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Court of Criminal Appeal 9 April 2025

MJR v R

[2025] NSWCCA 51

DrugsTheft & propertyFirearms & weapons
CRIME A PPEALS A PPEAL AGAINST SENTENCE MANIFEST EXCESS POSSESSION AND UNLAWFUL USE OF FIREARMS SUPPLY OF ILLEGAL DRUGS

Citation: MJR v R [2025] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 9 April 2025
Judges: Payne JA; Fagan J; Coleman J

Background

The applicant pleaded guilty to 15 offences committed over a five-month period between January and July 2019. The offending spanned supply of firearms and prohibited weapons, possession and unlawful use of firearms, supply of illegal drugs, and breaking and entering. Most of the supply offences involved transactions with a police undercover operative, and the total amounts received included $85,000 for nine firearms and $24,500 for drugs.

In the District Court at Goulburn, Baly SC DCJ sentenced the applicant to an aggregate term of 15 years imprisonment with a non-parole period of 11 years. A 50% discount was applied to each of the 15 indicative sentences before the aggregate was fixed.

The applicant sought leave to appeal solely on the ground that the aggregate sentence was manifestly excessive. He did not challenge any of the individual indicative sentences, but argued the overall aggregate reflected excessive notional accumulation that produced a result obviously unjust given his total criminality, mitigating circumstances, and the discount to which he was entitled.

  • Whether the aggregate sentence of 15 years was manifestly excessive having regard to the principle of totality
  • Whether the degree of notional accumulation implicit in the aggregate sentence was excessive, given the significant overlap between many of the individual offences
  • Whether the 50% guilty plea discount was significantly eroded at the aggregation stage

Decision

The Court of Criminal Appeal granted leave to appeal, despite the notice of appeal being filed more than 18 months out of time. The Crown did not oppose the grant of leave, and the Court was satisfied that leave should be granted.

On the substance of the appeal, the Court found that the applicant's criminality across several of the charges overlapped significantly, particularly among offences of the same kind (such as the multiple supply counts and the multiple possession counts). That overlap called for a substantial degree of notional concurrence when fixing the aggregate sentence, consistent with the principle in Nguyen v The Queen (2016) 256 CLR 656.

The Court held that the 50% discount the applicant was entitled to, and which the Crown accepted was appropriate, had been significantly eroded by the time the sentencing judge arrived at the aggregate figure. This erosion of the discount at the aggregation stage was identified as an error in principle, following the approach in Johnson v R [2021] NSWCCA 13.

Taking together the excessive notional accumulation and the erosion of the discount, the Court concluded that the aggregate sentence of 15 years with an 11-year non-parole period was manifestly excessive on the principle of totality. The Court re-sentenced the applicant to an aggregate term of 10 years with a non-parole period of 7 years and 6 months.

Orders Made

  • Leave granted to proceed on the application filed out of time
  • Leave to appeal against sentence granted
  • The aggregate sentence imposed in the District Court on 8 April 2022 was quashed
  • In lieu thereof, the applicant was sentenced to 10 years imprisonment, commencing 3 July 2019 and expiring 2 July 2029, with a non-parole period of 7 years and 6 months expiring 2 January 2027
  • Earliest eligible parole date: 2 January 2027

Key Takeaways

  • Where multiple offences of like kind are charged together, significant overlap in the underlying criminality calls for a substantial degree of notional concurrence when fixing an aggregate sentence, in accordance with Nguyen v The Queen.
  • A 50% guilty plea discount applied to individual indicative sentences can be substantially eroded if the aggregate is then fixed at a level that does not reflect the true benefit of that discount, producing a sentence that is, in effect, unduly cumulative.
  • Manifest excess in an aggregate sentence can be established even where none of the individual indicative sentences would independently have been appellable, if the combined effect of notional accumulation and discount erosion produces a total that is obviously unjust.
  • The Court of Criminal Appeal reduced the sentence by five years (from 15 years to 10 years) and the non-parole period by 3 years and 6 months, reflecting the degree of correction required to give proper effect to totality and the agreed discount.
  • Late filing of a notice of appeal does not automatically preclude leave where the Crown does not oppose the application and the interests of justice warrant consideration of the merits.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases:
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Johnson v R [2021] NSWCCA 13
- Chartres-Abbott v R [2021] NSWCCA 239
- Davidson v R [2022] NSWCCA 153
- Moananu v R [2022] NSWCCA 85
- XY (A Pseudonym) v R [2023] NSWCCA 50