Citation: [2025] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 23 December 2025
Judge(s): McHugh JA; Ierace J; Cavanagh J
Background
The respondents, Mr Westwood and Mr Robertson, pleaded guilty to conspiring to import a commercial quantity of heroin and methamphetamine — an offence carrying a maximum penalty of life imprisonment under the Criminal Code Act 1995 (Cth). The drugs were imported by air cargo from Malaysia in March 2021 as part of a broader importation stream of approximately 15 consignments, though the respondents were sentenced only for their involvement in the single consignment of roughly 400 kg. Mr Robertson also asked the court to take into account, on a schedule under s 16BA of the Crimes Act 1914 (Cth), a separate offence of conspiracy to deal with proceeds of crime valued at $1 million or more.
The sentencing judge in the District Court, Newlinds SC DCJ, assessed the objective seriousness of the offending as "significantly below the high range," finding neither respondent was a leading member of the syndicate. His Honour also found that each respondent had an "extremely powerful" subjective case — findings the Crown did not challenge on appeal. Mr Westwood was sentenced to 8 years' imprisonment with a 4-year non-parole period, and Mr Robertson to 9 years' imprisonment with a 4.5-year non-parole period. Both respondents accepted the sentences were very lenient.
A critical feature of the case was that the prosecution evidence relied entirely on communications obtained through the encrypted platform "AN0M." At the time the respondents entered their pleas, the admissibility of AN0M evidence was under significant challenge in courts across Australia. The sentencing judge gave a 25% quantified discount for the utilitarian value of each plea and, in addition, afforded "significant weight" — as a separate, unquantified reduction — to the fact that the pleas were entered despite the live admissibility challenge, reasoning that the pleas provided broader benefits to the community and to the administration of justice. The Crown appealed both sentences to the Court of Criminal Appeal.
Legal Issues
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Ground 1: Whether the sentencing judge erred in his approach to the guilty pleas by giving a separate, additional (unquantified) discount on top of the 25% utilitarian discount, on the basis that the pleas provided a broader benefit to the community under s 16A(2)(g) of the Crimes Act 1914 (Cth) — specifically by encouraging other accused in AN0M-related prosecutions to plead guilty.
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Ground 2: Whether the head sentences and non-parole periods imposed on both respondents were manifestly inadequate.
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Ground 3 (residual discretion): If either ground was established, whether the Court should nonetheless exercise its residual discretion to decline to interfere with the sentences.
Decision
Ground 1: The approach to guilty pleas under s 16A(2)(g)
The Crown argued that s 16A(2)(g) — which directs a sentencing court to take into account "any benefit to the community" resulting from a guilty plea — is limited to the immediate utilitarian benefit of avoiding a trial in the particular case. On this view, the sentencing judge had effectively double-counted the plea by giving both a quantified 25% discount and a further unquantified reduction for the broader systemic benefit of the plea.
The Court rejected the Crown's narrow construction of the provision. On the proper reading of s 16A(2)(g), the relevant question is not whether the benefit arises directly from avoiding trial in the specific matter, but whether the plea "resulted in" a benefit to the community, the victim, or witnesses. A benefit flowing from the encouragement that the plea gave to other accused persons in AN0M prosecutions to also plead guilty was, in principle, capable of falling within the section's scope.
The Court also rejected the submission that this approach necessarily involved impermissible double counting. Taking the plea into account as demonstrating a subjective willingness to facilitate the course of justice, and as evidence of remorse, was conceptually distinct from taking it into account as providing an objective benefit to the community. The Crown had not demonstrated that the sentencing judge erred in taking some matters into account through the process of instinctive synthesis while separately quantifying a discount for the utilitarian value of the plea.
Ground 2: Manifest inadequacy
The Court found that the sentences imposed on both respondents were manifestly inadequate. They were out of step with sentences for comparable offences involving commercial quantities of border-controlled drugs. Even after giving full credit for the respondents' strong subjective cases and the guilty pleas, the sentences did not adequately reflect the purposes of sentencing — in particular, the need for general deterrence in drug importation offences of this kind.
Ground 3: Residual discretion
Despite finding manifest inadequacy, the Court exercised its residual discretion to decline to intervene. A finding that a sentence is manifestly inadequate does not automatically mandate resentencing. The Court examined the individual circumstances of each respondent and concluded that intervention was not warranted. Relevant factors in the exercise of this discretion — though the full reasoning on this point falls within the truncated portion of the judgment — appear to have included the particular circumstances of each respondent's case and broader considerations of fairness, consistent with the principles articulated in Green v The Queen and R v White [2025] NSWCCA 111.
Orders Made
- Both Crown appeals were dismissed.
- The sentences imposed at first instance were left undisturbed.
Key Takeaways
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Under s 16A(2)(g) of the Crimes Act 1914 (Cth), the benefits of a guilty plea are not limited to the immediate avoidance of a trial. The Court of Criminal Appeal accepted that a sentencing court may take into account broader community benefits that "resulted from" a plea, such as the encouragement it gave to co-accused in related prosecutions to resolve their own cases by plea.
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A sentencing judge may take a guilty plea into account in multiple ways without necessarily engaging in impermissible double counting. The Court confirmed that treating a plea as evidence of subjective willingness to facilitate justice (and remorse) while also applying a separate, quantified utilitarian discount is permissible, provided the matters recognised are conceptually distinct.
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Where a sentence is found to be manifestly inadequate on a Crown appeal, resentencing does not automatically follow. The Court of Criminal Appeal confirmed that it retains a residual discretion to decline to intervene, with the exercise of that discretion depending on the individual circumstances of each respondent's case.
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In prosecutions relying on AN0M evidence, a guilty plea entered while the admissibility of that evidence faces significant challenge may attract greater weight at sentencing. That context was found to enlarge the benefit to the community attributable to the plea, justifying a more generous recognition of it under s 16A(2)(g).
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Substantial reductions below expected sentencing ranges for commercial drug importation may constitute manifest inadequacy, even where subjective cases are compelling and plea-related benefits are significant. Although the sentences in this case were found to be manifestly inadequate, the residual discretion ultimately saved them from being disturbed on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16BA, 16AAA, 16AAB, 16AAC
- Criminal Code Act 1995 (Cth), ss 11.5, 307.1, 400.3
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
- Surveillance Legislation (Confirmation of Application) Act 2024 (Cth)
Key Cases:
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Bugmy v The Queen (2013) 249 CLR 571
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Everett v The Queen (1994) 181 CLR 295
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Dinsdale v The Queen (2000) 202 CLR 321
- HT v The Queen (2019) 269 CLR 403
- R v Thomson; R v Houlton (2000) 49