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Court of Criminal Appeal 14 February 2025

Koster v R

[2025] NSWCCA 4

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS

Citation: Koster v R [2025] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 14 February 2025
Judges: Adamson JA, Ball JA, Fagan J

Background

Following a jury trial in the District Court at Sydney, the applicant was convicted on two counts of supplying not less than a large commercial quantity of lysergide (LSD) under the Drug Misuse and Trafficking Act 1985 (NSW). The two offences involved supplying 6.9 grams and 9.7 grams of LSD respectively to another person in November 2019 and February 2020. That person then resupplied the drugs to an undercover police officer conducting a controlled operation.

The sentencing judge imposed an aggregate sentence of four years and three months imprisonment with a non-parole period of two years and six months. The judge accepted the offences sat at the lower end of objective seriousness, noting the modest quantities involved and the absence of sophisticated arrangements. The judge also found strong subjective factors in the applicant's favour, including a difficult upbringing, PTSD (developed following a serious assault during a brief period on remand), and a low risk of reoffending.

The applicant sought leave to appeal the sentence on the sole ground that it was manifestly excessive. He contended that, given the relatively low objective seriousness and his strong subjective case, any sentence exceeding three years was unreasonable or plainly unjust, and that an intensive correction order (a community-based sentencing option under the Crimes (Sentencing Procedure) Act 1999 (NSW)) should have been imposed instead.

  • Whether the sentence of four years and three months imprisonment was manifestly excessive, in the sense of being unreasonable or plainly unjust.
  • Whether the strong subjective circumstances, combined with the lower-end objective seriousness, warranted a sentence of no more than three years or, alternatively, an intensive correction order.

Decision

The Court of Criminal Appeal unanimously dismissed the application for leave to appeal. Ball JA (with Adamson JA and Fagan J agreeing) held there was no reasonable prospect of establishing that the sentence was unreasonable or plainly unjust, which is the threshold required to succeed on a manifest excess ground. The Court emphasised that it is not sufficient for an appellate court to merely disagree with how the sentencing discretion was exercised.

The Court acknowledged the sentencing judge's correct findings that both offences were at the lower end of objective seriousness. However, it stressed that there were two separate offences, each carrying a maximum sentence of life imprisonment, and both involving quantities of LSD that placed them squarely within the large commercial quantity category. Those legislative classifications required meaningful weight to be given to the gravity of the conduct and the need for general deterrence.

On the subjective side, the Court found the picture was not uniformly favourable. The applicant had prior drug-related offences (though minor), did not plead guilty, and only accepted responsibility for his conduct approximately four years after the offences. These features tempered the otherwise strong subjective case.

The Court concluded the sentence fell at the low end of the available range, and the reduction in the non-parole period as a proportion of the head sentence adequately reflected the applicant's subjective circumstances while remaining consistent with the seriousness of the offences and the demands of general deterrence.

Orders Made

  • The application for leave to appeal against sentence was dismissed.

Key Takeaways

  • To succeed on a manifest excess ground, an applicant must demonstrate the sentence was "unreasonable or plainly unjust." It is not enough to show that an appellate court might have imposed a lesser sentence.
  • In dismissing the appeal, the Court confirmed that offences classified by the legislature as among the most serious, carrying a maximum of life imprisonment, demand substantial weight even where the particular instance sits at the lower end of objective seriousness.
  • Subjective circumstances, including PTSD, remorse, and strong character references, can reduce a sentence but do not necessarily displace the requirements of general deterrence and proportionality to legislative classification.
  • Where an applicant did not plead guilty and only belatedly accepted responsibility, those factors properly reduce the mitigatory weight available from claimed remorse.
  • An intensive correction order under s 7 of the Crimes (Sentencing Procedure) Act 1999 was not available here because the aggregate sentence exceeded three years, the statutory cap for such orders.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 44(2), 68
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29