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Court of Criminal Appeal 25 February 2026

Chen, Huagui v R

[2026] NSWCCA 11

Drugs
CRIME APPEALS A PPEAL AGAINST SENTENCE DRUG MANUFACTURING STATE AND FEDERAL OFFENCES APPEAL ALLOWED

Citation: Chen, Huagui v R [2026] NSWCCA 11
Court: Court of Criminal Appeal (NSW)
Date: 25 February 2026
Judge(s): McHugh JA; Fagan J; Emmett J

Background

The applicant pleaded guilty to one State offence of taking part in the manufacture of a prohibited drug (175 g of methylamphetamine) between 9 June 2022 and 21 July 2022, contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW). A second offence of taking part in the manufacture of 125 g of methylamphetamine — discovered at the same time — was taken into account on a Form 1. Both quantities were below the 250 g commercial quantity threshold, meaning the maximum penalty was 15 years' imprisonment with no standard non-parole period.

The offence came to light when police executed a search warrant at the applicant's Burwood residential unit on 21 July 2022, uncovering a clandestine laboratory with labelled containers of ingredients and reagents, receptacles, portable cooking equipment, and a blue rubbery residue on hardware items. The 175 g represented completed product, while the 125 g was still in the course of being manufactured.

At the same sentencing hearing, the applicant was also sentenced for five Commonwealth offences encompassing attempted possession of commercially significant quantities of imported methylamphetamine and heroin, trafficking in border-controlled drugs, dealing with proceeds of crime, and identity fraud. These reflected a sustained and diverse course of serious criminality stretching from late 2020 to early August 2022, when the applicant was arrested. The sentencing judge in the District Court imposed 8 years' imprisonment (non-parole period of 5 years) for the State offence and an aggregate sentence of 13 years (non-parole period of 8 years) for the Commonwealth offences, with 2 years' accumulation, resulting in an overall effective sentence of 15 years with a 10-year non-parole period.

  • Whether the sentence of 8 years' imprisonment (with a non-parole period of 5 years) for the State manufacturing offence under s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW) was manifestly excessive, having regard to sentences imposed in broadly comparable circumstances.

  • If the sentence for the State offence was found to be manifestly excessive, whether the Court should adjust the commencement date and degree of accumulation of the aggregate Commonwealth sentence to achieve an appropriate overall effective sentence, consistently with the totality principle.

Decision

The Court of Criminal Appeal unanimously found that the sentence imposed for the State drug manufacturing offence was manifestly excessive. The Court undertook a detailed examination of sentences imposed in a number of prior cases involving offenders convicted of comparable drug manufacturing offences under s 24(1) of the Drug Misuse and Trafficking Act. These included decisions such as R v Ayoub, R v Karabatsos, R v Tolley, R v Williams, Langham v R, Salafia v R, Dang v R, Cashel v R, and R v Campbell; R v Smith. Having surveyed this body of authority, the Court concluded that the sentence was "markedly inconsistent" with penalties that had been imposed upon numerous offenders in broadly comparable circumstances, and was on that account "plainly unjust" — the standard required to establish manifest excess.

On the question of totality, the Court determined that to properly reflect the overall criminality involved across both the State and Commonwealth offending, the degree of accumulation between the substituted (reduced) sentence for the State offence and the aggregate sentence for the Commonwealth offences should be adjusted from 2 years to 1 year. The Court considered that this could be achieved by substituting a reduced sentence for the State offence and bringing forward the commencement date of the Commonwealth aggregate sentence, while keeping the Commonwealth aggregate sentence itself at the same length imposed by the sentencing judge. This approach was consistent with the Crown's concession that such an adjustment was open to the Court if the appeal succeeded.

It is worth noting that the applicant did not challenge the length of the aggregate Commonwealth sentence. The challenge was confined solely to the State sentence and, consequentially, the overall effective sentence produced by the accumulation. The Court's reasoning therefore turned heavily on the comparative exercise required in manifest excessiveness appeals, drawing on the principles set out in Hili v The Queen; Jones v The Queen regarding the use of comparable sentences as yardsticks.

Orders Made

  • Leave to appeal against the sentence for the State offence (Seq 26) was granted.
  • The appeal was allowed.
  • The applicant was resentenced for the State offence, with the sentence reduced from 8 years' imprisonment (non-parole period of 5 years) to a lesser term (the precise substituted sentence is not fully set out in the truncated text).
  • The degree of accumulation between the State sentence and the Commonwealth aggregate sentence was reduced from 2 years to 1 year, resulting in a lower overall effective sentence.
  • The commencement date of the Commonwealth aggregate sentence was brought forward accordingly; the aggregate sentence itself remained at 13 years (non-parole period of 8 years).

Key Takeaways

  • Comparative sentencing analysis remained central to the manifest excessiveness appeal. The Court of Criminal Appeal relied on identifying a sufficient body of comparable sentencing decisions, conducting a detailed survey of analogous cases with comparable offence characteristics, quantities, and offender circumstances to assess whether the sentence was manifestly excessive.

  • Sub-commercial quantity drug manufacturing under s 24(1) of the Drug Misuse and Trafficking Act attracted a discernible sentencing range. Where the quantity of methylamphetamine manufactured fell below the 250 g commercial quantity threshold, the applicable maximum penalty was 15 years without a standard non-parole period. An 8-year head sentence (with a Form 1 offence and a 25% plea discount already applied) was found to fall outside the range established by prior authority for offending of this kind.

  • In resentencing, the Court recalibrated accumulation across State and Commonwealth sentences to reflect totality. Even though the Commonwealth aggregate sentence was not itself under challenge, the successful appeal against the State sentence led to a revisiting of the extent of accumulation, with commencement dates adjusted to ensure the overall effective sentence properly reflected the totality of criminality.

  • Concurrent sentencing for State and Commonwealth offences arising from overlapping conduct required careful structural attention. The interplay between the separate sentencing regimes, including aggregation under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for Commonwealth offences (per McGregor v R), needed to be managed to avoid disproportionality in the overall sentence.

  • A plea discount does not insulate a sentence from manifest excessiveness review. The Court of Criminal Appeal confirmed that even with a 25% discount applied, the resulting sentence was required to fall within the range appropriate for the offence, taking into account all relevant objective and subjective features, and that it did not do so in this case.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A
- Criminal Code (Cth), ss 11.1(1), 302.3(1), 307.5(1), 372.1(1), 400.9(1)
- Crimes Act 1914 (Cth), s 16BA

Key Cases:
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- McGregor v R (2024) 116 NSWLR 81; [2024] NSWCCA 200
- R v Ayoub [2001] NSWCCA 241
- R v Karabatsos [2002] NSWCCA 526
- R v Tolley [2004] NSWCCA 165
- R v Williams (2005) 156 A Crim R 225; [2005]