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Court of Criminal Appeal 24 April 2026

Ma v R

[2026] NSWCCA 46

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE CONTROLLED DRUG REDUCED SENTENCE FOR CO S 16A(2)(H) CRIMES ACT 1914 (CTH )

Citation: Ma v R [2026] NSWCCA 46
Court: Court of Criminal Appeal (NSW)
Date: 24 April 2026
Judge(s): Stern JA, Dhanji J, R A Hulme AJ (Hulme AJ delivering the leading judgment, Stern JA and Dhanji J agreeing)

Background

The applicant pleaded guilty to one count of importing a commercial quantity of a border-controlled drug (approximately 5,621.5g of methamphetamine, roughly 7.5 times the commercial quantity) contrary to s 307.1(1) of the Criminal Code (Cth). He was sentenced in the District Court at Sydney to 6 years' imprisonment with a non-parole period of 3 years and 6 months.

The applicant's case was that he had been duped by an associate into smuggling what he believed were rough diamonds from Johannesburg to Sydney. The sentencing judge found the offending was "significantly below the midrange" of objective seriousness, accepting the applicant was reckless (aware of a substantial risk the suitcases contained drugs) but had no knowledge of the nature or quantity of the drugs and was not involved in concealing them.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge erred by not giving a discrete and identifiable discount for his cooperation with the Australian Federal Police; and second, that the sentencing judge erred in the instinctive synthesis process. A third ground alleging manifest excess was abandoned at hearing.

  • Was the sentencing judge required to provide a discrete, quantified discount for the applicant's past cooperation with law enforcement under s 16A(2)(h) of the Crimes Act 1914 (Cth)?
  • Did the sentencing judge err in applying the instinctive synthesis approach to sentencing?

Decision

Ground 1: No discrete discount required for past cooperation. The Court confirmed that s 16A(2)(h) of the Crimes Act 1914 (Cth) requires a court to "take into account" an offender's cooperation with law enforcement, but does not mandate a quantified discount. R A Hulme AJ relied on Wei v R [2025] NSWCCA 150 and Lee v R [2020] NSWCCA 307, both of which held there is no binding requirement to provide a discrete and quantified discount for past assistance in Commonwealth sentencing. The Western Australian Court of Appeal's decision in DGF v The Queen [2021] WASCA 4 was also cited in support: a sentencing judge may simply take the extent of past cooperation into account as part of the instinctive synthesis of all relevant matters.

The sentencing judge had expressly acknowledged the applicant's cooperation, described it in detail, and stated he would take it into account. The applicant's own counsel accepted at the hearing that the cooperation had in fact been taken into account in the applicant's favour. That was sufficient.

Hulme AJ added an important cautionary note. The cases cited (Wei, Lee, and the underlying authority of R v Gallagher) concerned Commonwealth offences and common law principles. For NSW State offences, s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), inserted in 2010, requires quantification of discounts for both past and future assistance to authorities. The proposition that no discrete discount is required should not be taken as applying to State offences sentenced under that provision.

Ground 2: No error in instinctive synthesis. The applicant argued that the sentencing judge adopted a prohibited "two-tiered" approach (assessing a notional sentence, then applying discounts). The Court rejected this. Hulme AJ found the sentencing remarks were entirely consistent with the instinctive synthesis method endorsed by the High Court in Markarian v The Queen and Hili v The Queen. Nothing in the remarks indicated the judge had arrived at a figure and then applied incremental adjustments (except for the plea of guilty discount, which the law expressly requires be quantified for Commonwealth offences under Barbaro v The Queen). The reference by the sentencing judge to one case as a "useful reference point" was permissible and did not convert the process into an impermissible staged approach.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • Under s 16A(2)(h) of the Crimes Act 1914 (Cth), a sentencing judge is not required to provide a discrete, quantified discount for past assistance to authorities. The Court of Criminal Appeal confirmed it is sufficient for the judge to acknowledge the cooperation and state it has been taken into account within the instinctive synthesis, and the absence of a percentage figure does not constitute appellable error.

  • A clear distinction exists between the Commonwealth and NSW sentencing regimes on quantification of cooperation discounts. For NSW State offences, s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires quantification of discounts for assistance to authorities (both past and future), whereas the "no quantification required" principle applies only to Commonwealth sentencing and does not carry over to the State regime.

  • Referring to comparable cases or applying statutorily required discounts (such as for a guilty plea) does not convert the instinctive synthesis into an impermissible two-tiered or staged approach. The Court of Criminal Appeal held that, to establish error on appeal, it would need to be shown that the sentencing judge fixed a notional figure and then applied ad hoc adjustments, rather than simply using comparable sentences and structured reasoning as permitted reference points.

  • The value of an offender's cooperation for sentencing purposes is not determined solely by its outcome. In dismissing the application, the Court endorsed the sentencing judge's approach of giving weight to the offender's willingness and timeliness of cooperation, as well as any risk incurred, even where the AFP rated the ultimate utility of the cooperation as "low."

  • Early, willing cooperation carries weight in Commonwealth sentencing even when it does not lead to new investigations, confirming that the promptness and voluntariness of an offender's assistance are relevant considerations under s 16A(2)(h).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(2)(h), 16AC
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(4)
- Criminal Code (Cth), s 307.1(1)
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)

Cases:
- Abbas v R [2024] NSWCCA 228
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- DGF v The Queen [2021] WASCA 4
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Isaac v R [2012] NSWCCA 195
- Lee v R [2020] NSWCCA 307
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Gallagher (1991) 23 NSWLR 220
- R v Sukkar [2005] NSWCCA 55
- Weber v R [2020] NSWCCA 103
- Wei v R [2025] NSWCCA 150