R v SH

Case [2025] NSWDC 410 16 October 2025

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District Court

New South Wales

Medium Neutral Citation: R v SH [2025] NSWDC 410
Hearing dates: 1 October 2025
Date of orders: 16 October 2025
Decision date: 16 October 2025
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Custodial order with Recognizance Release Order to be effected immediately. For orders see [97]

Catchwords:
SENTENCE – Young offender – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:
BP v R [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Elchiekh v R [2016] NSWCCA 225
Hoskins v R [2021] NSWCCA 169
KT v R (2008) 182 A Crim R 571
Lau v R [2011] VSCA 324
MF v R [2024] NSWCCA 42
R v Kovaleff [2023] NSWSC 302
R v Nguyen; R v Pham [2010] NSWCCA 238
Totaan v R [2022] NSWCCA 75
R v Todd [1982] 2 NSWLR 517
Robertson v R [2024] NSWCCA 22
Sarhene v R [2022] NSWCCA 79
TH v R [2025] NSWCCA 121
TM v R [2023] NSWCCA 185
YZ v R [2025] NSWCCA 165

Category: Sentence
Parties: SH (The offender)
Commonwealth Director of Public Prosecutions
(The Crown)
Representation:
Counsel:
Ms C Feiner (The offender)
Ms P McEniery (The Crown)
Solicitors:
Children’s Legal Service, Legal Aid NSW (The offender)
Commonwealth Director of Public Prosecutions (The Crown)

File Number(s): 2023/00145548
Publication restriction: Pursuant to s15A of the Children (Criminal Proceedings) Act 1987 it is an offence to publish or broadcast the name of the offender

REMARKS ON SENTENCE

The offender SH was born in March 2006. He is to be sentenced for an offence of attempt to possess a commercial quantity of an unlawfully imported border controlled drug that occurred on 5 and 6 May 2023 when he was 17 years of age. This is an offence pursuant to ss11.1 and 307.5 of the Criminal Code 1995 (Cth) (“the Code”). The maximum penalty prescribed for this offence is imprisonment for life and/or 7,500 penalty units ($2,620,500).
The offender was arrested on 6 May 2023 and spent 14 days in custody. He has thereafter been on strict bail conditions which have been varied on several occasions but have consistently included him living at home, being subject to a night curfew, reporting regularly to police, being abstinent from alcohol and drugs, not approaching any international port of departure or applying for a passport, together with a guarantee by way of surety.

The sentence hearing

The sentence hearing took place on 1 October 2025. The Crown Sentence Bundle became Exhibit A. It included a lengthy statement of agreed facts which may be summarised as follows. In January 2023 anti-smuggling authorities in China detected a consignment of methamphetamine concealed inside a cast iron pulley. The methamphetamine was seized on 3 February 2023 and substituted on 6 February 2023. It was identified as having…

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 R v SH

Details

AGLC: R v SH [2025] NSWDC 410
Case: [2025] NSWDC 410
Decision Date: 16 October 2025

CaseChat Overview and Summary

The defendant, SH, appeared before the court on charges related to an attempt to possess a commercial quantity of a border controlled drug unlawfully imported into Australia. The case was heard in the relevant Australian court, where the prosecution presented evidence against the defendant. The defendant pleaded guilty to the charges, and the court was required to determine an appropriate sentence.

The court had to consider several legal issues, including the nature and circumstances of the offence, the defendant's age, criminal history, and any mitigating factors. The court also needed to assess the appropriate punishment for the offence, balancing the need for deterrence, denunciation, and rehabilitation. Furthermore, the court had to decide whether to impose a custodial sentence or an alternative penalty, such as a recognizance release order.

After considering the evidence and arguments presented by both parties, the court determined that a custodial sentence was warranted. The court found that the offence was of significant seriousness, given the quantity of the drug involved and the illegal nature of the importation. The court also took into account the defendant's age and lack of a criminal history, which were considered mitigating factors. However, the court concluded that the need for deterrence and denunciation outweighed the rehabilitative aspects of the case. Consequently, the court imposed a custodial sentence with a Recognizance Release Order to be effected immediately.

The court ordered that the defendant be immediately taken into custody and released on a Recognizance Release Order, as per the orders made at [97].

Orders

Orders of the court

Custodial order with Recognizance Release Order to be effected immediately. For orders see [97]

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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Citations

R v SH [2025] NSWDC 410

Most Recent Citation

Finch v The Queen [2016] NSWCCA 133

Cases Citing This Decision

Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147
Citation 1 (Para 55)

…s admissible - a mixed question of fact and law (see R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 at [82]-[83]; R v PL at [27], [72]; R v SH (2014) 88 NSWLR 1; [2014] NSWCCA 218 at [28]).…
Finch v R [2016] NSWCCA 133
Citation 2 (Para 138)

…On appeal, in R v SH [2014] NSWCCA 218; 88 NSWLR 1 at [28]-[31] Macfarlan JA said that the critical question was:…

See all citing cases →

Cases Cited

TH v The King [2025] NSWCCA 121
Citation 1 (Para 72)

…Counsel highlighted the application of these principles in TH v R [2025] NSWCCA 121 and BP v R [2010] NSWCCA 159 and recently in R v Kovaleff [2023] NSWSC 302 per Rothman J at [124] to submit that principles of retribution may be of less significance and considerations of rehabilitation may be of more significance w…
MF v R [2024] NSWCCA 42
Citation 2 (Para 69)

…Counsel relied on the well-established principles relating to sentencing youthful offenders, relying on MF v R [2024] NSWCCA 42 at [59] where the Court reiterated the principles set out in KT v R (2008) 182 A Crim R 571. Those principles were further identified by Hamill J in Sarhene v R [2022] NSWCCA 79 at [25].…
Robertson v R [2024] NSWCCA 22
Citation 3 (Para 76)

…In her oral submissions, counsel for the offender referred the Court to Robertson v R [2024] NSWCCA 22 per Ierace J at [114]-[123] as an example of the application of the Bugmy principle which it was submitted, looms large in this sentencing exercise. At the time of the offending the offender was still living in th…
TM v R [2023] NSWCCA 185
Citation 4 (Para 70)

…In relation to young offenders acting in an “adult like manner” to offend, counsel relied on TM v R [2023] NSWCCA 185 where Yehia J said at [49]:-…
R v Kovaleff [2023] NSWSC 302
Citation 5 (Para 72)

…Counsel highlighted the application of these principles in TH v R [2025] NSWCCA 121 and BP v R [2010] NSWCCA 159 and recently in R v Kovaleff [2023] NSWSC 302 per Rothman J at [124] to submit that principles of retribution may be of less significance and considerations of rehabilitation may be of more significance…
Sarhene v R [2022] NSWCCA 79
Citation 6 (Para 69)

…re the Court reiterated the principles set out in KT v R (2008) 182 A Crim R 571. Those principles were further identified by Hamill J in Sarhene v R [2022] NSWCCA 79 at [25].…
Totaan v The the Queen [2022] NSWCCA 75
Citation 7 (Para 68)

…of the child. Such hardship did not need to be determined to be exceptional in order to be taken into account on sentence, relying on Totaan v R [2022] NSWCCA 75 at [81]-[83].…
Hoskins v R [2021] NSWCCA 169
Citation 8 (Para 52)

…n rehearsed a number of her written submissions. She conceded that childhood disadvantage does not have to be profound in accordance with Hoskins v R [2021] NSWCCA 169 per Brereton JA at [57].…
Elchiekh v R [2016] NSWCCA 225
Citation 9 (Para 47)

…he time involved in obtaining foreign evidence from China regarding the methamphetamine extracted from the pulley. The Crown referred to Elchiekh v R [2016] NSWCCA 225 for the relevant principles concerning delay on sentence – see [56] per Price J.…
Bugmy v The Queen [2013] HCA 37
Citation 10 (Para 65)

…a background of childhood deprivation and disadvantage so as to engage the sentencing principles referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.…
Lau v The Queen [2011] VSCA 324
Citation 11 (Para 37)

…t he was reckless as to the nature of the substance, which the Crown submitted does not mitigate the seriousness of the offending, relying on Lau v R [2011] VSCA 324 at [25]-[26].…
R v Nguyen; R v Pham [2010] NSWCCA 238
Citation 12 (Para 34)

…n set out well established principles that apply to sentencing for Commonwealth drug importation and related offences as held in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] per Johnson J.…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 13 (Para 44)

…The Crown also accepted that the offender’s mental condition may be relevant in accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].…
BP v R [2010] NSWCCA 159
Citation 14 (Para 72)

…Counsel highlighted the application of these principles in TH v R [2025] NSWCCA 121 and BP v R [2010] NSWCCA 159 and recently in R v Kovaleff [2023] NSWSC 302 per Rothman J at [124] to submit that principles of retribution may be of less significance and considerations of rehabilitation may be of more significance w…
R v Henry [2007] NSWCCA 90
Citation 15 (Para 43)

…[23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence whic…
R v Pearson [2004] NSWCCA 129
Citation 16 (Para 51)

…]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in…
Miller v R [1999] WASCA 66
Citation 17 (Para 254)

…the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] N…
R v Henry [1999] NSWCCA 111
Citation 18 (Para 254)

…nder’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R…
R v Jiminez [1999] WASCA 7
Citation 19 (Para 23)

…e reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have t…
R v Henry [1999] NSWCA 111
Citation 20 (Para 254)

…ility may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [200…
[2025] NSWCCA 165 [2025] NSWCCA 165
Citation 21

…R v Todd [1982] 2 NSWLR 517 Robertson v R [2024] NSWCCA 22 Sarhene v R [2022] NSWCCA 79 TH v R [2025] NSWCCA 121 TM v R [2023] NSWCCA 185 YZ v R [2025] NSWCCA 165 Category: Sentence Parties: SH (The offender) Commonwealth Director of Public Prosecutions (The Crown) Representation: Counsel: Ms C Feiner (The offender…

Legislation Cited

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 33)
Crimes Act 1914 (Cth)
1 mention (from Para 33)

Medium Neutral Citation:	R v SH [2025] NSWDC 410
Hearing dates:	1 October 2025
Date of orders:	16 October 2025
Decision date:	16 October 2025
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Custodial order with Recognizance Release Order to be effected immediately. For orders see [97]
Catchwords:	SENTENCE – Young offender – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Children (Criminal Proceedings) Act 1987 (NSW)
Cases Cited:	BP v R [2010] NSWCCA 159 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Elchiekh v R [2016] NSWCCA 225 Hoskins v R [2021] NSWCCA 169 KT v R (2008) 182 A Crim R 571 Lau v R [2011] VSCA 324 MF v R [2024] NSWCCA 42 R v Kovaleff [2023] NSWSC 302 R v Nguyen; R v Pham [2010] NSWCCA 238 Totaan v R [2022] NSWCCA 75 R v Todd [1982] 2 NSWLR 517 Robertson v R [2024] NSWCCA 22 Sarhene v R [2022] NSWCCA 79 TH v R [2025] NSWCCA 121 TM v R [2023] NSWCCA 185 YZ v R [2025] NSWCCA 165
Category:	Sentence
Parties:	SH (The offender) Commonwealth Director of Public Prosecutions (The Crown)
Representation:	Counsel: Ms C Feiner (The offender) Ms P McEniery (The Crown) Solicitors: Children’s Legal Service, Legal Aid NSW (The offender) Commonwealth Director of Public Prosecutions (The Crown)
File Number(s):	2023/00145548
Publication restriction:	Pursuant to s15A of the Children (Criminal Proceedings) Act 1987 it is an offence to publish or broadcast the name of the offender