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Court of Criminal Appeal 12 September 2025

Nair v R

[2025] NSWCCA 136

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS COMPARATIVE CASES APPEAL DISMISSED

Citation: Nair v R [2025] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 12 September 2025
Judges: Stern JA; Cavanagh J; Yehia J (Yehia J delivering the principal judgment, Stern JA and Cavanagh J agreeing)

Background

The applicant pleaded guilty in the District Court to two counts of supplying a large commercial quantity of a prohibited drug, one count of supplying a commercial quantity of a prohibited drug, and one count of dealing with suspected proceeds of crime. Three further offences of supplying an indictable quantity of a prohibited drug were taken into account on a Form 1. The drug quantities involved were substantial: 11.8 kg of heroin, 17.6 kg of MDMA, and 720 g of cocaine.

The applicant's role centred on leasing an apartment in Lidcombe that was used to store the drugs, with CCTV footage showing him attending the premises 27 times over a one-week period in May 2023. He also received over $1 million in suspected proceeds of crime into his bank account across a period of approximately three and a half years. The sentencing judge found that the applicant had become involved in the offending after developing gambling and cocaine addictions and falling into debt to his suppliers.

After a 25 per cent discount for the utilitarian value of his guilty pleas, the applicant received an aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years. He sought leave to appeal on a single ground: that the sentence was manifestly excessive.

  • Whether the aggregate sentence of 10 years' imprisonment with a 6-year non-parole period was manifestly excessive having regard to the circumstances of the offending and the applicant's subjective case.
  • Whether comparative sentencing cases demonstrated that the sentence was unreasonable or plainly unjust, warranting appellate intervention.

Decision

Yehia J (with Stern JA and Cavanagh J agreeing) confirmed the well-established principle that appellate intervention on the ground of manifest excess is not justified merely because the sentence differs markedly from sentences in other cases. Intervention is warranted only where the difference is such that a failure to properly apply sentencing principles may be inferred. The applicant bears a "very heavy practical burden" and must demonstrate a disproportion so evident on its face as to indicate substantive legal error, not merely a difference of opinion.

The Court emphasised that comparative cases play an important role in promoting sentencing consistency, but the comparison process is nuanced and requires careful evaluation of multiple factors, including the objective seriousness of the offences, the offender's subjective circumstances, the purposes of sentencing, and relevant sentencing principles. The process involves evaluative judgment rather than simple numerical comparison.

The applicant relied on four comparative cases (Burton, Chu, Pauls, and Bui), each involving lesser sentences. The Court examined each in some detail, noting the material differences in the nature and extent of the offending, the offenders' subjective circumstances, and the overall criminality involved. Critically, the applicant's offending included a prolonged proceeds of crime component spanning over three years and exceeding $1 million, which the sentencing judge was entitled to reflect through notional accumulation in the aggregate term.

The Court concluded that the comparative cases, while involving lesser sentences, did not demonstrate that the applicant's sentence was unreasonable or plainly unjust. No failure to properly exercise the sentencing discretion was established. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Appellate intervention on manifest excess grounds requires more than a marked difference from comparable sentences. The disproportion must be sufficiently evident to permit an inference of substantive legal error, not merely a difference in sentencing opinion.

  • The Court of Criminal Appeal reaffirmed that the comparison of sentences is a nuanced evaluative exercise. Differences in drug quantities, the nature of the offender's role, subjective circumstances, and the totality of criminality across all counts all bear on whether any particular comparison is meaningful.

  • A prolonged proceeds of crime offence, even where the accused's direct drug handling role was relatively circumscribed in duration, can substantially increase the overall sentence. The sentencing court was entitled to reflect that additional criminality through the structure of the aggregate term.

  • In dismissing the appeal, the Court underscored the breadth of the sentencing discretion vested in first-instance judges, describing that discretion as "of vital importance in the administration of our system of criminal justice," citing Lowndes v The Queen (1999) 195 CLR 665.

  • No error of principle was identified in the sentencing judge's approach. The applicant's guilty pleas attracted a 25 per cent discount, his personal circumstances (including addiction and financial pressure) were taken into account, and the resulting sentence fell within the range open to the sentencing court.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), ss 307.1(1), 307.2(1)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Elemes [2000] NSWCCA 235
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Conte v R [2018] NSWCCA 209
- FL v R [2020] NSWCCA 114
- Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
- Chu v R (2023) 305 A Crim R 442; [2023] NSWCCA 12
- R v Burton [2023] NSWCCA 299
- Pauls v R [2024] NSWCCA 123
- Meers v R [2025] NSWCCA 27
- R v White [2025] NSWCCA 111
- R v Bui [2025] NSWCCA 114
- Tuhi v R [2025] NSWCCA 115
- Person 1 (a pseudonym) v R [2025] NSWCCA 132
- R v Thompson [2025] NSWCCA 133
- Evatt (a pseudonym) v R [2025] NSWCCA 130