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Court of Criminal Appeal 6 June 2025

Testici v R

[2025] NSWCCA 88

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE SENTENCE QUASI CUSTODY

Citation: Testici v R [2025] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 6 June 2025
Judges: Stern JA; Hamill J; McNaughton J (principal judgment)

Background

The applicant, a 46-year-old man, pleaded guilty in the District Court to supplying a commercial quantity of methylamphetamine (284 grams), supplying an indictable quantity of cocaine (83.25 grams), and possessing a prohibited weapon (knuckle dusters). Several additional matters, including possession of ammunition and dealing with suspected proceeds of crime, were taken into account on a Form 1. The offending occurred in 2021 and arose partly from communications intercepted through Operation Ironside, the AFP's covert operation targeting the AN0M encrypted communications network.

Following his release on bail in June 2021, the applicant was subject to a home detention condition for approximately two years and nine months until he was sentenced on 19 March 2024. The only permitted exceptions to that condition were reporting to police and attending medical or legal appointments.

Judge O'Rourke SC imposed an aggregate sentence of 3 years and 2 months' imprisonment, with a non-parole period of 20 months, commencing 10 March 2024. The applicant sought leave to appeal, arguing errors in the treatment of his pre-sentence quasi-custody and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to provide reasons for how the onerous bail conditions were taken into account when fixing the sentence
  • Whether the sentencing judge erred by not backdating the sentence to account for the period of pre-sentence quasi-custody (the extended home detention on bail)
  • Whether the aggregate sentence of 3 years and 2 months' imprisonment was manifestly excessive

Decision

Ground 1(a): Failure to give reasons for treating quasi-custody
The Court found no error. The sentencing judge made clear she was taking the pre-sentence quasi-custody into account. There is no mandatory requirement to accommodate quasi-custody by backdating a sentence, and equally no obligation to provide reasons for declining to do so. The applicant did not make good this ground.

Ground 1(b): Failure to backdate the sentence
The Court found no error here either. Counsel for the applicant at the sentencing hearing had not submitted that backdating was the only proper means of recognising the onerous bail conditions. Even if that submission had been made, the sentencing judge acknowledged the conditions and took them into account through the process of instinctive synthesis (the overall balancing exercise a sentencing judge performs when fixing an appropriate sentence). Whether to backdate or to reflect quasi-custody through instinctive synthesis is a matter within the sentencing judge's discretion, and no error was demonstrated. Hamill J added that backdating does carry a distinct transparency advantage, but confirmed the authorities disclose no obligation to adopt that method.

Ground 2: Manifest excess
The Court dismissed this ground. The aggregate sentence was plainly within the sentencing judge's discretion when assessed against the seriousness of the offending: two different drugs supplied, methylamphetamine at commercial quantity and high purity, financial motivation, operation above street-dealer level, and significant maximum penalties of 20 and 15 years respectively. The applicant's mental health difficulties were taken into account through a finding of special circumstances, which altered the statutory ratio between the non-parole period and the balance of the sentence. The applicant did not demonstrate that the sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not obliged to backdate a sentence to reflect a period of pre-sentence quasi-custody; accommodating that period through instinctive synthesis is a legitimate and discretionary alternative.
  • No mandatory requirement exists to provide reasons for declining to backdate when quasi-custody has been taken into account, provided the judge makes clear the issue has been considered.
  • Where an applicant does not submit at first instance that backdating is the only proper course, it is harder to establish appellate error on that basis; the Court of Criminal Appeal noted the adversarial nature of sentencing proceedings means parties bear responsibility for identifying and raising issues they wish the judge to address.
  • Hamill J's additional remarks confirm that backdating remains a preferable approach for transparency, even though it is not compulsory.
  • In assessing manifest excess, the court considered the nature and quantity of the drugs, the scale of the operation, the significant maximum penalties, and the sentencing judge's treatment of the applicant's mental health through special circumstances, all as part of a holistic evaluation of whether the sentence fell outside the available discretion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 25D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), (2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Firearms Act 1996 (NSW), s 65(3)
- Crimes Act 1900 (NSW), s 193C(2)

Cases:
- Hemsworth v R [2025] NSWCCA 2
- Kljaic v R [2023] NSWCCA 225
- La v R [2021] NSWCCA 136
- Small v R [2018] NSWCCA 290
- Zreika v R [2012] NSWCCA 44
- Ming v Director of Public Prosecutions (2022) 109 NSWLR 604; [2022] NSWCA 209
- R v Quinlin [2021] NSWCCA 284
- Issac v R (2024) 384 FLR 431; [2024] NSWCCA 2
- Apulu v R [2022] NSWCCA 244
- Elchiekh v R [2016] NSWCCA 225
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Astill v R [2024] NSWCCA 118