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Court of Criminal Appeal 19 December 2025

Waters v R

[2025] NSWCCA 226

Drugs
[1936] HCA 40 ERROR — APPEAL DISMISSED

Citation: Waters v R [2025] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 19 December 2025
Judges: Ward P, Adamson JA, R A Hulme AJ

Background

The applicant was sentenced in the District Court to 20 years imprisonment, with a non-parole period of 12 years, after pleading guilty on the first day of trial to conspiring to possess cocaine in a commercial quantity. His plea was limited to a period of approximately three weeks of involvement in the conspiracy. He was acquitted of a separate charge of conspiring to import a border-controlled drug.

The applicant's co-accused, Campbell, was convicted after trial of the same possession offence and sentenced to 18 years imprisonment with a non-parole period of 10 years and 6 months. A third alleged co-conspirator, Arnold, had pleaded guilty to the importation offence and been sentenced separately in 2020 to 27 years imprisonment with a non-parole period of 19 years.

The applicant sought leave to appeal on multiple grounds, arguing the sentencing judge had misapplied the guilty plea discount, made irregular deductions from a nominated starting point, incorrectly assessed his role in the offending, and imposed a sentence disproportionate to those of his co-offenders.

  • Whether the sentencing judge erred by blending contrition with the utilitarian value of the guilty plea in a single 10% discount
  • Whether the sentencing judge erred by making further deductions from a nominated starting point for mitigating factors other than the plea
  • Whether the sentencing judge erred in assessing the utilitarian value of the plea by reference to co-accused Campbell's decision to defend the charges
  • Whether the sentencing judge erred in rejecting the applicant's contention that he played only a minor role in the conspiracy
  • Whether the applicant's sentence was disproportionate when compared to the sentences imposed on Campbell and Arnold (parity)

Decision

Guilty plea discount (Grounds 2, 3, and 4): The Court found error on all three grounds relating to the plea discount. First, it was not open to the sentencing judge to specify a blended 10% discount for both the utilitarian value of the plea and the applicant's contrition. The utilitarian value of a guilty plea must stand alone in any percentage deduction; contrition must be addressed separately within the process of instinctive synthesis. Second, once a nominated starting point of 25 years was identified, the only permitted deduction from that figure was for the utilitarian value of the plea; further discounting for other mitigating factors was irregular and contrary to the approach mandated by Markarian. Third, the sentencing judge impermissibly factored in Campbell's decision to contest both charges when assessing the utilitarian value of the applicant's plea, which was irrelevant and produced an arbitrary outcome.

Minor role (Ground 6): Following the Court's recent decision in Hancock v R [2025] NSWCCA 213, the applicable test for challenging factual findings on sentence appeals is the House v The King error standard. Applying that test, the Court held it was reasonably open to the sentencing judge to reject the minor role submission. The applicant had occupied a position of trust within the syndicate, handled money and drugs, and was tasked with obtaining a firearm. Those findings, which were not themselves challenged, supported the conclusion that he held a material role in the hierarchy.

Re-sentence and parity: Despite identifying multiple sentencing errors, the Court proceeded to re-sentence the applicant and concluded that no lesser sentence than 20 years was warranted. The plea discount was confirmed at 10%, reduced from a potentially higher figure because of the late timing of the plea and the limitations of the applicant's earlier offer. The Court found the applicant's role was materially greater than Campbell's in both seriousness and hierarchical standing, justifying the higher sentence. Arnold's sentence provided a further reference point, and the Court was satisfied that the overall sentencing structure remained coherent across all three offenders.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea discount for a Commonwealth offence must reflect only the utilitarian value of the plea; contrition and other mitigating factors must be accounted for separately within the instinctive synthesis process, not blended into the same percentage figure.
  • Where a sentencing judge adopts a nominated starting point, the only permissible deduction from that figure is for the utilitarian value of a guilty plea; other mitigating factors belong within the instinctive synthesis that produces the starting point itself.
  • The utilitarian value of an offender's guilty plea is assessed by reference to that offender's own circumstances; a co-accused's unrelated decision to contest the charges is irrelevant to that assessment and introducing it produces an arbitrary and unfair result.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that House v The King error is the applicable standard for challenging factual findings in sentence appeals, following Hancock v R [2025] NSWCCA 213.
  • Multiple established sentencing errors do not automatically lead to a reduced sentence on re-sentence; where the overall sentence remains within a range that is appropriate having regard to the gravity of the offending and the limited mitigating factors, the original term may be confirmed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Code (Cth), ss 11.5(1), 307.1(1), 307.5(1)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Hancock v R [2025] NSWCCA 213
- Green (a pseudonym) v R [2025] NSWCCA 16
- Mohr v R [2024] NSWCCA 197
- Huang v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
- Magro v R [2020] NSWCCA 25
- Bae v R [2020] NSWCCA 35
- Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
- Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Ritchie v R [2023] NSWCCA 153
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
- R v Campbell [2024] NSWDC 147
- R v Waters [2024] NSWDC 126