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Court of Criminal Appeal 24 November 2025

Pannao v R

[2025] NSWCCA 201

Drugs
SENTENCED

Citation: Pannao v R [2025] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 24 November 2025
Judge(s): Bell CJ, Free JA, McGuire J (Free JA delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court to two drug offences under the Drug Misuse and Trafficking Act 1985 (NSW): knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine (2,689.41 grams), and supplying a prohibited drug (119.2 grams). A dealing-with-proceeds-of-crime charge involving $120,650 cash was taken into account on a Form 1. After a 25% discount for early guilty pleas, the applicant received an aggregate sentence of 9 years' imprisonment with a non-parole period of 5 years.

The applicant's co-offender, sentenced separately some months earlier, had been the "cook" who physically manufactured the drugs at a Greenacre property. The applicant was described by the sentencing judge as the "go to man" and "general organiser" who facilitated access to that property. Both offenders occupied similar positions in the criminal hierarchy, though the co-offender faced three principal charges with six additional Form 1 matters, compared to the applicant's two principal charges and one Form 1 matter.

The applicant sought leave to appeal on the sole ground that the sentence imposed on him gave rise to a justifiable sense of grievance when compared with the sentence imposed on his co-offender. The co-offender had received an aggregate sentence of 12 years with a non-parole period of 8 years, but the key comparison was between the indicative sentences for the corresponding manufacturing counts: 8 years for the applicant against 7 years and 6 months for the co-offender, despite the sentencing judge finding that the applicant had a substantially stronger subjective case.

  • Whether the disparity between the indicative sentences for the corresponding manufacturing offence committed by each co-offender gave rise to a justifiable sense of grievance.
  • What role indicative sentences play in the application of the parity principle, particularly in the context of aggregate sentencing.
  • Whether the disparity between the sentences was objectively unjustifiable, and thus constituted House v The King error warranting appellate intervention.
  • What the appropriate re-sentence should be if error was established.

Decision

The Court of Criminal Appeal unanimously granted leave to appeal and allowed the appeal, finding that the disparity between the indicative sentences was both marked and unjustified.

The Court confirmed that, while the parity principle ultimately requires comparison of the aggregate sentence as a whole, indicative sentences assume particular importance in that analysis. One significant advantage of indicative sentences is that they allow for a degree of transparency in how the parity principle has been applied. The Court also noted that, where special circumstances affect the non-parole period for one offender but not the other, the comparison of head sentences provides the more appropriate focus.

On the substantive question of parity, the Court reaffirmed that the principle derives from equal justice and requires different outcomes only where cases differ in some relevant respect. The applicable standard for appellate intervention is not that the disparity be "gross, marked or glaring" in some heightened sense; rather, the appellant must demonstrate a "marked and unjustified disparity," that is, a sentence that is not reasonably justified in light of the relevant differences. The Court declined to follow an earlier decision (Afu v R) to the extent it suggested a more demanding threshold.

Although the raw numerical difference in the head sentence components was only 6 months (8 years against 7 years and 6 months), the Court found that result impossible to reconcile with the sentencing judge's own finding that the applicant had a substantially stronger subjective case than his co-offender. A stronger subjective case should have produced a lower indicative sentence for the applicant, not a higher one. The disparity was therefore marked and unjustified, constituting House error. On re-sentence, the Court identified an indicative sentence of 7 years for Count 1 (with a 4-year non-parole period), an unchanged indicative sentence of 18 months for Count 2, and an aggregate sentence of 8 years with a non-parole period of 4 years and 6 months.

Orders Made

  • Leave to appeal granted under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
  • Appeal allowed.
  • The District Court sentence of 27 March 2024 was set aside.
  • In lieu thereof:
  • Indicative sentence for Count 1: 7 years, with a non-parole period of 4 years.
  • Indicative sentence for Count 2: 18 months.
  • Aggregate sentence of 8 years' imprisonment, commencing 29 June 2022 and expiring 28 June 2030.
  • Non-parole period of 4 years and 6 months, commencing 29 June 2022 and expiring 28 December 2026.

Key Takeaways

  • Indicative sentences serve an important transparency function in aggregate sentencing and can independently provide a basis for establishing a justifiable sense of grievance under the parity principle.
  • Where special circumstances affect the non-parole period of one co-offender but not another, the head sentence components of the respective indicative sentences provide the appropriate point of comparison for parity purposes.
  • A "marked and unjustified disparity" is the operative test for appellate intervention on parity grounds; the disparity need not reach some higher threshold of being "gross" or "glaring."
  • A sentencing judge's own finding of a substantially stronger subjective case in favour of one co-offender is internally inconsistent with an indicative sentence that is higher than that imposed on the co-offender for the same offence, and that inconsistency can constitute House v The King error.
  • In re-sentencing, the Court of Criminal Appeal acknowledged that equal justice operated in both directions: the applicant warranted a comparatively lower indicative sentence than his co-offender, but considerations of parity also told against an indicative sentence too far below that of the co-offender.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44
- Crimes Act 1900 (NSW), s 193C
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a), 25(1), 25(2)

Cases
- House v The King (1936) 55 CLR 499 (the foundational appellate error standard)
- Postiglione v The Queen (1997) 189 CLR 295 (parity principle)
- Wong v The Queen (2001) 207 CLR 584 (equal justice)
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 (parity principle)
- Bugmy v The Queen (2013) 249 CLR 571
- Kentwell v The Queen (2014) 252 CLR 601 (re-sentencing on appeal)
- R v Clarke [2013] NSWCCA 260
- JM v R [2014] NSWCCA 297
- Afu v R [2017] NSWCCA 246 (not followed)
- Cameron v R [2017] NSWCCA 229
- Daw v R [2017] NSWCCA 327
- Miles v R [2017] NSWCCA 266
- Hung v R [2023] NSWCCA 172
- R v Tran [2023] NSWDC 593
- Wilson v R [2025] NSWCCA 86