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Court of Criminal Appeal 11 September 2026

Pearce v R

[2026] NSWCCA 138

Drugs

Citation: Pearce v R [2026] NSWCCA 138
Court: Court of Criminal Appeal, New South Wales
Date: 11 September 2026
Judges: Free JA at [1]; Campbell J at [2]; McNaughton J at [30]

Background

The applicant was tried in the District Court alongside two co-accused for offences connected to an attempted importation into Australia of a commercial quantity of cocaine. The cocaine, at least 9.82kg and possibly as much as 69kg, had been intercepted in the United Kingdom and replaced with an inert substance by British police before being allowed to continue its journey. One co-accused, Jones, pleaded guilty early in Local Court proceedings. The other, Skaines, pleaded guilty on the ninth day of the District Court trial. The applicant contested the charge and was found guilty by the jury.

The applicant's charge was aiding, abetting, counselling or procuring the offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, under sections 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code (Cth). This offence carries a maximum penalty of life imprisonment. He was sentenced to 6 years and 3 months imprisonment with a non-parole period of 3 years and 6 months.

The applicant sought leave to appeal against both his conviction and his sentence. Jones had been sentenced to 5 years and 3 months (with a 25% guilty plea discount applied), and Skaines to approximately 5 years, 4 months and 15 days (with a 5% discount for his late plea). The applicant argued his sentence was unjustifiably higher than those of his co-offenders.

Legal Issues

  • Whether the jury's guilty verdict was unreasonable because it was not open to the jury to find, beyond reasonable doubt, that the applicant knew or believed he was aiding or abetting an offence of the type his co-offenders actually committed.
  • Whether the applicant had a justifiable sense of grievance about his sentence, given the sentences imposed on Jones and Skaines (the parity ground).

Decision

Ground 1: Unreasonable verdict

McNaughton J, with Free JA and Campbell J agreeing, dismissed the conviction appeal. Her Honour emphasised that the circumstances had to be considered together rather than piecemeal. The venture was highly sophisticated, well-organised and expensive, involving cocaine worth several millions of dollars at street level.

Several specific circumstances supported the verdict. The applicant had exclusive possession of a phone loaded only with an encrypted communications application, with a group chat established on the very day a lease was signed over a rural property central to the offending. On the day of the offence, the applicant engaged in apparent counter-surveillance, travelled with Skaines to the rural property at an address he knew, brought refreshments appropriate for a lengthy wait, left his regular car and phone at home, and departed the area within minutes of the co-accused discovering the substituted bricks. Viewing all of this together, the Court of Criminal Appeal held it was well open for the jury to conclude beyond reasonable doubt that the applicant knew, or believed, he was aiding or abetting an offence of the type committed by his co-offenders.

Ground 2: Parity (sentence appeal)

Campbell J, with Free JA and McNaughton J agreeing, dismissed the sentence appeal. The parity principle, as the Court explained, reflects equality before the law and requires that co-offenders who are similarly placed receive sentences that are not unjustifiably disparate. However, practical difficulties arise when co-offenders are sentenced on different factual bases, as commonly occurs when one pleads guilty and another goes to trial.

A further obstacle arose from a concession made at sentencing. All parties before Culver DCJ had accepted that the objective seriousness of the offending was equal across the three co-offenders. Campbell J held the applicant had not established any basis to resile from that concession. The sentencing judge had regard to the similarities and differences in the offending and the subjective circumstances of each co-offender. Given that the applicant received no guilty plea discount while Jones and Skaines did, no justifiable sense of grievance was established.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A verdict is not unreasonable simply because individual pieces of circumstantial evidence are capable of innocent explanation; the Court of Criminal Appeal confirmed that the jury is entitled to consider all the circumstances together to determine whether guilt is established beyond reasonable doubt.
  • Under the parity principle, co-offenders sentenced on different factual bases, as frequently occurs when one pleads guilty and one stands trial, do not automatically have comparable sentences, because the sentencing court is bound to pass sentence on the evidence led before it.
  • Where a party makes a concession at sentencing, such as accepting that objective seriousness was equal across co-offenders, the Court of Criminal Appeal may decline to allow that party to depart from the concession on appeal without adequate justification.
  • In dismissing the parity ground, the Court of Criminal Appeal noted that guilty plea discounts received by co-offenders (25% for an early plea and 5% for a late plea) provided a substantial explanation for the difference between their sentences and the sentence imposed on an applicant who was convicted after a contested trial.
  • Sufficient evidence existed to support the jury's inference that the applicant was a trusted participant with full knowledge of the nature of the venture, based on his use of encrypted communications, his counter-surveillance conduct, his knowledge of key locations, and his actions on the day of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33B
- Criminal Code (Cth), ss 5.1, 5.2, 5.3, 5.4, 6.2, 11.1, 11.2, 307.5

Cases
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433
- Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
- R v Steele (Court of Criminal Appeal (NSW), 17 April 1997, unrep)
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Warne v The King [2023] ACTCA 1
- Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
- Wiggins v R [2020] NSWCCA 256
- Zreika v The Queen [2022] NSWCCA 44; (2012) 223 A Crim R 460