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Court of Criminal Appeal 17 November 2025

Hudson v R

[2025] NSWCCA 194

DrugsFirearms & weapons

Citation: Hudson v R [2025] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 17 November 2025
Judges: Adamson JA, Chen J (primary judgment), Coleman J

Background

The applicant pleaded guilty in the District Court to knowingly taking part in the supply of a large commercial quantity of methylamphetamine (1,132.2 grams) on 17 November 2022. Police stopped a vehicle in South Coogee in which the applicant was a passenger, and discovered he was subject to both a firearms prohibition order and a weapons prohibition order. A subsequent search uncovered the drugs and other items relevant to additional charges.

At sentence, three further offences were placed before the court on a Form 1 (a procedural mechanism under NSW law by which offences not separately charged can be acknowledged at sentencing and taken into account to increase the head sentence). Those offences were: possession of money suspected to be the proceeds of crime, using a prohibited weapon in contravention of a prohibition order, and possessing a prohibited weapon (a taser) without a permit. The sentencing judge imposed 7 years imprisonment with a non-parole period of 4 years and 6 months.

The applicant sought leave to appeal on two grounds: that the sentencing judge impermissibly used a Form 1 offence when assessing the objective seriousness of the principal offence, and that the sentencing judge failed to make findings about his claimed experience of abuse in juvenile detention and the mitigating relevance of his mental health conditions.

  • Whether the sentencing judge erred by using facts relating to a Form 1 offence to assess the objective seriousness of the principal drug supply offence, thereby effectively punishing the applicant twice for the same conduct.
  • Whether the sentencing judge was obliged to make a finding, on the balance of probabilities, as to whether the applicant had been sexually assaulted in juvenile detention.
  • Whether the sentencing judge erred by failing to address the applicant's argument that his mental health conditions would make his time in custody more onerous.
  • Whether, on resentence, a lesser or greater sentence than that originally imposed was warranted.

Decision

Ground 1: Form 1 offence and objective seriousness

The Court found no error in how the sentencing judge used the taser possession. The applicant himself conceded it was permissible for the sentencing judge to refer to the taser in order to contextualise the principal offence. Given the structure of the sentencing judgment and the manner in which that reference was made, the Court found no basis to infer that the applicant had been punished twice for the same conduct. Ground 1 was dismissed.

Ground 2: Failure to make findings on mitigation

The Court held that the sentencing judge was not required to make a formal finding, on the balance of probabilities, as to whether the alleged sexual assault in juvenile detention had in fact occurred. However, the sentencing judge did err in failing to engage with the applicant's separate and distinct argument that his mental health conditions would render his custody more burdensome than it would be for a person without those conditions. That failure was a legal error, and ground 2 was upheld on that basis.

Resentence

Despite the error established under ground 2, the Court concluded on resentence that a greater sentence than the original was warranted, not a lesser one. The Court identified significant aggravating factors: the applicant was on parole at the time of offending, having previously been sentenced for what the sentencing judge described as very serious firearm and drug offences. The objective seriousness of the Form 1 offences, the need to give substantial weight to specific and general deterrence, and the protection of the community all pointed toward a heavier sentence. Consistent with established practice where a higher sentence would have been imposed, the Court declined to specify what that sentence would have been.

Orders Made

  • Time for filing the Notice of Appeal extended to 1 August 2025.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge may use facts underlying a Form 1 offence to contextualise the principal offence without that amounting to impermissible double punishment, provided those facts are not used to separately aggravate the sentence for the principal offence.
  • No requirement exists for a sentencing judge to make a binary finding, on the balance of probabilities, as to whether an alleged historical assault on a defendant actually occurred in order to dispose of a mitigation submission.
  • Where a defendant argues that a mental health condition will make custody more onerous, a sentencing judge is required to address that argument. Silence on the point constitutes legal error.
  • In dismissing an appeal despite finding error, the Court of Criminal Appeal may conclude on resentence that the original sentence was in fact too lenient. Where all members of the Court agree a higher sentence would have been imposed, it is generally inappropriate to specify what that sentence would have been.
  • Paole status at the time of offending, combined with a prior history of serious drug and firearms offences, carries significant weight as an aggravating factor and reinforces the importance of deterrence and community protection in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33(2)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Weapons Prohibition Act 1998 (NSW), ss 7(1), 34(1)

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; (2023) 307 A Crim R 149
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- LN v R [2020] NSWCCA 131
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
- Pham v R [2013] NSWCCA 217
- R v Falzon (2018) 264 CLR 361; [2018] HCA 29
- R v Ferguson [2022] NSWCCA 147
- R v Hemsley [2004] NSWCCA 228
- Ragg v R [2022] NSWCCA 150
- RO v R [2019] NSWCCA 183
- Roulstone v R [2025] NSWCCA 7
- Stephens v R [2010] NSWCCA 93
- Tukuafu v R [2024] NSWCCA 84
- Turnbull v R [2019] NSWCCA 97
- Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223