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Court of Criminal Appeal 7 December 2022

AXR (a pseudonym) v R

[2022] NSWCCA 257

DrugsFirearms & weapons

Citation: AXR (a pseudonym) v R [2022] NSWCCA 257
Court: Court of Criminal Appeal, New South Wales
Date: 7 December 2022
Judge(s): Garling J, Adamson J (primary reasons), Button J

Background

The applicant, identified by pseudonym, was sentenced in the District Court by Hock DCJ following guilty pleas to a series of drug and firearms offences committed across three separate occasions in 2019 and 2020. The offences included supply of large commercial quantities of MDMA, supply of cocaine on multiple occasions, and possession of prohibited firearms while subject to a Firearm Prohibition Order. Additional offences relating to possession of restricted substances, ammunition, and suspected proceeds of crime were taken into account on a Form 1 (a mechanism under NSW sentencing law that allows a court to acknowledge related offences without formally convicting the offender of each).

The sentencing judge imposed an aggregate sentence of five years' imprisonment with a non-parole period of three years. A combined discount of 40 per cent was applied, reflecting both the guilty pleas and the applicant's assistance to authorities. The sentencing judge also found special circumstances, extending the parole period beyond the statutory norm, due to the onerous conditions of custody arising from the applicant's past associations and the anticipated benefit of extended supervision on parole.

The applicant sought leave to appeal on the single ground that the aggregate sentence was manifestly excessive.

  • Whether any of the indicative sentences for individual offences were manifestly excessive.
  • Whether an excessive indicative sentence necessarily renders an aggregate sentence manifestly excessive.
  • Whether the aggregate sentence, considered as a whole, was manifestly excessive given the totality of the offending and relevant sentencing factors.

Decision

The Court of Criminal Appeal, with Adamson J delivering the primary reasons and Garling and Button JJ agreeing, granted leave to appeal but dismissed the appeal.

On the relationship between indicative and aggregate sentences, the Court confirmed that an indicative sentence (the notional sentence assigned to each individual offence within an aggregate) is relevant to assessing whether an aggregate sentence is manifestly excessive, but it is not determinative. An aggregate sentence may still be appropriate even where individual indicative sentences appear high, and conversely, acceptable indicative sentences do not automatically validate an aggregate.

The Court found that none of the individual indicative sentences was manifestly excessive. In reaching this conclusion, it emphasised that the sentencing judge was required to account for the applicant's significant criminal history, including prior firearms offences, the high maximum penalties applicable to the offences, the need for general deterrence, and the Form 1 matters. The Court also noted that the sentence needed to reflect the principle that cooperation with authorities does not confer immunity from prosecution or punishment.

Considering the aggregate sentence overall, the Court found it was not manifestly excessive. Indeed, Adamson J observed that the aggregate was, in all the circumstances, "low" given the nature and extent of the criminal conduct, which had occurred repeatedly over more than a year and included offending committed while the applicant was already on bail and subject to an Intensive Corrections Order. The sentencing judge had plainly applied the totality principle (the requirement that a sentence reflect the overall criminality without being crushing in aggregate).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Procedural orders made permitting either party, or the Commissioner of Police, to apply within 10 days for non-publication or redaction orders in relation to the applicant's assistance to authorities, with any application to be determined on the papers.
  • Publication of the judgment on Caselaw deferred pending determination of any such application.

(Note: A publication restriction was subsequently removed and the judgment was republished on 11 June 2025.)

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an indicative sentence for an individual offence and the aggregate sentence are related but distinct considerations: excessive indicative sentences may signal an excessive aggregate, but the relationship is not automatic in either direction.
  • Under NSW sentencing law, a substantial discount for cooperation with authorities does not operate as a shield against significant punishment where the underlying offending is serious and the criminal history is extensive.
  • Repeat offending committed while on bail and subject to an Intensive Corrections Order is a weighty aggravating factor that the sentencing court must reflect in the final sentence.
  • The totality principle requires a sentencing judge to ensure the aggregate sentence captures the full criminality of all offending without being disproportionate, and the Court found Hock DCJ had applied that principle correctly.
  • Form 1 offences, though not subject to separate conviction, can legitimately increase the weight given to principal offences during sentencing and are a relevant factor when assessing whether an aggregate sentence is appropriate.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 53A
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kerr v R [2016] NSWCCA 218