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Court of Criminal Appeal 6 February 2026

Wonj v R

[2026] NSWCCA 4

Drugs
CRIME A PPEAL AGAINST SENTENCE INFELICITY

Citation: Wonj v R [2026] NSWCCA 4
Court: Court of Criminal Appeal (NSW)
Date: 6 February 2026
Judge(s): Ward P at [1]; Adamson JA at [2]; R A Hulme AJ at [3]

Background

The applicant was sentenced in the District Court to an aggregate term of imprisonment of 8 years with a non-parole period of 6 years for two offences of supplying a large commercial quantity of prohibited drugs, namely 6,896.8 grams of methylamphetamine and 1,320.6 grams of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The methylamphetamine was more than 13 times the large commercial quantity threshold. At the applicant's request, the sentencing judge also took into account on a Form 1 four additional offences involving possession of cannabis and cocaine and dealing with proceeds of crime (cash totalling $22,015 and luxury goods valued at approximately $330,000). A 25% discount was applied for early pleas of guilty.

A forensic psychiatrist, Dr Richard Furst, diagnosed the applicant with substance use disorder and gambling disorder. He opined that the applicant's addictions had "materially contributed" to the offending by motivating his participation — he needed money to fund drug use and gambling. At sentencing, the Crown contended the offending was motivated solely by greed. The sentencing judge rejected that submission, accepting the applicant was "partly motivated" by his addictions. However, the judge declined to find a reduction in moral culpability or to give less weight to general deterrence, stating that the applicant's mental health "does not … result in a conclusion that [the applicant's] mental health was causally connected to the offences in the relevant sense."

The applicant sought leave to appeal on the sole ground that the sentencing judge had applied the wrong legal threshold by requiring a "causal connection" rather than asking whether the conditions had made a "material contribution" to the offending — an error, the applicant argued, in the application of the well-known De La Rosa principles.

  • Whether the sentencing judge applied the correct legal test when assessing the relevance of the applicant's substance use disorder and gambling disorder to sentence — specifically, whether requiring the conditions to be "causally connected to the offences in the relevant sense" set a higher threshold than the De La Rosa principle that a mental health condition must have "materially contributed" to the offending.

  • Whether the applicant's diagnosed addictions, accepted as partly motivating his involvement in large-scale drug supply, should have led to a reduction in moral culpability or to less weight being given to general deterrence.

  • Whether, even if the sentencing judge's expression was imprecise, any error was material to the sentence imposed.

Decision

The Court of Criminal Appeal (R A Hulme AJ, with Ward P and Adamson JA agreeing) granted leave to appeal but dismissed the appeal.

R A Hulme AJ acknowledged that the sentencing judge's language — referring to the mental health conditions not being "causally connected to the offences in the relevant sense" — was an "infelicity." The accepted formulation under De La Rosa and subsequent authorities asks whether a mental health condition materially contributed to the commission of the offence, not whether there was a strict causal connection. However, the Court found that this imprecision did not reflect actual legal error in the judge's reasoning or result.

The key reasoning was that the applicant's drug and gambling addictions, while they might provide an explanation for his offending, did not operate in a mitigatory sense. Drawing on R v Henry (1999) 46 NSWLR 346 and recent decisions including RG v R [2025] NSWCCA 36 and Lane v R [2025] NSWCCA 113, the Court emphasised the distinction between a mental health condition that genuinely impairs an offender's capacity to exercise real choice — thereby reducing moral culpability — and one that simply describes the context or motivation for the offending. The applicant's addictions arose during a period of his life when he was not disempowered or inhibited in exercising real choice. They did not diminish his capacity to appreciate the wrongfulness of his conduct or to act in accordance with that understanding. Accordingly, the conditions did not warrant a reduction in moral culpability, nor did they diminish the need for general deterrence.

The Court also observed that the applicant had already received the benefit of the sentencing judge's finding that his offending was partly motivated by addiction rather than solely by greed — which was the Crown's position. The judge had thus already taken a more favourable view of the applicant's motivation than the prosecution had urged, and this was reflected in the assessment of objective seriousness. There was no basis for concluding that the sentence imposed was excessive or that any different result would have followed even if the judge had used more precise terminology.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Imprecise judicial language does not necessarily constitute reversible error. The Court of Criminal Appeal found that the sentencing judge's use of "causally connected" rather than "materially contributed" was an infelicity of expression, but not one that infected the underlying reasoning, which remained consistent with the established principle under De La Rosa.

  • Under the De La Rosa framework, the critical inquiry is the effect of a mental condition on the offender's capacity for choice. It is not sufficient to show that a condition motivated or provided context for the offending; the condition must have impaired the offender's ability to exercise genuine choice, thereby reducing their capacity to refrain from the criminal conduct.

  • Addictions that explain offending do not automatically mitigate it. The decision reinforced a well-established line of authority that drug and gambling addictions motivating commercial-scale drug supply do not reduce moral culpability or lessen the weight given to general deterrence, particularly where the offender was not deprived of meaningful choice by the condition.

  • Rejection of a "greed" characterisation may still benefit an offender on objective seriousness. Although the addictions did not engage the mental health mitigation framework, the Court noted that the applicant benefited from the sentencing judge's finding that the offending was driven by addiction rather than greed, indicating that motivational context may influence the assessment of objective seriousness even outside De La Rosa.

  • Reoffending while on conditional liberty significantly constrains the scope for mitigation. The applicant had a prior sentence for drug supply and firearms offences and was on parole at the time of the index offending, a factor the Court of Criminal Appeal treated as properly aggravating under established sentencing principles.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)
- Crimes Act 1900 (NSW), ss 193B(2), 193BA(3)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- RG v R [2025] NSWCCA 36
- Lane v R [2025] NSWCCA 113
- Aslan v R [2014] NSWCCA 114
- Johnston v R [2017] NSWCCA 53
- R v Jafari [2017] NSWCCA 152
- Singh v R [2019] NSWCCA 110; (2019) 278 A Crim R 103