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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: Court of Criminal Appeal
Date: 06 June 2025
Judge(s): Adamson JA, Dhanji J, Weinstein J

Background

The applicant, self-represented, sought leave to appeal against a sentence imposed in the District Court on 12 April 2024 for two offences: commercial supply of a prohibited drug (not less than commercial quantity), and dealing with property reasonably suspected of being proceeds of crime. The sentencing judge imposed an aggregate sentence of 2 years imprisonment commencing on 17 June 2023, with a non-parole period of 1 year and 2 months, expiring on 16 August 2024.

The sentencing exercise was complicated by the applicant's custodial history. At the time of his arrest on 1 December 2022, he was on parole for an earlier sentence, which was revoked. He was also serving the non-parole period of a further sentence imposed by the Newcastle District Court in December 2022. Both prior sentences overlapped with the period over which the present charges were committed.

The applicant received a 25 percent discount on each offence for his early guilty plea, resulting in indicative sentences of 1 year and 10 months for the commercial supply offence and 4 months for the proceeds offence.

Legal Issues

  • Whether the sentencing judge erred in backdating the sentence to commence on 17 June 2023 rather than an earlier date, given the applicant's pre-sentence custody
  • Whether the two-month cumulation of the indicative sentences was appropriate, or whether the proceeds offence should have resulted in no additional penalty
  • Whether the sentence violated the parity principle by comparison with co-offender Mr Zreika's sentence
  • Whether the indicative sentence for the proceeds offence was manifestly excessive
  • Whether the sentencing judge's failure to specify a non-parole period for the commercial supply offence (a standard non-parole period offence) constituted reversible error

Decision

Ground 1: Backdating

The court found no error in the commencement date. Where an offender's custody is referable both to the offences being sentenced and to earlier sentences, the sentencing judge has a broad discretion as to whether and to what extent to backdate a sentence (at [33]). Although the sentencing judge proceeded on a misunderstanding of s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"), that error operated in the applicant's favour (at [35]). The commencement date of 17 June 2023 was open on the exercise of the discretion, and no error of principle or fact was established (at [35]).

Ground 2: Cumulation

The court rejected the argument that the proceeds offence should have attracted no additional penalty. The criminality in each offence was distinct: the drug supply offence concerned possession of the drug for supply, while the proceeds offence concerned possession of money reasonably suspected of being proceeds of crime (at [39]). It was open to the sentencing judge to set the aggregate sentence two months longer than the indicative sentence for the supply offence in order to comprehend the total criminality of both offences (at [40]).

Ground 3: Parity

The applicant's parity argument, based on comparison with co-offender Mr Zreika, was not established. While the sentencing judge assessed the applicant's offending as objectively less serious, significant subjective differences justified the sentencing outcome (at [52]-[53]). Mr Zreika was significantly younger, had a criminal history limited to traffic offences, and was therefore entitled to a greater focus on rehabilitation and leniency not available to the applicant (at [53]). The court also noted that the sentencing judge erred in assessing the commercial supply offence by accepting the applicant's claim that he intended to consume the drug himself, which was inconsistent with the nature of the charge; this error benefited the applicant and, if corrected, would have reduced or eliminated the difference in objective seriousness between the two offenders (at [54]-[56]).

Further issue: Manifest excess

The court declined to find the indicative sentence for the proceeds offence manifestly excessive. Given the maximum penalty of 3 years, the 25 percent discount, the applicant's denial of remorse for that offence, his breach of conditional liberty, and his disentitlement to leniency based on his prior record, the sentence was within the available range (at [63]).

Further issue: Failure to specify non-parole period for standard non-parole period offence

The sentencing judge erred in failing to specify a non-parole period for the commercial supply offence, as required by s 54B(4) and s 44(2C) of the CSPA (at [64]-[65]). However, that failure did not invalidate the sentence by operation of s 54B(7), and Dhanji J declined to state categorically that such an error could never or even rarely require resentencing (at [71]). In this case, the aggregate sentence could have been reached by nominating a non-parole period of 1 year for the commercial supply offence, and the overall result was very favourable to the applicant as a proportion of the total sentence (at [74]). Accordingly, the failure to specify the non-parole period had no bearing on the result and did not require the Court to intervene (at [74]). Adamson JA declined to express a view on the potential consequences of this omission, as it was not the subject of argument (at [1]).

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • Where a sentenced offender's pre-sentence custody is referable to both the offences being sentenced and earlier sentences, the sentencing judge retains a broad discretion as to whether and how far to backdate the sentence; the commencement date need not correspond to the date of arrest (at [33]-[35]).

  • A failure to specify a non-parole period for an indicative sentence relating to a standard non-parole period offence, as required by s 54B(4) of the CSPA, constitutes error but does not automatically vitiate the sentencing discretion; whether resentencing follows depends on whether the error had the capacity to affect the outcome in the particular case (at [65]-[74]).

  • In dismissing the parity ground, the Court of Criminal Appeal reaffirmed that all relevant differences and similarities between co-offenders must be weighed together; lower objective seriousness does not automatically translate to a lesser sentence where the subjective cases differ materially, including as to age, criminal history, and whether the offence was committed on conditional liberty (at [52]-[53]).

  • Sentencing an offender for commercial drug supply on the basis that possession was for personal use, rather than for supply, may constitute an error where that finding is inconsistent with the offender's guilt on the charge; here, the error operated in the applicant's favour but would have reduced any difference in objective seriousness compared to the co-offender (at [54]-[56]).

  • For the purposes of parity, disparity in indicative non-parole periods may be justified by differences in individual circumstances, including the basis on which special circumstances are found; direct comparison of non-parole periods between co-offenders is not necessarily appropriate (at [58]-[59]).

Legislation and Cases Referenced

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

Cases
- Afu v R [2017] NSWCCA 246
- Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Clarke v R [2013] NSWCCA 260
- Daw v R [2017] NSWCCA 327
- Elmir v R [2023] NSWCCA 260
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Ibrahim v R [2022] NSWCCA 161; (2022) 371 FLR 30
- Jones v Stephens (Supreme Court (NSW), McInerney J, 8 October 1985, unrep)
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kitson v R [2022] NSWCCA 166; (2022) 300 A Crim R 469
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- MO v R [2023] NSWCCA 26
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Parris v R [2013] NSWCCA 5
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v English [2000] NSWCCA 245
- R v Farrugia [2022] NSWCCA 98
- R v McHugh (1985) 1 NSWLR 588
- R v Tuncbilek [2004] NSWCCA 139
- R v Wahabzadah [2001] NSWCCA 253
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- See v R [2020] NSWCCA 272
- Smith (a pseudonym) v R [2022] NSWCCA 123
- Tatana v R [2006] NSWCCA 398
- Tuesley v R [2021] NSWCCA 58
- ZZ v R [2024] NSWCCA 25