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Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 35(4)
Crimes Act 1914 (Cth), s 16BA
Criminal Appeal Act 1912 (NSW), ss 6(3), 12
Criminal Code (Cth), ss 474.17(1), 474.22(1)

Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Azari v R; Al-Talebi v R [2021] NSWCCA 199
Betts v the Queen (2016) 258 CLR 420; [2016] HCA 25
Decision Restricted v R [2025] NSWCCA 49
Holt v R (Cth) [2021] NSWCCA 14
Kabir v R [2020] NSWCCA 139
Koosmen v R [2025] NSWCCA 122
Le v R [2017] NSWCCA 26
LS v R [2020] NSWCCA 27
Nguyen v R [2019] NSWCCA 209
O’Neil-Shaw v R [2010] NSWCCA 42
Purves v R [2019] NSWCCA 227
R v Felton [2002] NSWCCA 443; 135 A Crim R 328
R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280
R v Lamella [2014] NSWCCA 122
Todd v Rex [2024] NSWCCA 161

Category: Principal judgment

Parties: Sevki Colak (Applicant)
The Crown (Respondent)

Representation: Counsel:
Ms R Rodger (Applicant)
Ms D New (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director for Public Prosecutions (Cth) (Respondent)

File Number(s): 2024/00121932

Publication restriction: Pursuant to s 15YR Crimes Act 1914 (Cth) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter which could identify the victims.

HEADNOTE

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

The applicant stood to be sentenced in the District Court for eight offences of using a carriage service to transmit child abuse material and to cause offence contrary to ss 474.22(1) and 474.17(1) of the Criminal Code (Cth) respectively (“the principal offences”). Five further offences were to be taken into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) (“the schedule offences”).

By omission, the s 16BA schedule was not signed by a delegate of the Director of Public Prosecutions. Further, the material before the sentencing judge, including the Crown sentence summary, the parties’ submissions and the Agreed Facts, erroneously conveyed that the applicant was to be sentenced for 13 principal offences in addition to the five schedule offences. This contributed to a number of irregularities in how the schedule offences were dealt with by the sentencing judge, including the applicant being convicted and sentenced for the schedule offences.

On appeal, the Crown conceded that the aggregate sentence should be set aside due to the erroneous treatment of the schedule offences and that the convictions in respect of the schedule offences should be quashed.

The Court (Stern JA, N Adams CJ at CL and Rigg J) held, allowing the appeal against conviction and sentence and remitting the proceedings to the District Court:

1. The omission of a signature by a delegate of the Director of Public Prosecutions on the s 16BA schedule was in clear breach of s 16BA(1)(c) and would have alone vitiated the sentence: at [38]-[42].

Kabir v R [2020] NSWCCA 139; Purves v R [2019] NSWCCA 227, considered.

2. The applicant was arraigned and entered pleas of guilty for the five schedule offences. The sentencing judge went on to convict the applicant of the schedule offences. This was contrary to s 16BA(10): at [45].
3. The applicant indicated terms of imprisonment for two schedule offences and imposed recognizance release orders for the others contrary to s 16BA(5) which provides that no separate punishment may be imposed for schedule offences. Her Honour then effectively double counted the five schedule offences by additionally taking them into account when setting the indicative sentences for the principal offences: at [47]-[51].

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413; Nguyen v R [2019] NSWCCA 209; Azari v R; Al-Talebi v R [2021] NSWCCA 199; Koosmen v R [2025] NSWCCA 122, referred to.

4. The appropriate order was remittal of the proceedings under s 12(2) of the Criminal Appeal Act 1912 (NSW) because the entire proceedings on sentence were procedurally irregular, there would not be significant delay and the parties’ appeal rights would be preserved: at [66].

R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280; Todd v Rex [2024] NSWCCA 161; Betts v the Queen (2016) 258 CLR 420; [2016] HCA 25; O’Neil-Shaw v R [2010] NSWCCA 42; Decision Restricted v R [2025] NSWCCA 49, considered.

JUDGMENT

1. THE COURT: The applicant, Sevki Colak, pleaded guilty in the Local Court and was committed for sentence in the District Court for the following eight offences (“the principal offences”):

2. Six offences of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (“the Code”) (sequences 20-23 and 25-26). The maximum penalty for that offence is 15 years’ imprisonment; and

3. Two offences of using a carriage service to cause offence contrary to s 474.17(1) of the Code (sequences 27 and 28). The maximum penalty for that offence is 5 years’ imprisonment.

4. Five further offences were to be taken into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) (“the schedule offences”). These comprised one further offence contrary to s 474.22(1) (sequence 24) and four further offences contrary to s 474.17(1) (sequences 29-32). Accordingly, 13 offences in total were before the sentencing court: eight principal offences and five schedule offences. This appeal relates to the manner in which these schedule offences were dealt with by the sentencing court.

5. On 27 June 2025, her Honour Judge Ryan sentenced the applicant to an aggregate term of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 9 months. The sentence commenced on 16 May 2024. The non-parole period will expire on 15 February 2028, and the head sentence will expire on 15 November 2029.

6. By notice of appeal filed on 5 May 2026, the applicant sought leave to appeal against the aggregate sentence on the following two grounds of appeal:

1. The sentencing judge erred in the treatment of the offences before the Court pursuant to s 16BA of the Crimes Act 1914 (Cth).

2. The sentencing judge erred in the application of principles relevant to sentencing for the s 474.22(1) Criminal Code offences by:

a. an erroneous assessment of the objective seriousness of Sequence 20;

b. treating the text-based nature of the offending material as immaterial to the objective seriousness of the offending; and

c. confining the mitigation that could be applied on the basis of the applicant’s mental condition.

5. The Crown conceded in written submissions that the first ground of appeal was made out. At the conclusion of brief argument at the hearing of the appeal on 13 July 2026, the Court made final orders. On 14 July 2026, orders 1 and 4 were varied slightly. The final orders made are as follows:

1. Leave is granted to amend the Notice of Appeal to appeal against conviction in respect of the offences identified as sequences 24, 29, 30, 31, and 32 on the Court Attendance Notice.

2. Grant leave to appeal against sentence.

3. Allow the appeal against conviction and sentence.

4. The convictions in relation to the offences identified as sequences 24, 29, 30, 31, and 32 on the Court Attendance Notice are quashed.

5. Set aside the sentence imposed by the District Court on 27 June 2025.

6. Pursuant to s12 of the Criminal Appeal Act 1912 (NSW) remit the proceedings to the District Court.

7. List the matter for mention in the District Court at 9.30am on Friday 17 July 2026.

8. Reasons reserved.

6. The following are the reasons of the Court for making these orders.

The Agreed Facts

7. Agreed Facts were placed before the sentencing court. Given the limited issue which arose on appeal, it is unnecessary to provide more than a brief overview of those facts. It is significant to note, however, that the Agreed Facts set out the facts for all 13 offences without differentiating between the principal offences and the schedule offences. Standing alone, the effect of this approach was to convey that there were 13 principal offences.

8. In summary, between November 2023 and April 2024, the applicant used aliases to operate multiple mobile service numbers, devices and email addresses in order to send communications to numerous victims. The applicant also sent communications to users of the platforms Gumtree and Reddit and conveyed messages in the transaction description of online banking applications.

9. In total, the applicant transmitted 42 communications constituting text-based child abuse material in addition to 71 communications that a reasonable person would consider offensive. The text-based material included descriptions of the applicant engaging in sexual acts with infant children and babies, with repeated references to raping young children who were related to him. The victims of the offending included four individuals who had a prior relationship or connection with the applicant as well as multiple other unidentified recipients of his communications.

Section 16BA procedure

10. Before turning to recount what occurred at the proceedings on sentence, it is pertinent to have regard to the terms of s 16BA of the Crimes Act (Cth). Section 16BA is in the following relevant terms:

Taking other offences into account

(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:

(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;

(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;

(c) the document has been signed:

(i) by the Director of Public Prosecutions;

(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or

(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;

and by the person convicted;

(d) a copy of the document has been given to the person; and

(e) in all the circumstances it is proper to do so;

the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.

(2) Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.

…

(5) Where an offence is taken into account under this section, the court may make such orders with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court of the offence, but shall not otherwise impose any separate punishment for the offence.

…

(10) An offence taken into account under this section shall not, by reason of its so being taken into account, be regarded for any purpose as an offence of which a person has been convicted.

(Emphasis added.)

11. Section 16BA(1) thus prescribes certain procedural requirements before the sentencing court can exercise its discretion to take other offences admitted by the offender into consideration on sentence.

12. The object of s 16BA(1) of the Crimes Act (Cth), like the equivalent State provision in s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), is “to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody”: R v Felton [2002] NSWCCA 443; 135 A Crim R 328 at [3] (Howie J), approved in LS v R [2020] NSWCCA 27 at [35]. One of the purposes of the procedures set out in the above provisions “include[s] ensuring transparency in the sentencing process”: LS v R at [35].

13. In Attorney General*’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42] (“Attorney General’*s Application”), Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) enunciated the manner in which such an offence placed on a schedule is to be taken into account (in the context of State offences). It is done so with a view to “increasing the penalty that would otherwise be appropriate for the particular offence”. His Honour went on to explain how that is done as follows (at [42]):

The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which [sic] there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

14. It has been held that the same principles apply in relation to matters taken into account on a s 16BA schedule: R v Lamella [2014] NSWCCA 122 at [48]; Le v R [2017] NSWCCA 26 at [49]; and Holt v R (Cth) [2021] NSWCCA 14 at [49].

The proceedings on sentence

15. At the proceedings on sentence on 2 June 2025, the representative for the Commonwealth Director (“the Crown”) tendered the s 16BA schedule. It listed the following offences:

Item 1 – Sequence 24 (use carriage service to transmit child abuse material) to be taken into account when passing sentence for sequence 26;

Item 2 – Sequence 29 (use carriage service to cause offence) to be taken into account when passing sentence for sequence 20;

Item 3 – Sequence 30 (use carriage service to cause offence) to be taken into account when passing sentence for sequence 21;

Item 4 – Sequence 31 (use carriage service to cause offence) to be taken into account when passing sentence for sequence 26; and

Item 5 – Sequence 32 (use carriage service to cause offence) to be taken into account when passing sentence for sequence 23.

16. The applicant signed the document on 18 March 2025 in acknowledgement of its receipt. The sentencing judge also signed it on 27 June 2025 to certify that the offences had been taken into account when passing sentence. However, s 16BA(1)(c) was not complied with in that the signature block for a delegate of the Director of Public Prosecutions was left blank.

17. The Crown provided a Commonwealth Crown Sentence Summary as the covering sheet to the Crown sentence bundle (Exhibit 1). This summary set out the 13 sequences numbered 20-32, comprising the eight principal offences (sequences 20-23 and 25-28) and the five s 16BA schedule offences (sequences 24 and 29-32). It then additionally set out items 1-5 on the s 16BA schedule, which was a repeat of the descriptions of sequences 24 and 29-32. This duplication of the schedule offences was also reflected in the Crown’s written submissions.

18. At the commencement of the proceedings on sentence, the applicant was arraigned and entered pleas of guilty to all 13 offences, including the five schedule offences. Before this occurred, the representative for the Crown informed her Honour that for the purposes of the arraignment the charges could be “read off the court attendance notices”. The difficulty with this suggestion was that the Court Attendance Notices (“CANs”) set out each of the 13 sequences (20 to 32) and, again, did not differentiate between the principal and schedule offences. Her Honour had earlier indicated to the parties that she only had the CANs before her and not the Notice of Committal. Regrettably, it was the Notice of Committal which was the document which accurately set out the eight principal offences for which the applicant was to be sentenced. The Crown also informed her Honour that “the notice of committal isn’t really relevant”.

19. Immediately following the arraignment, her Honour proceeded to ask the applicant about the schedule offences:

HER HONOUR: … Mr Colak, as you’re probably aware, there are five further offences. Do you ask me to take these offences into account when sentencing you for the offences which the associate just read out to you?

OFFENDER: Yes.

20. As for the submissions of the parties, the applicant’s written submissions below erroneously suggested that the applicant was to be “sentenced on 13 sequences” with “another 5 sequences on a s 16BA Schedule” (18 offences in total).

21. Further, the written submissions of both parties dealt with the offending globally and made submissions about the objective seriousness of the offences without distinguishing the principal offences from the schedule offences.

22. Counsel for the applicant below did not make any oral submissions on the permissible impact the schedule offences could have on the sentencing exercise in relation to the principal offences. The Crown submitted the following orally:

[CROWN]: In relation to how the related offences, of which there are five in these proceedings, can be used or taken into account, it’s not in any way dissimilar to how Form 1 offences are taken into account on state sentencing offences insofar as essentially a more severe sentence may be imposed for the primary offence taking into account that other offending. Essentially, if you’ve got a range you can adjust upwards towards the upper end of that permissible range, taking into account those offences.

Of course, your Honour can’t amend the sentence or the appropriate range for those individual offences that are on the indictment by taking into account those related offences. It’s just where within that appropriate range.

HER HONOUR: Yes, I see. The 16BA document itemises which ones relate to which sequence?

[CROWN]: That’s right. To adopt the state terminology, it’s essentially that they put upwards pressure on the sentence that can be imposed to those offences on indictment.

Remarks on sentence

23. Following the proceedings on sentence on 2 June 2025, the sentencing judge reserved her decision and delivered her remarks on sentence on 27 June 2025.

24. Her Honour commenced her remarks as follows:

I am to sentence Mr Sevki Colak for seven offences against s 474.22(1) of the Criminal Code and for six offences against s 474.17(1) of the Criminal Code. In brief, over the period November 2023 to April 2024 Mr Colak used different carriage services to transmit child abuse material and to send sexually-explicit messages to a number of people.

The maximum penalty for each s 474.22 offence is 15 years’ imprisonment and the maximum penalty for each s 474.17 offence is five years’ imprisonment. On his sentence for these offences the offender asks the Court to take into account his admission to five other offences, being an offence under s 474.22(1) and four offences 474.17(1) and this is pursuant to s 16BA of the Crimes Act 1914 (Cth). I will call these offences the s 16BA offences.

(Emphasis added.)

25. Her Honour thus identified 13 offences for which the applicant was to be sentenced (rather than eight) with an additional five schedule offences; 18 offences in total.

26. When setting out the facts of the offending by reference to the Agreed Facts, her Honour repeated the substance of the schedule offending both when describing the principal offences and when identifying the additional offences on the schedule. This incorrectly identified that there were 18 offences before the Court rather than 13. For example, her Honour described the offending in sequence 24 (item 1 on the schedule) twice as follows:

In relation to the sequence 24 offence the offender used his account on the online platform Gumtree to communicate two text-based items of child abuse material to Gumtree users. The messages described him vaginally penetrating his supposed ten year old daughter. …

The offender has asked that when sentencing for this offence the Court take into account two other offences. They are an offence under s 474.22(1) of transmitting child abuse material to various users of the Gumtree platform, and that is item 1 on the schedule …

(Emphasis added.)

27. Notwithstanding having described a total of 18 offences in her summary of the Agreed Facts, her Honour only described 13 offences when assessing the objective seriousness of the offending. But in doing so, her Honour did not identify which of the offences were principal offences and which were schedule offences.

28. When summarising the parties’ submissions on objective seriousness, her Honour also noted the following Crown submission on the effect of the schedule offences:

The Crown also noted that in relation to sequences 20, 21, 23 and 26 the Court is asked to take into account further offences, which may have the effect of increasing the sentences for each of those sequences.

29. Her Honour then turned to consider the applicant’s subjective case, general and specific deterrence and his prospects of rehabilitation. Her findings in this regard are not relevant to the disposition of this appeal on the conceded ground.

30. Before recording the indicative sentences, her Honour stated the following:

I have weighed all of the relevant factors, being the maximum penalty that applies to the offences, the s 16BA offences, the general principles that apply to sentencing an offender for offences involving child abuse material, the objective gravity of all the offences committed by the offender, his early pleas of guilty and all of the relevant factors in s 16A(2), including the offender’s mental health condition. I am satisfied that no other sentence but imprisonment is appropriate in all the circumstances in relation to the following offences: sequences 20, 21, 22, 23, 24, 25, 26, 28 and 29. I intend to impose an aggregate sentence for these offences. (Emphasis added.)

31. Relevantly, sequences 24 and 29 were schedule offences (items 1 and 2 on the schedule) which her Honour thus expressly included as offences for which a term of imprisonment was to be indicated, and which were to be made the subject of an aggregate sentence.

32. Her Honour then went on to indicate sentences as follows:

For sequence 20 I impose an indicative sentence of three years and six months. This sentence takes into account item 2 on the 16BA schedule. For sequences 23 and 26 I impose for each offence indicative sentences of 16 months. In the case of sequence 23, this takes into account item 5 on the schedule. In the case of sequence 26, this takes into account items 1 and 4 on the schedule.

For sequence 22 I impose an indictive sentence of 12 months. For sequence 21 I impose an indicative sentence of 12 months. This takes into account item 3 on the schedule. For sequence 24 I impose an indicative sentence of ten months. For sequence 25 I impose an indicative sentence of seven months. For sequence 28 I impose an indicative sentence of seven months, and for sequence 29 I impose an indicative sentence of seven months. In determining the overall aggregate sentence in relation to all the sequences which I just mentioned which, for clarity, are sequences 20 to 26 and sequences 28 and 29, I must have regard to the principle of totality.

(Emphasis added.)

33. Her Honour then discussed totality, concurrency and backdating before expressly convicting the applicant of “all of the offences”.

34. Her Honour pronounced the final aggregate sentence as follows:

For sequences 20 to 26 and sequences 28 and 29 I impose an aggregate sentence of five years and six months’ imprisonment. (Emphasis added.)

35. Again, this clearly referred to sequences 24 and 29 as forming part of the aggregate sentence by way of individual indicative sentences, despite those sequences being schedule offences.

36. In relation to the “remaining offences” of sequences 27, 30, 31 and 32 which had not formed part of the aggregate sentence, the sentencing judge imposed recognizance release orders for each offence. Of those four offences, sequences 30, 31 and 32 were in fact schedule offences.

Consideration

37. At the conclusion of the hearing, we were satisfied that the manner in which the schedule offences were dealt with in the sentencing court below was erroneous on a number of bases.

38. First, the s 16BA schedule was not signed by a delegate for the Commonwealth Director of Public Prosecutions in clear breach of s 16BA(1)(c) of the Crimes Act (Cth). Although no cases were identified by the parties dealing with this specific omission, two cases were identified in which there had been a failure to ask the offender whether he wished to have the additional charges taken into account.

39. In Kabir v R [2020] NSWCCA 139, Harrison J (with whom Hoeben CJ at CL and Wilson J agreed) considered that the preconditions to the exercise of the power to “ask” the offender in s 16BA(1) are procedural safeguards that “must be satisfied before the court can proceed to enquire whether the offence is admitted and the offender wishes to have it taken into account” (at [34]). This includes the precondition in s 16BA(1)(c) that the prescribed document be signed by the Director of Public Prosecutions or by their delegate.

40. In Kabir v R, the offender had signed the s 16BA schedule, but he was not asked personally at any stage of the proceedings whether he wished the additional offence to be taken into account. The Court found that the exercise of the power in s 16BA(2) was not predicated on a verbal response from the offender; rather, the communication of the offender’s admission of guilt and desire for the offence to be taken into account can be undertaken by the offender’s counsel (at [35]). In those circumstances the procedural irregularity was not an error vitiating the sentencing discretion (at [46]).

41. In Purves v R [2019] NSWCCA 227, a similar oversight occurred but the offender in that case was self-represented. Simpson AJA (with whom Bell P and Fullerton J agreed) found that an important procedural step in s 16BA(1) had been overlooked because the offender did not make the necessary admissions and the appeal was allowed (at [5]).

42. Unlike in the present case, in both Kabir v R and Purves v R, the procedural requirement in s 16BA(1)(c) that the Director or a delegate sign the document had been complied with. We accept the Crown concession that the absence of that signature was a procedural irregularity in the applicant’s proceedings which vitiated the sentence. This irregularity alone would have been sufficient for the applicant to succeed in this Court, but that was not the only respect in which the sentencing proceedings miscarried.

43. Secondly, the documentation put before the sentencing judge contained errors in a number of respects:

44. The Crown sentence summary duplicated references to sequences 24 and 29-32 describing those five offences as both principal offences and schedule offences. This suggested that the applicant was to be sentenced for 13 offences with a further five schedule offences (18 in total);

45. The Agreed Facts on sentence described 13 offences but did not differentiate between the principal offences and the schedule offences. This was apt to convey that there were 13 principal offences.

46. This error was replicated in both the Crown’s written submissions and in the applicant’s written submissions below and was not corrected in oral submissions.

47. The cumulative effect was that the material on sentence conveyed to the sentencing judge that there were 13 rather than eight principal offences for which a sentence was to be imposed. This much is clear from her Honour’s remarks which consistently refer to there being both 13 principal offences and five schedule offences.

48. Thirdly, the transcript of the proceedings on sentence shows that the applicant was arraigned and entered pleas of guilty to all thirteen offences, in addition to then asking the Court to take into account the five further offences. In the sentencing remarks, her Honour went on to convict the applicant of “all of the offences”. It is clear from s 16BA(10) that a person is not to be convicted of a schedule offence. This is consistent with the position for State offences taken into account on a Form 1 under s 35(4) of the Sentencing Act.

49. Fourthly, the applicant was sentenced separately for the schedule offences. The sentencing judge indicated terms of imprisonment for sequences 24 and 29 (items 1 and 2 on the s 16BA schedule) and expressly indicated that they were to be made the subject of an aggregate sentence. Her Honour also imposed recognizance release orders for sequences 30, 31 and 32 (items 3-5 on the s 16BA schedule).

50. Section 16BA(5) makes it clear that no separate punishment may be imposed on a person who asks the court to take into account an offence under the section. In Attorney General*’*s Application, Spigelman CJ noted that the sentencing court must sentence only for the principal offence or offences (at [39]):

The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure. This is not sentencing for the principal offence. (Emphasis in original.)

48. His Honour also said further at [44]:

The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (Emphasis added.)

49. This approach was confirmed in Abbas, Bodiotis*, Taleb and Amoun v R* [2013] NSWCCA 115; 231 A Crim R 413 in which Bathurst CJ stated (at [14]):

… it does seem apparent that the object of the section was not to impose a distinct penalty for the offences to be taken into account.

50. That no further penalty should be imposed for Form 1 (and by extension s 16BA) offences was confirmed in Nguyen v R [2019] NSWCCA 209 at [61] (Johnson J), Azari v R; Al-Talebi v R [2021] NSWCCA 199 at [57] (Adamson J), and Koosmen v R [2025] NSWCCA 122 at [92] (Yehia J).

51. Finally, her Honour’s error in imposing distinct penalties for the schedule offences was compounded by the fact that she additionally took into account these five offences when setting the indicative sentences for sequences 20, 21, 23 and 26. This effectively amounted to double counting in the sentencing exercise.

52. It is most regrettable that the sentencing judge was not better assisted by the parties as to which sequences fell to be sentenced as principal offences and which sequences were to be taken into account as offences on the s 16BA schedule. The lack of clarity in the Agreed Facts, the Crown’s sentence summary and the parties’ written submissions would appear to have contributed to the erroneous manner in which her Honour dealt with the schedule offences.

53. The unfortunate result is that the sentences imposed by the sentencing judge were infected by error and had to be set aside. Further, the applicant’s convictions in respect of sequences 24, 29, 30, 31 and 32 had to be quashed (the applicant having been given leave during the hearing to amend his notice to appeal to bring an appeal against conviction as well as sentence).

Remittal or re-sentence?

54. The only remaining issue was whether this Court should proceed to re-sentence the applicant under s 6(3) of the Criminal Appeal Act 1912 (NSW) or whether the matter should be remitted to the District Court under s 12(2) of that Act. The Crown argued in favour of remittal. Although the applicant’s initial position was that this Court should re-sentence him, his counsel (who was not counsel who appeared below) ultimately indicated that she was instructed not to resist remittal of the proceedings.

55. We accepted the position of the parties that the appropriate order was remittal of the proceedings under s 12(2) of the Criminal Appeal Act for the following reasons*.*

56. Section 12 provides several “supplemental powers of the court”. Section 12(2) provides as follows:

(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.

57. In R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280, this Court (Bell CJ, Walton and Davies JJ) described s 12(2) as conferring a “broad, general discretion to remit a matter to a trial court” and observed that the decision to remit is “very much case-dependent” (at [17]). Relevant considerations in determining whether to remit a matter under s 12(2) were identified as including the requirements of justice in a particular case, the ordinary principles of case management, the likelihood of little delay, the existing knowledge of the matter by the sentencing judge and the fact that remittal would preserve the appeal rights of the parties (at [18]).

58. In Todd v Rex [2024] NSWCCA 161, the agreed facts on sentence did not detail facts that established the elements of two of the offences. This Court quashed the convictions, and the aggregate sentence was set aside. Wright J (with whom Harrison CJ at CL and Rigg J agreed) then found that the preferable course was to remit the matter due to the likelihood of little delay in any sentence rehearing in the District Court and the preservation of the parties’ rights of appeal (at [19]).

59. In Purves v R, this Court remitted the matter to the District Court because the failure to ask the applicant whether he wished the additional offences to be taken into account under s 16BA(1) resulted in the applicant being “sentenced by a fundamentally erroneous process that cannot be remedied by this Court” (at [7]).

60. It is to be accepted that an issue that is not resolved by the authorities is whether this Court can exercise the power to remit without determining whether a different less severe sentence was warranted as required by s 6(3) of the Criminal Appeal Act.

61. In Betts v the Queen (2016) 258 CLR 420; [2016] HCA 25, the High Court (French CJ, Kiefel, Bell, Gageler and Gordon JJ) referred to the “controversial” power of remittal (footnotes omitted):

[17] The question of whether the appellate court is empowered to remit the determination of a sentence appeal under the supplemental powers conferred by s 12(1) of the CAA and its analogues is controversial. A general power of remittal was introduced into the CAA in 1987. It is contained in s 12(2), which provides:

“The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.”

[18] To the extent that the extrinsic material affords any assistance in identifying the object of the inclusion of the general power of remittal, it does not provide support for the conclusion that s 12(2) qualifies the conditional re-sentencing obligation imposed by s 6(3).

[19] As the Court of Criminal Appeal recognised in O’Neil-Shaw v The Queen, there is a tension between the terms of s 6(3) and recourse to the power of remittal. The utility of a power of remitter in a case such as O’Neil-Shaw, where the sentence hearing has been tainted by procedural irregularity, is evident. The question of whether it is available is not reached in this case. It might be a matter for consideration by the legislature.

62. In footnote 37, their Honours set out part of the second reading speech when s 12 was amended in 1987:

This power will be of great assistance in matters where, for example, there are deficiencies in the evidence or where there are further matters to be considered which can be better attended to before a first-instance judge. These bills are a rationalization of existing avenues of appeal from interlocutory applications in criminal proceedings on indictment in the District Court and the Supreme Court, while ensuring that issues can be dealt with which justice requires should be resolved prior to the completion of a trial.

63. The reference to O*’*Neil-Shaw v R [2010] NSWCCA 42 (at [19] of Betts v The Queen) is to the following observations of Basten JA:

[29] Finally, the Director submitted that the appeal should be dismissed because, even if the matters relied on by the applicant were taken into account and given their proper weight, no less severe a sentence was warranted in law. This submission was based on the terms of s 6(3) of the Criminal Appeal Act, which reads:

“6 Determination of appeals in ordinary cases

…

(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

[30] Read literally, this provision allows of only two courses, namely to quash the sentence and impose another sentence, or to dismiss the appeal. However, such a reading would deny an applicant the right to an effective appeal against sentence where the sentencing process has miscarried, but this Court is unable to determine what is the appropriate sentence.

[31] In its terms, s 6(3) (dealing with sentencing appeals) is quite differently, and more simply, worded in contrast to s 6(1) (dealing with conviction appeals) with its proviso requiring dismissal of an appeal where there has been no substantial miscarriage of justice. Nevertheless, they serve similar purposes. In dealing with s 6(1), McHugh J noted in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [76]:

“In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. … It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.”

[32] In relation to a sentence appeal, there is no question of substituting a trial by this Court for trial by jury. Nor is there any objection in principle to this Court exercising sentencing powers in place of the sentencing judge. Rather, the situation in which this Court is placed resembles that of any appellate court, civil or criminal, where error has been established but the Court is not in a position to determine the matter itself. The only appropriate course is to direct a retrial of the issue. Such a course is open pursuant to s 12(2) of the Criminal Appeal Act, which provides a supplemental power not to be understood as inconsistent with the scope of s 6(3).

64. These decisions were considered by Hamill J (with whom Price AJA and Campbell J agreed) in Decision Restricted v R [2025] NSWCCA 49. His Honour identified the following categories of cases where the Court has remitted proceedings back to the original sentencing court (at [42]):

• Cases where a conviction has been quashed which impacts on an aggregate sentence or series of partially accumulated sentences: for example, see Nassr v R [2015] NSWCCA 284 at [12]-[14], Baxter v R [2018] NSWCCA 281 at [14], BC v R (No 2) [2019] NSWCCA 142, LS v R [2024] NSWCCA 110 at [259] and MacDonald v R [2024] NSWCCA 240 at [222].

• Cases where a substantial amount of additional evidence is to be tendered and challenged in the re-sentencing exercise: see, for example, R v Pamplin [2001] NSWCCA 327 at [5], Douar v Regina [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [146], Raymond John Munro v R [2006] NSWCCA 350 at [26] and Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257 at [46].

• Cases where the evidence before the appellate court does not allow the court to resolve a disputed factual issue: Shi v R [2017] NSWCCA 126 at [10] and Portelli v R [2018] NSWCCA 28 at [47].

• Cases where there has been such a significant irregularity that it might be said that the offender has not had a proper sentencing hearing at all: Murray v R [2015] NSWCCA 75 (where the Judge wrongly failed to uphold a submission that they were disqualified from hearing the matter), Ellis v R [2015] NSWCCA 262 at [4], [6] (where the applicant was denied procedural fairness because of the Judge’s interventions in his evidence on sentence), Purdie v R [2019] NSWCCA 22 at [59] (denial of procedural fairness) and Jones (a pseudonym) v R [2021] NSWCCA 225; (2021) 291 A Crim R 68 at [65]-[66] (denial of procedural fairness).

• Cases where an offence was included erroneously on a Form 1: Paul Campbell v R [2018] NSWCCA 87 at [75] and R v Zycki [2024] NSWCCA 9.

65. His Honour concluded at [51]:

One issue that is not resolved by the authorities, and which was not addressed in argument in any detail, is that the power to quash the sentence derives from s 6(3) which requires a finding that a different sentence is warranted. Even so, I am prepared to proceed on the basis that remittal may be appropriate where a defect or irregularity in the sentencing hearing is such that the applicant was denied procedural fairness and/or, in effect, endured a sentencing hearing which was so flawed as to amount to no hearing at all. That category of case will be rare, but I accept the occasion to proceed in that way may arise where a lawyer has a conflict of interest in appearing for two offenders in the same case. (Emphasis added.)

66. We accepted the Crown submission that remittal was the appropriate course for the following reasons:

67. A fundamental requirement that the s 16BA(1) schedule be signed by a delegate of the Director was not complied with. This meant that the entire proceedings on sentence were procedurally irregular;

68. This Court is required to quash the convictions in respect of the five schedule offences;

69. Remittal provides an opportunity for the sentencing judge correctly to consider the schedule offences and the weight they have on the indicative sentences for the principal offences;

70. Remittal preserves the parties’ rights to appeal; and

71. The Court was informed that there would not be any significant delay in getting this matter relisted in the District Court.

72. For completeness we note that although special leave was granted in Decision Restricted v R [2025] NSWCCA 49 and the High Court is currently reserved on the question of when this Court is empowered to remit a matter to the sentencing court, the parties in this case indicated that it was not necessary for the Court to address this issue.

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Amendments

10 August 2026

Coversheet correction - "Office of the Director for Public Prosecutions (Cth)" instead of "Solicitor for Public Prosecutions (NSW)"