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Court of Criminal Appeal 29 May 2026

Hong v R

[2026] NSWCCA 64

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE C OMMONWEALTH OFFENCE CONSIDERATION OF ZREIKA PRINCIPLES ERROR ESTABLISHED

Citation: Hong v R [2026] NSWCCA 64
Court: Court of Criminal Appeal (NSW)
Date: 29 May 2026
Judge(s): Kirk JA at [1]; Yehia J at [15]; McGuire J at [124]

Background

The applicant pleaded guilty in the District Court to a single Commonwealth offence of attempting to possess a marketable quantity of a border-controlled drug (heroin), with a pure weight of 672.52 grams. Sutherland SC DCJ sentenced him on 14 March 2025 to four years' imprisonment, commencing 3 January 2024 and expiring 2 January 2028, with a non-parole period of two years and six months.

The applicant sought leave to appeal against that sentence on a single ground: that the sentencing judge erred by failing to assess or take into account his prospect of rehabilitation, as required by s 16A(2)(n) of the Crimes Act 1914 (Cth). Notably, no submissions on the applicant's rehabilitation prospects had been made at first instance.

  • Whether the sentencing judge erred by failing to assess or take into account the applicant's prospect of rehabilitation under s 16A(2)(n) of the Crimes Act 1914 (Cth).
  • Whether a matter can be "relevant and known to the court" for the purposes of s 16A(2) even where no submissions about it were made at first instance.
  • Whether the Zreika principles barred the applicant from raising a matter on appeal that had not been pursued below.
  • If sentencing error was established, whether a lesser sentence was warranted in law.

Decision

The Court (Yehia J, with Kirk JA and McGuire J agreeing) held that an assessment of an offender's prospect of rehabilitation, where sufficient material exists to make that assessment, is a relevant and essential component of the instinctive synthesis sentencing methodology. Both s 16A of the Crimes Act 1914 (Cth) and s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) impose a mandatory obligation on a sentencing judge to take into account listed matters, so far as they are "relevant and known to the court."

The Court found that the words "relevant and known to the court" do not limit the ways in which a matter can become "known." A matter need not be the subject of submissions to be known to the court. In this case, material relevant to the applicant's rehabilitation was before the sentencing court, even though defence counsel made no submissions about it. The sentencing judge's recitation of the applicant's subjective case did not reveal any assessment of rehabilitation prospects or show how they were taken into account. This constituted error.

On the Zreika question, the Court acknowledged the difficulty of asserting error where a matter was not raised at first instance. However, it clarified that Zreika does not create an additional leave requirement for sentence appeals. There was no good forensic reason for the failure to pursue the argument below, and given the relevance and significance of a finding regarding rehabilitation prospects, a serious injustice was occasioned. The ground of appeal was made out.

Despite finding error and granting leave, the Court concluded that no lesser sentence was warranted in law after considering the objective circumstances, the applicant's subjective case (including good prospects of rehabilitation), comparative cases, and JIRS statistics. The appeal was therefore dismissed.

Kirk JA added observations (McGuire J agreeing) identifying pertinent factors for determining whether a matter is "relevant and known to the court": whether the matter was raised in submissions; the extent to which it had prominence in other material before the court; and the significance of the matter to the sentencing exercise. His Honour also noted that the "serious injustice" threshold from Zreika may, in the context of matters listed in s 16A or s 21A, involve a conclusion that the matter was sufficiently relevant and known to the sentencing court that it was required to be taken into account.

Orders Made

  • Leave to appeal granted.
  • Ground 1 upheld (sentencing error established).
  • Appeal dismissed on the basis that no lesser sentence was warranted in law.

Key Takeaways

  • An assessment of an offender's prospects of rehabilitation, where sufficient evidence exists, is an essential component of the instinctive synthesis sentencing exercise for both Commonwealth and NSW offences.
  • Under s 16A(2) of the Crimes Act 1914 (Cth) and s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a matter can be "relevant and known to the court" even where no party makes submissions about it, provided the material before the court clearly discloses it.
  • The Zreika principles do not create a freestanding additional leave requirement for sentence appeals; rather, they inform the identification of error and whether a serious injustice has occurred.
  • A sentencing judge must do more than recite subjective material. The reasons must articulate the way in which the court assessed and took into account prospects of rehabilitation, making the sentencing process transparent.
  • Even where sentencing error is established, the Court of Criminal Appeal may dismiss an appeal where, on resentencing, no lesser sentence is warranted in law, applying Kentwell v The Queen.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16A(2), 16A(2)(n)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 3A(d), 21A, 21A(1), 21A(2)(h), 21A(3), 21A(3)(e), 21A(3)(g)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), ss 11.1(1), 307.6

Key cases cited:
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Richardson v R [2025] NSWCCA 197
- Anquetil v R [2025] NSWCCA 147
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60
- Butler v R [2023] NSWCCA 100
- Chong v R [2020] NSWCCA 235
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Blakeney v R [2022] NSWCCA 277
- Abbas v R [2024] NSWCCA 228
- Chung v R [2025] NSWCCA 87
- Beldon v R [2012] NSWCCA 194
- Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66; [2008] HCA 42