Green (a pseudonym) v The King - [2025] NSWCCA 16

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
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Daniel Green (a pseudonym) (Applicant)
Director of Public Prosecutions (Cth) (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
A Williams (Respondent)
Solicitors:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green (a pseudonym) v The King

Details

AGLC: Green (a pseudonym) v The King [2025] NSWCCA 16
Case: [2025] NSWCCA 16
Decision Date: 19 February 2025

CaseChat Overview and Summary

The case of Green (a pseudonym) v The King involved an appeal against a sentence imposed in 2015. The applicant contested the sentence, arguing that the sentencing judge did not adopt the ‘instinctive synthesis’ approach when determining the appropriate penalty. The appeal was not opposed, and the court granted an extension of time to appeal. The key issues before the court were the sentencing principles applied and the factors considered in determining the sentence.

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