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Court of Criminal Appeal 6 June 2025

Wilson v R

[2025] NSWCCA 86

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE SELF REPRESENTED APPLICANT FURTHER ISSUES

Citation: Wilson v R [2025] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 6 June 2025
Judges: Adamson JA, Dhanji J (primary reasons), Weinstein J

Background

The applicant, a self-represented offender, was sentenced in the District Court by McGuire SC DCJ on 12 April 2024. He was convicted of two offences: supplying a prohibited drug in not less than the commercial quantity (409.9 grams of methylamphetamine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and dealing with property reasonably suspected to be proceeds of crime ($5,940 in cash), contrary to s 193C(2) of the Crimes Act 1900 (NSW).

The sentencing judge imposed an aggregate sentence of 2 years' imprisonment with a non-parole period of 1 year and 2 months, commencing 17 June 2023. Indicative sentences were nominated at 1 year and 10 months for the drug supply offence and 4 months for the proceeds offence, with a 25 percent discount applied to each for early guilty pleas.

The applicant sought leave to appeal against that aggregate sentence, raising three grounds: that the sentence should have been backdated further; that the indicative sentences should have run concurrently; and that the result was disproportionate compared to a co-offender's sentence. Two further issues also arose during the appeal, neither raised by the parties.

  • Whether the sentencing judge erred by not backdating the sentence by up to 199 days, given the applicant had been in custody partly referable to earlier sentences.
  • Whether the aggregate sentence should have been structured so that the two indicative sentences ran fully concurrently.
  • Whether the indicative sentence for the commercial supply offence was disproportionate compared to the sentence imposed on a co-offender (the parity ground).
  • Whether the indicative sentence for the proceeds offence was manifestly excessive (raised in submissions, not as a formal ground).
  • Whether the sentencing judge's failure to specify a non-parole period for the commercial supply offence (which carries a standard non-parole period) constituted a material error.

Decision

Backdating (Ground 1). Where an offender's custody is referable to both present offences and earlier sentences, the sentencing judge has a broad discretion whether to backdate and, if so, to what extent. The Court found that the commencement date chosen was within that discretion and no error was established.

Cumulation versus concurrency (Ground 2). The criminality encompassed in each offence was distinct. It was open to the sentencing judge to set an aggregate sentence two months longer than the indicative sentence for the drug supply offence in order to reflect the total criminality of both offences. The ground was not made out.

Parity (Ground 3). The sentencing judge had assessed the applicant's offending as objectively less serious than that of the co-offender. However, the Court observed that the judge had sentenced the applicant on the basis that he intended to consume the drug himself, which was inconsistent with his guilty plea to a supply offence. Had the correct basis been applied, the degree of differentiation might not have been the same. Despite this, differences in the subjective circumstances of the two offenders, including the likelihood of a more generous special circumstances finding applying to the co-offender, justified the disparity in non-parole periods. No justifiable sense of grievance was established.

Proceeds offence sentence. The Court found the 4-month indicative sentence was within the available range. The applicant had committed the offence while on conditional liberty, his prior record disentitled him to leniency, and his denial of possession of the cash meant he had offered no mitigating explanation and shown no remorse.

Failure to specify a non-parole period. The commercial supply offence carried a standard non-parole period of 10 years, and the sentencing judge was required under s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to nominate a non-parole period in the indicative sentence. He did not do so. The Court (Dhanji J, Weinstein J agreeing; Adamson JA declining to express a view as the issue was not argued) held that while s 54B(7) prevents such a failure from invalidating the sentence, it does not preclude a finding of error. The Court noted the failure had the potential to affect the overall sentence, particularly given the interaction with s 47(4), which prevents a consecutive sentence from commencing later than the expiry of the preceding non-parole period. In the circumstances of this case, however, the same aggregate result could only have been achieved by setting an already very favourable non-parole period for the commercial supply offence. The Court positively concluded that the failure had no bearing on the outcome, and no intervention was warranted.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where an offender's custody is attributable to both current and earlier matters, a sentencing judge holds a broad discretion over backdating, and an appellate court will not interfere unless that discretion was wrongly exercised.
  • A sentencing judge may impose an aggregate sentence that exceeds the longest indicative sentence where the offences encompass distinct criminality, provided the overall result reflects the totality of the offending.
  • Under the parity principle, disparity between co-offenders' sentences does not warrant appellate intervention where differences in subjective circumstances, including the likely application of special circumstances, justify the divergence in non-parole periods.
  • Failure to specify a non-parole period in an indicative sentence for a standard non-parole period offence, contrary to s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), does not invalidate the sentence by virtue of s 54B(7), but the Court of Criminal Appeal (Dhanji J and Weinstein J) held it may still constitute an error capable of affecting the outcome in appropriate cases.
  • In dismissing the appeal, the Court confirmed that where errors in sentencing either favour the offender or demonstrably had no impact on the exercise of the sentencing discretion, they will not ground appellate intervention.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), 29
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24(a), 25D, 44(2C), 47, 53A(2)(b), 54B(4), 54B(7), 101A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Ibrahim v R [2022] NSWCCA 161; (2022) 371 FLR 30
- Elmir v R [2023] NSWCCA 260
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462;