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Court of Criminal Appeal 27 February 2026

Weekes v R

[2026] NSWCCA 16

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE MATERIALITY APPEAL ALLOWED APPLICANT RE

Citation: Weekes v R [2026] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 27 February 2026
Judge(s): Hamill J at [1]; McNaughton J at [3]; Emmett J at [4] (lead judgment)

Background

The applicant had pleaded guilty in the Local Court to four counts of supplying an indictable quantity of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Three of the counts involved the supply of commercial quantities of cannabis — totalling roughly 55kg across three separate episodes between August 2021 and February 2022 — into regional communities in central-western NSW. The fourth count involved the supply of 26.5 grams of cocaine over approximately the same period. The applicant played a senior and organisational role in the enterprise, coordinating co-offenders (including one Jackson Chaker) to transport and distribute the drugs.

On 6 August 2024, Judge Musgrave in the District Court sentenced the applicant to an aggregate sentence of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 2 months, commencing 31 May 2024. Indicative sentences were assigned to each offence, with the cannabis counts attracting indicative sentences ranging from 19 months to 2 years and 2 months, and the cocaine count attracting an indicative sentence of 9 months. All indicative sentences reflected a 25% discount for the guilty plea.

The applicant sought leave to appeal to the Court of Criminal Appeal on multiple grounds, including that the head sentence and non-parole period were manifestly excessive, that the sentencing judge erred in applying the parity principle relative to co-accused Mr Chaker, and that the judge failed to give adequate weight to the applicant's health condition — specifically Crohn's disease — in assessing the impact of custody.

  • Whether the aggregate head sentence of 3 years and 6 months was manifestly excessive.
  • Whether the individual indicative sentences were manifestly excessive, particularly the 9-month indicative sentence for the cocaine supply offence (seq 10).
  • Whether the sentencing judge erred in applying the parity principle by reference to the sentence imposed on co-accused Mr Chaker, such that the disparity created a justifiable sense of grievance.
  • Whether the sentencing judge erred in finding that the applicant's offending was more serious than Mr Chaker's.
  • Whether further medical evidence regarding the applicant's Crohn's disease (not before the primary judge) should be admitted and, if so, what weight it should carry on re-sentencing.
  • If an indicative sentence was found to be manifestly excessive, whether the error was material to the aggregate sentence.

Decision

Parity with co-accused Mr Chaker: The Court rejected the applicant's argument that the difference in sentence between the applicant and Mr Chaker gave rise to a justifiable sense of grievance. Emmett J (with whom Hamill and McNaughton JJ agreed) found that the objective features of the case — including the applicant's senior and extensive organisational role compared to Mr Chaker's more limited involvement — together with significant differences in the two offenders' subjective circumstances, objectively justified a substantial difference in sentence. The Court applied R v Clarke [2013] NSWCCA 260 and distinguished Green v R (2011) 244 CLR 462.

Indicative sentences for cannabis offences: The Court found that the indicative sentences for the three cannabis supply offences (seqs 3, 5, and 7) were not manifestly excessive, having regard to the large quantities involved, the commercial nature of the enterprise, and the applicant's leadership role.

Indicative sentence for cocaine offence (seq 10): The Court found that the 9-month indicative sentence for the supply of 26.5 grams of cocaine was manifestly excessive. Critical to this finding was the purpose of the supply: the cocaine was for the applicant's personal use, and the applicant had a diagnosed substance use disorder. Applying Obeid v R (2017) 96 NSWLR 155 and JM v R [2014] NSWCCA 297, the Court held that these factors should have led to a materially lower indicative sentence for this count.

Materiality to the aggregate sentence: Applying Benn v R [2023] NSWCCA 24, Brawn v The King [2025] HCA 20, and Burke v R [2022] NSWCCA 6, the Court held that the excessive indicative sentence for the cocaine offence was material to — and indicated error in — the primary judge's formulation of the aggregate sentence. This was sufficient to warrant appellate intervention.

Medical evidence — Crohn's disease: The applicant sought to rely on further medical evidence from Dr Mackender (the applicant's long-standing treating doctor) about the severity of the applicant's Crohn's disease and its impact on his experience in custody. Hamill J observed that the evidence was not "fresh" in the conventional sense, since a report from Dr Mackender could have been obtained at sentencing. However, his Honour noted that while the existence and nature of the disease had been put before the primary judge, the "true significance" of its impact on the applicant's time in custody was not understood at that stage. Hamill J suggested the evidence may have been admissible under the Court's flexible power to prevent a miscarriage of justice (per Betts v The Queen (2016) 258 CLR 420), but ultimately it was unnecessary to resolve this question: because error was established on other grounds and the Court was re-sentencing afresh, the evidence was admissible "on the usual basis." The medical evidence revealed that the applicant's condition created genuine risks in custody, including potential delays in obtaining appropriate medical treatment.

Re-sentencing: Exercising the sentencing discretion afresh, and applying the totality principle (Parente v R (2017) 96 NSWLR 633), the Court took into account the totality of the offending, the need for denunciation and general deterrence, the applicant's subjective circumstances, and the more recent medical evidence about the onerous nature of a lengthy custodial period given the Crohn's disease. The Court reduced the aggregate sentence to 3 years with a non-parole period of 21 months. Hamill J noted that the non-parole period expired on the date the judgment was delivered.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by the District Court on 6 August 2024 was set aside.
  • The applicant was re-sentenced to an aggregate sentence of 3 years' imprisonment with a non-parole period of 21 months (commencing 31 May 2024, with the non-parole period expiring on 27 February 2026).

Key Takeaways

  • Where a count within an aggregate sentence involves supply for the offender's personal use, particularly in the context of a diagnosed substance use disorder, the sentencing court should reflect this in a meaningfully lower indicative sentence, even where other counts involve serious commercial supply.
  • Consistent with Benn v R, Brawn v The King, and Burke v R, the Court of Criminal Appeal confirmed that a manifestly excessive indicative sentence may be treated as indicating error in the overall aggregate sentence, even if the other indicative sentences fall within the available range.
  • A significant disparity in sentences between co-offenders was objectively justified where the objective facts disclosed substantially different levels of involvement, such as a leadership or organisational role compared with a subordinate role, applying R v Clarke [2013] NSWCCA 260.
  • Although a medical condition may have been known at the time of sentencing, additional evidence regarding its true impact on the experience of custody may be received on appeal; the Court did not need to resolve the precise doctrinal basis for receiving such evidence (whether as fresh evidence, under the Court's flexibility to prevent injustice, or on "the usual basis" upon re-sentencing) where error was established on other grounds.
  • Evidence that a condition such as Crohn's disease creates genuine risks and hardship in custody, including delays in accessing medical treatment, can influence the length of a custodial sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(1), 25(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases: