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Court of Criminal Appeal 24 June 2026

McLain v R

[2026] NSWCCA 84

Drugs

Citation: McLain v R [2026] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 24 June 2026
Judges: Payne JA, Rigg J, Boulten J (Boulten J delivered the principal judgment; Payne JA and Rigg J agreed)

Background

The appellant, a 30-year-old US national ordinarily resident in Prague, arrived at Sydney Airport on 17 January 2024 carrying a duffel bag with a false bottom. Australian Border Force officers discovered the bag contained methamphetamine (796.3 grams pure weight), ketamine (51 grams pure), and MDA (4.7 grams pure). She denied knowledge of the drugs and told police that a man named "Caeser" had paid for her airfare without requiring anything in return.

The appellant pleaded guilty in the Local Court to one count of importing a commercial quantity of border-controlled drugs contrary to ss 307.1(1) and 311.1(f) of the Criminal Code Act 1995 (Cth), an offence carrying a maximum of life imprisonment. In the District Court, Judge Gallagher sentenced her to 6 years and 6 months imprisonment with a non-parole period of 3 years and 6 months, after applying a 25% discount for the utilitarian value of her early guilty plea. She had been in custody since her arrest.

The appellant sought leave to appeal to the Court of Criminal Appeal on four grounds, challenging the sentencing judge's assessment of objective seriousness, her finding about the appellant's role in the drug importation organisation, the weight given to general deterrence, and the overall length of the sentence.

  • Whether the sentencing judge's characterisation of the offending as a "serious example" was reasonably open on the facts
  • Whether the sentencing judge made an impermissible positive finding that the appellant was not below the middle level of the drug importation organisation
  • Whether the sentencing judge erred by affording excessive weight to general deterrence in the instinctive synthesis process
  • Whether the sentence of 6 years and 6 months, with a non-parole period of 3 years and 6 months, was manifestly excessive

Decision

Ground 1: Objective seriousness

The Court confirmed that the characterisation of objective seriousness is not strictly a factual finding. It derives from underlying factual findings, each of which can be assessed on the standard of whether they were "reasonably open." The sentencing judge's description of the offending as a "serious example" rested on a combination of such reasonably open facts, and no error was established. The Court cited Hancock v R [2025] NSWCCA 213 and Fisher v R [2026] NSWCCA 27 in support of this approach.

Ground 2: Role in the organisation

The Court held that the impugned remark by the sentencing judge was not a positive finding about the appellant's position in the drug importation hierarchy. Rather, the judge was rejecting a submission made on the appellant's behalf. Because the evidence did not permit a positive finding about organisational role, the sentencing judge properly declined to make one. No error arose from that approach, consistent with Giles-Adams v R; Preca v R [2023] NSWCCA 122.

Ground 3: Weight given to general deterrence

General deterrence invariably plays a prominent role in drug importation sentencing, and the Court found it entirely conventional for the sentencing judge to recognise its importance. At the same time, the judge moderated the weight of general deterrence in light of the appellant's reduced moral culpability. Considering the sentence as a whole, general deterrence did not dominate the outcome, and no error in the instinctive synthesis was made out.

Ground 4: Manifest excess

Applying the well-established principles on manifest excess (drawing on Obeid v R (2017) 96 NSWLR 155), the Court found that both the head sentence and the non-parole period fell within the sentencing judge's discretionary range of available sentences. The non-parole period in particular reflected a number of favourable findings made by the sentencing judge. The Court noted that comparable cases, including the Queensland decision of R v Onyebuchi [2016] QCA 143 involving a similar drug quantity, did not assist the appellant. This ground was also dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's characterisation of objective seriousness is not a bare factual finding; it is derived from underlying facts, each of which is reviewable on the "reasonably open" standard.
  • Where a sentencing judge declines to make a positive finding about an offender's role in a drug importation hierarchy because the evidence does not support one, that restraint is not itself an error, even if it comes in the form of rejecting a submission by the defence.
  • General deterrence occupies a prominent and conventional role in drug importation sentencing, and moderating its weight to reflect reduced moral culpability does not constitute an error in instinctive synthesis.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that both the head sentence and the non-parole period were within the available discretionary range, with the non-parole period specifically reflecting favourable subjective findings.
  • Hardships particular to foreign nationals in custody, such as difficulties communicating with family overseas and restricted access to rehabilitation programs, may inform the assessment of subjective circumstances without necessarily producing a sentence that falls outside the available range.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Code Act 1995 (Cth), ss 307.1(1), 311.1(f)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Daher v R [2026] NSWCCA 26
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Edwards v R [2026] NSWCCA 15
- Fisher v R [2026] NSWCCA 27
- Giles-Adams v R; Preca v R [2023] NSWCCA 122; (2023) 377 FLR 426
- Hancock v R [2025] NSWCCA 213
- Harkin v The Queen [2020] NSWCCA 242
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- LK v R [2025] NSWCCA 143
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Baker [2000] NSWCCA 85
- R v Onyebuchi [2016] QCA 143
- Sharma v R [2017] NSWCCA 85
- Tak Fat Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- TH v R [2025] NSWCCA 121
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75