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Court of Criminal Appeal 23 October 2026

Asanovic v R

[2026] NSWCCA 173

DrugsPublic order & justice offences
CRIME APPEALS APPEALS AGAINST SENTENCE

Citation: Asanovic v R [2026] NSWCCA 173
Court: Court of Criminal Appeal
Date: 23 October 2026
Judge(s): Stern JA at [1]; Rigg J at [68]; Coleman J at [69]

Background

The appellant was convicted of three counts of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW), two by guilty plea and one following a jury trial. He also pleaded guilty to three related offences on a section 166 certificate, including directing the activities of a criminal group under s 93T(4A) of the Crimes Act 1900 (NSW) (sequence 4) and dealing with proceeds of crime. The offending involved the appellant operating a drug supply business, using runners and a safe house to distance himself from the transactions.

The sentencing judge imposed an aggregate sentence of 12 years with a non-parole period of 8 years. On appeal, the appellant argued that the sentencing judge had punished him twice for the same criminal conduct by relying on substantially the same factual matters when sentencing him on both the supply counts and sequence 4.

Legal Issues

  • Whether the sentencing judge erred by double counting factual matters that were common to the supply counts (counts 1 and 3) and the criminal group direction offence (sequence 4), in breach of the principle in Pearce v The Queen (1998) 194 CLR 610.
  • Whether, in the alternative, the sentencing judge's reasons were insufficiently precise to exclude an inference of double counting.
  • Whether, if error was established, a lesser sentence than that imposed was warranted in law.

Decision

Ground 1: Double counting between counts 1 and 3, and sequence 4

The Court of Criminal Appeal upheld this ground. Stern JA found that the sentencing judge relied upon substantially the same factual matters when assessing the objective seriousness of sequence 4 as she had relied upon for counts 1 and 3, namely that the appellant had arranged for a runner or his wife to supply drugs on his behalf, and that drugs were stored at a third party's premises to distance the appellant from them (at [37]). The sentencing judge nowhere addressed the problem of overlap between these matters when determining the aggregate sentence, and the Court was not satisfied the error had been corrected at that stage (at [39]).

The Court confirmed the principle from Pearce that concurrent sentences do not cure double counting, and that sentencing on an erroneous premise produces a flawed foundation for the aggregate sentence, whether or not one offence wholly comprehends the other (at [28], [34]). Where an aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge may address overlap at various stages, including in assessing objective seriousness or in setting indicative sentences. However, indicative sentences, while not themselves appealable, can support an inference that double counting has occurred (at [33]).

Ground 2: Insufficiency of reasons

Having upheld Ground 1, the Court found it unnecessary to consider Ground 2 (at [40]).

Re-sentencing exercise and outcome

After identifying error, the Court undertook an independent re-sentencing exercise. It adopted the sentencing judge's factual findings and her assessments of objective seriousness for all counts, except that it found sequence 4 involved no criminality beyond that already captured by counts 1 and 3, and added nothing to the sentence on account of that sequence (at [47]). The Court also noted that post-sentence conduct in custody, including a further supply offence and a weapons offence, required specific deterrence to be given real weight (at [46]). Having regard to all relevant matters, including totality and the seriousness of the offending, the Court concluded that no lesser sentence than the original 12 years was warranted in law, and the appeal was dismissed (at [65], [66]).

Orders Made

  • Extension of time to 23 April 2026 for filing a notice of appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that double counting is not cured by ordering concurrent sentences, or by accumulating sentences with reference to totality, where the sentencing judge never addressed the factual overlap between counts when determining the aggregate sentence (at [28], [39]).

  • Significant factual overlap between offences is sufficient to ground a double counting error; it is not necessary to show that the criminality of one offence is wholly comprehended by that of another (at [34]).

  • When imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge may guard against double counting at various points in the reasoning process. Indicative sentences, though not themselves subject to appeal, can support an inference that the aggregate sentence was built on a flawed foundation (at [33]).

  • Where a post-sentence criminal record emerges before an appellate court re-exercises its sentencing discretion, that record can justify giving specific deterrence greater weight than the original sentencing judge did, even where the judge had already found remorse (at [46]).

  • Upholding a sentencing error does not automatically produce a lesser sentence. The Court of Criminal Appeal exercised its independent sentencing discretion afresh and found that the identified error did not warrant a reduction from the original 12-year aggregate term, given the overall gravity of the offending and other relevant sentencing considerations (at [65], [66]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Crimes Act 1900 (NSW), ss 93T(4A), 193C(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Law Consolidation Act 1935 (SA), s 83E(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 29, 36Y(1)(a)

Cases
- Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
- Grogan v R [2019] NSWCCA 51
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Nahlous v The Queen (2010) 77 NSWLR 463; [2010] NSWCCA 58
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Prince v R [2020] NSWCCA 110
- R v Hilton [2005] NSWCCA 317; 157 A Crim R 504
- R v Le [2015] SASCFC 152
- RO v R [2019] NSWCCA 183
- Taylor v R [2026] NSWCCA 32
- Turnbull v R [2019] NSWCCA 97
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Young (a pseudonym) v R [2021] NSWCCA 163