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Court of Criminal Appeal 25 March 2026

Daher v R

[2026] NSWCCA 26

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE FOUR COUNTS OF DRUG SUPPLY OFFENCES RANGE” OF OBJECTIVE SERIOUSNESS APPEAL DISMISSED

Citation: Daher v R [2026] NSWCCA 26
Court: Court of Criminal Appeal (New South Wales)
Date: 25 March 2026
Judge(s): N Adams CJ at CL at [1]; Fagan J at [26]; Boulten J at [68]

Background

The applicant pleaded guilty in the District Court to four counts of supplying illicit drugs and one count of acquiring four gel blasters in contravention of a firearms prohibition order. The drug supply offences, committed between late October and early December 2022, involved 28.48 grams of cocaine, 1,013.1 grams of methylamphetamine, 433.67 grams of methylamphetamine, and 787.5 grams of amphetamine. The cocaine charge was a supply offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), while the three larger quantities were charged as commercial or large commercial quantity supply offences under s 25(2) of that Act. The firearms charge was brought under s 74(1) of the Firearms Act 1996 (NSW).

The applicant received an aggregate sentence of 7 years' imprisonment with a non-parole period of 3 years and 6 months. He sought leave to appeal against that sentence on a single ground: that the sentencing judge erred in assessing the objective seriousness of sequence 12 — the supply of 1,013.1 grams of methylamphetamine, a large commercial quantity — as falling at the "mid-range" of objective seriousness.

  • Whether the sentencing judge was required by law to classify the objective seriousness of a standard non-parole period (SNPP) offence on a scalar range (e.g. "low," "mid-range," or "high").
  • Whether it was reasonably open to the sentencing judge to describe the offending in sequence 12 as being at the "mid-range" of objective seriousness.
  • Even if error in the classification of objective seriousness were established, whether that error had the capacity to influence the sentence actually imposed.

Decision

The Court unanimously dismissed the appeal, though with differing reasoning on the question of whether leave should be granted.

N Adams CJ at CL (with whom Boulten J agreed) granted leave, observing that confusion persists in sentencing practice about whether judges must locate the objective seriousness of an SNPP offence on a putative range. The Chief Judge at Common Law traced the history of the practice from its origins following the introduction of SNPPs in 2003, through the High Court's corrective decision in Muldrock v The Queen (2011), to the subsequent amendment of s 54B(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The upshot of Muldrock and the legislative amendment is clear: there is no requirement to classify objective seriousness on a scalar range for an SNPP offence. However, it is neither an error to do so nor an error to refrain from doing so. What matters is that the sentencing judge fully identifies the facts, matters, and circumstances bearing on the gravity of the offence. N Adams CJ at CL agreed with the observation of Hamill J in R v Eaton [2023] NSWCCA 125 that placing an SNPP offence on a putative range will "usually be desirable" because the standard non-parole period is only directly applicable where the offence falls at or above the middle of the range of objective seriousness.

On the merits, N Adams CJ at CL found that the sentencing judge's description of sequence 12 as "mid-range" was reasonably open. The Chief Judge also noted that even if the label were inapt, there was a real question whether that classification had any capacity to influence the sentence in the unusual circumstances of this case — the sentencing judge had already determined that the SNPP would be excessive, effectively rendering the scalar classification redundant to the sentencing exercise.

Fagan J, who would have refused leave on the basis the ground lacked sufficient prospects, provided a more detailed analysis of the law and the facts. His Honour emphasised that where a sentencing judge has already concluded that the standard non-parole period for an offence is excessive (whether by reason of reduced objective seriousness or favourable subjective circumstances), there is commonly no utility in purporting to locate the offence on a hypothetical scale of gravity. His Honour found that the impugned "mid-range" classification was immaterial: there was no statutory mechanism or rational thought process through which that redundant label could have driven the judge toward a longer indicative sentence than would otherwise have been imposed.

Orders Made

  • Leave to appeal granted (majority: N Adams CJ at CL and Boulten J; Fagan J dissenting on the grant of leave).
  • Appeal dismissed.

Key Takeaways

  • Under s 54B(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW), as interpreted in Muldrock v The Queen, sentencing judges are not required to place the objective seriousness of a standard non-parole period (SNPP) offence on a putative scale such as "low," "mid-range," or "high." The obligation is to identify the facts, matters, and circumstances bearing on the assessment of gravity.

  • The Court of Criminal Appeal held that, while scalar classification is not required, employing one is equally not an error. Such classification can be a helpful practice for SNPP offences, because the standard non-parole period is keyed to the middle of the range of objective seriousness.

  • Where an error in characterising objective seriousness is established, the appellate court must still consider whether that error had the capacity to influence the sentence actually imposed. A redundant scalar classification may be immaterial to the outcome where the sentencing judge had already determined that the SNPP was excessive and imposed a shorter non-parole period.

  • In dismissing the application, the Court observed that persistent confusion remains among practitioners and sentencing judges regarding the necessity of scalar assessments, despite over a decade of authority following Muldrock. The decision served as a consolidation of the relevant principles on this issue.

  • A challenge to a scalar classification on appeal requires demonstration not only that the label was wrong, but that it materially influenced the sentence imposed. The focus at sentencing should remain on the specific aggravating and mitigating features of the offence, rather than on scalar labels considered in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, ss 54A, 54B
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Firearms Act 1996 (NSW), s 74(1)

Key Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14
- FL v R [2020] NSWCCA 114
- DH v R [2022] NSWCCA 200
- R v Eaton [2023] NSWCCA 125
- Hancock v R [2025] NSWCCA 213
- Jbara v R [2025] NSWCCA 83
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Mulato v R [2006] NSWCCA 282
- Benn v R [2023] NSWCCA 24
- McLean v R [2020] NSWCCA 344
- R v Van Ryn [2016] NSWCCA 1
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
- Shayne Hammond v R [2015] NSWCCA 89
- R v Ferguson [2022] NSWCCA 147
- *LPDT v Minister for