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Court of Criminal Appeal 6 March 2026

Edwards v R

[2026] NSWCCA 15

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION OF DECISION IN HANCOCK NO LESSER SENTENCE WARRANTED IN LAW APPEAL DISMISSED.

Citation: Edwards v R [2026] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 6 March 2026
Judge(s): Kirk JA at [1]; Fagan J at [2]; Yehia J at [8]

Background

The applicant was sentenced in the District Court following guilty pleas to four offences: supplying a small quantity of cocaine, supplying a commercial quantity of MDMA, supplying an indictable quantity of MDMA, and possessing an unauthorised imitation pistol. Three further offences were taken into account on Form 1s. The sentencing judge imposed an aggregate term of imprisonment of 3 years and 5 months, with a non-parole period of 2 years and 1 month.

A critical feature of the sentencing was the judge's finding that the objective seriousness of the imitation pistol offence was increased because possession of the pistol was "associated with the surrounding criminal conduct which involved the supply of drugs." The applicant challenged this finding on appeal.

The applicant initially relied on a single ground — that the sentence was manifestly excessive — but was granted leave during the hearing to add a second ground challenging the factual finding linking the pistol to the drug supply offending. The hearing of the appeal was deferred pending the five-judge bench decision in Hancock v R [2025] NSWCCA 213, which settled the applicable test for challenging factual findings on sentence.

  • What is the correct test for reviewing a sentencing judge's factual findings on appeal, following the decision in Hancock v R?
  • Was it reasonably open to the sentencing judge to find beyond reasonable doubt that the applicant's possession of the imitation pistol was associated with his drug supply activities?
  • If sentencing error was established, was a lesser sentence warranted in law?
  • Was the aggregate sentence manifestly excessive?

Decision

The standard of review for factual findings (Hancock)

The Court applied the recently decided Hancock v R, which confirmed that the House v The King framework governs sentence appeals, and that the appropriate test for identifying a "mistake of fact" is to ask whether the sentencing judge's finding was "reasonably open" on the evidence. This settled what had apparently been an area of some uncertainty.

Ground 2: The link between the pistol and drug supply

The majority (Yehia J, with Kirk JA agreeing) upheld this ground. The applicant had told a Community Corrections Officer that he received the imitation pistol from the same person who introduced him to drug dealing and supplied him with drugs. The pistol was found hidden in a Nike bag under shoes in a bedroom wardrobe. Small quantities of cocaine and $7,000 in cash were found elsewhere in the residence (in the kitchen), with a very small quantity of cocaine on the bedroom floor.

Yehia J accepted that while the sentencing judge was entitled to reject the applicant's explanation that he was merely "minding" the pistol for his supplier, the limited evidence did not make it reasonably open to find beyond reasonable doubt that the pistol was connected to the drug supply activities. Her Honour drew a distinction between cases where a firearm is found alongside drugs, ammunition, and cash — from which a "tool of trade" inference might be drawn — and cases where the firearm is merely located at premises where drugs happen also to be present. The spatial separation of the pistol from the drugs and money was significant.

Fagan J dissented on this point. His Honour considered it was open to the sentencing judge to infer an association between the pistol and the drug dealing, given that the pistol came from the applicant's drug supplier, that a replica pistol could be used to threaten violence (a notorious feature of drug dealing), and that the idea of a neutral, innocent "minding" arrangement in the context of a drug supply relationship was "quite fanciful." Fagan J regarded the spatial separation within the home as an insignificant counter to the inference.

Re-sentencing and the manifest excess ground

Having found error on Ground 2, the majority re-exercised the sentencing discretion afresh, as required by Kentwell v The Queen. In doing so, the Court considered the applicant's subjective case (including the impact of imprisonment on his family), the objective seriousness of the offences (particularly the significant quantity of MDMA), the degree of accumulation warranted, comparative cases, sentencing statistics, and the totality principle. The Court ultimately concluded that no lesser sentence was warranted in law, rendering it unnecessary to separately determine the manifest excess ground. Fagan J reached the same conclusion on manifest excess for the same reasons, albeit by a different route (having rejected Ground 2).

Orders Made

  • Leave to appeal granted
  • Ground 2 upheld (majority; Fagan J dissenting)
  • Appeal dismissed on the basis that no lesser sentence is warranted in law

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Hancock test governs challenges to a sentencing judge's factual findings on appeal, requiring the appellant to demonstrate that the finding was not "reasonably open" within the House v The King framework.

  • A meaningful distinction was drawn by the majority between a firearm found alongside other indicia of criminal activity (such as drugs, ammunition, and cash together) and one merely located at the same premises, with mere co-location held to be insufficient to support an inference of association between the firearm and drug offending.

  • Under the principle in Filippou, a sentencing judge's rejection of an offender's explanation does not automatically establish the prosecution's alternative inference beyond reasonable doubt on the available evidence.

  • In re-exercising the sentencing discretion after upholding a ground of appeal, the Court concluded that no lesser sentence was warranted in law, illustrating that a successful challenge to factual findings does not necessarily result in a reduced sentence.

  • Fagan J's dissent demonstrated that the "reasonably open" test can produce genuine disagreement among judicial officers, particularly where the inference in question rests on practical common sense rather than direct evidence, highlighting the fine margins involved in such appellate challenges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Firearms Act 1996 (NSW), s 7(1)

Key cases:
- Hancock v R [2025] NSWCCA 213
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43
- Andary v R [2020] NSWCCA 75
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- AE v R [2023] NSWCCA 74
- Masters-Whitehouse v R [2025] NSWCCA 8
- MJR v R [2025] NSWCCA 51
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- DG v R (No 1) [2023] NSWCCA 320
- Kljaic v R (2023) 310 A Crim R 527; [2023] NSWCCA 225
- Hoskins v R [2016] NSWCCA 157
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- R v Edwards (1996) 90 A Crim R 510
- Fogg v R [2011] NSWCCA 1
- Furia v R [2010] NSWCCA 326
- R v O'Donoghue (1988) 34 A Crim