Edwards v R

1. [1]

   KIRK JA: I agree with Yehia J.

2. [2]

   FAGAN J: I have had the advantage of considering Yehia J’s judgment in draft. I agree with the orders that her Honour proposes, granting leave but dismissing the appeal. Her Honour has determined that no lesser sentence is warranted in law, having first concluded that ground 2 should be upheld. In my view both grounds of appeal should be rejected and the sentence should be left undisturbed on that basis. The result is the same but reached by a different route.

3. [3]

   With respect to ground 2, applying the standard of review that has been settled by the decision in Hancock v R [2025] NSWCCA 213 (“Hancock”), I consider that it was reasonably open to the learned sentencing judge to have been satisfied beyond reasonable doubt that the applicant’s possession of the replica pistol in seq 11 was “associated with the surrounding criminal conduct which involved the supply of drugs, and for that reason it does increase the seriousness of that offending”.

4. [4]

   The applicant told the Community Corrections Officer who prepared his Sentencing Assessment Report that he received the unauthorised pistol from the same person who introduced him to the “opportunity to make additional income through dealing illicit substances” and who then supplied him with the drugs. The applicant secreted the pistol in a Nike bag under a pile of shoes in a wardrobe in the main bedroom of his residence. Those primary facts were open to the inference that the applicant’s holding of the item was associated with the drug dealing activity. A replica pistol could be used to threaten violence, at least in self defence. Inherently and notoriously, threats of violence, whether offensive or defensive, are a feature of the trade in drugs.

5. [5]

   Upon execution of the search warrant at the applicant’s home on 4 April 2024, small quantities of cocaine and $7,000 in proceeds of crime were found in the kitchen. One very small quantity of cocaine was found on the floor of the main bedroom. The spatial separation of drugs and money from the hiding place of the replica pistol could fairly be regarded as an insignificant counter to the inference of association between the pistol and the drug dealing.

6. [6]

   In my view it was open to the judge to exclude any reasonable possibility that the applicant’s possession of the replica pistol was unrelated to his drug supply activities. The only innocent possibility propounded in the sentence proceedings was that the applicant was asked by his drug supplier “to mind a fake pistol” and that “he felt obligated to mind it”. It was open to the judge to consider it highly unlikely that two adult males should enter into a neutral, innocent “minding” arrangement in respect of such an item – and quite fanciful that, in the context of a drug supply relationship, such a bailment would be merely coincidental and not connected with the parties’ underlying illicit trade. That is the view that I would have taken of the evidence if I had been performing the sentencing judge’s function. His Honour was not bound to draw the conclusion that he did but it was open to him.

7. [7]

   My rejection of ground 2 requires that I should determine whether the aggregate sentence was manifestly excessive, as contended in ground 1. For the same reasons that Yehia J has given for concluding that no lesser sentence is warranted in law, I consider that the sentence was not manifestly excessive. Hence my concurrence in Yehia J’s proposed disposition of the application.

8. [8]

   YEHIA J: Mr Atutahi Ropata Edwards (“the applicant”) seeks leave to appeal against the sentence imposed on him by Baker SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Parramatta on 23 May 2025 pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

9. [9]

   Following pleas of guilty entered in the Local Court, the applicant was sentenced for four offences, with a further three offences taken into account on two Form 1s.

10. [10]

    The principal offences were one count of supply a small quantity of a prohibited drug, namely cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”); one count of supply a commercial quantity of a prohibited drug, namely MDMA, contrary to s 25(2) of the DMTA; one count of supply an indictable quantity of a prohibited drug, namely MDMA, contrary to s 25(1) of the DMTA; and one count of possess an unauthorised pistol (imitation pistol), contrary to s 7(1) of the Firearms Act 1996 (NSW), which was placed on a s 166 certificate.

11. [11]

    Sequence 1 related to the supply of 2.49 g of cocaine. Sequence 8 related to the supply of 174.32 g of MDMA. Sequence 9 related to the supply of 113.05 g of MDMA. In passing sentence for Sequence 8, the applicant asked the Court to take into account a further two offences on a Form 1, namely one count of dealing with the proceeds of crime ($7,700), contrary to s 193C(2) of the Crimes Act 1900 (NSW), and one count of supply an indictable quantity of cocaine, contrary to s 25(1) of the DMTA. On a Form 1 attaching to Sequence 9, the applicant asked the Court to take into account a further offence of supply an indictable quantity of MDMA, contrary to s 25(1) of the DMTA.

12. [12]

    After a discount of 25% to reflect the utilitarian value of the applicant’s pleas of guilty, the sentencing judge imposed an aggregate sentence of 3 years and 5 months’ imprisonment, with a non-parole period of 2 years and 1 month, commencing on 9 March 2025 and expiring on 8 August 2028. The applicant is first eligible for release to parole on 8 April 2027.

13. [13]

    The following table sets out the principal offences, the maximum penalties, the additional offences taken into account on Form 1s, and the indicative sentences pronounced by the sentencing judge.

Grounds of appeal

1. [14]

   At the time of filing the Notice of Appeal, the applicant relied only on the following ground of appeal:

   1. (1)

      The sentence was manifestly excessive.

2. [15]

   During the hearing of the appeal on 10 November 2025, the applicant sought leave to rely on an additional ground of appeal. That application was not opposed, and leave was granted accordingly. Both parties were granted leave to file supplementary submissions on the additional ground.

3. [16]

   The additional ground of appeal is as follows:

4. [17]

   At the time of the hearing of the appeal, a 5-judge bench of this Court was reserved in the appeal of Hancock. The question to be decided in that case related to the test to be applied in determining a ground of appeal contending that the sentencing judge made a mistake of fact.

5. [18]

   The parties in this matter agreed that the determination of this appeal await the decision in Hancock. The decision in Hancock was handed down on 12 December 2025 and will be discussed below.

Circumstances of offending

1. [19]

   The following summary of the factual circumstances is derived from the Statement of Agreed Facts tendered on sentence and the sentencing judge’s Remarks on Sentence (“ROS”).

2. [20]

   In December 2023, police commenced Strike Force Bounty to investigate the supply of prohibited drugs within the Western region of Sydney. As part of this investigation, physical and electronic surveillance of the applicant was conducted.

3. [21]

   An Undercover Operative (“UCO”) was utilised by police to engage in drug transactions with the applicant. Meetings between UCO 704 and the applicant were organised over Snapchat.

4. [22]

   During the period between 8 February 2024 to 27 March 2024, the applicant was involved in the supply of prohibited drugs, namely cocaine and MDMA.

5. [23]

   On 4 April 2024, the applicant was arrested in relation to this matter. A search warrant was executed at the applicant’s residence on the same date.

6. [24]

   Police found items consistent with drug supply, including numerous clear resealable bags and scales.

7. [25]

   Between 7 February 2024 and 1 March 2024, the applicant supplied 2.49 g of cocaine to UCO 704 in two separate transactions on 8 February and 29 February 2024.

8. [26]

   Around 4:20pm on 8 February 2024, the applicant arrived at the 7-Eleven at Kingswood. The applicant got out of his vehicle and into the front passenger seat of UCO 704’s vehicle, where the applicant supplied UCO 704 with two clear resealable bags containing 1.24 g of cocaine with a purity of 37% in exchange for $500.

9. [27]

   On 29 February 2024, the applicant supplied UCO 704 with two clear resealable bags containing 1.25 g of cocaine with a purity of 35.5%.

10. [28]

    Between 28 February 2024 and 28 March 2024, over four separate transactions, the applicant supplied UCO 704 with a total of 174.32 g of MDMA.

11. [29]

    On 29 February 2024, the applicant left New Dimensions Gym at Mt Druitt and got into the front passenger seat of UCO 704’s vehicle. The applicant supplied UCO 704 with two clear resealable bags containing 1.25 g of cocaine (part of Sequence 1) and 30 capsules of MDMA weighing 4.5 g with a purity of 78% in exchange for $950.

12. [30]

    On 13 March 2024, the applicant left New Dimensions Gym at Mt Druitt and got into the front passenger seat of UCO 704’s vehicle. The applicant supplied UCO 704 with one clear resealable bag containing 28.22 g of MDMA with a purity of 76% in exchange for $2,500.

13. [31]

    On 20 March 2024, the applicant left New Dimensions Gym at Mt Druitt and got into the front passenger seat of UCO 704’s vehicle. The applicant supplied UCO 704 with three clear resealable bags containing 80.04 g of MDMA with a purity of 77.5% in exchange for $7,000.

14. [32]

    On 27 March 2024, the applicant left New Dimensions Gym at Mt Druitt and got into the front passenger seat of UCO 704’s vehicle. The applicant supplied UCO 704 with two clear resealable bags containing 61.56 g of MDMA with a purity of 76% in exchange for $4,800.

15. [33]

    On the Form 1 attaching to Sequence 8 were two offences, namely one count of deal with proceeds of crime ($7,700) and one count of supply an indictable quantity of a prohibited drug, namely 17.89 g of cocaine.

16. [34]

    $700 was found inside a Gucci bag located in the footwell of the front passenger side of the applicant’s vehicle. The applicant stated that this money was from helping his Dad out with cash jobs.

17. [35]

    $7,000 was found inside a brown paper ‘ecco’ bag located on top of the fridge in the kitchen.

18. [36]

    A total of 17.89 g of cocaine was found in the kitchen and main bedroom as follows:

19. [37]

    Following his arrest, the applicant was escorted by police to his vehicle and made admissions that there was MDMA in one of the vehicle’s compartments.

20. [38]

    A search of the applicant’s vehicle located a green plastic bag containing four clear resealable bags inside the centre console. Within the resealable bags was 113.05 g of MDMA with a purity of 74.5%.

21. [39]

    On the Form 1 attaching to Sequence 9 was one count of supply an indictable quantity of MDMA.

22. [40]

    A total of 34.19 g of MDMA was found in various locations in the kitchen as follows:

23. [41]

    A black imitation pistol was found inside a black Nike bag, under a pile of shoes, inside the wardrobe in the main bedroom.

24. [42]

    Sequence 11 was placed on a s 166 certificate.

Remarks on sentence

1. [43]

   The sentencing judge accepted that the applicant’s motivation for the offending was to reduce his debt and address his family circumstances. This did not reduce his moral culpability to anything more than a limited extent. The sentencing judge found that the applicant exercised a free choice, albeit due to financial pressure, by seeking a “way out” in the circumstances.

2. [44]

   The sentencing judge found that there was a course of conduct and some common background features for each offence but that each offence was individually a serious offence. His Honour concluded that each offence was “below the middle of the range of objective seriousness for these types of offences” but none were “towards the lower end”.

3. [45]

   The applicant reported to the author of the Sentencing Assessment Report (SAR) that the same associate that gave him the opportunity to supply illicit substances asked him to mind the imitation pistol and that, given his associate was assisting him to obtain additional income, he felt obligated to mind it. The sentencing judge found that the imitation pistol was kept in the applicant’s home and not disguised in any way or hidden. However, his Honour was not satisfied on the balance of probabilities that the applicant was simply holding the imitation pistol for an associate.

4. [46]

   The sentencing judge found that the imitation pistol was “associated with the surrounding criminal conduct which involved the supply of drugs, and for that reason it does increase the seriousness of that offending”.

5. [47]

   The sentencing judge took into account the two and a half months the applicant spent in custody bail refused after his arrest by backdating the commencement date of the applicant’s sentence.

6. [48]

   The applicant was granted Supreme Court bail on 17 June 2024. It was submitted on the applicant’s behalf that the sentencing judge would take into account his restrictive bail conditions as a form of quasi-custody.

7. [49]

   The applicant was released on bail to reside at his parents’ residence. The practical consequence of the residence condition was to restrict the applicant from living with his wife and children. The applicant was required to report daily and there was a curfew condition in place. From 17 June 2024 to 25 February 2025, the curfew condition required the applicant to remain at home between 9pm and 5am each day. On 25 February 2025, this condition was deleted from Monday to Friday to allow the applicant to work in Muswellbrook.

8. [50]

   The residence condition required the applicant to travel back and forth from his parents’ residence each day after work. The curfew remained in place on weekends. A further bail condition was that the applicant not use a smartphone whilst on bail.

9. [51]

   The sentencing judge found that while the bail conditions were restrictive and onerous, they were not such that his Honour was satisfied that they could “approach the effect of being in custody”.

10. [52]

    However, the sentencing judge found that he would take into account the applicant’s compliance with those bail conditions as part of his subjective case in terms of his prospects of rehabilitation and likelihood of reoffending.

11. [53]

    The sentencing judge had regard to the SAR dated 15 May 2025, a report by Dr Jeff Bertucen, Psychiatrist, dated 12 May 2025, a letter of apology by the applicant dated 21 May 2025, a letter written by the applicant’s mother dated 19 May 2025, a letter written by the applicant’s wife dated 19 May 2025, a letter written by the applicant’s father in law dated 18 May 2025, and further letters of support from a Pastor of The Rock Church and the applicant’s previous manager.

12. [54]

    The sentencing judge noted that the applicant had a minor criminal record, however given the nature of those offences and the time since they were committed, his Honour found that the applicant should be dealt with as if he had no criminal record. The applicant was “entitled to the leniency that one would expect in circumstances where a person has a limited criminal history”.

13. [55]

    The applicant was 33 years of age at the time of sentencing. He is married with four children. He was employed as a coal miner. The applicant has a good relationship with his parents and siblings, and a lengthy and solid work history.

14. [56]

    The applicant was experiencing financial struggles as a result of the closure of his business during the COVID-19 pandemic. The applicant was approached by a known associate to discuss his financial situation and was provided with an opportunity to make additional income through the supply of illicit substances.

15. [57]

    The applicant reported occasional cocaine use but denied that his drug use was a motivating factor in his offending. The applicant has since ceased all substance use.

16. [58]

    The applicant expressed embarrassment at his offending, stating that his actions were incongruent with his core values and beliefs. The applicant did not attempt to minimise or justify his offending and expressed remorse for the shame he had brought on himself and his family. The applicant recognised the impact the offending had on himself, his family and the community. The author of the SAR opined that the applicant presented a low risk of reoffending, and the sentencing judge found that was consistent with the other evidence.

17. [59]

    In his letter, the applicant apologised for the offending, expressed remorse, and set out the impact the offending has had on his family.

18. [60]

    All of the support letters spoke highly of the applicant and indicated that he has the love and support of his family.

19. [61]

    The sentencing judge found that the subjective material showed that the applicant had taken positive steps towards rehabilitation and remained abstinent.

20. [62]

    The applicant has had a steady work history and worked hard during his life. The sentencing judge also had regard to the applicant’s adherence to his onerous bail conditions.

21. [63]

    The sentencing judge found that the applicant has good prospects of rehabilitation and presents a low risk of reoffending. The sentencing judge accepted that the applicant was genuinely remorseful and had insight into the offending.

22. [64]

    The sentencing judge found that there was little need for personal deterrence. His Honour found that general deterrence, denunciation and holding the applicant to account for his offending were important considerations in sentencing the applicant.

Ground 2

1. [65]

   It is appropriate to deal with Ground 2 first. As noted above, the applicant made representations to the author of the SAR claiming that the associate who had involved him in the drug supply asked him to mind a “fake pistol” and given that the associate had helped him obtain additional income (through drug supply), he felt obliged to mind it.

2. [66]

   The sentencing judge did not accept on the balance of probabilities that the applicant had the pistol for the purposes of holding it for his associate. His Honour accepted that he had limited information about the pistol but nevertheless found that it was associated with the surrounding criminal conduct which involved the supply of drugs, which increased the objective seriousness of the firearms offence.

3. [67]

   The applicant contended that it was not open to the sentencing judge to find that the imitation pistol was associated with the drug supply activity such as to increase the objective seriousness of that offence. In support of that contention, the applicant relied upon the fact that it was not part of the agreed facts that the pistol was related to the offences involving drug supply.

4. [68]

   Furthermore, there were no drugs found in the cupboard where the imitation pistol was stored, located, as it was, in a bag under a pile of shoes at the bottom of the cupboard. The applicant contended that the circumstances of the imitation pistol’s discovery do not lead to the singular conclusion that the applicant possessed it in connection with his drug supply activities. It was submitted that this factual finding was a significant error because the sentencing judge found it aggravated the objective seriousness of that offence.

5. [69]

   The respondent submitted that it was not in dispute in the sentencing proceedings that the possession of the imitation pistol was related to the applicant’s engagement in drug supply. The firearm was located in the main bedroom, where police also located cocaine. The respondent submitted that in those circumstances, the sentencing judge did not err in finding that the firearm was associated with the surrounding context of the applicant’s involvement in drug supply.

6. [70]

   I do not accept the respondent’s submission that it was not in dispute in the sentence proceedings that the pistol was associated with the drug supply offences. Clearly, this was in dispute given the reliance upon the representation made by the applicant to the author of the SAR, that he was simply minding it for his associate. The purpose of possession of the pistol was in dispute. The sentencing judge rejected, on a balance of probabilities, the explanation provided by the applicant. However, that does not automatically mean that the evidence established that the pistol was associated with the drug supply activity, noting that the Crown would have had to establish that aggravating factor beyond reasonable doubt.

7. [71]

   As indicated above, this ground of appeal could not be properly determined until the decision of the 5-judge bench in Hancock was handed down. The applicant submitted that the sentencing judge’s error in this respect “is plain regardless of the standard of review that is applied”.

8. [72]

   Since the hearing of the appeal, Hancock was handed down. In that case, the Court (comprised of Bell CJ, Ward P, Payne JA, N Adams J and Yehia J) held as follows:

9. [73]

   Ultimately, the Court held that the test in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”), namely whether the sentencing judge has mistaken the facts, is the governing test for sentence appeals. R v O’Donoghue (1988) 34 A Crim R 397 is not to be followed. The Court accepted that an appropriate and correct test in a sentence appeal to ascertain a mistake of fact for the purposes of House v The King is to ask whether the finding was reasonably open.

10. [74]

    During the applicant’s sentence hearing, his legal representative submitted “there was certainly no suggestion that the imitation pistol was intended for any sort of use”. When discussing the applicant’s explanation for possessing a firearm, the sentencing judge said:

11. [75]

    Subsequent to that exchange, the Crown appearing at sentence submitted the following:

12. [76]

    The capacity of a sentencing judge to draw an inference or inferences from the primary facts (beyond reasonable doubt) will depend upon the facts and circumstances in the particular case. The location of a firearm with other indicia of criminal activity (for example drugs, ammunition and cash) may be evidence from which it could be inferred that the firearm was a “tool of trade of a drug dealer”. In R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43, Johnson J (McClellan CJ at CL and McCallum J agreeing) said as follows:

13. [77]

    However, the mere location of a firearm at premises in which prohibited drugs are also located, may not be sufficient evidence from which an inference can be drawn, to the requisite standard, of a link between the firearm and drug supply. In Andary v R [2020] NSWCCA 75, Hamill J (R A Hulme and Wilson JJ agreeing) held that the sentencing judge erred in treating as a significant factor in assessing the objective seriousness of firearms offences that the firearms in question were located in a house in which a large-scale drug manufacturing enterprise was being undertaken. His Honour said as follows:

14. [78]

    In the present case, the following primary facts were established. Firstly, the imitation pistol was found inside a bag, under a pile of shoes inside the wardrobe in the main bedroom. No drugs or other indicia of supply were located in the wardrobe. The only prohibited substance located in the main bedroom was 0.07 g of cocaine contained in a clear resealable bag located on the floor near the bedside drawers.

15. [79]

    Secondly, the same associate who provided the applicant with the opportunity to make additional income through drug supply, provided him with the imitation pistol. The applicant’s explanation, at least insofar as it relates to the source of the imitation pistol, appears to have been accepted. However, there was an absence of information as to when the applicant came to be in possession of the pistol, whether it was provided to him at the same time as the drugs, or how long it had been stored in the bag in the cupboard.

16. [80]

    Thirdly, the applicant did supply prohibited drugs.

17. [81]

    The process that the sentencing judge had to engage in was one of inferential reasoning from the established primary facts. The question is whether it was reasonably open to the sentencing judge to find beyond reasonable doubt that the imitation pistol was associated with the drug supply activity such as to increase the objective seriousness of the firearms offence? The answer to that question must be no.

18. [82]

    While it was open to the sentencing judge to reject the applicant’s explanation as to why he was in possession of the pistol, it was not reasonably open, on the limited evidence in this case, to find beyond reasonable doubt that the applicant possessed the pistol in connection with his drug supply activities thereby increasing the objective seriousness of the firearms offence.

19. [83]

    It follows that I am satisfied that Ground 2 has been made out.

Re-sentence

1. [84]

   Having determined that error has been established in relation to Ground 2, it is not necessary to determine the manifest excess ground. Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the objective seriousness of the offence/s, the applicant’s subjective case and the purposes of sentencing: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).

2. [85]

   In AE v R [2023] NSWCCA 74, N Adams J said as follows at [58]:

3. [86]

   In undertaking afresh the independent exercise of the sentencing discretion to determine whether a less severe sentence is warranted in law, I will address the submissions made by the applicant in support of the contention that the sentence imposed below was manifestly excessive.

4. [87]

   The applicant particularised four reasons why the sentence was manifestly excessive, namely:

   1. (1)

      The level of aggregation was excessive;

   2. (2)

      No discount was applied for the applicant’s very restrictive bail conditions;

   3. (3)

      The impact on the applicant’s family; and

   4. (4)

      The overall term was excessive with respect to comparative cases and the statistics.

5. [88]

   The applicant submitted that the offending captured by Sequence 1 should have been determined to be served wholly concurrently with the other sentence. The applicant submitted that the three drug offences constituted a “course of conduct” which should have attracted very limited, if any, notional accumulation. It was also submitted that the benefit of the 25% discount for the applicant’s guilty pleas was “significantly eroded” upon aggregation. The applicant pointed to the fact that the aggregate sentence was 57% of the combined total of the indicative sentences.

6. [89]

   The sentencing judge found that there must be some accumulation of penalty, and after considering the need for some accumulation and the principle of totality, he determined could not arrive at an aggregate sentence of less than 3 years so as to make an ICO available.

7. [90]

   In Masters-Whitehouse v R [2025] NSWCCA 8, N Adams J (Hamill and Sweeney JJ agreeing) said as follows:

8. [91]

   In MJR v R [2025] NSWCCA 51, where the applicant was sentenced for 15 offences, including supply of firearms and prohibited weapons, possession and unlawful use of firearms, supply of illegal drugs and breaking and entering, it was accepted that the degree of notional accumulation applied should not be so great as to erode significantly the benefit of the discount to which the applicant was entitled. In re-sentencing the applicant, the degree of notional accumulation was determined in the context of a high number of offences involving different categories of offending (although overlapping significantly), and where the indicative sentences pronounced for the offences were necessarily high.

9. [92]

   In the present case, the applicant was sentenced for four substantive offences where the indicative sentences for each were not at the high end of the sentencing judge’s discretion. The most serious offence, the supply of a combined 174.32 g of MDMA to the UCO over four occasions, received an indicative sentence of 2 years and 6 months’ imprisonment. The aggregate sentence reflected a further period of 11 months which fairly encompassed the total criminality of the applicant’s conduct. The additional criminality included the supply of cocaine to the UCO on two occasions; the applicant having a further 113.05 g of MDMA in his vehicle at the time of his arrest, for the purpose of supply; and the applicant having possession of an imitation pistol inside the wardrobe of his bedroom.

10. [93]

    The supply of cocaine to the UCO does not, by itself, warrant any significant notional accumulation with the MDMA supply offences. However, the significant quantity of MDMA (approaching the commercial quantity threshold of 125 g) found in the applicant’s vehicle and the possession of an imitation firearm, warrant a degree of accumulation of penalty.

11. [94]

    The applicant contended that the onerous bail conditions amounted to quasi-custody and that the period of quasi-custody together with the period of pre-sentence custody should be factored in as part of the instinctive synthesis when determining the appropriate length of the aggregate sentence as opposed to proceeding by way of backdating the sentence.

12. [95]

    It was contended that this alternative way of taking into account a period of pre-sentence custody and quasi-custody is permissible to give effect to the mandatory consideration in s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), namely that in sentencing an offender, the court must take into account any time for which the offender has been held in custody in relation to the offence. It was also contended on behalf of the applicant that if this Court were to proceed in this way, the proportionate aggregate sentence would be a sentence of 3 years’ imprisonment or less, thereby making an ICO available.

13. [96]

    The issue was raised (although not decided) in Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97, where Simpson AJA observed:

14. [97]

    N Adams J responded to this in her Honour’s additional reasons:

15. [98]

    Subsequently, in DG v R (No 1) [2023] NSWCCA 320 (“DG (No 1)”), the Court (comprised of Wilson, Fagan and Sweeney JJ) held as follows:

16. [99]

    In Kljaic v R (2023) 310 A Crim R 527; [2023] NSWCCA 225 (“Kljaic”), Wright J (Beech-Jones CJ at CL and Harrison J agreeing) held as follows:

17. [100]

    It is therefore not appropriate to arrive at a sentence of more than 3 years’ imprisonment and then reduce that term by the period of pre-sentence custody so as to bring it within the time limit for consideration of an ICO: DG (No 1) at [22] (Wilson, Fagan and Sweeney JJ).

18. [101]

    The accepted practice and preferable course is therefore to take into account a period of pre-sentence custody (including any discrete identification of a period of quasi-custody) by backdating the commencement of the sentence for an equivalent period. This is the preferable course because it provides a level of transparency by clearly identifying the total period of pre-sentence custody (including in the appropriate case the period of quasi-custody) and clearly demonstrating the way that period has been taken into account in the sentencing exercise by backdating the commencement of the sentence. I am not persuaded that the period of pre-sentence custody should be taken into account in some alternative way as part of the process of instinctive synthesis.

19. [102]

    The contention that the sentence should have been reduced by a discrete discount of “at least three and [a] half months” to reflect the time spent on bail given the very restrictive conditions imposed, must also be rejected. The restrictive conditions relied upon by the applicant include that he was required to live away from his wife and children, report daily, and was subject to a daily curfew from 9pm to 5am for part of his time spent on bail and thereafter to a weekend curfew for the same time. The applicant was subject to a curfew seven days a week between 17 June 2024 and 25 February 2025, a period of approximately eight months.

20. [103]

    During the hearing of the appeal, it was clarified that the applicant resided with his parents rather than his wife and children because his parents’ residence was in closer proximity to his place of employment. The residence condition was therefore a matter of practical convenience to the applicant as opposed to a condition imposed by the Court requiring him to be separated from his family.

21. [104]

    The question is whether the bail conditions “are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as ‘quasi-custody’”: R v Quinlin (2021) 293 A Crim R 253; [2021] NSWCCA 284 at [88] (Price J, Hamill and Ierace JJ agreeing).

22. [105]

    That question must be determined according to the facts of the particular case. In Hoskins v R [2016] NSWCCA 157, the Court (Payne JA, McCallum and Wilson JJ) said at [36]:

23. [106]

    Although the bail conditions imposed on the applicant were clearly restrictive, they were not such as to amount to quasi-custody.

24. [107]

    The applicant accepted that the impact of his incarceration on his family was not “exceptional”, such as to reduce the sentence in the way contemplated in R v Edwards (1996) 90 A Crim R 510. Nevertheless, the applicant submitted that his arrest at his children’s school in front of teachers and parents had an impact on his family, as did the fact his wife and children had to live on their own without the applicant’s support for the term of his custodial period and thereafter during the course of his onerous bail conditions. The applicant submitted that this was a significant feature of his subjective case.

25. [108]

    The impact of the applicant’s imprisonment on himself and his family is a matter relevant to the applicant’s subjective case and to a finding of special circumstances.

26. [109]

    In determining whether a lesser sentence is warranted, I have also had regard to the three comparative cases relied upon by the applicant as well as the JIRS statistics.

27. [110]

    The first case relied upon by the applicant is R v Esho [2023] NSWDC 195 (“Esho”). The offender in that case pleaded guilty to one offence of supplying a commercial quantity of cocaine, namely 828 g. The sentencing judge found that the offender’s role was to store the prohibited drugs for the purpose of supply by others. The sentencing judge assessed the overall criminality as low and found that the objective seriousness of the offending was “very much in the low range or at the very least towards the low range”. The offender was 27 years old and had a “very strong subjective case”. The offender was sentenced to 1 year and 11 months’ imprisonment, with the balance to be served by way of ICO.

28. [111]

    Unlike the present matter, the offender in Esho did not supply the prohibited drugs himself, rather his role was to store the drugs. In Esho, the offender was also only sentenced for one offence which was found to be in or towards the low range of objective seriousness. In the present matter, the applicant’s offending was found to be below the middle range of objective seriousness but not towards the lower end. The applicant in the present matter was also sentenced for four principal offences, one of which was possessing a prohibited firearm, with a further three offences taken into account on Form 1s.

29. [112]

    In R v Cobeta [2024] NSWDC 477 (“Cobeta”), the offender pleaded guilty to two offences. The first offence was supplying a commercial quantity of a prohibited drug, namely 561.4 g of cocaine. The second offence was supplying a large commercial quantity of a prohibited drug, namely 3634 g of MDMA. On a Form 1, the offender asked the Court to take into account on sentence an offence of dealing with proceeds of crime ($11,000) and an offence of supplying an indictable quantity of a prohibited drug. The sentencing judge found that the offender’s role was “at the lower end of the hierarchy”. The sentencing judge found that the offender’s addiction “got out of control”, and he became involved in the offending to repay a sizeable drug debt. The offender’s moral culpability was reduced. After reducing the sentence by 6 months to take into account pre-sentence custody, the sentencing judge imposed a sentence of 2 years and 6 months’ imprisonment to be served by way of ICO.

30. [113]

    The quantity of drugs the subject of the offences in Cobeta was significantly greater than in the present matter. However, unlike the present matter, Cobeta did not involve the additional criminality of an offence of possession of an unauthorised pistol, which warrants some degree of accumulation.

31. [114]

    In Testici v R [2025] NSWCCA 88, the applicant pleaded guilty to three offences, including one count of supplying a commercial quantity of a prohibited drug, one count of possessing a prohibited weapon (knuckle dusters), and one count of supplying an indictable quantity of a prohibited drug. Three further offences were taken into account on a Form 1, namely possessing ammunition without holding a licence, permit or authority, dealing with property reasonably suspected of being proceeds of crime ($2,500), and supplying an indictable quantity of a prohibited drug.

32. [115]

    The sentencing judge found that the offence of supplying a commercial quantity of a prohibited drug fell just below the mid-range of objective seriousness, and the other two principal offences were within the low range of objective seriousness. The applicant was sentenced to 3 years and 2 months’ imprisonment. The applicant’s appeal against sentence was unsuccessful, with the Court finding that the sentencing judge took into account the applicant’s onerous bail conditions and accounted for pre-sentence quasi-custody in the exercise of instinctive synthesis. The applicant’s mental health difficulties were also taken into account.

33. [116]

    Testici did involve an offence of possessing a prohibited weapon.

34. [117]

    The applicant handed up two sets of statistics during the hearing of the appeal. One set of statistics was also relied on at sentence. These statistics indicate that for an offence contrary to s 25(2) of the DMTA, 31.1% of offenders were sentenced to an ICO, and 67.7% of offenders were sentenced to a term of imprisonment.

35. [118]

    The second set of statistics indicated that 24.3% of offenders sentenced to full-time imprisonment received a sentence of 3 years’ imprisonment or less. After adding the number of offenders who received an ICO or CCO, just under half of all offenders received a sentence of 3 years’ imprisonment or less.

36. [119]

    It has been recognised that the use of statistics is a “somewhat blunt instrument” when seeking to establish manifest excess, which may be of limited utility in a particular case and should not be given undue weight: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Fogg v R [2011] NSWCCA 1 at [59]-[60] (Garling J, Simpson and Blanch JJ agreeing); Windle v R [2011] NSWCCA 277 at [62] (Hoeben J, Meagher JA and Rothman J agreeing); Furia v R [2010] NSWCCA 326 at [74] (RA Hulme J, Giles JA and Hislop J agreeing); He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42] (Bell P, Gleeson and McCallum JJA agreeing).

37. [120]

    In any case, the statistics demonstrate that a sentence of 3 years and 5 months’ imprisonment with a non-parole period of 2 years and 1 month is within the range of sentencing discretion for offences of this type.

38. [121]

    Like the sentencing judge, I am satisfied that the applicant is genuinely remorseful and has insight into his offending. He has good prospects of rehabilitation and has a low risk of reoffending.

39. [122]

    I am satisfied that the objective seriousness of each of the drug related offences falls below the middle of the range of objective seriousness for these types of offences.

40. [123]

    In respect of the offence of possessing an unauthorised imitation pistol, I am unable to find beyond reasonable doubt that the possession of the pistol was associated with the applicant’s drug related activity. There is simply insufficient evidence to make any finding beyond reasonable doubt, capable of aggravating that offence. That said, the applicant’s overall criminality is serious having regard to the not insignificant quantity of drugs involved and the period over which the applicant was engaged in drug supply. A degree of notional accumulation is warranted to reflect the applicant’s overall criminality.

41. [124]

    Furthermore, while specific deterrence has little or no significance, general deterrence, punishment, denunciation of the applicant’s conduct and holding the offender to account are relevant sentencing considerations.

42. [125]

    Having considered the objective circumstances, the applicant’s subjective case, the purposes of sentencing and the principle of totality, I am not of the view that a lesser sentence is warranted in law.

43. [126]

    Accordingly, I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Dismiss the appeal.