Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Green (a pseudonym) v R [2025] NSWCCA 16 Hearing dates: 7 February 2025 Date of orders: 10 February 2025 Decision date: 19 February 2025 Before: Adamson JA; Ball JA; Fagan J Decision: (1) Leave granted to file a notice of appeal out of time.
(2) Leave granted to appeal against sentence.
(3) The appeal is upheld on grounds 1 and 2.
(4) The sentence passed on 4 June 2015 by Acting Judge Madgwick QC is quashed and in lieu thereof the applicant is sentenced to 20 years imprisonment commencing from 3 December 2012 and expiring on 2 December 2032 with a non-parole period of 12 years expiring on 2 December 2024.
(5) The applicant is eligible for release on parole from 2 December 2024.
Catchwords: SENTENCING — appeal against sentence — general principles — instinctive synthesis — where sentencing judge failed to adopt the ‘instinctive synthesis’ approach to sentencing
SENTENCING — appeal against sentence — where applicant sentenced in 2015 — extension of time to appeal — not opposed
SENTENCING — relevant factors on sentence — objective seriousness — parity — hardship to applicant’s family
SENTENCING — relevant factors on sentence — discount on sentence — plea of guilty — cooperation with law enforcement agencies in the investigation of the offence
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 16AC
Criminal Appeal Act 1912 (NSW), s 6
Criminal Code (Cth), ss 11.5, 307.1, 307.5
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Category: Principal judgment Parties: Daniel Green (a pseudonym) (Applicant)
Director of Public Prosecutions (Cth) (Respondent)Representation: Counsel:
Solicitors:
I McLachlan (Applicant)
A Williams (Respondent)
Zreika and Associates (Applicant)
Director of Public Prosecutions (Cth) (Respondent)
File Number(s): 2012/379785 Publication restriction: The applicant and co-offenders are identified by pseudonyms. Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 4 June 2015
- Before:
- Madgwick QC ADCJ
- File Number(s):
- 2012/379785
HEADNOTE
[This headnote is not to be read as part of the judgment]
Daniel Green (a pseudonym) (the applicant) sought leave to appeal against his sentence of 21 years, commencing 3 December 2012 and expiring 2 December 2033, with a non-parole period of 12 years and 6 months for conspiring to import a border controlled drug, cocaine, in a commercial quantity contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth).
In late 2012, the applicant and three co-accused conspired to import a consignment of 900 cartons of wine, containing about 123kg of pure cocaine dissolved in an aqueous ethanol solution, into Australia from South America. Upon its arrival in Australia on 14 September…
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- AGLC
- Green (a pseudonym) v The King [2025] NSWCCA 16
- Case
- [2025] NSWCCA 16
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had correctly applied the ‘instinctive synthesis’ approach in determining the appropriate penalty, and if the relevant factors were adequately considered. The applicant argued that the sentence was excessively harsh and did not take into account the objective seriousness of the offence, parity with similar cases, and the hardship to the applicant’s family. Additionally, the applicant submitted that the sentence should have been reduced due to their plea of guilty and cooperation with law enforcement agencies.
The court found that the sentencing judge had not adequately applied the ‘instinctive synthesis’ approach, which requires a balanced consideration of all relevant factors in determining a sentence. The court considered the objective seriousness of the offence, the need for parity with similar cases, and the hardship to the applicant’s family. The court also noted the applicant’s plea of guilty and cooperation with law enforcement agencies as mitigating factors. Ultimately, the court concluded that the sentence was excessive and reduced it accordingly. The court further noted that the applicant’s family would suffer significant hardship if the original sentence was upheld. The appeal was allowed, and the sentence was reduced.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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