AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 19 February 2025

Green (a pseudonym) v R

[2025] NSWCCA 16

Drugs

Citation: Green (a pseudonym) v R [2025] NSWCCA 16
Court: Court of Criminal Appeal (NSW)
Date: 19 February 2025
Judges: Adamson JA; Ball JA; Fagan J

Background

The applicant (referred to by the pseudonym Daniel Green) was convicted of conspiring to import a commercial quantity of cocaine into Australia, contrary to the Criminal Code (Cth). The conspiracy involved a consignment of 900 cartons of wine concealing approximately 123 kilograms of pure cocaine dissolved in wine bottles, shipped from South America and intercepted by the Australian Federal Police upon arrival in September 2012. The applicant was arrested in December 2012 after agreeing to assist police gather further evidence against his co-conspirators.

At trial in 2014, the applicant changed his plea to guilty at the conclusion of the Crown case. In June 2015, Acting District Court Judge Madgwick QC sentenced him to 21 years' imprisonment with a non-parole period of 12 years and 6 months.

The applicant sought leave to appeal that sentence approximately a decade later, requiring an extension of time. The extension was not opposed, and the Court granted it in the interests of justice given the nature of the grounds and the Crown's concession on the first ground.

  • Whether the sentencing judge erred by failing to apply the "instinctive synthesis" approach, instead using a two-step method that arrived at a starting figure based only on objective factors before separately accounting for subjective matters.
  • Whether the sentencing judge erred by declining to directly take into account hardship to the applicant's family on the basis that such hardship was not exceptional.
  • Whether the applicant had a justified sense of grievance arising from disparity between his sentence and that of a co-offender, Smith, who received 26 years.

Decision

Ground 1: Instinctive synthesis. The Crown conceded this ground, and the Court agreed the sentencing judge had erred. The correct approach, confirmed in Markarian v The Queen, requires a sentencing judge to weigh all relevant objective and subjective factors together through a process of instinctive synthesis. Certain matters, specifically the discount for a plea of guilty and for assistance to authorities, are then quantified separately after identifying a starting figure. The sentencing judge instead applied a two-tier methodology, arriving at a starting figure using only objective factors, which was an error of principle requiring re-sentence.

Ground 2: Family hardship. The sentencing judge had declined to take family hardship directly into account because it did not meet the threshold of being "exceptional." The Court of Criminal Appeal's subsequent decision in Totaan v R (2022) overruled the line of authority that required exceptionality as a precondition, and the Crown accepted that the sentencing judge's approach was therefore erroneous in light of that development in the law.

Ground 3: Parity. The Court found it unnecessary to address the parity ground separately, given that it was required to re-sentence the applicant and was obliged in doing so to apply parity principles directly. The parity comparison with co-offender Smith was therefore considered as part of the re-sentencing exercise rather than as a discrete ground of appeal.

Re-sentence. On re-sentence, the Court identified a pre-discount head sentence of 22 years and 3 months, reflecting the serious objective criminality involved. It then applied two separate discounts of 5% each: one for the guilty plea (accounting for timing and utilitarian value) and one for the applicant's cooperation with law enforcement, as required under s 16AC(2) of the Crimes Act 1914 (Cth). Additional factors considered included the hardship of imprisonment as a protected prisoner, additional hardship from COVID-19 restrictions during incarceration, and the impact of the sentence on the applicant's family. The resulting head sentence was 20 years, with a non-parole period set at 60% of that term, being 12 years.

Orders Made

  • Leave granted to file a notice of appeal out of time.
  • Leave granted to appeal against sentence.
  • The appeal upheld on grounds 1 and 2.
  • The sentence imposed on 4 June 2015 quashed and replaced with a sentence of 20 years' imprisonment commencing 3 December 2012 and expiring 2 December 2032, with a non-parole period of 12 years expiring 2 December 2024.
  • The applicant is eligible for release on parole from 2 December 2024.

Key Takeaways

  • The instinctive synthesis approach, as confirmed in Markarian v The Queen, requires sentencing courts to weigh all objective and subjective factors together, not in separate tiers; only specific discounts (such as those for a guilty plea or cooperation) are to be quantified after identifying a starting figure.
  • In Totaan v R (2022), the Court of Criminal Appeal overruled earlier authority requiring family hardship to be "exceptional" before it could be taken into account directly on sentence; sentencing courts must now consider such hardship even where it falls short of exceptional circumstances.
  • A sentencing error of principle, where conceded by the Crown, ordinarily requires re-sentencing unless no lesser sentence was warranted: the Court applied this principle from Kentwell v The Queen.
  • Under s 16AC(2) of the Crimes Act 1914 (Cth), where a sentence is reduced for cooperation with law enforcement, the court is required to specify both the reduction and the sentence that would otherwise have been imposed; the Court applied a discrete 5% discount on this basis.
  • A change in the law after the original sentence was imposed can provide a basis for a successful appeal against sentence, as demonstrated by the applicant's reliance on Totaan, which post-dated his original sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16AC
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Code (Cth), ss 11.5, 307.1, 307.5
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4