Nair v The King

[2025] NSWCCA 136

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nair v R [2025] NSWCCA 136

Hearing dates:

13 August 2025

Date of orders:

12 September 2025

Decision date:

12 September 2025

Before:

Stern JA at [1];
Cavanagh J at [2];
Yehia J at [3].

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – supply large commercial quantity of prohibited drug – manifest excess – comparative cases – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 93T(1A), 193C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Code (Cth), ss 307.1(1), 307.2(1)

Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases Cited:

Chu v R (2023) 305 A Crim R 442; [2023] NSWCCA 12

Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239

Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153

Evatt (a pseudonym) v R [2025] NSWCCA 130

FL v R [2020] NSWCCA 114

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Meers v R [2025] NSWCCA 27

Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pauls v R [2024] NSWCCA 123

Person 1 (a pseudonym) v R [2025] NSWCCA 132

R v Bui [2025] NSWCCA 114

R v Burton [2023] NSWCCA 299

R v Elemes [2000] NSWCCA 235

R v Thompson [2025] NSWCCA 133

R v White [2025] NSWCCA 111

Tuhi v R [2025] NSWCCA 115

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Wright v R [2025] NSWCCA 108

Category:

Principal judgment

Parties:

Varun Nair (Applicant)
Rex (Respondent)

Representation:

Counsel:
L Bewsher (Applicant)
S Healy (Respondent)

Solicitors:
First Choice Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2023/00171574

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 July 2024

Before:

Flannery SC DCJ

File Number(s):

2023/00171574

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Varun Nair (the applicant) sought leave to appeal against the aggregate sentence imposed by Flannery SC DCJ in the District Court of New South Wales on 19 July 2024. The applicant was sentenced following pleas of guilty to four offences. The offences were two counts of supplying a large commercial quantity of a prohibited drug, one count of supplying a commercial quantity of a prohibited drug and one count of dealing with suspected proceeds of crime. A further three offences of supplying an indictable quantity of a prohibited drug were taken into account on a Form 1.

The sentencing judge found that the applicant became involved in the offending after he became addicted to gambling and cocaine and indebted to his suppliers. The applicant’s involvement in the offending consisted of leasing premises for the storage of prohibited drugs for a period of approximately three months and receiving suspected proceeds of crime into his bank account for a period of nearly three and a half years.

The applicant received an aggregate sentence of 10 years’ imprisonment, commencing on 29 May 2023 and expiring on 28 May 2033, with a non-parole period of 6 years, expiring on 28 May 2029.

The applicant relied on the following ground of appeal:

1. The sentence imposed is manifestly excessive.

The Court (Yehia J, Stern JA and Cavanagh J agreeing) held, granting leave to appeal but dismissing the appeal:

1. It is well-established that 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. 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”: Yehia J at [69]-[71] (Stern JA at [1] and Cavanagh J at [2] agreeing).

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; Person 1 (a pseudonym) v R [2025] NSWCCA 132; Tuhi v R [2025] NSWCCA 115; Wright v R [2025] NSWCCA 108; Evatt (a pseudonym) v R [2025] NSWCCA 130; R v White [2025] NSWCCA 111; Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; R v Elemes [2000] NSWCCA 235, cited.

2. The proper and careful use of comparative cases plays an important role in promoting consistency of sentencing. The process of comparison is nuanced and requires great care. An appellate court is required to engage in a process of evaluative judgment requiring consideration of multiple factors including the objective seriousness of the offences, the applicant’s subjective case, the purposes of sentencing and relevant sentencing principles: Yehia J at [72]-[75] (Stern JA at [1] and Cavanagh J at [2] agreeing).

Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160; R v Thompson [2025] NSWCCA 133; Meers v R [2025] NSWCCA 27; Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239, cited.

3. Although the comparative cases relied upon by the applicant involved lesser sentences than that imposed upon the applicant, they do not demonstrate that the sentence imposed upon him was unreasonable or plainly unjust such that this Court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the Court at first instance. The discretion which the law commits to sentencing judges is a wide one and has been described as being “of vital importance in the administration of our system of criminal justice”. The ground of appeal is not made out: Yehia J at [89]-[91] (Stern JA at [1] and Cavanagh J at [2] agreeing).

R v Burton [2023] NSWCCA 299; Chu v R (2023) 305 A Crim R 442; [2023] NSWCCA 13; Pauls v R [2024] NSWCCA 123; R v Bui [2025] NSWCCA 114, considered.

House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited.

Judgment

1. STERN JA: I agree with Yehia J.

2. CAVANAGH J: I agree with Yehia J.

3. YEHIA J: Mr Varun Nair (“the applicant”) seeks leave to appeal against the sentence imposed on him by Flannery SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Sydney on 19 July 2024 pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

4. Following pleas of guilty entered in the Local Court, the applicant was sentenced for four offences. The offences were two counts of supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”), one count of supplying a commercial quantity of a prohibited drug, contrary to s 25(2) of the DMTA, and one count of dealing with suspected proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW).

5. Sequence 2 related to the supply of 11.8126 kg of heroin. Sequence 3 involved the supply of 17.664 kg of MDMA. Sequence 9 related to the supply of 720.35 g of cocaine. The offence of dealing with suspected proceeds of crime (sequence 20) involved the sum of $1,027,708.

6. In passing sentence for sequence 3 (one of the counts of supplying a large commercial quantity of a prohibited drug), the applicant asked the Court to take a further three offences into account on a Form 1 pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). These additional three offences were offences of supplying an indictable quantity of a prohibited drug contrary to s 25(1) of the DMTA.

7. After a discount of 25% to reflect the utilitarian value of the applicant’s pleas of guilty, the applicant was sentenced to an aggregate term of imprisonment of 10 years, commencing on 29 May 2023 and expiring on 28 May 2033, with a non-parole period of 6 years. The applicant is first eligible for release on parole on 28 May 2029.

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

Sequence	Offence	Maximum penalty and SNPP	Indicative sentence
2	Supply not less than the large commercial quantity of a prohibited drug (11.8126 kg of heroin), contrary to s 25(2) of the DMTA	MP: Life imprisonment SNPP: 15 years	7 years, 6 months (NPP 4 years, 6 months)
3	Supply not less than the large commercial quantity of a prohibited drug (17.664 kg of MDMA), contrary to s 25(2) of the DMTA	MP: Life imprisonment SNPP: 15 years	8 years (NPP 4 years, 10 months)
12 (on a Form 1)	Supply a prohibited drug, namely 156.2 g of methylamphetamine, being an amount not less than the indictable quantity, contrary to s 25(1) of the DMTA	MP: 15 years’ imprisonment	N/A
14 (on a Form 1)	Supply a prohibited drug, namely 6.2 g of methamphetamine, being an amount not less than the indictable quantity, contrary to s 25(1) of the DMTA	MP: 15 years’ imprisonment	N/A
19 (on a Form 1)	Supply a prohibited drug, namely 25.92 g of pseudoephedrine, being an amount not less than the indictable quantity, contrary to s 25(1) of the DMTA	MP: 15 years’ imprisonment	N/A
9	Supply not less than the commercial quantity of a prohibited drug (720.35 g of cocaine), contrary to s 25(2) of the DMTA	MP: 20 years’ imprisonment SNPP: 10 years	4 years (NPP 2 years, 5 months)
20	Deal with suspected proceeds of crime ($1,027,708), contrary to s 193C(1) of the Crimes Act	MP: 5 years’ imprisonment	2 years, 6 months

9. The applicant sought to rely on a single ground of appeal, namely that the aggregate sentence imposed is manifestly excessive.

Circumstances of offending

10. The following summary of the facts is derived from the Statement of Agreed Facts tendered on sentence and the Remarks on Sentence (ROS).

Background

11. In February 2023, the applicant commenced leasing an apartment on John Street, Lidcombe. The applicant was living with his mother in Prestons at the time.

12. Between 12 and 18 May 2023, the applicant was captured on CCTV within the carpark and the lift at the John Street, Lidcombe address, coming and going from the premises on 27 occasions. On 4 of those occasions, the applicant was observed to be carrying a box.

13. On 29 May 2023, police executed a search warrant at the John Street address and found large quantities of drugs. Police also found the following indicia of supply:

1. A hydraulic block pressing machine.

2. Cutting agents.

3. Digital scales.

4. Money counting machines.

5. Multiple heat-sealing machines.

6. Post-it notes with large dollar figure amounts.

7. Rubber elastic bands.

8. Two locked safes.

9. Multiple storage containers.

14. A match to the applicant’s DNA was found at the John Street address on the safe in bedroom one, on a mirror door of a wardrobe in bedroom one, on a wall in the bathroom, on the sliding door to the balcony, on the screen of the intercom system, on the glass cabinet of bedroom 2, and on the keypad of the safe in bedroom one. The DNA of two other persons was also found in the unit.

Sequence 2: Supply prohibited drug not less than the large commercial quantity (11.8126 kg of heroin)

15. Police found the following on the living room floor at the John Street address:

1. A resealable bag containing 313.1 g of heroin with 65% purity.

2. 33 sealed plastic packages containing 11.4995 kg of heroin with 64% purity.

Sequence 3: Supply prohibited drug not less than the large commercial quantity (17.664 kg of MDMA)

16. Police found the following in various locations within bedroom one at the John Street address:

1. A resealable plastic bag containing 492.6 g of MDMA.

2. 15 heat sealed plastic packages containing 14,938.4 g of MDMA.

3. A resealable plastic bag containing 799.3 g of MDMA.

4. Clear resealable bags containing 65.7 g of MDMA.

5. A resealable bag vacuum sealed containing 1.0156 kg of MDMA with 77% purity.

6. A clear resealable bag containing 350.2 g of MDMA.

7. A freezer bag with a brown substance containing 2.56 g of MDMA.

Sequence 9: Supply prohibited drug not less than the commercial quantity (720.35 g of cocaine)

17. Police found the following within a cooler bag inside the safe in bedroom one:

1. Knotted plastic packages containing 18.31 g of cocaine.

2. Five resealable bags containing 5.75 g of cocaine.

3. A resealable bag containing 6.89 g of cocaine.

4. Nine resealable bags containing 31.3 g of cocaine.

18. Police found the following either in a resealable bag on a metal tray under the living room table, loose in a bowl, or on the floor in bedroom one:

1. 167.8 g of cocaine.

2. 261.7 g of cocaine.

3. 228.6 g of cocaine.

3 counts of supply indictable quantity of a prohibited drug (Form 1 offences)

19. Police also found the following at the John Street address:

1. 156.2 g of methylamphetamine.

2. 6.2 g of methamphetamine.

3. 25.92 g of pseudoephedrine.

20. The three counts of supply an indictable quantity of a prohibited drug were taken into account on a Form 1 attaching to Sequence 3.

Sequence 20: Deal with suspected proceeds of crime ($1,027,708)

21. Police seized $2,430 in cash from the premises on John Street.

22. Later, also on 29 May 2023, police searched the applicant’s residence in Prestons. Police seized two mobile phones on the applicant’s bed and $62,246 in cash from the applicant’s bedroom.

23. The applicant’s bank records between January 2020 and May 2023 indicated that his only source of income was frequent cash deposits into his bank account. The total amount of cash deposited into his bank account between January 2020 and May 2023 was $963,032.

Remarks on sentence

Applicant’s involvement in the offending

24. Although the applicant did not give evidence, a document prepared by the applicant (referred to as his “life story”) and a report by Dr Nielssen, Psychiatrist, dated 6 July 2024, were tendered on sentence.

25. It was disputed in the sentencing proceedings how the applicant came to be involved in the offending conduct and what his level of involvement was.

26. The sentencing judge accepted on the balance of probabilities the applicant’s account that he came to be involved in the commission of the offences after becoming addicted to gambling and then cocaine. After becoming indebted to his suppliers, the applicant agreed to use his bank account into which he deposited money that he suspected was the proceeds of crime over a period of three and a half years.

27. In February 2023, the applicant leased the John Street apartment at the behest of the same people, so that drugs could be stored there. The rent was paid by others and as recompense the applicant was given cash and cocaine.

28. The applicant deposited money into his bank account and transferred it by text as directed on the encrypted messaging app Signal. The applicant went to the unit every day to keep an eye on it and make it appear occupied. He did not participate in the distribution of drugs.

29. The sentencing judge found that this account was consistent with the absence of the applicant’s DNA or fingerprints on the packaging or the items said to be indicia of drug supply, apart from the safe. It was also consistent with the presence of other people’s DNA at the premises, and the applicant’s sister’s evidence which was that her wage paid the family’s bills during the COVID-19 period.

30. The sentencing judge found that she could not conclude that the boxes the applicant was seen carrying on 4 occasions on the CCTV footage contained prohibited drugs.

31. These findings in respect of the applicant’s role and involvement in the offences were favourable to the applicant and in accordance with the submissions made on his behalf during the sentencing proceedings.

Objective seriousness

32. The sentencing judge found that although the quantity of drugs was not determinative of objective seriousness, it was a very material consideration. Although the applicant did not know the specific quantities, he knew that more than a substantial amount was involved.

33. The sentencing judge had regard to the fact that the applicant was involved in the drug supply enterprise from the time he leased the apartment in February 2023.

34. Her Honour was satisfied that the applicant had a “vital function which required a significant degree of trust to be placed in him”.

35. The sentencing judge found that the objective seriousness of each of the supply offences was just below the mid-range of objective seriousness, rejecting the Crown’s submissions on sentence that the objective seriousness of these offences was above the mid-range.

36. With respect to the deal with proceeds of crime offence, the sentencing judge had regard to the sum of money and the period over which the applicant dealt with the money. Her Honour found the objective seriousness to be above the mid-range.

37. These findings predominantly accorded with the applicant’s submissions on sentence.

Subjective case

38. As observed above, the applicant tendered the report of Dr Nielssen, the applicant’s “life story” document, an apology letter authored by the applicant on 5 July 2024 and an affidavit of the applicant’s sister affirmed on 11 July 2024. The applicant’s sister also gave evidence in the sentencing proceedings. A sentencing assessment report dated 13 June 2024 was also before the sentencing judge.

39. The applicant was aged 34 at the time of sentence.

40. The applicant grew up in an “impoverished environment”. The applicant and his parents lived in a two-bedroom apartment with his grandparents, aunt and uncle, and two cousins. The applicant’s parents worked seven days a week and did not have much time to spend with him.

41. The applicant did not know much English and struggled when he first went to school. When the applicant was approximately 6 years of age, he moved into an apartment with just his parents. His parents were unhappy with each other, and his father was violent towards his mother. His father often told him he was stupid and would hit him. When his mother sought to intervene, he would hit her.

42. The applicant’s sister was born when he was about 7. The applicant became aware that his father had a girlfriend when he was 8. His father asked him to keep it a secret from his mother. The applicant, his sister and his mother eventually left the apartment and moved to Dr Barnardo’s accommodation without saying goodbye to his father.

43. The applicant, his mother and his sister then moved in with his grandparents, aunt and uncle. The applicant was in Year 4 at school. He was bullied at school.

44. Two years later, they moved again. His mother had to work seven days a week and the applicant became responsible for his sister. The applicant fell behind at school and his self-esteem plummeted.

45. After the breakdown of the relationship with his first girlfriend, the applicant’s grades declined, and he began skipping school.

46. The principal of the applicant’s school referred him to a psychiatrist for his lack of concentration and poor school attendance. The applicant was diagnosed with mild depression and prescribed an anti-depressant.

47. The applicant’s family needed money so his mother got him a job as a pick packer in the school holidays, from 8:30am to 5pm. The applicant did not do well in his Higher School Certificate.

48. The applicant continued to work as a pick packer until 2016 and then started a new job delivering appliances and parts around Sydney. In 2019, the applicant was fired for taking too much leave and not being punctual.

49. The applicant then began to gamble and use cocaine. It was after becoming addicted and indebted to his suppliers that the applicant became involved in the offending conduct. Dr Nielssen noted the relatively recent onset of the applicant’s addictions.

38. In 2021, the applicant’s grandmother moved in with them. His father and two cousins died in 2021. The applicant “suddenly felt empty”. The applicant and his mother did not work during COVID-19 and survived on government grants.

39. The applicant’s mother had a stroke shortly after his arrest. His mother and sister visit him each week.

40. In custody prior to sentence, the applicant got “clean” and completed courses including digital numeracy and literacy, a positive lifestyle program, a Certificate III in business and a course about understanding addictions. The applicant also began working in custody.

41. The applicant apologised for his actions and took full responsibility, saying he was “determined to redeem himself”.

42. The applicant’s sister’s evidence confirmed the applicant’s account of his life where she could and attested to his remorse, embarrassment and shame about his offending.

43. Dr Nielssen diagnosed the applicant with substance abuse disorder in remission, a substance related mood disorder, and a gambling disorder in remission.

44. Dr Nielssen opined that factors contributing to these disorders included the effect of early life poverty, exposure to conflict between his parents, and growing up without a father figure. Dr Nielssen opined that although the applicant was diagnosed and treated for depression as a teenager, the more recent symptoms of mood disorder appeared to be due to the “predictable effects of the abuse of cocaine” and his circumstances of being charged with serious offences.

45. Dr Nielssen opined that the applicant had expressed an appropriate degree of remorse and was willing to participate in rehabilitation programs.

46. The author of the sentencing assessment report opined that the applicant presented a low risk of re-offending, having regard to the applicant’s insight into his offences and his willingness to engage with services to address his gambling and drug issues.

47. The sentencing judge found that the applicant presented with a “background of early childhood poverty, exposure to conflict between his parents and growing up without a father figure from the age of 8, at about which time he was required by his father to keep secret from his mother his father’s infidelity”.

48. The sentencing judge was satisfied that “this background of disadvantage is one which is most likely to have left a mark on him throughout his life and compromise his ability to mature and learn from experience”.

49. The sentencing judge accordingly found that the applicant’s moral culpability was reduced to an extent. Her Honour also took into account the applicant’s diagnosed mental health conditions in the way in which they were relied on, to put the offending into context and as part of the applicant’s overall subjective case.

Other findings

62. The sentencing judge found that the applicant was entitled to leniency because he did not have a criminal record. The sentencing judge rejected a submission by the Crown below that the applicant’s good character and lack of prior record was of reduced weight due to the nature of the offending. Her Honour found this was not a case in which such a consideration was relevant to the applicant’s involvement in the offences.

63. The sentencing judge accepted that the applicant was genuinely remorseful.

64. Her Honour found that the applicant had reasonable to good prospects of rehabilitation and was unlikely to re-offend, particularly if he abstains from drugs.

65. The sentencing judge also made a finding of special circumstances, to allow for an extended period of supervision after the applicant’s lengthy period in custody.

66. Her Honour indicated notional partial accumulation in determining the aggregate sentence, to reflect that the charges involved different drugs, while also reflecting that the offences were committed during the same period and as part of the same enterprise.

Ground of appeal: the sentence imposed is manifestly excessive

67. No challenge was made to the sentencing judge’s findings. Rather, the applicant submitted that her Honour’s findings as to objective seriousness, moral culpability, and entitlement to leniency, and her favourable findings with respect to remorse, prospects of rehabilitation and likelihood of re-offending, could not provide a reasonable foundation for the sentence ultimately imposed. It was contended that insufficient weight must have been given to these factors, rendering the sentence manifestly excessive. It was submitted that the applicant had an “unusually strong subjective case” and that the aggregate sentence did not adequately reflect the applicant’s limited role in the drug supply operation.

68. The applicant also submitted that the aggregate sentence is “markedly out of line” with analogous cases of persons “warehousing” large commercial quantities of prohibited drugs. The applicant relied on four comparative cases, namely Chu v R (2023) 305 A Crim R 442; [2023] NSWCCA 12, Pauls v R [2024] NSWCCA 123, R v Burton [2023] NSWCCA 299 and R v Bui [2025] NSWCCA 114.

69. 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).

70. 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 [2025] NSWCCA 111 at [20]-[28] (Bell CJ, Payne JA and N Adams J agreeing).

71. 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 (2001) 207 CLR 584; [2001] HCA 64 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).

72. How then does an applicant establish manifest excess? In Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160 (“Moodie”), Bell P (Davies and N Adams JJ agreeing) stated at [81]:

“To the extent that comparative sentences in similar cases were deployed in aid of this ground of appeal, the important principle of consistency in sentencing warrants reference to those decisions both for the purposes of this ground of appeal and also for the purposes of any re-sentencing of the Applicant by this Court, in accordance with the decision of Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 (Kentwell).”

73. Referring to the Crown’s reliance in Moodie on a passage from FL v R [2020] NSWCCA 114 at [77]-[79] (which raised doubt about the utility in seeking to establish manifest excess by reference to statistics and the selection of similar cases), Bell P stated that, “Far from being inappropriate, the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, and consistency of sentencing is an important element of both criminal justice and the rule of law more generally”: Moodie at [83].

74. The focus is not on the number of comparative cases relied upon in support of the contention that the sentence is manifestly excessive, but rather whether the cases share sufficiently common, or at least similar, features to assist an appellate court in promoting consistency of sentencing. Referring to Moodie, Bell CJ in R v Thompson [2025] NSWCCA 133 at [42] (Huggett and Rigg JJ agreeing), reinforced the view that the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, pointing out that the process of comparison is nuanced and requires great care.

75. In some instances, an applicant asserting a ground of manifest excess will not be able to point to any comparative cases: see Meers v R [2025] NSWCCA 27 (“Meers”). Essentially, an appellate court is required to engage in a process of evaluative judgment requiring consideration of multiple factors including the objective seriousness of the offence, the applicant’s subjective case, the purposes of sentencing and relevant sentencing principles: Meers at [112] (Yehia J, Bell CJ and Stern JA agreeing); Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239 at [9] (Payne JA and Button J, Schmidt J in dissent).

76. The applicant relied on four comparative cases in support of the contention that the sentence is manifestly excessive. Each case was relied upon as a comparative case in sentencing offenders whose role is essentially one of “warehousing” the prohibited drugs. In determining the applicant’s ground of appeal, it is appropriate to consider the comparative cases relied upon.

77. In R v Burton [2023] NSWCCA 299, the Crown appealed against the asserted manifest inadequacy of one of two aggregate sentences imposed upon the respondent in respect of four State offences, all relating to the supply of prohibited drugs. Three of the offences (counts 3, 4 and 5) were supplies of not less than a large commercial quantity of prohibited drugs contrary to s 25(2) of the DMTA. The fourth offence (count 6) was an offence of supplying an indictable quantity of a prohibited drug, contrary to s 25(1) of the DMTA. The sentencing judge imposed an aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years. The guilty pleas attracted discounts of 10% for count 3 and 25% for the other counts.

78. The Crown appeal was successful, and the respondent was resentenced for those offences to an aggregate term of imprisonment of 8 years with a non-parole period of 4 years and 8 months. The respondent had a substantial criminal record of “persistent offending”, but it was accepted that some reduction in sentence was appropriate to reflect his mental illness and deprived background.

79. The decisive factor on the appeal was that the structure of the sentence involved too great a level of concurrency with an earlier sentence imposed for State offences of supplying a prohibited drug, noting that the respondent was also sentenced for Commonwealth drug offences. The somewhat unusual structure of cascading sentences for the State and Commonwealth offences led the Court to note that the sentence under appeal had “virtually no precedential value”: at [53].

80. In Chu v R (2023) 305 A Crim R 442; [2023] NSWCCA 13 (“Chu”), the appellant, after a successful appeal, was resentenced to an aggregate term of 7 years and 6 months’ imprisonment, with a non-parole period of 5 years, for four offences of supplying prohibited drugs, with two offences relating to the supply of a large commercial quantity and one offence of supplying a commercial quantity. The quantities of drugs involved in the applicant’s case are overall greater than the quantities of drugs involved in Chu. In Chu, the appellant stored drugs given to him by others in his own bedroom at his own house. He did not lease separate premises for the purpose of drug storage and his drug related criminality lasted for a period of about one month. In the present case, the applicant was storing the drugs for approximately three months.

81. Furthermore, in Chu, the proceeds of crime offending (taken into account on a Form 1) involved $10,350 in cash, an offence that had a “limited impact” on sentence. In the present case, the applicant was sentenced for an offence of dealing with suspected proceeds of crime that related to him receiving over $1 million over the course of more than three years, including $60,000 in cash located in his own house upon his arrest.

82. In Pauls v R [2024] NSWCCA 123, the applicant was sentenced to an aggregate sentence of 7 years’ imprisonment, with a non-parole period of 4 years after pleading guilty to two charges of supplying a prohibited drug not less than a large commercial quantity, one charge of supplying a prohibited drug not less than a commercial quantity and one charge of knowingly participating in a criminal group contrary to s 93T(1A) of the Crimes Act. The indicative sentences were discounted by 25% to reflect the utilitarian value of the pleas of guilty.

83. The sentencing judge found that the applicant was a principal in supplying very significant quantities of a dangerous illicit drug. The applicant had a relatively minor criminal history, but he was on conditional liberty at the time of the offending. The complaint that the sentencing judge had erred by not making any findings regarding remorse, risk of reoffending and prospects of rehabilitation was upheld but the Court concluded that no lesser sentence was warranted.

84. The prohibited drug supplied was Gamma-Butyrolactone (GBL). The quantity of GBL that was the subject of sequence 6 was 10 times the statutory threshold for a large commercial quantity, while the quantity of GBL that was the subject of sequence 2 was double the commercial quantity threshold. In the present case, the quantity of heroin which is the subject of sequence 2 is almost 12 times the statutory threshold for a large commercial quantity and the quantity of MDMA that is the subject of sequence 3 is more than 35 times the statutory threshold for a large commercial quantity.

85. Finally, the applicant relied upon the case of R v Bui [2025] NSWCCA 114. The respondent in that case was involved in a drug syndicate which imported commercial quantities of methylamphetamine and marketable quantities of cocaine on numerous occasions in 2022. He was sentenced in relation to two Commonwealth offences contrary to ss 307.1(1) and 307.2(1) of the Criminal Code (Cth) and one State offence contrary to s 25(2) of the DMTA. Five additional charges were placed on schedules under the relevant Commonwealth and state legislation.

86. The sentencing judge sentenced the respondent for the Commonwealth offences to an aggregate term of 5 years’ imprisonment. For the State offence, the respondent was sentenced to 3 years’ imprisonment. The sentencing judge allowed for two years’ concurrence and one year of accumulation resulting in an overall effective sentence of imprisonment of 6 years with a non-parole period of 3 years and 4 months.

87. The Crown appealed against the sentences imposed on the respondent arguing that each sentence was manifestly inadequate and that the overall effective sentence was manifestly inadequate. The appeal was allowed, and the respondent was resentenced for the State offence to 4 years and 6 months’ imprisonment (with a starting point of 6 years’ imprisonment), with a non-parole period of 3 years’ imprisonment. For the Commonwealth offences, the respondent was resentenced to an aggregate term of imprisonment of 7 years and 6 months, with a non-parole period of 4 years. The total effective sentence was one of 8 years and 6 months’ imprisonment, with an effective non-parole period of 5 years’ imprisonment.

88. Unlike the applicant, Mr Bui had previously been sentenced for drug offending and placed on an Intensive Correction Order for dishonestly obtaining property by deception, shortly before he was sentenced for the subject offences. He had also spent a prior period in custody. With respect to his subjective case, Mr Bui spent two years in a refugee camp as a child before coming to Australia. He lived in public housing accommodation and was homeless for a period after the breakdown of his relationship. He began using ice weekly from when he was in Year 10.

89. I am not persuaded that the applicant has established manifest excess. Although the comparative cases involve lesser sentences than that imposed upon the applicant, they do not demonstrate that the sentence imposed upon him was unreasonable or plainly unjust such that this Court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the Court at first instance: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).

90. The applicant agreed to lease an apartment knowing that large quantities of drugs would be stored therein. He engaged in that conduct over a period of three months. In addition, his criminality involved dealing with property suspected of being the proceeds of crime over a very lengthy period of approximately three years and four months, with the total amount exceeding $1 million. The sentencing judge was entitled to reflect the additional criminality encompassed in the “dealing with proceeds” offence by the notional accumulation that is reflected in the aggregate term.

91. In concluding that the ground of appeal is not made out, I bear in mind that the discretion which the law commits to sentencing judges is a wide one and has been described as being “of vital importance in the administration of our system of criminal justice”: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (Gleeson CJ, Callinan, Gaudron, Gummow, Hayne and McHugh JJ).

92. Accordingly, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 12 September 2025