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Court of Criminal Appeal 26 June 2026

Jameel v R

[2026] NSWCCA 91

Drugs
SENTENCING EXERCISE

Citation: Jameel v R [2026] NSWCCA 91
Court: Court of Criminal Appeal, New South Wales
Date: 26 June 2026
Judges: Kirk JA, Lonergan J, Weinstein J (Weinstein J writing; Kirk JA and Lonergan J agreeing)

Background

The applicant pleaded guilty in the District Court of New South Wales to two federal drug offences: attempting to possess a commercial quantity of a border controlled drug, and importing a commercial quantity of a border controlled drug. Each offence carries a maximum penalty of life imprisonment. The sentencing judge imposed an overall term of 7 years' imprisonment with a non-parole period of 4 years, commencing 9 December 2024.

At sentence, the applicant relied on expert psychiatric evidence from Dr Donald Rowe, who opined that the applicant's mental health disorders were causally connected to his offending. The sentencing judge rejected that causal connection and declined to reduce the applicant's moral culpability on that basis. The judge also addressed the applicant's disadvantaged background and hardship to his family, including a young child.

The applicant sought leave to appeal on four grounds: denial of procedural fairness in rejecting the expert's opinion; failure to take the applicant's disadvantaged background into account; error in the treatment of family hardship; and an error in the commencement date of the non-parole period.

  • Whether the sentencing judge denied the applicant procedural fairness by rejecting unchallenged expert psychiatric evidence without alerting counsel to the intended rejection.
  • Whether the sentencing judge failed to take the applicant's disadvantaged background into account, as required by the principles in Bugmy v The Queen (2013) 249 CLR 571.
  • Whether the sentencing judge wrongly treated family hardship as needing to be "exceptional" before it could be considered in sentencing, contrary to Totaan v R (2022) 108 NSWLR 17.
  • Whether the sentencing judge erred in fixing the commencement date of the non-parole period.

Decision

Ground 1: Procedural fairness and rejection of expert opinion

The Court held that the sentencing judge's finding involved no breach of procedural fairness. The judge had been presented with competing submissions from both parties about whether the applicant's mental health reduced his moral culpability. In that adversarial context, the judge was entitled to reject Dr Rowe's opinion on the causal connection between mental health and offending. No agreed position existed between the parties that moral culpability would be reduced; the Crown had not implicitly accepted that outcome.

Given that the offending was plainly open to be characterised as sustained and financially motivated, the applicant's counsel should have been alive to the real possibility that the judge would reject the causal link. Counsel had avenues available to address that possibility but did not pursue them. The Court drew a firm distinction between a missed opportunity to persuade and procedural unfairness: the former does not constitute practical injustice.

Ground 2: Failure to take disadvantaged background into account

The Court found no error. The sentencing judge acknowledged the Bugmy principles were engaged, accepted the applicant's background of disadvantage as relevant, and recognised it could be taken into account in ways beyond simply reducing moral culpability. Read in light of the maximum penalties, the circumstances of the offending, and the overall remarks on sentence, the judge did give effect to the applicant's background.

The Court offered guidance on the proper application of Bugmy, noting that reasoning should not assume a strict "causal link" is required before the principles apply, nor that Bugmy is inapplicable to planned offending. The central question is whether, in all the circumstances, the offender can be said to bear the same moral responsibility as a person from a privileged or conventional upbringing.

Ground 3: Family hardship and the Totaan error

The Court found nothing in the sentencing remarks to support an inference that the judge treated family hardship as needing to be "exceptional" before it could be considered. The judge expressly acknowledged the material before him on this point. His Honour concluded that family hardship, while taken into account, could not displace the significant weight general deterrence attracts for drug importation offences. That conclusion was open, and no Totaan error was established.

Ground 4: Commencement date of the non-parole period

Both parties accepted the non-parole period should have commenced on 9 December 2024, the commencement date of the first sentence, rather than 11 December 2024. The Court classified this as a mere arithmetical error, relying on Lehn v R (2016) 93 NSWLR 205 and subsequent authority. Correction of such an error does not require the Court to re-exercise the sentencing discretion afresh under Kentwell v R (2014) 252 CLR 601. The Court corrected the date accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of Ground 4 only.
  • Sentence imposed in the District Court on 11 December 2024 quashed and replaced as follows:
  • Attempting to possess a commercial quantity of a border controlled drug: 4 years' imprisonment, commencing 9 December 2024, expiring 8 December 2028.
  • Importing a commercial quantity of a border controlled drug: 6 years' imprisonment, commencing 9 December 2025, expiring 8 December 2031.
  • Non-parole period of 4 years fixed pursuant to s 19AB of the Crimes Act 1914 (Cth), commencing 9 December 2024 and expiring 8 December 2028.
  • Applicant eligible for parole on 8 December 2028.
  • Appeal otherwise dismissed.

Key Takeaways

  • A sentencing judge is not required to alert counsel before rejecting unchallenged expert evidence where competing submissions on that issue have already been put by both parties. Failing to exploit available avenues of persuasion is a missed opportunity, not a denial of procedural fairness.
  • The Bugmy principles do not require proof of a strict causal link between disadvantaged background and the offending before the background becomes relevant to sentencing. The core question is whether the offender bears the same moral responsibility as a person raised in more favourable circumstances.
  • Planned or financially motivated offending does not, of itself, exclude the operation of Bugmy. The Court of Criminal Appeal cautioned against reasoning that treats planning as automatically displacing consideration of background disadvantage.
  • Under Totaan, family hardship need not be "exceptional" to be a relevant sentencing factor, but a sentencing judge may lawfully conclude that it does not displace the weight given to general deterrence in serious drug cases once it has been genuinely considered.
  • A purely arithmetical error in fixing the commencement date of a non-parole period can be corrected on appeal without undertaking a full re-sentencing exercise, consistent with Lehn v R and Kentwell v R.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2)(m), 16A(2)(p), 19AB
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), ss 11.1(1), 11.2A(1), 307.1(1), 307.5(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Lazarus v R (2023) 380 FLR 228; [2023] NSWCCA 214
- Ahmad v R (2023) 383 FLR 225; [2023] NSWCCA 294
- LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321