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Court of Criminal Appeal 19 December 2025

Lynch v R

[2025] NSWCCA 228

Firearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE FIREARMS OFFENCES PLEA OF GUILTY LEAVE TO APPEAL GRANTED

Citation: Lynch v R [2025] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 19 December 2025
Judge(s): Kirk JA, Yehia J, Rigg J

Background

The applicant was convicted of five firearms offences across two indictments following proceedings in the District Court. The offences included supplying firearms, possessing a prohibited pistol in contravention of a Firearms Prohibition Order (FPO), and firing a firearm in a manner likely to endanger the safety of another person. On 10 May 2024, the sentencing judge imposed an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years, commencing 27 February 2023.

The applicant had pleaded guilty to three counts on the sentence indictment on the first day of the scheduled trial, and to one count on the trial indictment on the same day. After the close of the Crown case on 12 February 2024, he pleaded guilty to a further count (the discharge offence) and was acquitted by the jury on the remaining two counts.

The aggregate sentence accumulated upon a separate Local Court sentence of three years imposed for drug and violence offences, with the combined effect that the applicant faced continuous imprisonment from age 30 to 44, followed by a further four years on parole.

  • Whether the sentencing judge erred by failing to apply a mandatory 5% discount for the applicant's guilty plea to the discharge offence (Trial Indictment Count 3), entered after the close of the Crown case
  • Whether the sentencing judge erred by aggravating the objective seriousness of the discharge offence by finding the applicant "intentionally and maliciously fired" the weapon, a characterisation that would have exposed him to a more serious charge
  • Whether the sentencing judge erred by aggravating the objective seriousness of the two possession offences by taking into account conduct not the subject of those charges
  • Whether the aggregate sentence was manifestly excessive in all the circumstances

Decision

On the first ground, the Court upheld the appeal. Section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) mandates a 5% discount where a guilty plea is entered at the close of the Crown case. Notably, the error was not solely the sentencing judge's: the representatives of both parties had informed the court that no discount applied, and the agreed facts table and written submissions for both Crown and defence also stated no discount was available. The Crown conceded on appeal that the error had the capacity to influence the aggregate sentence.

On grounds 2(b) and 2(c), the Court also found error in the sentencing judge's assessment of the objective seriousness of the two most serious possession offences. The sentencing judge had drawn on evidence from the jury trial and had taken into account conduct not the subject of those specific charges, which the Court of Criminal Appeal held constituted error in aggravating objective seriousness.

Given errors on three counts, including the two most serious possession offences, the Court proceeded to a full resentencing exercise. Rigg J noted the combined effect of the original sentence and the Local Court sentence required continuous imprisonment well into the applicant's 40s, and that this total did not reflect the overall criminality involved. The applicant's background, positive progress in custody, and the importance of supporting that progress upon release, together with the partial accumulation on the Local Court sentence, justified a finding of special circumstances.

The Court reduced the aggregate sentence from 16 years (non-parole period 12 years) to 11 years (non-parole period 7 years), commencing on the same date set by the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence of imprisonment imposed in the District Court on 10 May 2024 set aside
  • In lieu thereof, the applicant sentenced to 11 years imprisonment commencing 27 February 2023 and expiring 26 February 2034, with a non-parole period of 7 years commencing 27 February 2023 and expiring 26 February 2030

Key Takeaways

  • Under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a 5% guilty plea discount is mandatory where a plea is entered at the close of the Crown case; the discount is not discretionary and cannot be omitted even where both parties have agreed it does not apply.
  • The Court of Criminal Appeal confirmed that an error in failing to apply a mandatory discount to one charge in an aggregate sentence can have the capacity to affect the aggregate, and may therefore warrant a full resentencing exercise, though Rigg J declined to state this as a universal proposition, and Yehia J expressly reserved her view on that point.
  • Aggravating objective seriousness of a charge by reference to conduct not the subject of that charge constitutes a sentencing error, even where such conduct emerged in evidence during a related trial over which the sentencing judge had presided.
  • Totality principles require close attention when a sentence accumulates significantly upon an existing term, particularly where the combined effect of multiple sentences results in a crushing period of continuous imprisonment for the offender.
  • A finding of special circumstances was supported by the applicant's positive progress in custody, his personal background, and the importance of supporting his rehabilitation upon release.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 25D(2)(c)
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Firearms Act 1996 (NSW), ss 7(1), 51(2), 51(2A), 74(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Evidence Act 1995 (NSW)

Cases:
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37