been engaged by the applicant. Again, there was no alternative to a sentence of imprisonment. Against this, the quantity was not a great deal over the commercial quantity of 25 kilograms and well short of the large commercial quantity of 100 kilograms. While clearly the intention was to supply the drug, the evidence was insufficient to establish that this was in the context of a successful and ongoing drug supply business.
Subjectively, the applicant had a strong case. Without repeating the details of the evidence, he was 67 years old at the time of sentencing and had reached that age without previously committing any offence. His diagnosis of Parkinson’s disease was life changing and, I would accept, contributed to his decision to engage in the enterprise. His health contributed to the onerousness of his period of pre-sentence custody and, it can be inferred, continued to make prison more difficult for him.
In arriving at the aggregate sentence imposed by this Court, I was of the view that, balancing all relevant factors, the indicative sentences imposed by the sentencing judge were appropriate. However, I also had regard to the close relationship between the offences. As discussed above, they were, effectively, constituent parts of a single criminal enterprise, the additional criminality involved in the supply offence also being tempered by the absence of any actual supply.
Having regard to the length of the indicative sentences, and the relationship between the offences, I was of the view significant concurrence was appropriate. Having regard to the applicant’s personal circumstances, and in particular, his illness, a generous adjustment for special circumstances was appropriate. I was of the view a total sentence of 2 years and 9 months was appropriate. I was also of the view that a non-parole period of 1 year, 3 months and 6 days, which provided for the almost immediate release of the applicant, provided adequate punishment while having regard to his particularly difficult personal circumstances. It was appropriate that that sentence be backdated to 26 December 2024 to take into account the time the applicant had served in custody.
For the above reasons, I joined in the orders made by the Court on 30 March 2026.
McNAUGHTON J**:** I joined in the orders made by the Court on 30 March 2026 on the same basis as Mitchelmore JA, that is, on the basis that the sentencing judge denied the applicant procedural fairness in finding that the applicant committed the offences anticipating that he could use his Parkinson’s disease as a shield against sentence (ground 1(b)). I agree with the reasons of Dhanji J on that ground. I also agree with his Honour’s reasons for rejecting the other basis on which the applicant alleged that he was denied procedural fairness (ground 1(a)). Given the determination of the denial of procedural fairness (ground 1(b)) in the applicant’s favour was sufficient to require the Court to re-exercise the sentencing discretion, I did not form a concluded view on the other grounds of appeal. I agree with the reasons given by Dhanji J for the resentence.
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Young
R
[2003] HCA 6
(2014) 252 CLR 601
(1988) 166 CLR 59
(2016) 256 CLR 656
(2003) 214 CLR 1
(2026) 100 ALJR 287
(1989) 166 CLR 466
(1992) 28 NSWLR 282