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Court of Criminal Appeal 6 February 2026

Hyde v R

[2026] NSWCCA 1

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE WHERE TWO CO WHETHER THE ABSENCE OF THE CO LEAVE TO APPEAL GRANTED

Citation: Hyde v R [2026] NSWCCA 1
Court: New South Wales Court of Criminal Appeal
Date: 6 February 2026
Judge(s): Price AJA at [1]; Yehia J at [2]; Coleman J at [107]

Background

The applicant was sentenced in the District Court of New South Wales on 22 March 2024 following a guilty plea to one count of knowingly taking part in the supply of cannabis leaf in a commercial quantity (144.247 kg), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of 15 years' imprisonment. After a 10% discount for the utilitarian value of his late guilty plea (entered after committal for trial), the sentencing judge (Hunt DCJ) imposed a sentence of 2 years and 8 months' imprisonment with a non-parole period of 1 year.

The applicant's co-offender, Mr Minkin, had pleaded guilty to an identical charge and was sentenced by the same judge approximately 10 months earlier, on 15 May 2023. After a 33⅓% discount, Mr Minkin received a sentence of 2 years' imprisonment to be served by way of an Intensive Correction Order (ICO) — that is, in the community rather than in custody. The parties agreed on appeal that when the sentencing judge came to sentence the applicant, the Crown's sentence bundle did not include the judge's earlier remarks on sentence for Mr Minkin or Mr Minkin's subjective material (referred to as "the Minkin material").

The applicant sought leave to appeal against his sentence on the basis that this procedural gap caused a miscarriage of justice, that the sentencing judge erred in assessing objective seriousness, and that the sentence was manifestly excessive. He had been on appeals bail since 26 March 2024, having served only 10 days in custody.

  • Ground 1 — Procedural miscarriage: Whether the absence of the co-offender's subjective material and the sentencing judge's earlier remarks on sentence from the Crown bundle caused the applicant's sentencing proceedings to miscarry, preventing the judge from properly considering parity between co-offenders.

  • Ground 2 — Objective seriousness: Whether the sentencing judge erred by (a) failing to account for the fact that the Crown alleged the applicant "took steps in the process of supply" rather than directly supplying cannabis leaf, and (b) assessing the offence as being at "either the very bottom of the mid-range or the very top of the low range" of objective seriousness.

  • Ground 3 — Manifest excess: Whether the sentence imposed was manifestly excessive — that is, "unreasonable or plainly unjust."

Decision

On Ground 1, the Court (Yehia J, with Price AJA and Coleman J agreeing) acknowledged the general principle that an appellate court will be cautious about intervening where the same judge has sentenced all co-offenders, because that judge is well placed to consider the interrelationship between the objective and subjective features of each case in an overarching way. Although the Minkin material was not formally before the sentencing judge at the applicant's sentence hearing, the Court found that the judge was nonetheless able to undertake the task of comparing both the subjective and objective cases for each offender. His Honour was "clearly alive to the offending in each case" and was able to draw meaningful distinctions between the two. The Court concluded that it was reasonably open to the sentencing judge to adopt the same starting point of 3 years' imprisonment for both offenders, and that the absence of the Minkin material did not result in a miscarriage of justice. Ground 1 was not made out.

On Ground 2, the Court emphasised that a sentencing judge has a wide discretion in making findings of objective seriousness, and that the Court of Criminal Appeal will not interfere unless the characterisation given was not "reasonably open." Applying Mulato v R [2006] NSWCCA 282, the Court found that the sentencing judge had precisely considered the applicant's role and the manner in which he knowingly took part in the supply of cannabis leaf. A careful analysis of all relevant factors, including the nature and quantity of the drug, had been undertaken. The Court was satisfied that the assessment of objective seriousness was reasonably open and dismissed this ground.

On Ground 3, the Court reiterated the well-established principle from Wong v The Queen (2001) 207 CLR 584 that sentencing is a discretionary exercise in which there is no single correct sentence. It is not sufficient to show that a sentence is "markedly different" from those in comparable cases, or that the appellate court might have exercised the discretion differently. The applicant must establish that the sentence is "unreasonable or plainly unjust." The Court found that the applicant had not discharged this burden. To the contrary, the sentence and its structure demonstrated a degree of leniency extended by the sentencing judge. Ground 3 was not made out.

The Court granted the extension of time to file the notice of appeal (the delay being attributable to the applicant's former legal representatives, not to the applicant personally) and granted leave to appeal, but ultimately dismissed the appeal.

Orders Made

  • Extension of time to file the notice of appeal: granted.
  • Leave to appeal against sentence: granted.
  • Appeal: dismissed.

Key Takeaways

  • Where the same judge sentenced all co-offenders, even at different times, the Court of Criminal Appeal held that an appellate court should be cautious about intervening on parity grounds, as the sentencing judge was presumed to be well placed to weigh the interrelationship between each co-offender's objective and subjective circumstances.

  • Incomplete Crown bundles, such as the absence of a co-offender's subjective material, were not automatically fatal to the sentencing process. The relevant question was whether the omission actually resulted in a miscarriage of justice; where the sentencing judge was nevertheless able to undertake the necessary comparative exercise, the procedural gap was not dispositive.

  • Objective seriousness findings attract a wide discretion, and appellate intervention requires the applicant to demonstrate that the characterisation was not "reasonably open," a threshold the Court of Criminal Appeal confirmed is a high one to meet.

  • In refusing the application for leave to appeal, the Court confirmed that manifest excess requires more than mere disagreement with the sentence imposed. A sentence will not be set aside unless it is shown to be "unreasonable or plainly unjust," and where the sentencing judge's reasoning disclosed appropriate consideration of all relevant factors, that threshold was difficult to satisfy.

  • The absence of all relevant co-offender material from the sentence bundle, including remarks on sentence and subjective material, created procedural difficulties, particularly where sentencing proceedings were staggered over time, though this did not of itself establish error warranting appellate correction.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 68(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Key cases cited:
- Cameron v R [2017] NSWCCA 229
- Contos v R [2022] NSWCCA 92
- Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
- Evatt (a pseudonym) v R [2025] NSWCCA 130
- FRP v R [2025] NSWCCA 178
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huckstadt v R [2016] NSWCCA 22
- Keen v R (2024) 389 FLR 9; [2024] NSWCCA 157
- Meers v R (2025) 394 FLR 114; [2025] NSWCCA 27