Citation: [2026] NSWCCA 62
Court: Court of Criminal Appeal (NSW)
Date: 22 May 2026
Judges: Mitchelmore JA, Dhanji J, McNaughton J
Background
The applicant pleaded guilty in the Local Court to three offences: possessing an unauthorised firearm, supplying a prohibited drug (cannabis leaf) in a commercial quantity (38.85 kilograms), and cultivating a prohibited plant (168 cannabis plants) in an indictable amount. Four further firearms-related offences were taken into account on a Form 1. The matters were sentenced in the District Court at Port Macquarie.
The sentencing judge imposed an aggregate sentence of 3 years and 3 months imprisonment, with a non-parole period of 1 year and 6 months. Indicative sentences (after a 25% guilty plea discount) were 2 years and 6 months for the supply offence, 18 months for the cultivation offence, and 3 months for the firearms offence.
The applicant sought leave to appeal against that sentence on grounds including denial of procedural fairness, failure to address submissions regarding an intensive correction order (ICO), failure to consider accumulation and concurrency, and manifest excess.
Legal Issues
- Whether the applicant was denied procedural fairness by the sentencing judge imposing a custodial indicative sentence for the firearms offence despite indicating during proceedings that it was not of particular impact.
- Whether the applicant was denied procedural fairness by the sentencing judge finding, without notice, that the applicant committed the offences anticipating he could use his Parkinson's disease as a "shield against sentence."
- Whether the sentencing judge erred by failing to address the applicant's submissions seeking an ICO.
- Whether the sentencing judge failed to properly consider questions of accumulation and concurrency when imposing the aggregate sentence.
- Whether the aggregate sentence was manifestly excessive.
Decision
On the first procedural fairness ground (ground 1(a)), the Court found no denial of procedural fairness. Although the sentencing judge imposed a 3-month indicative sentence for the firearms offence, his Honour's reasons did not suggest this had any impact on the aggregate sentence. All three members of the Court agreed on this point.
On the second procedural fairness ground (ground 1(b)), the Court unanimously held that the sentencing judge's finding that the applicant had offended in anticipation of using his Parkinson's disease as a shield was made without giving the applicant an opportunity to address the issue. This caused practical injustice because the finding was adverse and the applicant lost a realistic possibility of a more favourable outcome.
Dhanji J (with Mitchelmore JA and McNaughton J not expressing a concluded view on the remaining grounds) found no error regarding the ICO submissions. Once the sentencing judge determined that a custodial sentence was required and that the appropriate term exceeded three years, an ICO was not available, and there was therefore no obligation to address those submissions further.
On accumulation, concurrency, and manifest excess, Dhanji J held that an offender should not be worse off because the court chose to impose an aggregate sentence rather than individual sentences. Principles of totality apply equally to aggregate sentencing. The indicative sentences for the supply and cultivation offences were not lenient, and there was a close connection between those two offences. In those circumstances, a significant degree of concurrence could properly have been expected. The aggregate sentence was manifestly excessive.
Orders Made
- Leave to appeal was granted.
- The appeal was allowed.
- The original sentence was set aside.
- The applicant was resentenced to an aggregate sentence of 2 years and 9 months imprisonment, commencing 26 December 2024 and expiring 25 September 2027, with a non-parole period of 1 year, 3 months, and 6 days commencing 26 December 2024 and expiring 31 March 2026.
Key Takeaways
- A sentencing judge who makes an adverse finding about an offender's motivations (here, that the offender anticipated using a medical condition as a "shield against sentence") without giving the offender an opportunity to address that issue denies procedural fairness, resulting in practical injustice where a more favourable outcome was realistically possible.
- Principles of totality apply with equal force to aggregate sentences as to individual sentences, so that an offender is not worse off by reason of the court's choice to impose an aggregate sentence rather than separate terms.
- Where indicative sentences for related offences are not particularly lenient and the offences share a close factual connection, a significant degree of concurrence in sentencing is properly expected.
- No error arose from the sentencing judge's failure to address ICO submissions once the court had determined that a custodial sentence exceeding three years was appropriate, as an ICO was not available in those circumstances.
- The Court of Criminal Appeal adopted the sentencing judge's indicative sentences on resentence but applied a generous adjustment for special circumstances, reducing both the head sentence and the non-parole period.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 5, 25D, 47, 53A, 55
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25
- Firearms Act 1996 (NSW), ss 7A, 36, 39, 65
Key cases cited:
- The King v McGregor [2026] HCA 3; (2026) 100 ALJR 287
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Kember v R [2020] NSWCCA 152
- R v Zamagias [2002] NSWCCA 17
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159