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Court of Criminal Appeal 22 May 2026

Kanj v R

[2026] NSWCCA 61

Drugs
SENTENCING APPEAL AGAINST SENTENCE OFFENDERS DISPARITY BETWEEN SENTENCES WHERE CO CONTROLLED DRUGS

Citation: Kanj v R [2026] NSWCCA 61
Court: Court of Criminal Appeal (NSW)
Date: 22 May 2026
Judge(s): Kirk JA, Yehia J, Sirtes J

Background

The applicant pleaded guilty to a joint commission attempt to possess a commercial quantity of unlawfully imported ketamine (38.29 kg pure weight) concealed in a van shipped to Australia. The Australian Federal Police substituted the drugs with an inert substance in a controlled operation and parked the van at a residence in North Kellyville in western Sydney.

The applicant worked with a co-offender (Mr Cukovic) to track the van and plan the retrieval of the drugs. On the night of the offence in June 2023, the applicant recruited a second co-offender (Mr Acuil) to physically access the van and take the substituted drugs. Mr Acuil only became aware of the true purpose of the enterprise when he accessed the van. All three were apprehended shortly after.

The applicant was sentenced in the District Court to 7 years' imprisonment with a non-parole period of 4 years and 4 months (reflecting a 25% discount for his guilty plea). Mr Acuil was later sentenced by a different District Court judge to 3 years' imprisonment but was directed to be released immediately upon entering an 18-month recognisance. The applicant sought leave to appeal on the basis that the disparity between his sentence and Mr Acuil's gave rise to a justifiable sense of grievance.

  • Whether the marked disparity between the applicant's sentence (substantial full-time imprisonment) and Mr Acuil's sentence (immediate release on recognisance) was justified by objective criteria.
  • Whether the parity principle required consideration of all components of each sentence, including non-parole periods and the total effective period to be served in custody.
  • Whether an extension of time and leave to appeal should be granted.

Decision

The Court of Criminal Appeal (Sirtes J, with Kirk JA and Yehia J agreeing) granted leave to appeal and an extension of time but dismissed the appeal.

The Court confirmed that applying the parity principle requires consideration of all components of a sentence, including any non-parole period and the total effective period each offender will actually serve in custody. The court acknowledged a marked discrepancy between the two sentences, both in the head sentences and in the practical consequence that the applicant remained in custody while Mr Acuil was released immediately.

The Court found, however, that the variance in objective seriousness between the two offenders' conduct was "stark." The applicant played a substantial and necessary role in the offending, including by recruiting Mr Acuil. Mr Acuil, by contrast, was enlisted at the last minute and did not appreciate the ultimate object of the criminal enterprise until he accessed the van.

On subjective matters, Mr Acuil had a more compelling case. He was younger than the applicant, suffered from poor decision-making capacity attributable to mental illness precipitated by family tragedy, and received more favourable assessments of remorse and rehabilitation prospects. Taken together, the conspicuous differences in criminality and subjective circumstances justified the disparity, and the applicant's sense of grievance was not made out.

Orders Made

  • Leave to appeal was granted, and an extension of time to file the Notice of Appeal was permitted.
  • The appeal against sentence was dismissed.

Key Takeaways

  • Application of the parity principle requires consideration of all components of a sentence, not merely the head sentence, encompassing non-parole periods and the total effective period an offender will serve in custody.
  • A marked disparity between co-offenders' sentences may be justified where there are conspicuous differences in their respective roles in the offending and their subjective circumstances.
  • Where one co-offender played a substantial and necessary role (including recruiting another participant) and the other was enlisted at the last moment without knowledge of the enterprise's true purpose, this difference in objective seriousness can support a significant sentencing gap.
  • Stronger subjective features, such as younger age, mental illness precipitated by family tragedy, and better prospects of rehabilitation, further justified the more lenient sentence imposed on the less culpable co-offender.
  • In assessing parity, the Court of Criminal Appeal compared the findings, material, and qualitative judgments made by each respective sentencing judge, consistent with the approach in Green v The Queen and Martellotta v R.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16BA, 20, 43
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Code (Cth), ss 11.1, 11.2, 11.2A, 307.8
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Key Cases Cited:
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Martellotta v R [2021] NSWCCA 168
- Mohr v R [2024] NSWCCA 197; 390 FLR 293
- Tasdik v R [2024] NSWCCA 195
- Rees v R [2012] NSWCCA 47
- Kelly v R [2017] NSWCCA 256
- Baladjam v R [2018] NSWCCA 304; 341 FLR 162