Hyde v R

1. [1]

   PRICE AJA: I agree with Yehia J.

2. [2]

   YEHIA J: Aaron Hyde (“the applicant”) seeks leave to appeal against the sentence imposed on him by Hunt DCJ (“the sentencing judge”) in the District Court of New South Wales in Sydney on 22 March 2024 pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

3. [3]

   The applicant also seeks leave to appeal out of time under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as the Notice of Appeal was filed after the expiry of the filing period. An application for leave to file the Notice of Appeal out of time is Annexure B to the Notice of Appeal. In this respect, the applicant read the affidavit of Ms Isha Fay affirmed on 8 September 2025. The delay in filing the appeal is not attributable to the applicant.

4. [4]

   An amended affidavit of the applicant affirmed on 19 November 2025 was also filed and read on the usual basis after the hearing without objection by the respondent.

5. [5]

   Following a plea of guilty entered in the District Court after the matter was committed for trial, the applicant was sentenced for one offence of knowingly take part in the supply of cannabis leaf in an amount not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”). The maximum penalty for that offence is 15 years’ imprisonment and/or a fine of 3,500 penalty units. No standard non-parole period applies. The offence related to the supply of 144.247 kg of cannabis leaf.

6. [6]

   After a discount of 10% to reflect the utilitarian value of the applicant’s plea of guilty, the applicant was sentenced to a term of imprisonment of 2 years and 8 months, with a non-parole period of 1 year, commencing on 17 March 2024 and expiring on 16 November 2026. The non-parole period would have expired on 16 March 2025.

7. [7]

   The applicant was released to appeals bail on 26 March 2024. The applicant has served 10 days of his sentence to date. The unexpired portion of the applicant’s sentence is therefore 2 years, 7 months and 20 days.

8. [8]

   The applicant’s co-offender, Mr Samuel Minkin was sentenced by Hunt DCJ on 15 May 2023 after he entered a plea of guilty to an identical charge. After a discount of 33⅓%, Mr Minkin was sentenced to a term of imprisonment of 2 years, to be served by way of Intensive Correction Order (“ICO”).

9. [9]

   The applicant and his co-offender were sentenced by the same sentencing judge, albeit 10 months apart. It is the agreed position of the parties on the appeal that when the sentencing judge came to sentence the applicant, the Crown sentence bundle did not include the sentencing judge’s remarks on sentence for Mr Minkin or Mr Minkin’s subjective material (“the Minkin material”).

10. [10]

    The absence of this material in the sentence proceedings of the applicant underpins the complaint in respect of the first ground of appeal. The applicant essentially contends that there was a procedural irregularity which resulted in a miscarriage of justice.

Grounds of appeal

1. [11]

   The applicant filed amended grounds of appeal on 18 November 2025. The respondent did not object to the amended grounds of appeal.

2. [12]

   The applicant advances three grounds of appeal:

   1. (1)

      The sentencing Judge erred in the instinctive synthesis by failing to revisit the appropriateness of the starting point determined separately and in the case for the co-offender bearing in mind critical matters underpinning leniency in his case.

   2. (2)

      The sentencing judge erred:

   3. (3)

      The sentence is manifestly excessive.

Procedural History

1. [13]

   As indicated above, the applicant was sentenced about 10 months after his co-offender. The applicant’s sentence proceedings first came before the sentencing judge on 16 November 2023, some six months after the co-offender was sentenced. A significant plank of the applicant’s subjective case was his relationship with his then 11-year-old daughter, of whom he had sole custody. It was argued on the applicant’s behalf that the hardship that would be experienced by the child, (in the event that the applicant was sentenced to full-time imprisonment), fell into the category of exceptional hardship.

2. [14]

   The proceedings were adjourned to allow the applicant an opportunity to put further material before the Court as to what, if any, arrangements could be made for the care of the child if the applicant was sentenced to full-time imprisonment.

3. [15]

   On 2 February 2024, the matter came back before the sentencing judge, and a further defence bundle was tendered which included material in support of the submission that a sentence of full-time imprisonment would give rise to exceptional hardship to the applicant’s daughter.

4. [16]

   The proceedings were adjourned again, and on 22 March 2024 the applicant was sentenced and remarks on sentence (ROS) were provided by the sentencing judge.

Offending Conduct

1. [17]

   The following summary of the facts is derived from the Statement of Agreed Facts tendered on sentence and the sentencing judge’s ROS.

2. [18]

   From October 2018, ongoing police investigations were conducted jointly between the Australian Federal Police and the Federal Bureau of Investigation code-named ‘Operation Ironside’. These investigations related to an encrypted communication network being used in Australia and overseas by organised crime groups for alleged illicit activities. During these investigations, police identified an encrypted communications platform (known as An0m) used to send encrypted messages as part of the offending.

3. [19]

   A covert joint agency drug and firearm investigation code-named ‘Operation Ironside – Shropshire’ involved targeting production and trafficking of dangerous drugs, namely cannabis, in South-East Queensland and other states in Australia.

4. [20]

   During the investigation, the applicant and Mr Minkin were identified as using dedicated encrypted communication devices such as Signal or An0m.

5. [21]

   Mr Minkin was introduced to the applicant by an apparent co-offender, Alanna, on the Signal application.

6. [22]

   The Statement of Agreed Facts sets out extracts of the communications.

7. [23]

   On 21 May 2021, Mr Minkin communicated to Alanna, “Confirming that I am doing a drive next week what day and where?”. On 24 May 2021, Alanna gave Mr Minkin directions as to where to meet a certain person in Brisbane. That person would give Mr Minkin money to buy a van. There were other communications between Mr Minkin and Alanna consistent with him being paid in cash and being a “courier service”.

8. [24]

   The applicant was referred to as “Tony” in these communications. On 24 May 2021, Mr Minkin was told by Alanna to meet Tony (the applicant) to collect $18,500 for the purchase of a van for “trips”. Mr Minkin was told to pay $9,000 in cash to purchase a Toyota HiAce van that would be the courier van and that he would then be given a phone.

9. [25]

   This was the first time that Mr Minkin was couriering drugs on behalf of the syndicate. The messages confirmed a particular meeting spot.

10. [26]

    On 26 May 2021, Mr Minkin purchased a HiAce van and on the same day was provided with an An0m device. The applicant and Mr Minkin communicated using those devices from 26 May 2021 until their arrest on 28 May 2021.

11. [27]

    Around 6pm on 26 May 2021, the HiAce van purchased by Mr Minkin was driven by him to a service station at Pheasants Nest. Mr Minkin was requested to attend an address in Sunshine, Victoria at 8:30am the next day. The applicant messaged Mr Minkin that he had just landed, and GPS tracking data showed that the An0m device was located on the Tullamarine Freeway, just outside the Melbourne Tullamarine Airport, at 9:26am.

12. [28]

    At 8:19am on 27 May 2021, the applicant messaged Mr Minkin to pick him up from an address in Sunshine, Victoria. At 8:41am, Mr Minkin messaged confirming he had arrived at the earlier nominated relevant address.

13. [29]

    During Mr Minkin’s drive back with the van, it broke down along the Hume Highway.

14. [30]

    At 2:57pm on 27 May 2021, the applicant messaged Mr Minkin informing him that he would be flying up to Sydney and to get the broken down van delivered to a nominated address in Minto, NSW.

15. [31]

    At 3:26am on 28 May 2021, the applicant told Mr Minkin that he was on his way to pick him up from the nominated address with a new van.

16. [32]

    At some time after 4am, the applicant met up with Mr Minkin and they started to drive the replacement van, which was then containing drugs that had been loaded into it, to Queensland.

17. [33]

    At approximately 5am on 28 May 2021, police observed a white Volkswagen Crafter van with Queensland registration entering the M1 Pacific Motorway. Police developed an interest in the vehicle and followed it.

18. [34]

    Police pulled the vehicle over at Crabbes Creek on the side of the M1.

19. [35]

    Police commenced talking to the driver and observed a number of large boxes in the rear of the van. The boxes were noticeably new, neatly taped and packed near each other.

20. [36]

    The applicant was the driver and provided identification when requested to do so. The applicant’s hands were shaking and he avoided eye contact while providing his licence. The applicant informed police that he was jittery because he had been drinking several cans of V energy drinks while driving. Mr Minkin was the passenger.

21. [37]

    When asked the nature of the boxes in the back of the van, the applicant told police it was “extra household stuff” picked up from Bondi. Mr Minkin indicated, “basically it’s rubbish”. Mr Minkin informed police he had previously moved from Bondi, Sydney to Labrador, Queensland and they had to go back to sort out his bond and collect items from the place.

22. [38]

    The applicant and Mr Minkin were searched and nothing adverse was found. Eventually, each indicated they did not know what was in the boxes and neither accepted possession of them.

23. [39]

    Nine boxes were counted, all sealed and packed neatly. One of the boxes was cut open. Inside, there were vacuum-sealed cryovac bags. One of the police officers tipped the box over and showed the other police officer the contents.

24. [40]

    There were 322 individual vacuum-sealed bags containing cannabis leaf. The combined weight of the drugs inside the nine boxes totalled 144.247 kg of cannabis leaf.

25. [41]

    Police also located a bag that Mr Minkin said belonged to him. Inside that bag, there were two mobile phones - an Apple iPhone and a Samsung device, as well as 0.053 g of ketamine.

26. [42]

    A further search of the van disclosed five further mobile phones, a GPS unit with a navigation route to an address in Fairfield, Queensland, which turned out to be Queensland Rail, and packing tape.

27. [43]

    Out of the four Samsung mobile phones seized, three of them, when examined, appeared to be erased, and one contained some content. That phone was found on Mr Minkin at the time of his arrest. Several photographs were taken from the Samsung mobile phone corroborating the conversations between Mr Minkin and the applicant on the An0m platform.

28. [44]

    Both the applicant and Mr Minkin were arrested on 28 May 2021, taken to Byron Bay police station and charged. The Statement of Agreed Facts in the applicant’s sentence proceedings states that both co-offenders had knowledge that the cannabis leaf was in the upper end of what amounts to a commercial quantity.

Remarks on sentence

1. [45]

   The sentencing judge sentenced the applicant’s co-offender Mr Minkin on the basis that the objective seriousness of Mr Minkin’s offending fell towards the bottom-end of the mid-range of objective seriousness but “not into the lower end”, given that the criminality was across a couple of days and Mr Minkin’s role was simply that of a courier.

2. [46]

   The sentencing judge found that the applicant had less involvement in terms of packing and driving but “perhaps more involvement in terms of oversight”. However, the sentencing judge was apparently unable to make that finding to the requisite standard.

3. [47]

   There was nothing in the material before his Honour to suggest that the applicant’s offending was anything other “than an isolated piece of criminal offending committed across two days”. In the applicant’s favour, on the balance of probabilities, the sentencing judge was satisfied that Mr Minkin was going to be more engaged and that for him, it was not simply isolated criminal conduct, but that he had an intention that there would be ongoing involvement in the future.

4. [48]

   Ultimately, his Honour found that in terms of objective seriousness, there was very little to differentiate the applicant’s culpability from Mr Minkin’s. The sentencing judge found that the objective seriousness of the offending in the applicant’s case was either at the “very bottom of the mid-range of objective seriousness or at the very top of the low range of objective seriousness”.

5. [49]

   The sentencing judge had regard to a Sentencing Assessment Report dated 7 November 2023, a report by Dr Gavan Palk, Psychologist dated 13 November 2023, two reports by Michelle Savill, Psychologist, several character references, a letter of remorse by the applicant, and a letter by the applicant’s sister relating to the care of the applicant’s daughter.

6. [50]

   The sentencing judge found that the applicant presented a “powerful subjective case”.

7. [51]

   The applicant had a relatively limited criminal record from 2007, which did not deny him any leniency. The sentencing judge treated the applicant as a person of good character at the time of the offending.

8. [52]

   In the lead up to the offending, the applicant experienced a decline in his mental health. Dr Palk opined that the applicant had experienced “severe depression in the past due to the breakup of his marriage and difficulties with his business partner resulting in depression, anxiety, excessive alcohol consumption and gambling”.

9. [53]

   Prior to the offending, the applicant’s business partner had fired him from his own business supplying coffins. The applicant has since started another business in the funeral industry.

10. [54]

    At the time of the offending, the applicant shared custody with the mother of his young daughter. After the offending, the applicant came into sole parental responsibility for his daughter, in circumstances where the mother had significant subjective difficulties.

11. [55]

    There was a wealth of material indicating that the applicant leads a pro-social life. Since the offending, the applicant has ceased drinking alcohol and gambling.

12. [56]

    The applicant relocated from Queensland to Coffs Harbour with his daughter, both in case an ICO was an option on sentencing, and to set up new stability away from earlier influences.

13. [57]

    The sentencing judge found that the applicant had very good prospects of rehabilitation. His Honour found that the applicant was genuinely remorseful.

14. [58]

    The sentencing judge found that the applicant is a devoted father. His Honour found that the applicant’s daughter is a vulnerable, socially anxious child, with a greater degree of reliance on the applicant than other children of her age.

15. [59]

    His Honour found that any period served in custody will be very difficult for the applicant’s daughter and will be made much more onerous for the applicant because it will be his first time in custody and because of his concerns for his daughter.

16. [60]

    Having considered the law in relation to the degree of hardship that must be demonstrated before hardship to others may be taken into account to reduce an otherwise appropriate sentence, the sentencing judge concluded “with some regret” that the hardship suffered by the applicant’s daughter in the event that he was sentenced to full-time imprisonment, was not sufficient to meet the test of exceptional circumstances.

17. [61]

    No challenge is made to the sentencing judge’s approach to or conclusion about the issue of hardship to the applicant’s daughter.

18. [62]

    The sentencing judge found that the applicant’s co-offender Mr Minkin had suffered extra-curial punishment. Mr Minkin appeared on the television show ‘The Bachelorette’ and had attracted a great deal of publicity. His Honour found that the applicant, while not the focus of the publicity, was identified as the co-offender. His Honour accepted that the applicant had experienced his own level of extra-curial punishment and took this into account.

19. [63]

    The 0.053 g of ketamine located in Mr Minkin’s bag inside the van was placed on a s 166 certificate in respect of Mr Minkin and he received a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with no other penalty imposed for that offence.

20. [64]

    The applicant and Mr Minkin were initially charged with an offence of knowingly take part in the supply of a large commercial quantity of cannabis leaf. Mr Minkin offered to plead guilty to an offence of knowingly take part in the supply of a commercial quantity of cannabis leaf in the Local Court, which was ultimately later accepted, entitling him to a 25% discount. The applicant made no similar offer.

21. [65]

    The sentencing judge was not satisfied that the facts or evidence establishing the new count were not substantially the same as the original count. His Honour found that the evidence for the new count the subject of the applicant’s plea of guilty was substantially the same as the evidence for the original count. This had the consequence that the applicant was only entitled to a discount of 10%.

22. [66]

    No challenge is made to the sentencing judge’s application of a 10% discount only.

23. [67]

    The sentencing judge was satisfied that the starting point for the applicant’s sentence should be the same as the starting point for Mr Minkin’s sentence, namely 3 years. After application of a discount of 10%, the sentence was one of 2 years and 8 months. An ICO was not therefore an option open to his Honour.

24. [68]

    The sentencing judge made a finding of special circumstances, because it was the applicant’s first time in custody, because of the hardship occasioned to the applicant’s daughter, and because the applicant would need an extended period in the community to adjust and re-establish his relationship with his daughter. His Honour found that the combination of these circumstances meant that “a very significant re-arrangement to the statutory formula is called for”. His Honour imposed a non-parole period that was 37.5% of the head sentence.

Ground 1

1. [69]

   During the hearing of the appeal, the applicant developed his argument in respect of Ground 1 by framing it in terms of a procedural error that resulted in a miscarriage of justice. The applicant contended that given the absence of the Minkin material, the sentencing judge was unable to properly consider the issue of parity. The applicant suggested that the procedural irregularity could have been overcome by his Honour simply putting the parity consideration to one side and proceeding to determine, separately, the appropriate starting point in the applicant’s case.

2. [70]

   The parties agree that the Minkin material was not part of the sentencing bundle before the sentencing judge when his Honour sentenced the applicant. It is unclear whether the sentencing judge had regard (otherwise) to his Honour’s ROS in respect of Mr Minkin when sentencing the applicant. When the applicant’s sentence proceedings were before the sentencing judge on 2 February 2024, the following exchange took place:

3. [71]

   Following this exchange, the applicant’s sentence proceedings were adjourned until 22 March 2024, when his Honour imposed sentence. It is unclear whether the sentencing judge obtained the ROS in respect of Mr Minkin prior to sentencing the applicant. However, I proceed on the basis that the ROS in respect of Mr Minkin were not part of the material tendered in the applicant’s sentence proceedings.

4. [72]

   An error of a kind which is generally required for the Court to intervene in a sentence encompasses a judge acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect him/her, mistaking the facts or not taking into account some material consideration: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ). This Court has, on occasion, allowed an appeal against sentence on the basis that a procedural irregularity in the sentencing proceedings has occurred such that those proceedings miscarried, including circumstances where material has not been placed before the sentencing judge: see Stubbings v R [2023] NSWCCA 69 (although the Court ultimately found in that case that the applicant had not shown that there was a procedural irregularity such that the proceedings miscarried); Rae v R [2019] NSWCCA 284; Pym v R [2014] NSWCCA 182.

5. [73]

   The applicant’s complaint that a miscarriage of justice was occasioned by reason of the absence of the Minkin material cannot be sustained for the following reasons.

6. [74]

   Firstly, this Court has endorsed the proposition that it will be cautious and not overly willing to intervene where the same judge has sentenced all co-offenders. In Mohr v R (2024) 390 FLR 293; [2024] NSWCCA 197 (“Mohr”) at [24], Bell CJ (Davies and Wright JJ agreeing), reiterated the long-standing view that the fact that the sentencing of co-offenders has been undertaken by the same judge tends against appellate intervention: Tuivaga v R [2015] NSWCCA 145 at [55]-[56] (Hoeben CJ at CL, R A Hulme and Wilson JJ agreeing); Contos v R [2022] NSWCCA 92 at [86] (N Adams J, Brereton JA and Lonergan J agreeing); Huckstadt v R [2016] NSWCCA 22 (“Huckstadt”) at [90] (Button J, Johnson and Fagan JJ agreeing).

7. [75]

   The fact that the relevant sentences have both been imposed by the same judge does not relieve the Court from the responsibility of analysing the differences in criminality and subjective circumstances to determine whether the proportion between the sentences leaves the applicant with a justifiable sense of grievance: Mohr at [24] (Bell CJ, Davies and Wright JJ agreeing); Cameron v R [2017] NSWCCA 229 at [83] (Hamill J); Keen v R (2024) 389 FLR 9; [2024] NSWCCA 157 at [146] (Yehia J, Wilson and Dhanji JJ agreeing). However, as a matter of general principle this Court will be cautious and not overly willing to intervene where the same judge has sentenced co-offenders because the sentencing judge is aware of the respective objective and subjective cases and is in a position to consider the interrelationship between the objective and subjective features of the co-offenders in an overarching way: Huckstadt at [90] (Button J, Johnson and Fagan JJ agreeing).

8. [76]

   Secondly, no application was made to the sentencing judge to adjourn the proceedings to obtain the Minkin material. Importantly, the Crown and the applicant’s representative were able to make submissions about the respective cases, including addressing parity. Submissions were made in respect of the respective roles, the objective seriousness of each case and the differentials in subjective cases.

9. [77]

   Thirdly, it is apparent from the sentence proceedings that the sentencing judge was able to undertake the task of comparing both the subjective and objective cases for each offender. By way of example, the sentencing judge was clearly alive to the offending conduct in each case, allowing him to make a comparison of the role of each offender and an assessment of the objective seriousness of the offence in each case. The sentencing judge was also able to consider and assess the subjective cases, acknowledging the distinction between the applicant and his co-offender in respect of the applicant’s relationship with his daughter.

10. [78]

    Fourthly, while the sentencing judge concluded that the applicant presented “a powerful subjective case”, his Honour also assessed Mr Minkin’s subjective case as “a powerful subjective case”.

11. [79]

    Fifthly, although the sentencing judge did not identify each and every comparator, he did reflect upon the respective objective and subjective cases concluding:

12. [80]

    I am not persuaded that the absence of the Minkin material resulted in a miscarriage of justice. Furthermore, having regard to the respective objective and subjective cases, it was reasonably open to the sentencing judge to conclude that the same starting point (a sentence of 3 years’ imprisonment) was warranted.

13. [81]

    I would therefore dismiss Ground 1.

Ground 2

1. [82]

   Grounds 2(a) and (b) may be dealt with together. The applicant contends that the sentencing judge erred in the conclusion of objective seriousness by failing to consider that the Crown did not allege that the applicant was guilty of supplying cannabis leaf, as opposed to taking steps in the process of supply and, in the conclusion that the objective seriousness was “either at the very bottom of the mid-range of objective seriousness or at the very top of the low range of objective seriousness”.

2. [83]

   This complaint is wholly unsupported. The sentencing judge commenced the ROS by stating that the applicant was to be sentenced for one serious offence of knowingly take part in the supply of cannabis leaf in an amount not less than the commercial quantity. The sentencing judge then proceeded to set out the offending conduct for which the applicant was to be sentenced, identifying the particular acts undertaken by the applicant.

3. [84]

   That exercise was conducted by reference to the Statement of Agreed Facts. The sentencing judge considered precisely the role played by the applicant and the way in which he knowingly took part in the supply of the cannabis leaf.

4. [85]

   This Court has on multiple occasions endorsed the proposition that a sentencing judge has a wide discretion in making a finding of objective seriousness which will not likely be interfered with by this Court: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ), [46] (Simpson J); TC v R [2025] NSWCCA 170 at [146] (Payne JA, Sweeney and Huggett JJ agreeing); R v White [2025] NSWCCA 111 (“R v White”) at [66]-[69] (Bell CJ, Payne JA and N Adams J agreeing); White v R [2025] NSWCCA 141 at [116] (Price AJA, N Adams and Sweeney JJ agreeing).

5. [86]

   In FRP v R [2025] NSWCCA 178, Garling J (Harrison CJ at CL and Yehia J agreeing) said:

6. [87]

   In assessing the objective seriousness of the offence, the sentencing judge took into account the relevant factors. Firstly, his Honour had regard to the maximum penalty, being a relevant guidepost. Secondly, the applicant communicated with his co-offender using an encrypted device. Thirdly, the co-offender was instructed to meet with the applicant in order to collect $18,500 for the purchase of a van for “trips” (a reference to drug runs). Fourthly, the applicant and Mr Minkin were in communication leading up to the day of their arrest, to arrange when and where they would meet. Fifthly, the applicant was the driver of the van, which contained the large boxes filled with cannabis leaf, at the time that police stopped the van. Sixthly, the combined weight of the drugs inside the nine boxes totalled 144.247 kg of cannabis leaf.

7. [88]

   While the quantity of the drug is not determinative in assessing the objective seriousness of an offence, it is a relevant consideration. Here, the amount of cannabis leaf was substantial. The sentencing judge took into account, however, that this was an isolated piece of criminal offending committed across two days. These competing factors bear on the calculus to be undertaken in assessing the objective seriousness of the offence, an example of the careful analysis undertaken by the sentencing judge.

8. [89]

   Not only was the assessment of objective seriousness reasonably open to the sentencing judge, had I been required to substitute my own view of the objective seriousness for that of the sentencing judge, I would have arrived at the same conclusion as his Honour.

9. [90]

   Ground 2 is not made out.

Ground 3

1. [91]

   The correct approach to a ground asserting manifest excess is well settled. Manifest excess is made out if this Court is satisfied that the sentence imposed is “unreasonable or plainly unjust”. Put another way, manifest excess is made out if the appellate court is satisfied from the result that “there must have been some misapplication of principle even though where and how is not apparent from the statement of reasons” of the sentencing judge: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 (“Wong v The Queen; Leung v The Queen”) at [58] (Gaudron, Gummow and Hayne JJ).

2. [92]

   The principles applicable to a complaint that a sentence is manifestly excessive were summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443] and subsequently endorsed in numerous judgments of this Court: see He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (“He v Sun”) at [41]-[42] (Bell P, Gleeson and McCallum JJA agreeing); Person 1 (a pseudonym) v R [2025] NSWCCA 132 at [53] (Sweeney J, Ball JA and Fagan J agreeing); Tuhi v R [2025] NSWCCA 115 at [39] (Mitchelmore JA, Ierace and Coleman JJ agreeing); Wright v R [2025] NSWCCA 108 at [85] (Stern JA, McHugh JA and Garling J agreeing); Evatt (a pseudonym) v R [2025] NSWCCA 130 at [97]-[100] (Yehia J, Ward P and Weinstein J agreeing).

3. [93]

   It is well-established that sentencing is a discretionary matter, in which there is no single correct sentence. Within a range of acceptability, the judgment of the sentencing judge as to an appropriate sentence should be respected. Mere disagreement by appellate judges with the sentence imposed does not render a sentence manifestly excessive, nor does the fact this Court may have exercised the sentencing discretion differently: R v White at [20]-[28] (Bell CJ, Payne JA and N Adams J agreeing).

4. [94]

   Appellate intervention is not justified simply because the sentence is “markedly different” from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle: Obeid at [443] (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing); Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153 at [168]-[170] (N Adams J, Brereton JA agreeing, Adamson J dissenting); Wong v The Queen; Leung v The Queen at [58] (Gaudron, Gummow and Hayne JJ). An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden” and must show a kind of disproportion which is “so manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”: R v Elemes [2000] NSWCCA 235 at [22]-[23] (Sully J, Adams J agreeing); He v Sun at [42](4) (Bell P, Gleeson and McCallum JJA agreeing).

5. [95]

   The applicant has not relied upon comparable cases or statistics in support of the contention that the sentence is manifestly excessive. He does not have to do so: Meers v R (2025) 394 FLR 114; [2025] NSWCCA 27 at [109]-[111] (Yehia J, Bell CJ and Stern JA agreeing); Nair v R [2025] NSWCCA 136 at [75] (Yehia J, Stern JA and Cavanagh J agreeing).

6. [96]

   In determining whether the sentence is manifestly excessive, the Court is required to consider the objective circumstances of the offending, the applicant’s subjective case, including findings made by the sentencing judge (that are not successfully challenged), and the purposes of sentencing.

7. [97]

   The applicant’s conduct in relation to the couriering activities of a sophisticated ongoing interstate cannabis smuggling syndicate, has been summarised above. Furthermore, the applicant was sentenced on the basis that he knew that the quantity of the drug was “in the upper end of what amounts to a commercial quantity” of cannabis leaf (the commercial quantity being 25 kg and the large commercial quantity being 100 kg).

8. [98]

   The applicant’s subjective case is (and was described by the sentencing judge as) a “powerful subjective case”. His Honour made very favourable findings in respect of the applicant’s remorse and prospects of rehabilitation. In addition, a finding was made that the applicant had suffered extra-curial punishment.

9. [99]

   The sentencing judge “considered anxiously” the impact of the applicant’s incarceration on the applicant’s daughter. Although hardship was not exceptional in the sense identified in R v Edwards (1996) 90 A Crim R 510, warranting a substantial reduction of penalty, it was taken into account in the general mix of relevant circumstances and as a factor in finding special circumstances. The finding of special circumstances resulted in a significant variation of the statutory ratio (37.5%). None of these findings are challenged, and I proceed to determine Ground 3 having regard to these favourable findings.

10. [100]

    The applicant’s subjective case is compelling. Of note is the applicant’s demonstrated rehabilitation and the close relationship he has with his daughter, of whom he has sole custody. The applicant was released to appeals bail having served only 10 days of his sentence. It must be acknowledged that dismissing the appeal results in the applicant being taken back into custody and separated from his daughter. These consequences weigh heavily on the disposition of the appeal.

11. [101]

    However, a ground of manifest excess is not made out simply because this Court may have sentenced the applicant differently. What must be established is that the sentence is unreasonable or plainly unjust.

12. [102]

    I pause to observe that s 68(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that an ICO must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years. It is impermissible to artificially fix a head sentence of 2 years or less simply to fulfil one of the necessary requirements for the imposition of an ICO. Instead, an appropriate sentence must reflect a considered approach having regard to the objective and subjective case as well as the purposes of sentencing.

13. [103]

    Having conducted that exercise, I am not of the view that the sentence is manifestly excessive in the sense of being “unreasonable or plainly unjust”. Indeed, the sentence and its structure, demonstrates a degree of leniency extended to the applicant by the sentencing judge.

14. [104]

    Ground 3 is not made out.

15. [105]

    It follows that the appeal should be dismissed. The applicant has been on bail, having served only 10 days of his sentence. The unexpired period of the sentence is 2 years, 7 months and 20 days.

16. [106]

    I propose the following orders:

    1. (1)

       Extend the time within which to appeal and grant leave to appeal.

    2. (2)

       Dismiss the appeal.

    3. (3)

       Pursuant to s 28A of the Criminal Appeal Act 1912 (NSW), an order is made that the applicant’s sentence should recommence on 6 February 2026.

    4. (4)

       The Court notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that:

17. [107]

    COLEMAN J: I have had the considerable advantage of reading the judgment of Yehia J in draft. I agree with her Honour’s reasons and the orders she proposes.