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Court of Criminal Appeal 7 October 2026

Crosby v R

[2026] NSWCCA 157

DrugsFraud & dishonesty
SENTENCING APPEAL AGAINST SENTENCE PROCEEDS OF CRIME OFFENCE DE SIMONI ERROR NO ERROR SUPPLY OF PROHIBITED DRUG OFFENCE

Citation: Crosby v R [2026] NSWCCA 157
Court: Court of Criminal Appeal
Date: 7 October 2026
Judges: Adamson JA; N Adams CJ at CL (principal judgment); Lonergan J

Background

The appellant pleaded guilty in the Local Court to four offences and was committed to the District Court for sentence. The offences included supply of a large commercial quantity of methylamphetamine, an offence of dealing with property suspected of being proceeds of crime under s 193C(2) of the Crimes Act 1900 (NSW), and two further drug supply charges relating to 222 grams and 140 grams of methylamphetamine respectively. Judge Coleman SC sentenced the appellant in April 2024 to an aggregate term of 7 years and 6 months imprisonment with a non-parole period of 4 years and 8 months.

The appellant filed a Notice of Intention to Appeal promptly after sentencing, but did not file the Notice of Appeal until April 2026, well outside the prescribed time limit. The delay was explained as a deliberate forensic choice to await the outcome of a related appeal by a co-offender.

On appeal, the appellant challenged the sentence on four grounds, targeting the sentencing judge's treatment of the proceeds of crime offence and the two additional drug supply charges.

Legal Issues

  • Whether the sentencing judge committed a De Simoni error by taking into account facts that would have constituted a more serious uncharged offence (either knowingly dealing with proceeds of crime under s 193B(2), or dealing with property intending it become an instrument of crime under s 193D(1)) when sentencing for the lesser s 193C(2) offence.
  • Whether the sentencing judge made sufficient findings of fact and adequately assessed the objective seriousness of the agreement-to-supply charge (sequence 71), given the brevity of the Agreed Facts.
  • Whether the sentencing judge erroneously found that the appellant had actually supplied the 140 grams of methylamphetamine the subject of sequence 71, including by conflating that charge with sequence 70.
  • Whether a miscarriage of justice resulted from defence counsel's submission at sentence that the offending under sequence 71 involved "street dealing," where that characterisation was arguably unsupported by the Agreed Facts.

Decision

Ground 1: Alleged De Simoni error (proceeds of crime offence)

The De Simoni principle is breached only if an offender is actually punished for conduct constituting a more serious uncharged offence; it is the substance of the sentencing reasons, read in context, that matters rather than the form of words used (at [49]). The Court identified two passages in the remarks on sentence that the appellant said revealed the error. Both references to the appellant sending money to his upline supplier and "the chain of money involved for the drugs supplied" arose directly from submissions made by defence counsel in mitigation, not from any finding of aggravated criminality (at [52]-[55]).

The Court found five factors collectively refuting any De Simoni error: the sentencing judge correctly stated the maximum penalty for the s 193C(2) offence as three years imprisonment; correctly recited the elements of that offence; correctly stated the relevant Agreed Facts; imposed a low indicative sentence wholly consistent with a three-year maximum and inconsistent with the fifteen-year maxima under ss 193B(2) and 193D(1); and never stated that the appellant was being sentenced on the basis that he knew the money was proceeds of crime (at [56]-[60]). The Court noted, without finding error, that expressly confining a mitigating submission that might carry aggravating implications for another count would be prudent practice in such circumstances (at [61]). Ground 1 was not upheld (at [62]).

Ground 2: Adequacy of objective seriousness assessment for sequence 71

The Court confirmed that, while assessment of objective seriousness is a critical component of sentencing, there is no prescribed set of descriptors required to accompany it (at [72]). The difficulty the sentencing judge faced was that the Agreed Facts for sequence 71 did no more than recite the elements of the offence. His Honour assessed the quantity of drugs involved, the context in which the agreement was made, and the appellant's role in the hierarchy, which represented the full extent of the material before the court (at [74]-[75]). The brevity of the sentencing reasons accurately reflected the brevity of the Agreed Facts, and no error was established (at [76]).

Ground 3: Finding that the appellant actually supplied the drugs, and conflation of sequences 70 and 71

The Court accepted that the sentencing judge's reference to 61 individual supplies being referable to both sequences 70 and 71 was clearly a slip, since the Agreed Facts attributed those supplies to sequence 70 alone (at [77]). However, the Court applied the materiality threshold confirmed in Farrugia v The King [2026] HCA 28, which requires that a specific error could realistically have affected the sentencing judge's reasoning and the resulting sentence (at [80]). Given that the indicative sentences for both counts were described as "extraordinarily lenient," any error from treating the two counts as equivalent could only have operated to reduce the sentence for sequence 70, not to increase the sentence for sequence 71. The materiality threshold was not met (at [78]-[81]).

Ground 4: Miscarriage of justice from the "street dealing" submission

The Court found that the street-dealing characterisation was made by defence counsel on instructions to place the appellant lower in the supply hierarchy, which the sentencing judge accepted (at [82]). An appellant is bound by the way in which sentencing proceedings are conducted, and this approach did not render an injustice. The sentencing judge used the submission to mitigate, not to aggravate, the sentence for sequence 71. Ground 4 was not upheld (at [82]).

Orders Made

  • Time for filing the Notice of Appeal extended to 13 April 2026.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A De Simoni error is established only where the sentencing judge actually punishes the offender for conduct constituting a more serious uncharged offence. The Court of Criminal Appeal confirmed that correctly identifying the maximum penalty and imposing a sentence consistent with it are powerful indicators that no such error occurred (at [56]-[59]).

  • Where Agreed Facts are limited to a bare recitation of the elements of an offence, the adequacy of a sentencing judge's objective seriousness assessment will be measured against the material actually placed before the court. Brief reasons may simply reflect brief agreed facts, and brevity alone does not constitute error (at [75]-[76]).

  • Following Farrugia v The King [2026] HCA 28, a sentencing error must satisfy a materiality threshold: it must have been capable of realistically affecting the sentence imposed. Where indicative sentences are manifestly low, an error that could only have reduced one of them will not ground appellate intervention (at [80]-[81]).

  • Submissions made by defence counsel at sentence, presumably on instructions, bind the appellant on appeal. A submission advanced in mitigation that the sentencing judge accepted and applied consistently with its intended purpose does not constitute a miscarriage of justice (at [82]).

  • In proceeds of crime sentencing, Part 4AC of the Crimes Act creates a hierarchy of offences with significantly different maximum penalties and fault elements. The s 193C(2) offence requires only reasonable grounds to suspect that property is proceeds of crime and carries a three-year maximum, making it the least serious in the hierarchy. Sentencing judges may benefit from expressly noting the confined basis on which mitigating submissions with potential aggravating dimensions for other counts have been applied (at [47], [61]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193A, 193B, 193BA, 193C, 193D
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25

Cases
- Bektasovski v R [2022] NSWCCA 246
- Benn v R (2023) 305 A Crim R 550; [2023] NSWCCA 24
- Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20
- Farrugia v The King [2026] HCA 28
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kingsley v R [2019] NSWCCA 19
- Lago v R [2015] NSWCCA 296
- McLean v R [2020] NSWCCA 344
- Miller v R [2023] NSWCCA 267
- R v Campbell [2014] NSWCCA 102
- R v MT [2022] NSWCCA 53
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31