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Catchwords: CRIME — Appeals — Appeal against sentence — legal principles with respect to miscarriage and receipt of additional evidence — error asserted because of failure of sentencing judge to consider facts not in evidence — Farrugia v The King handed down by High Court before determination — ground of appeal is whether sentencing exercise caused vitiating procedural irregularity — not necessary to characterise as House v The King error — further evidence should be admitted where doing so would avoid practical injustice — admission of further evidence exceptional — key factors include whether compelling explanation given for evidence not being adduced at sentence, and whether evidence could realistically have affected reasoning of sentencing judge to sentence imposed in a not insignificant way — evidence cannot be admitted if it relates to events that occurred purely subsequent to sentencing — sentencing appeal under ss 5(1)(c) and 6(3) of Criminal Appeal Act does not fit neatly into pre-existing categories of appeal
CRIME — Appeals — Appeal against sentence —admission of further evidence — evidence related to applicant’s experience of child sexual abuse — provided compelling reason for not disclosing abuse during sentencing proceedings — potential for long delays and piecemeal disclosure in relation to child sexual abuse well-recognised — evidence had potential significance to sentencing — vitiating procedural irregularity established
CRIME — Appeals — Appeal against sentence — Re-sentence — further evidence somewhat reduced applicant’s moral culpability for some offences and established some prospects of rehabilitation — protection of community remained of particular importance

Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L, 325(1)
Criminal Appeal Act 1912 (NSW), ss 5(1)(a)-(c), 6(1), 6(3), 12(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
Criminal Procedure Act 1986 (NSW), ss 166, 294
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(5)

Cases Cited: Agnew v R [2018] NSWCCA 128
Atlanta Building Pty Ltd v Abela [2026] NSWCA 126
Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cherry v R [2017] NSWCCA 150
Dib v Rex [2023] NSWCCA 243; (2023) 381 FLR 440
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
Eden v R [2023] NSWCCA 31
Elali v R (2025) 116 NSWLR 442; [2025] NSWCCA 9
ET v R [2024] NSWCCA 131
Farrugia v The King [2026] HCA 28
Fisher v R [2026] NSWCCA 27
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hoser v Department of Sustainability and Environment [2014] VSCA 206; (2013) 203 LGERA 96
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v R [2025] NSWCCA 28
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Lawavou v R [2025] NSWCCA 35
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Munro v R [2006] NSWCCA 350
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
O’Hanlon v R [2025] NSWCCA 118
Oliver v R [2025] NSWCCA 227
Paulley v R [2026] NSWCCA 75
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Puan v R [2009] NSWCCA 194
Pym v R [2014] NSWCCA 182
R v Abou-Chabake (2004) 149 A Crim R 417
R v Bailey (1988) 35 A Crim R 458
R v Fordham (1997) 98 A Crim R 359
R v Goodwin (1990) 51 A Crim R 328
R v Keir [2004] NSWCCA 106
R v Many (1990) 51 A Crim R 54
R v McKenna (NSWCCA, unreported, 16 October 1992)
R v Munday [1981] 2 NSWLR 177
R v Sabbah [2025] NSWCCA 203
R v Vachalec [1981] 1 NSWLR 351
R v Araya (1992) 63 A Crim R 123
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Reg v McIntee (1985) 38 SASR 432
Regina v Scullion (CCA, unreported, 15 July 1992)
Richardson v R [2021] NSWCCA 304
Shortland v R [2024] NSWCCA 174
Shortland v R [2025] NSWCCA 206
Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13
Stubbings v R [2023] NSWCCA 69
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Toller v R [2021] NSWCCA 204
Tsiakas v R [2015] NSWCCA 187
Tymbook Pty Ltd v Victoria (2006) 15 VR 65; [2006] VSCA 89
Williams v The Queen (1978) 140 CLR 591; [1978] HCA 49
Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment

Parties: Robert Jacono (Applicant)
The Crown (Respondent)

Representation: Counsel:
D Carroll (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2017/376206

Publication restriction: Nil

HEADNOTE

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

The applicant pleaded guilty in the District Court to two counts of sexual intercourse without consent, one count of attempting to dissuade a witness from attending court, and one summary count of contravening conditions of an apprehended domestic violence order (ADVO). He had detained his former partner within her residence over a twelve day period during which he physically and sexually assaulted her, doing so in breach of an ADVO. After being arrested and refused bail, he repeatedly asked his sister to locate the complainant and to attempt to convince her not to give evidence in the future criminal proceedings. In February 2020 the sentencing judge sentenced the applicant to an effective (non-aggregate) sentence of 16 years imprisonment with a non-parole period of 12 years, backdated to commence on 11 March 2018.

The applicant sought leave to appeal on one ground: that the sentence was affected by a miscarriage of justice arising from the absence of additional subjective material going to mitigation, which deprived the sentencing judge of a full consideration of the applicant’s circumstances. That subjective material related to the applicant’s post-sentence disclosure of having been the subject of child sexual abuse while in juvenile detention in the 1980s. It consisted of an explanatory affidavit affirmed by him along with two psychological reports. The Notice of Appeal was filed well out of time, meaning the applicant required leave to appeal. After judgment was reserved the High Court handed down its decision in Farrugia v The King [2026] HCA 28. The parties were then given, and took up, the opportunity to provide supplementary written submissions on the significance of that decision for the issues in this case.

The Court held (Kirk JA, Lonergan and Weinstein JJ agreeing), extending time to file the notice of appeal, granting leave to appeal, admitting the further evidence, upholding the appeal and resentencing the applicant:

Legal principles for sentence appeals based on receipt of further evidence

1. After Farrugia, in a sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW) where it is asserted that the sentence involved error, in retrospect, because of a failure of the sentencing judge to consider facts not in evidence before them, the ground of appeal is whether or not the sentencing exercise was affected by a procedural irregularity sufficient to vitiate the sentencing decision. It is not necessary to attempt to characterise the complaint as House v The King error. The relevant ground of appeal is not labelled “miscarriage of justice”. A key consideration is whether the offender has not had a reasonable opportunity to put their case in mitigation such as to have occasioned a practical injustice. And any such lack of opportunity must be such that it could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed. Otherwise, the principles relevant to an appeal such as this remain to be found in the established line of cases where an appeal is sought to be upheld by reference to further evidence: [7]-[28].

House v The King (1936) 55 CLR 499; [1936] HCA 40; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25; Farrugia v The King [2026] HCA 28; R v Fordham (1997) 98 A Crim R 359; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, discussed.

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; DL v The Queen (2018) 265 CLR 215; [2018] HCA 32; Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872; Toller v R [2021] NSWCCA 204; Dib v Rex [2023] NSWCCA 243; (2023) 381 FLR 440; Paulley v R [2026] NSWCCA 75; Atlanta Building Pty Ltd v Abela [2026] NSWCA 126; Tymbook Pty Ltd v Victoria (2006) 15 VR 65; [2006] VSCA 89; Hoser v Department of Sustainability and Environment [2014] VSCA 206; (2013) 203 LGERA 96, referred to.

2. In such an appeal, whether further evidence should be admitted is intertwined with whether the ground of appeal is made out: [30]-[38]. The principle of finality dictates that a sentencing appeal is not a chance to reformulate the case made before the sentencing judge. But finality, whilst critical, is not to be pursued at all costs and must be balanced with the overall interests of justice. Nevertheless, in light of that principle the admission of further evidence is exceptional. That issue depends upon consideration of the circumstances of the particular case. The key factors are whether there is a compelling explanation of why the evidence was not adduced before the sentencing judge (such as that the evidence is new, or was not adduced because of legal incompetence, or there are other extenuating circumstances), and whether the evidence could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed in a not insignificant way. Evidence cannot be admitted in such cases if it relates to events that occurred purely subsequent to sentencing: [39]-[73].

Ratten; Betts; R v Vachalec [1981] 1 NSWLR 351; R v Munday [1981] 2 NSWLR 177; R v Bailey (1988) 35 A Crim R 458; R v Abou-Chabake (2004) 149 A Crim R 417; Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509; Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483; Lawavou v R [2025] NSWCCA 35, discussed.

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12; Kentwell; R v Many (1990) 51 A Crim R 54; R v Araya (1992) 63 A Crim R 123; R v McKenna (NSWCCA, unreported, 16 October 1992); Fordham; R v Keir [2004] NSWCCA 106; Munro v R [2006] NSWCCA 350; Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13; Puan v R [2009] NSWCCA 194; Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460; Tsiakas v R [2015] NSWCCA 187 ; Agnew v R [2018] NSWCCA 128; Shortland v R [2024] NSWCCA 174; Jones v R [2025] NSWCCA 28; R v Sabbah [2025] NSWCCA 203, referred to.

3. A sentencing appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act is simply its own thing; it does not fit neatly into any pre-existing category such as appeal by way of rehearing, de novo or stricto sensu. The same characterisation would apply to a conviction appeal under ss 5(1)(a) and (b) and 6(1) of the Act: [74].

Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29; Fisher v R [2026] NSWCCA 27, referred to.

The further evidence and claimed miscarriage of justice

4. The applicant provided a cogent and compelling explanation of why he did not disclose his experience of child sexual abuse during his sentencing proceedings. He thus lost the opportunity to argue that the history of childhood sexual abuse and its consequences on his mental health and state reduced his moral culpability for the sexual offending and the breach of the ADVO and reduced his suitability as a vehicle for general deterrence. Those points are ones of significance in sentencing the applicant. The applicant established that, in light of the further evidence, a vitiating procedural irregularity had occurred, as he had not had a reasonable opportunity to put his case in mitigation: [113]-[136].

Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407, referred to.

Resentencing

5. The applicant suffered from complex PTSD linked to the abuse; and that abuse and PTSD played at least an indirect causal role in the offending: [125]. Those findings were relevant insofar as they somewhat reduced his moral culpability for the sexual offending and the breach of the ADVO, and somewhat reduced the suitability of the applicant as a vehicle for general deterrence: [145]. While the further evidence did establish that the applicant had some prospects of rehabilitation, being better prospects than appeared to the sentencing judge, protection of the community remained of particular importance. Taking account of those matters as well as matters including the seriousness of the offence, the need for general deterrence in respect of the dissuasion offence, the absence of evidence of remorse, the purposes of sentencing, and his guilty pleas, the applicant should receive an aggregate sentence of 14 years, commencing on 11 March 2018, with a non-parole period of 10 years 6 months: [148]-[161].

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Oliver v R [2025] NSWCCA 227, referred to.

JUDGMENT

1. KIRK JA: The applicant, Robert Jacono, pleaded guilty in the District Court to two counts of sexual intercourse without consent, one count of attempting to dissuade a witness from attending court, and one summary count of contravening conditions of an apprehended domestic violence order (ADVO). He had detained his former partner within her residence over a twelve day period during which he physically and sexually assaulted her, doing so in breach of an ADVO. After being arrested and refused bail, he repeatedly asked his sister to locate the complainant and to attempt to convince her not to give evidence in the future criminal proceedings. On 28 February 2020 the sentencing judge, Syme DCJ, sentenced the applicant to an effective (non-aggregate) sentence of 16 years imprisonment with a non-parole period of 12 years, backdated to commence on 11 March 2018.

2. The applicant seeks leave to appeal against his sentence on one ground: that the sentence was affected by a miscarriage of justice arising from the absence of additional subjective material going to mitigation, which deprived the sentencing judge of a full consideration of the applicant’s circumstances. That subjective material relates to the applicant’s post-sentence disclosure of having been the subject of child sexual abuse while in juvenile detention in the 1980s. The Notice of Appeal was filed well out of time.

3. The appeal raises issues of principle about both the nature of the ground of appeal in such cases and the circumstances in which further evidence should be admitted in support of such a ground. The Crown argued that there were some apparent disparities in how this Court has identified the relevant legal principles with respect to receipt of further evidence in a sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW). It referred in that regard to the recent statement by Leeming JA, Dhanji and Yehia JJ in Jones v R [2025] NSWCCA 28 at [98], that “[i]t is not entirely clear to us that the approach adopted in the most recent decisions … is wholly consistent with earlier authorities in this area, which may adopt a slightly stricter approach”. The Crown argued that rather than the issue being merely the capacity of the evidence to have affected the sentencing exercise, earlier cases suggested “a more rigorous approach to whether the failure to place the material … before the sentencing judge resulted in a miscarriage of justice”. After judgment was reserved the High Court handed down its decision in Farrugia v The King [2026] HCA 28, on appeal from this Court. The parties were then given the opportunity to provide supplementary written submissions on the significance of that decision for the issues in this case, which both took up.

4. Taking account of the applicable principles as articulated below, and in light of the further evidence provided on appeal, which the Court should admit, time to file the notice of appeal should be extended, leave to appeal should be granted, and the appeal should be upheld. The applicant should be resentenced to an aggregate term of imprisonment of 14 years, commencing on 11 March 2018, with a non-parole period of 10 years 6 months. The applicant will become eligible for parole on 10 September 2028.

5. This judgment is structured as follows:

6. legal principles with respect to sentence appeals based on receipt of further evidence (at [6]-[74]);

7. background (at [75]-[105]);

8. leave to appeal out of time (at [106]-[112]);

9. the further evidence and claimed procedural irregularity (at [113]-[136]);

10. resentencing (at [137]-[161]);

11. orders (at [162]).

Legal principles for sentence appeals based upon receipt of further evidence

6. The question of whether to admit the further evidence sought to be relied upon by the applicant is intertwined with the ground of appeal raised. As noted, the applicant expressed that ground in terms of the sentence being affected by a miscarriage of justice due to the absence of further material before the sentencing judge. It is appropriate first to clarify the nature and availability of the ground of appeal, particularly in light of the High Court’s decision in Farrugia, before addressing the principles relating to the admission of the evidence.

The relevant ground of appeal

7. Section 5(1)(c) of the Criminal Appeal Act provides that a person convicted on indictment may appeal to the Court of Criminal Appeal “with the leave of the court against the sentence passed on the person’s conviction”. Section 6(3) of the Act provides:

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.

8. The criterion for upholding such an appeal thus is that the appeal court is of the opinion that “some other sentence … is warranted in law and should have been passed”. The criterion raises without addressing the content of whether or not some other sentence is warranted in law. It has been left to the courts to articulate that content.

9. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, Bathurst CJ said in passing that s 6(3) is “predicated on error of the nature of that described in House v The King” (at [67], citation omitted). If that statement was meant to suggest that the only grounds of appeal available in a sentencing appeal are those in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 then, as Simpson AJA has suggested, “the proposition in Lehn is too broadly stated”: Dib v Rex [2023] NSWCCA 243; (2023) 381 FLR 440 at [137] (Garling and Ierace JJ agreeing). No doubt House v The King errors are those which are relevant where it is said that the sentencing judge’s exercise of discretion has miscarried in some way because of patent or latent error by the judge. But that does not exhaust the potential grounds, as a majority of the High Court accepted in Farrugia at [36].

10. For example, as Simpson AJA explained in Dib (at [130]-[142]), parity sentencing appeals do not involve House v The King error. The issue was addressed by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 611 and 613; [1984] HCA 46:

The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing. As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself the ground. …

[I]s a discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel an answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.

11. His Honour thus did not accept that a parity complaint should be characterised as manifesting some latent error in the exercise of discretion by the sentencing judge in question; “marked disparity is itself the ground”. Whilst he referred to the relevant discrepancy potentially itself constituting or causing error, it is apparent that that is an error in retrospect. Three other members of the Court took a similar view: Gibbs CJ at 610; Wilson J at 616; Dawson J at 623-4; see also Postiglione v The Queen (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ); [1997] HCA 26. Justice Brennan took a different view in Lowe, rejecting the notion that manifest disparity in sentences could itself be a ground for appellate interference, but saying rather it might point to an error of some kind (at 616-617).

12. The dominant view in Lowe was reaffirmed in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 where French CJ, Crennan and Kiefel JJ said (citations omitted):

[32] … Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal’s discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed.

13. Parity complaints commonly are made by reference to a sentence imposed on a co-offender after the offender in question was sentenced, as was the case in Lowe (see at 616). It would be wholly artificial to say that the sentencing judge had erred in their exercise of discretion in imposing a sentence out of proportion to a co-offender’s sentence which had not yet been imposed. Insofar as such a sentence is said to be affected by error, it is not a patent or latent error in the exercise of the discretion; it is a simply a judgment which justice requires be regarded as erroneous in light of the subsequent sentence imposed on the co-offender. Justice Kirby made a similar point in Postiglione (at 342), saying of the sentencing decision under appeal that “[w]hen pronounced, the sentence imposed … may, objectively, have been unimpeachable”, but once it fell to be considered in the light of the sentence subsequently imposed on the co-offender, “a new objective situation was presented”.

14. A further distinct type of ground of appeal has long been recognised where potentially significant further evidence is adduced on appeal which was not before the sentencing judge. Until Farrugia, that ground had been expressed as a miscarriage of justice. The High Court itself employed the term.

15. In Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 the High Court considered whether a psychiatric report obtained after the original sentence had been imposed should have been received and considered by this Court when resentencing an offender who had separately made out two errors in the sentencing judge’s exercise of discretion. The report reached factual conclusions as to there being a causal link between the offender’s drug use and the subject offending. Those conclusions were inconsistent with conclusions reached in a psychiatric report relied upon by the offender before the sentencing judge. The High Court unanimously upheld this Court’s view that the material should not be taken into account. It said (citations omitted):

[2] As a general rule, the appellate court’s assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry. …

[10] Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge’s reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.

16. The first sentence in [10] on its face suggests that the grounds of appeal on which a sentencing appeal may be upheld under the common form appeal provisions are limited to House v The King error. However, the statement should be understood as relating to the grounds available to assert that the discretion has miscarried. The Court itself went on to emphasise in the same paragraph “the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice”, thus accepting that that notion was relevant to sentence appeals.

17. That statement was supported by a footnote which cited, amongst other cases, R v Fordham (1997) 98 A Crim R 359 at 377. There Howie AJ, speaking for this Court, said that “[g]enerally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice”. That decision is one of a long line of cases in this Court, and in other intermediate appellate courts, addressing the receipt of further evidence in order to avoid a miscarriage of justice. The premise of those cases is that miscarriage of justice is an available ground of appeal against sentence under s 6(3), even though that premise generally has not been stated in terms. Thus, for example, Street CJ said 45 years ago that “the Court’s jurisdiction is exercisable where it is shown that there has been a miscarriage of justice”: R v Vachalec [1981] 1 NSWLR 351 at 353. That passage, too, was cited in Betts at [10] (and referred to, in turn, in Farrugia at [36]).

18. Also footnoted in Betts at [10] was a “see also” reference to the judgment of Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 395; [1986] HCA 26. That decision concerned an appeal against conviction. Nevertheless, it is instructive that Gibbs CJ there approved a statement by King CJ in Reg v McIntee (1985) 38 SASR 432, at 435, which was made in the context of a sentencing appeal. Chief Justice Gibbs said (citation omitted):

The circumstances of cases may vary widely, and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice. I respectfully agree with the statement of King CJ that “appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand”.

19. In the context of considering errors established by reference to further evidence, as in the parity context, it would be artificial to seek to characterise the argument as one involving House v The King error because, say, the sentencing judge mistook the facts. It is not very meaningful to say that the sentencing judge erred in finding the facts by failing to consider evidence that was not before them. Here, as for parity, it is appropriate frankly to recognise that an appeal can be upheld not because the judge’s exercise of discretion miscarried in a House v The King sense, but because in light of the “new objective situation … presented”, justice requires that the sentence be regarded as erroneous (quoting Kirby J in Postiglione at 342).

20. How should that the ground of appeal be expressed? The term “miscarriage of justice” is one of the three limbs of a conviction appeal under s 6(1) of the Criminal Appeal Act, but it is not employed in the Act with respect to sentence appeals. That being said, as noted, the content of s 6(3) has been left by the Parliament to be filled out by the courts. The term is itself somewhat protean. To some extent it is a label of conclusion. Different types of miscarriage have come to be recognised: note Ratten v The Queen (1974) 131 CLR 510 at 516; [1974] HCA 35; Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 at [7]-[9]; Paulley v R [2026] NSWCCA 75 at [80]-[90].

21. The term “miscarriage of justice” was also employed by the High Court in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [39] and [44] when finding that this Court had departed from a concession made by the prosecutor without notice and in that way breached the requirements of procedural fairness. The use of the term in that context appears unnecessary, as on any view a failure to accord procedural fairness would suffice to uphold an appeal. In any event, that was an error by this Court when itself exercising the s 6(3) jurisdiction. The case did not involve consideration of what type of errors by a sentencing judge can be considered when this Court is exercising that jurisdiction.

22. In Farrugia, a case concerning a potential conflict of duty in counsel acting for the appellant, the majority of five judges turned away from employing the language of “miscarriage of justice”, saying (citations omitted):

[38] Sometimes a material denial of procedural fairness or some other procedural irregularity in sentencing proceedings has been described by the Court of Criminal Appeal, and by this Court, as a "miscarriage of justice" even though that phrase has no statutory foundation in relation to sentencing appeals. The better description is that the exercise of the sentencing discretion has been vitiated.

23. That the exercise of the sentencing discretion has been vitiated describes the legal result. It does not describe the bases on which that conclusion might be reached. The majority earlier said at [31] that the function under s 6(3) involves three steps: (1) finding error; (2) if found, then exercising the sentencing discretion afresh; and then (3) either substituting that different sentence or dismissing the appeal (implicitly if no lesser sentence is warranted). As to what constitutes sufficient error at the first step, their Honours used the language of “specific error or procedural irregularity” (at [35], see also [39]). Justices Edelman and Jagot, writing in dissent, also spoke of “error or irregularity” (at [96], [97], [118] and [121]). The majority indicated that a breach of procedural fairness is a form of procedural irregularity (at [37]). Such a breach is also an error of law, and it seems uncontroversial that House v The King error encompasses errors of law: eg Hoser v Department of Sustainability and Environment [2014] VSCA 206; (2013) 203 LGERA 96 at [29]; Tymbook Pty Ltd v Victoria (2006) 15 VR 65; [2006] VSCA 89 at [4]; Atlanta Building Pty Ltd v Abela [2026] NSWCA 126 at [81]. If nothing else, a court failing to have accorded procedural fairness will have acted upon a wrong principle.

24. In any event, the majority in Farrugia noted that the concern of the law as regards procedural fairness “is to avoid practical injustice” (at [37], citation omitted). Their Honours then said that in “a sentencing hearing, where serious interests of the offender are at stake, the concern to avoid practical injustice is reflected in an offender being afforded a reasonable opportunity to present their case in mitigation” (ibid). They went on to link that concern to cases where an injustice has been occasioned by a lack of competence by counsel (citations omitted, emphasis added):

[48] As with conviction appeals, the Court of Criminal Appeal is sometimes required to address whether the conduct of counsel in sentencing proceedings which fell below an acceptable standard of competency caused the exercise of the sentencing discretion to be vitiated. One such example is where counsel unjustifiably failed to adduce available evidence of the offender's deprived background. In addressing such complaints, the Court of Criminal Appeal has adopted the same approach to addressing whether counsel was incompetent as that described above in relation to conviction appeals. As some of those decisions recognise, the error or irregularity warranting a court's intervention is that the conduct or failings of counsel occasioned either a denial of procedural fairness or some other procedural irregularity akin to a denial of procedural fairness. As noted, the concern of the law in such cases is to avoid practical injustice. If, by reason of the incompetence of their counsel, an offender has been denied a reasonable opportunity to put their case in mitigation, then depending on the circumstances a practical injustice may have resulted. This concern to avoid practical injustice is also applicable to a complaint that counsel appearing at the sentencing proceedings was subject to conflicting duties. The appellant pitched his complaint in those terms.

25. Thus counsel’s unjustifiable failure to adduce evidence on sentencing was treated as a form of procedural irregularity at least akin to a denial of procedural fairness, because the offender has been denied a reasonable opportunity to put their case in mitigation such as to occasion practical injustice.

26. The majority had earlier referred to the statement in Betts that error may be revealed by new or fresh evidence, relevantly saying that it was “not necessary to address those grounds for intervention on a sentence appeal” (at [36]). It is apparent that apart from moving away from the language of “miscarriage of justice”, the majority were recognising that line of cases but not seeking to address it in any detail.

27. All members of the Court made clear – in part by reference to earlier decisions of this Court – that a materiality threshold applies to such grounds of appeal on sentencing, where the relevant question is whether “the specific error or procedural irregularity could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed” (at [35], see also at [96] and [118]).

28. In this context, the principles relevant to an appeal such as this remain to be found in the established line of cases where an appeal is sought to be upheld by reference to further evidence, save as follows. The relevant ground is now not labelled “miscarriage of justice” but is an error or “procedural irregularity” sufficient to vitiate the sentencing decision. A key consideration is whether the offender has not had a reasonable opportunity to put their case in mitigation such as to have occasioned a practical injustice. And any such lack of opportunity must be such that it could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed.

29. In that light, I now turn to consider the line of cases at issue.

Is the question of admissibility distinct from the issue of miscarriage/irregularity?

30. The first question is whether the issues of admissibility on the one hand, and miscarriage (as it was) or irregularity on the other hand, are really distinct. The short answer, at least in general in cases such as this one, is no. As Yehia J has said, “the appropriate test to be applied in considering whether the evidence ought to be admitted is whether the admission of the additional evidence would avoid a miscarriage of justice”: Lawavou v R [2025] NSWCCA 35 at [125]; note also Fordham at 377; Jones at [95].

31. That is so because, as King CJ identified in McIntee, the imperative to receive the further evidence is to avoid a miscarriage of justice – or, as it might now be termed, to avoid practical injustice. Chief Justice Gibbs made a similar point in Gallagher at 395 in the context of a conviction appeal. And Gleeson CJ has explained that the practice of this Court in permitting receipt of further evidence in sentencing appeals is based on “our overriding obligation to look at all the relevant facts or possibly relevant facts to determine whether a miscarriage of justice has occurred”: R v Araya (1992) 63 A Crim R 123 at 130. The subsequent statement in Betts at [10] about the Court having “the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice” is consistent with this understanding. It has sometimes been said that further evidence should be admitted if doing so is in the “interests of justice”, which is to much the same effect: eg Fordham at 378; Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [113]. Indeed, that form of expression illustrates that the driving imperative is avoiding an injustice, whether that is expressed as a miscarriage of justice, or a practical injustice causing a vitiating procedural irregularity, or in some other way.

32. Thus where leave to adduce further evidence is granted, that has usually led to the correlative ground of appeal being upheld without detailed additional consideration: see, eg, Shortland v R [2024] NSWCCA 174 (Shortland 2024) at [85]-[87]; Elali v R (2025) 116 NSWLR 442; [2025] NSWCCA 9 at [138]; Lawavou at [135]; Jones at [99]; O’Hanlon v R [2025] NSWCCA 118 at [41]. Conversely, if the further evidence does not establish a miscarriage then it has not been admitted into evidence: eg Richardson v R [2021] NSWCCA 304 at [151] and [155]; Eden v R [2023] NSWCCA 31 at [43]; note also Khoury at [108].

33. That the evidence is admitted and a miscarriage/irregularity is established does not necessarily mean that the appeal will be upheld. Establishing the error or irregularity is just the first of the three steps noted in Farrugia at [31]. The Court may conclude that no lesser sentence is warranted in law even given the further evidence and thus dismiss the appeal: note Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

34. The practice adopted in cases such as this one is for the Court to receive the evidence provisionally for the purpose of considering admissibility and whether a miscarriage/irregularity is made out. That may extend to cross-examination occurring in this Court, as happened in this matter. There may be instances where it is clear that some or all of the evidence could not make out the irregularity such that the Court would reject the evidence immediately without any issue of cross-examination arising: note, analogously, Lawless v The Queen (1979) 142 CLR 659 at 665; [1979] HCA 49.

35. The issue of why the evidence was not adduced at first instance is not separate and distinct from the issue of whether or not there has been a miscarriage/irregularity. A miscarriage of justice refers to something significant going wrong within the context of the justice system. That system is adversarial and subject to the principle of finality (as addressed further below). This Court addressed the point in R v ***Abou-***Chabake (2004) 149 A Crim R 417 in the context of a conviction appeal relying on further evidence:

[63] … [T]he concept of a miscarriage of justice is not an abstract investigation of truth ... It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (at 517)).

36. The fact that the ground at issue here may now be expressed in terms of a practical injustice by reason of the offender not having had a reasonable opportunity to put their case, causing a vitiating procedural irregularity, does not detract from this point. Those notions necessarily involve assessing what occurred in the context of an adversarial proceeding.

37. In Khoury, Simpson AJA said that the decision whether to admit further evidence is a discretionary one (at [121]); see also Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483 at [26]. There is some room to doubt that proposition when it is understood that, at least in cases such as this one, the issue is tied to whether or not there is a miscarriage/irregularity. If the evidence would make out a miscarriage/irregularity then it is difficult to see why the Court would not admit it as a matter of discretion. Her Honour’s concern seems to have been that it is necessary to examine why the evidence was not adduced at first instance. However, as just explained, that important issue can and should be addressed as part of the inquiry into whether the irregularity is established.

38. The issue is connected to the source of the Court’s power to admit further evidence on appeal. Section 12(1) of the Criminal Appeal Act provides that the Court “may, if it thinks it necessary or expedient in the interests of justice”, order the production of any document (etc) connected with the proceedings and receive the evidence of any competent witness (amongst other things). That power is expressed in discretionary terms. The High Court said in Betts (at [16]) that it was unnecessary there to decide whether the power to receive new evidence was confined to the power in s 12(1) or whether there was also a power “incidental to the authority to determine an appeal against sentence under s 6(3)”. It is similarly unnecessary to resolve here both that issue and whether or not the power to receive further evidence to establish a miscarriage is truly discretionary. It is worth noting that the power in s 12(1) is subject to the express restriction that “in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial”.

Admission of evidence to seek to establish a procedural irregularity

39. A key principle that must be considered in this context is finality. Four members of the High Court addressed that principle in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 (citations omitted):

[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. …

[35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called “fresh evidence rule”) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”.

40. A sentencing appeal is not a chance to reformulate the case made before the sentencing judge: eg Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[81]; Lawavou at [110]-[111]. Thus in Betts the High Court explained:

[14] Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct.

41. The Court’s contemplation that further evidence might be received in “exceptional cases” reflects the principle that finality, whilst critical, is not pursued at all costs: note, analogously, Kentwell at [32]. Finality must be balanced with the overall interests of justice when considering whether or not to admit further evidence in support of a claimed miscarriage/irregularity in a sentence appeal: see eg Khoury at [104]-[105].

42. The circumstances in which it will be appropriate to permit an applicant to rely on further evidence are not susceptible to exhaustive exposition: see, eg, Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13 at [3]; Toller at [22]; Richardson at [158]. It has been recognised that given the Criminal Appeal Act “does not mandate a particular approach [to the admission of new evidence], a degree of flexibility is to be preferred”: Agnew v R [2018] NSWCCA 128 at [40]; see also Araya at 129. Such statements are consistent with the point identified above that the driving imperative is avoiding an injustice. Those statements do not mean that general guiding principles cannot be identified.

43. There is one significant restriction that applies as to the type of evidence that may be adduced. The evidence must be linked in some way to the position of the applicant as at the time they were sentenced, whether or not those facts were known to the sentencing judge. It cannot relate to events that occurred purely subsequent to sentencing: see eg Khoury at [110]; Richardson at [123]-[150]; Barnes at [32]. That reflects the fact that “as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual”, that being a function of the executive branch of government: Vachalec at 353; R v Munday [1981] 2 NSWLR 177 at 178. In Khoury, Simpson AJA tied this point to the fact that under s 6(3) the question is whether some other sentence is warranted and should have been passed, which looks to the time of sentencing (at [110]). Thus, for example, assistance provided to authorities or medical conditions arising only after sentencing are not relevant: ibid at [111]-[112]. However, evidence of subsequent events has been admitted which, for example, indicated that the applicant’s treatment in custody was quite different to the expectation which arose from the evidence led before the sentencing judge, or where the offender was diagnosed with HIV after sentence from a test sample taken prior to sentence: see, respectively, R v Keir [2004] NSWCCA 106 at [68]-[69]; R v Bailey (1988) 35 A Crim R 458.

44. The flexibility in adducing further evidence should not be confused with a readiness to permit that to occur. It has been observed many times that the admission of further evidence in such appeals will be permitted only in rare and exceptional cases: eg Regina v Scullion (CCA, unreported, 15 July 1992); Keir at [74]; Puan v R [2009] NSWCCA 194 at [55]; Richardson at [126]; Barnes at [27]; Stubbings v R [2023] NSWCCA 69 at [35]; ET v R [2024] NSWCCA 131 at [101]. Similarly, the High Court in Betts referred to such evidence being allowed in “exceptional cases” (at [14]). The point was reiterated in DL at [38]. Such statements are a reflection of the importance of the principle of finality.

45. Consistently with that understanding, Kirby P said in 1992 that “very substantial reasons and a grave risk of injustice would have to be shown to overcome the principle of finality which protects the applicant’s sentence”: R v McKenna NSWCCA, unreported, 16 October 1992 (his Honour dissented on the resentence); quoted approvingly in Barnes at [27].

46. In assessing whether or not such an exceptional case is made out two main issues arise (see eg Khoury at [121]): the explanation for why the evidence was not adduced at first instance and the potential significance of the evidence to the sentencing exercise.

A compelling explanation for the absence of the evidence at first instance

47. As noted above, this Court explained in *Abou-*Chabake that “the concept of a miscarriage of justice is not an abstract investigation of truth” but rather “is an investigation in the context of the adversarial nature of a criminal trial” (at [63]). Given that a sentencing appeal under ss 5(1)(c) and 6(3) is not simply an opportunity to run a new case, and taking account of the importance of finality, some compelling explanation is expected for why the evidence was not adduced before the sentencing judge.

48. As Simpson AJA explained in Khoury:

[121] … It is proper for the Court [to] examine the circumstances of, and any explanation for, the non-production of the evidence – a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation.

49. As alluded to there, and in *Abou-*Chabake, if the evidence in question was not called or the issue not explored at first instance for some rational forensic reason, then in general no vitiating injustice or irregularity will have resulted: see further Munro v R [2006] NSWCCA 350 at [22].

50. Many defendants may wish, with the benefit of hindsight, that some different choice had been made as to what evidence was adduced or contested on sentencing. Nevertheless, in general they are bound by the choices made. The sentencing process is not merely a practice run. Sentencing for a criminal offence is a serious matter, to be taken seriously. Defendants, and their legal representatives, are expected to consider with care and diligence how to approach the sentencing process. Legal representatives are expected to consider how their client’s interests may properly be advanced, including by asking questions of their clients – or ensuring that questions are asked by others – so as to ascertain relevant facts or material. Defendants are expected truthfully to answer questions asked of them by their representatives, psychologists and the like. When all relevant evidence relied upon is required to be presented at first instance, but further evidence is sought to be adduced on appeal, it is reasonable to require that a compelling explanation be given for why it was not adduced below.

51. Common explanations in this line of cases are that the evidence is “fresh” or that the applicant’s legal representatives were incompetent. These are types of explanation for the absence of the evidence in the court below. They are not the only types of explanation that may be given.

52. Fresh evidence is evidence which was not available to the party and could not have been discovered with reasonable diligence (recalling that the evidence must still relate to some issue that arose at the time of sentencing). The reference to the “fresh evidence rule” in D'Orta-Ekenaike at [35], quoted above at [39], was supported by a footnote which referred, amongst other things, to the judgment of Barwick CJ in Ratten at 516-517. The Chief Justice there said:

The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of a trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to the trial of a criminal offence.

53. His Honour went on to explain what principles applied to finding a miscarriage of justice in a conviction appeal based upon further evidence, in terms applied many times since (at 520). His Honour accepted that both fresh and new evidence might be employed in that regard, but in somewhat different ways.

54. That evidence was not reasonably available to the applicant at the time of sentencing is obviously a compelling explanation for why it was not adduced at that time.

55. Whether the evidence was available to the applicant, or discoverable with reasonable diligence, takes account of the position not only of the applicant’s legal representatives but of the applicant themselves. So much was made plain by Barwick CJ in Ratten, including in saying the following (at 517):

Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

56. Thus, for example, in R v Many (1990) 51 A Crim R 54 this Court concluded that evidence about the extent to which the applicant had assisted authorities was not fresh because he had known about it, even though he had been reluctant to disclose it, had not appreciated its potential significance, and the sentencing exercise occurred immediately after the verdicts (at 61-62). The Court nevertheless admitted the evidence given those circumstances. Similarly, in R v Sabbah [2025] NSWCCA 203, at [199], the Court considered that evidence about the applicant’s traumatic childhood and pre-existing psychiatric condition was not fresh evidence because he knew about those matters, even if his lawyers and the author of a psychological report prepared for sentencing did not.

57. That does not mean that “new” evidence – evidence which was available or could have been discovered with reasonable diligence at the time – cannot be admitted, as R v Many illustrates. In Betts at [10], quoted above at [15], the High Court referred to the distinction but acknowledged that this Court had recognised that both types of evidence might be admissible. In Lawavou, Yehia J said that in her view the distinction “is less significant on a sentence appeal where a court is of the view that the additional material may have had a real bearing on the sentencing outcome and that the absence of the material in the sentence proceedings resulted in a miscarriage of justice” (at [113]). That recognises that the driving imperative is avoiding an injustice. However, because that notion itself involves consideration of the adversarial system, Hamill J was correct to say in Barnes that “[f]resh evidence is received more readily than new evidence” (at [28]). That is so because of the need for some explanation as to why evidence that was reasonably available to the applicant was not adduced at first instance.

58. Another type of explanation relates to the incompetence of the applicant’s legal representatives at first instance. In such cases, as in conviction appeals on this basis, the issue is not incompetence per se but whether or not a relevant injustice has resulted: see eg Munro at [24]; Pym v R [2014] NSWCCA 182 at [76]; Tsiakas v R [2015] NSWCCA 187 at [44]. As noted above (at [24]-[25]), in Farrugia at [48] the majority treated this issue as an irregularity at least akin to a denial of procedural fairness insofar as the offender was denied a reasonable opportunity to put their case in mitigation by the incompetence of counsel, such as to occasion practical injustice.

59. A further type of explanation for why the evidence was not adduced – being the type at issue in this matter – involves an unwillingness by the applicant to raise a particular issue in the context of the sentencing exercise because of its sensitive nature. Relatedly, the offender may not appreciate the significance of the evidence. R v Many involved both aspects. There have been a number of recent cases where further evidence was admitted where an applicant was not yet ready to disclose having suffered past sexual abuse at the time of sentencing: see eg Shortland 2024; Jones; Lawavou.

60. In cases where the applicant was asked about the issue and declined to provide the relevant information, as here, it cannot meaningfully be said that the offender was denied a reasonable opportunity to put their case, as it resulted from their own actions. On the other hand, such cases do not involve forensic decisions taken for tactical advantage. Insofar as they did that would suffice to reject the application.

61. In some cases it has been suggested that such evidence of past sexual abuse was fresh because it was not discoverable with reasonable diligence, seemingly referring to diligence by the applicant’s then legal advisers: Jones at [83]; Lawavou at [132]-[133]; see also, in a different factual context, Barnes at [44]. Yet evidence of past sexual abuse of an applicant will be known to that person, at least in the absence of any suggestion of previous memory loss. The significance of the evidence is founded on the relevant facts, the consequences of which may be the subject of comment in subsequent psychological reports: note Khoury at [120] and [136]. Taking account of the point addressed above at [55]-[56], in my view such evidence is not strictly “fresh” in the relevant sense because the facts were known to the applicant. That “great latitude” is shown in considering what was available by reasonable diligence does not alter that fact.

62. That being said, it is difficult to criticise an offender for not disclosing material known to them (or available to them with reasonable diligence) if they did not appreciate its relevance and if they were not asked about it. Thus in R v Goodwin (1990) 51 A Crim R 328, Hunt J said that evidence not strictly fresh might be admitted in a sentencing appeal if it was potentially significant, its significance was not realised by the offender at the time, and its existence was not disclosed to the offender’s legal advisers (at 330, with Grove J agreeing).

63. That statement does not encompass cases such as this where the offender was asked about the issue and did not provide a full or truthful answer. In some cases that may still involve a failure by the offender to understand the degree of significance of such evidence and/or an unwillingness to disclose. It is open to argue that the principle of finality militates against allowing further evidence to be adduced in cases where the offender positively chose not to disclose relevant information. However, that would be an excessively limited view of the interests of justice. As the Crown accepted in submissions, it is now well-recognised that there can be long delays before those who have suffered childhood sexual abuse are ready to disclose that fact, and disclosures are often made in a piecemeal fashion: see eg Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [21]; Criminal Procedure Act, s 294. Such human hurt and frailty is not beyond the ken of justice.

64. In cases where the further information was known to the offender, as a matter of human reality the person may nevertheless have not obtained a reasonable opportunity to put their case in mitigation. That the failure to raise the evidence resulted from their own actions rather than the actions of others is a significant factor in assessing what justice requires, taking account of the principle of finality. But it is not determinative. Even in such cases justice is flexible enough to acknowledge that in some situations an injustice has occurred because evidence was not called due to compelling extenuating circumstances, such that the offender has not had a reasonable opportunity to put their case in mitigation. The requirement can sufficiently be expressed by the general question of asking whether the circumstances are such as to constitute a compelling explanation of the failure to lead the further evidence before the sentencing judge.

The evidence is potentially significant

65. It is necessary for the Court to assess the potential significance of the evidence to the sentencing exercise. If the evidence was not potentially significant then “its admission is pointless”: Khoury at [108]. The reason that it is the potential significance which must be assessed is that the issue arises logically prior to the appeal court itself considering resentencing. The Court only gets to that stage after appellable error is established, as reflected in the three steps identified in Farrugia: note also Kentwell at [35] and [42]-[43].

66. There has been some variation in how this Court has expressed the potential significance requirement, as was alluded to in Jones at [98]; for example:

67. “[T]hat the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision”: Goodwin at 330; O’Hanlon at [39]; Jones at [91]; Lawavou at [129] and [134]; Elali at [134]; Shortland v R [2025] NSWCCA 206 at [71].

68. In Lawavou Yehia J added that “[i]n considering that test, the Court is to consider whether the additional material had the capacity or potential to materially impact the sentence” (at [129]). Similarly, in Tsiakas Beech-Jones J said that “something of real significance was required to be presented before this Court if it was to be capable of materially affecting the outcome of the sentencing hearing” (at [67], emphasis added).

69. The evidence has “real significance to the sentencing proceedings”: Fordham at 378.

70. The evidence has the “capacity to have affected the outcome” of the sentence proceeding: Khoury at [108]; Barnes at [28] and [46].

71. “[C]ompelling material was available”: Pym at [75].

72. “[M]aterial evidence was available and relevant to sentence”: Shortland 2024 at [46].

73. All of these formulations indicate that the evidence must be shown to have real potential significance to the sentencing exercise. They touch upon two interlinked issues: the significance of the chance that the material would have affected the sentencing exercise, and the degree to which the potential sentence would have been affected.

74. This issue now falls to be addressed in light of the acceptance in Farrugia that, at least in general, in sentencing appeals the question is whether the procedural irregularity could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed. As expressed, and consistently with the equivalent notion in conviction appeals, that goes to the likelihood of the irregularity having affected the reasoning and outcome.

75. When considering an appeal from a conviction that issue is considered in the context of a binary outcome at trial: guilty or not guilty. In sentencing, any potential effect on the reasoning and outcome is not binary, as sentences sit on a spectrum of possibilities. That being so, it is appropriate in cases such as this to address a further dimension as to the materiality of the potential effect. It is difficult to see why some other sentence should be regarded as warranted in law where further evidence could realistically have affected the reasoning and outcome on sentence but only to a very minor degree. The law does not concern itself with trifles: Williams v The Queen (1978) 140 CLR 591 at 602; [1978] HCA 49. The plurality in Kentwell said that if discretionary error is established then the Court “does not assess whether and to what degree the error influenced the outcome” (at [42]). That relates to the second step in considering a sentencing appeal, after vitiating error or irregularity is established. The issue here is what constitutes such an error or irregularity.

76. The natural way of expressing the notion might be to speak of the evidence potentially having a material impact or effect, being the language employed in Lawavou and Tsiakis. However, that usage might now be confusing given that the broader issue is expressed in terms of materiality (eg Farrugia at [6]). It is better to use other words, such as “not insignificant” or “more than trivial”.

77. The issue of the potential significance of the further evidence in cases such as this can thus appropriately be expressed by asking whether it could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed in a not insignificant way.

78. Contrary to a submission of the Crown, it is not necessary to show that the evidence would have resulted in a different sentence: note Lawavou at [129]. That could only be done by considering resentencing which, as noted in Farrugia at [31], is a subsequent step. Although further evidence admitted to avoid a miscarriage/irregularity commonly will lead to a lower sentence, that is not necessarily the case. For example, evidence of a mental health condition can pull in different directions on sentencing. More generally, sentencing is not a mathematical exercise and thus the appeal court simply may conclude that no lesser penalty is warranted even taking account of the further evidence.

Summary of applicable principles

73. In summary, the following principles apply with respect to a sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act where it is asserted that the sentence involved error or irregularity, in retrospect, because of a failure of the sentencing judge to consider facts not in evidence before them:

74. The ground of appeal in such cases is whether or not the sentencing exercise was affected by a practical injustice causing a vitiating procedural irregularity because the offender has been denied or not had a reasonable opportunity to put their case in mitigation. It is not necessary to attempt to characterise the complaint as House v The King error.

75. Whether further evidence should be admitted in such cases is intertwined with whether the ground of appeal is made out. In light of the principle of finality the admission of such evidence is exceptional. The issue depends upon consideration of the circumstances of the particular case. The key factors are whether there is a compelling explanation of why the evidence was not adduced before the sentencing judge (such as that the evidence is new, or was not adduced because of legal incompetence, or there are other extenuating circumstances), and whether the evidence could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed in a not insignificant way.

76. Evidence cannot be admitted in such cases if it relates to events that occurred purely subsequent to sentencing.

77. It is worth noting what these principles illustrate about the nature of a sentencing appeal under ss 5(1)(c) and 6(3). The focus on the material that was or could have been before the sentencing judge, as opposed to material arising purely subsequently, illustrates the established proposition that the appeal is not by way of rehearing: note Fisher v R [2026] NSWCCA 27 at [30]. The appeal is clearly not de novo, nor is it limited to questions or points of law. And the potential to admit further evidence in a sentencing appeal demonstrates that such an appeal cannot be characterised as an appeal stricto sensu: cf the decisions discussed in Fisher at [31]-[33]. On an appeal stricto sensu the appeal court is limited to the material which was before the lower court: see Mickelberg v The Queen (1989) 167 CLR 259 at 267; [1989] HCA 35; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [104]. A sentencing appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act is simply its own thing; it does not fit neatly into any pre-existing category. And the same characterisation would apply, for much the same reasons, to a conviction appeal under ss 5(1)(a) and (b) and 6(1) of the Act.

Background

Offending

75. The following factual summary is drawn from the statement of agreed facts tendered on sentence. The applicant was born in 1967 and was aged 50 at the time of the offending. The complainant was then aged 44.

76. The applicant and complainant had commenced a casual relationship around March 2016. That relationship appears to have ended at some point prior to May or June 2017, when the complainant moved to a unit by herself to “get away from the [applicant]”. In July of that year an ADVO was made in respect of the applicant for the protection of the complainant, which included a requirement that the applicant not assault or threaten the complainant and not damage or destroy her property.

77. On or about 1 December 2017 the applicant followed the complainant on the street, and she was unable to stop him following her into her unit. He remained in the unit for twelve days and did not let the complainant leave her home. He smashed her mobile phone. In that period he sexually and physically assaulted her on a number of occasions.

78. On 5 December he punched the complainant in the face and ribs, calling her a “putrid dog” and a “mutt” and threatening to “slit your throat” as she begged for the assault to stop. He then dragged her by the hair to the bedroom, removed her clothing and non-consensually digitally penetrated her (count 1 – sexual intercourse without consent). He said “turn me on cunt or I am going to smash your head”, before penetrating her vagina with a roll-on deodorant bottle while choking the complainant with his hand (count 2 – sexual intercourse without consent). The complainant was in immense pain, to which the applicant responded: “This will get me hard. Stop crying cunt. How am I supposed to get hard if you keep fucking crying shut up cunt”. The penetration went on for about an hour. The next morning the complainant asked to be taken to hospital. The applicant said “oh I am sorry, I don’t remember doing it, I drank too much”. He did not allow her to leave the unit. The applicant continued to assault the complainant over the next several days, punching her in the face and ribs.

79. On 8 December the applicant was drinking again. He said “I’m sorry I don’t want to hurt you but there are underlying issues”. The complainant said “please don’t hurt me again”. He commenced punching her in the face over and over again, screaming that she deserved to die. He hit her in the ribs so hard that she struggled for breath, and her nose was bleeding. He again told her that she deserved to die. He told the complainant to go to the bathroom to wash herself. When she returned the applicant put the complainant’s hand on his penis and tried to make her rub it. He then tried forcibly to have sex with her but was unable to obtain an erection (count 3 – attempted sexual intercourse without consent). At this stage the applicant retrieved two carrots that were under the pillow in the bedroom. He repeatedly penetrated the complainant with the carrots as well as his fingers at the same time (count 4 – sexual intercourse without consent). The applicant proceeded to put the complainant’s hand back on his penis and forced her to masturbate him, telling her: “Do something for me you fucking ugly cunt, you can’t even get me hard or make me cum” (count 5 – indecent assault). He ejaculated on the complainant’s breasts.

80. The applicant continued to detain the complainant in the following days. At one stage he said to her: “Look at your face I can’t remember doing that”. The victim replied: “What can’t you remember doing to me?” The offender said: “Shut up cunt” and backhanded her across the face, making her nose bleed.

81. On 12 December 2017 the applicant took the complainant with him in his car to the shops to buy cigarettes. When the applicant went inside the complainant escaped from the car and was taken to a police station by a bystander. She was treated for extensive injuries from the prolonged assaults, including fractures in her face, ribs and finger, cracked teeth, a haemorrhage on the right eye, and abrasion and tenderness in her genital area.

82. The applicant was arrested later that day at the complainant’s unit. He was refused bail. While on remand the applicant called his sister a number of times between 22 December 2017 and 16 January 2018 and instructed her to make contact with the complainant (count 6 – attempt to dissuade a potential witness in future criminal proceedings). He told her that she needed to speak to the complainant as he was going to be on remand for two years and the complainant was the only way he could get out. In a call on 22 December 2017 he told his sister to call the complainant at least twice a day and to tell her that he loved her. On another occasion he suggested that his sister contact the complainant’s daughter via Facebook. Later he told his sister to drive to the “psych ward” at Wyong Hospital to see if the complainant was a patient there.

83. On 14 January 2018 the applicant’s sister attended the Mental Health Unit at Wyong Hospital and obtained access to the complainant by posing as her mother. There was a short conversation in which the sister attempted to dissuade the complainant from giving evidence in the applicant’s prosecution. The complainant became extremely distressed.

84. The applicant was originally charged on indictment with the six offences just identified in the District Court in relation to these assaults. He was also charged by a court attendance notice with breaching the ADVO relating to the complainant between 2 and 12 December 2017. The precise condition breached was not identified but presumably related to the requirement that he not threaten or assault her (there is no evidence of a non-contact condition). That charge was transferred to the District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

85. On the day the trial was due to begin negotiations commenced between the parties, leading to a charge agreement on the third day. Ultimately only counts 2, 4 and 6, along with the ADVO offence, were pressed. Counts 1, 3 and 5 were taken into account on two Form 1s. The applicant pleaded guilty to the charges pressed. No kidnapping charge was brought.

The sentencing judgment

86. The sentencing judge delivered her judgment ex tempore after hearing submissions. A report of Mr Lee Knight, a registered nurse consultant in forensic mental health evidence, was tendered on behalf of the applicant. The Crown tendered a victim impact statement, the applicant’s criminal record, and a statement of facts for a previous offence. The Crown provided written submissions and both parties made oral submissions.

87. Mr Knight’s report contains passages concerning the applicant’s sexual history and Mr Knight’s opinion concerning the applicant’s mental state. Those passages indicate that Mr Knight asked the applicant about any history of child sexual abuse. The extent of the applicant’s disclosure was limited:

He initially denied being subjected to childhood sexual abuse, however he stated that whilst incarcerated in juvenile detention, a worker “flashed” at him “once or twice” whilst he was assisting with working around a house within the detention centre. He stated that this man walked out of the room wearing nothing but a towel with his penis exposed.

88. The applicant denied suffering from nightmares from this incident or another incident in which he had run over and killed a young boy while driving unlicensed. It was this latter incident which had resulted in him being in juvenile detention. Mr Knight ultimately opined that the applicant met the diagnostic criteria for antisocial personality disorder and fetishistic disorder, and that the same was likely also true for alcohol use disorder.

89. In the sentencing judgment her Honour first set out the charges and summarised the agreed facts before proceeding to assess the objective seriousness of the offences.

90. The sentencing judge took account of the impact of the offences on the complainant. The complainant was hospitalised for three months following the assaults, developed complex post-traumatic stress disorder (PTSD), self-harmed and attempted suicide twice, and continued to suffer other serious and ongoing psychiatric and emotional consequences resulting from the offending.

91. As regards the sexual offences, in terms of statutory factors aggravating the objective seriousness of the offence her Honour noted that the offences involved actual and threatened violence; that they were committed in the complainant’s home; that the injury and emotional harm caused to the complainant was substantial; and that the offences were committed while the applicant was on conditional liberty. Her Honour stated that the Form 1 matters reinforced the understanding that the offences pleaded to were not isolated events. She also noted that the agreed facts had been carefully crafted to avoid confusion with potentially more serious offences that may have been charged, and that she would take care to avoid potential De Simoni problems (referring to The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31).

92. Her Honour declined to accept as a mitigating factor that the offences were not part of a planned or organised criminal activity. This finding was apparently made because the mitigating factor was put by the applicant on the basis that he was intoxicated. She rejected that as a mitigating factor, and later also rejected the suggestion that self-induced intoxication had any role in reducing his moral culpability.

93. The sentencing judge concluded that the objective seriousness of the sexual offences was “high, far higher than a mid-range offence”.

94. As to the offence of attempting to dissuade a witness, her Honour referred to the fact that the applicant was well aware that the complainant had physical and mental health difficulties; that he was oblivious to the harm that further contact would cause to the complainant; that the requests to the sister were made over an extended period of time; that if the attempt had been successful the applicant would not have been brought to justice for the charged offences; and that he knew the complainant was in a mental health facility yet continued to insist his sister contact her. Her Honour ultimately characterised the dissuasion offence as “a serious example of the charged offence”.

95. Her Honour referred to factors that might be said to have impinged on the offender’s understanding of the serious nature of his offending. Importantly, her Honour said that “[t]here are no issues of his mental state or mental illness or intellectual functioning which might be causally related to his offending behaviour”. Her Honour considered that the disorders Mr Knight had identified – an anti-social personality disorder, a fetishism disorder and an alcohol abuse disorder – did not impact the offender’s moral culpability nor the objective seriousness assessment. Her Honour found that:

There appears to be no explanation for the offender’s violent sexual behaviour other than the fact that he felt entitled to act in this way towards a domestic partner due apparently to his hostility towards her which appears, according to the mental health assessment, by his own mental health forensic assessor to be a general hostility towards women.

96. Her Honour later noted:

[The applicant] reports suffering from severe anxiety waiting for these matters to be dealt with in court. That is not an unusual condition for someone waiting to be sentenced to be in, it is not unusual. He presents with no other difficulty with respect to his assessment. As I have observed, the psychiatric assessment notes an impression that his presentation is consistent with the criteria for antisocial personality disorder. In that regard I would note that an observation of the [applicant’s] record would support such a finding. The suggested fetishist disorder really is taken from the facts in these proceedings and is not of assistance and an alcohol use disorder currently in remission because the offender is in custody.

97. Her Honour did not accept the submission that the applicant had demonstrated remorse, finding that the applicant saying “sorry” to the complainant before hitting her again did not demonstrate an acceptance of responsibility for his actions and their consequences.

98. Her Honour found that the applicant’s “significant criminal history” disentitled him to any leniency. The applicant’s criminal history was also relevant because it undermined the applicant’s submission that the offences were out of character given that the history included past offences of domestic violence. The history included the following (based on the record before this Court):

99. He was convicted of contravening an apprehended violence order in 2001 and placed on a good behaviour bond.

100. In 2004 he was convicted of common assault, for which he was placed on another bond. The bond was called up in 2005 and he was placed on a suspended sentence of imprisonment.

101. In 2005 he was dealt with for a further contravene ADVO and criminal damage, for which he was placed on a suspended sentence. That sentence was called up in 2006 and he was placed on periodic detention.

102. In 2011 he was sentenced for a domestic violence assault occasioning actual bodily harm and contravene an ADVO, for which he was again placed on a suspended 12 month sentence.

103. In 2013 he was dealt with for a contravene ADVO, for which he was imprisoned for a total term of seven months with a non-parole period of three months, which was reduced on appeal to two months.

104. In 2013 he was sentenced to seven months imprisonment with a three month non-parole period for contravening an ADVO.

105. In 2014 he was sentenced for a break and enter, associated assault occasioning actual bodily harm, possession of a prohibited drug and breach of an ADVO, for which he was sentenced to a term of imprisonment of two years with a non-parole period of 12 months, which period was reduced to five months on appeal.

106. In 2015 he was sentenced to a term of imprisonment of 12 months with a non-parole period of nine months for common assault and stalk and intimidate charges. He also was placed on a three year good behaviour bond for destroy/damage property. That bond was called up twice, leading to a sentence of three months imprisonment being imposed in 2018.

107. Leaving aside that past offending her Honour found, based upon Mr Knight’s report, that the applicant’s background manifest “an unremarkable past history”. He had worked off and on as a plumber and a gasfitter, with some periods of unemployment. He had had five children from two relationships.

108. The sentencing judge found that given his record, his lack of remorse, and his lack of acceptance of responsibility for the harm he had caused, the applicant did not have good prospects of rehabilitation. There was a need for specific deterrence in the applicant’s case.

109. Her Honour allowed a discount of 10% on the sentence for the utilitarian benefit of the applicant’s late guilty plea.

110. The sentencing judge noted that no submissions were made as regards parity in relation to Count 6, where the applicant’s sister had not yet been sentenced. I note that this Court was not informed of what, if any, penalty had been imposed on the sister.

111. Her Honour noted that no finding of special circumstances had been urged as regards the relationship between the head sentence and non-parole period. She acknowledged the purposes of sentencing, and the importance of ensuring the applicant was adequately punished, that he and others were deterred, and that the community was protected.

112. Her Honour chose to impose separate sentences rather than an aggregate sentence. She held there should be some period of concurrency. The following sentences ultimately were imposed:

| Count | Offence | Maximum sentence**/** Any standard non-parole period (SNPP) | Sentence imposed | | Count 2 Count 1 taken into account on Form 1 | Sexual intercourse without consent (deodorant bottle) s 61I, Crimes Act 1900 (NSW) | 14 years SNPP: 7 years | 10 years NPP 7 years 6 months To date from 11.03.2020 NPP concluding 10.09.2027 | | Count 1 Form 1 | Sexual intercourse without consent (digital penetration) s 61I | 14 years SNPP: 7 years | | | Count 4 Counts 3 and 5 taken into account on Form 1 | Sexual intercourse without consent (carrots/vaginal penetration) s 61I | 14 years SNPP: 7 years | 12 years NPP 8 years To date from 11.03.2022 NPP concluding 10.03.2030 | | Count 3 Form 1 | Attempt to have sexual intercourse without consent (attempted penile/vaginal) s 61I | 14 years SNPP: 7 years | | | Count 5 Form 1 | Indecent assault (forced masturbation of penis) s 61L, Crimes Act | 5 years | | | Count 6 | Attempt to dissuade witness from giving evidence s 325(1), Crimes Act | 5 years | 2 years 8 months fixed term. To date from 11.03.2018 –10.11.2020 | | Charge transferred pursuant to s 166 | Contravene Apprehended Domestic Violence Order s 14(1), Crimes (Domestic and Personal Violence) Act 2007 (NSW) | 2 years | 12 months To date from 11.3.2020 (wholly concurrent with Count 2 sentence) |

105. The net effect of these sentences was a 16 year term of imprisonment with a non-parole period of 12 years, commencing from 11 March 2018. That start date was chosen even though the applicant had been arrested on 12 December 2017 because of the need to take account of a three month term of imprisonment imposed after that date for an unrelated breach of an apprehended violence order.

Leave to appeal out of time

106. The applicant was sentenced on 28 February 2020. He filed a notice of intention to appeal within time on 4 March 2020 and subsequently filed a Legal Aid application. As no notice of appeal was filed within the 12 months for which the notice of intention to appeal had effect, the applicant requires leave to appeal out of time: Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3) and 3.5(5).

107. An affidavit of the applicant’s current solicitor, Mr Julian Stevens, addresses the events which led to this application. That affidavit evidence was not challenged by the Crown and should be accepted. Mr Stevens deposed that the applicant received a merits advice from a barrister briefed by Legal Aid about his prospects on appeal, the result of which was that the applicant’s matter was closed.

108. Sometime in 2021, while in gaol, the applicant encountered a pamphlet relating to the National Redress Scheme for people who experienced institutional child sexual abuse. A civil law firm commenced acting for him in July 2021. A statement of claim was filed in the District Court in December 2023. The matter resolved at mediation in February 2024, with the applicant receiving a financial settlement and a letter of apology from the Department of Communities and Justice (DCJ). In the course of that matter a psychological report was produced on 24 November 2022 by Dr Matthew Tagkalidis, a consultant psychiatrist.

109. In that context, in July 2023 the applicant submitted a further application for Legal Aid for the purposes of re-considering the possibility of an appeal against sentence. The matter was assigned to a solicitor there in October 2023, then reassigned to Mr Stevens in August 2024. That same month a merits advice was provided by counsel. Mr Stevens indicates that because of the financial settlement the applicant had obtained, additional approval needed to be obtained within Legal Aid for the organisation to continue working on the applicant’s matter. That was sought in September 2024. It seems that further information was required from the applicant. That further approval was eventually given in March 2025.

110. In May and June 2025 Mr Stevens organised the obtaining of a further psychological report for the purposes of the appeal from Mr Patrick Sheehan, a forensic psychologist. The report was provided on 25 June 2025. Counsel then recommended some additional inquiries be made, which apparently required a further internal Legal Aid approval. In the following months Mr Stevens took some leave and had a heavy caseload. The relevant inquiries were finalised by the end of November 2025. Counsel provided the settled ground and submissions on 1 February 2026 and the matter was filed three days later.

111. The relevant legal test is whether the interests of justice favour permitting the application for leave to appeal to be heard, notwithstanding that it was brought out of time: Kentwell at [30]-[32]. Both parties’ submissions reflected the fact that the issue of an extension of time overlaps substantially with the question of whether leave to adduce further evidence should be granted. The applicant deciding not to disclose his history of sexual abuse to Legal Aid until July 2023 bears on both of those issues. For the reasons set out below the further evidence should be admitted. That evidence explains why the applicant, like many survivors of childhood sexual abuse, only made a limited and piecemeal disclosure of that abuse prior to being sentenced in the District Court.

112. There were significant delays between the applicant obtaining the report of Dr Tagkalidis in November 2022, for the purposes of his civil claim, and the commencement of this appeal. Some of those delays seem to be due to the applicant, and most due to various delays relating to Legal Aid processes. The latter delays are regrettable but, in this matter, should not be held against the applicant. In all the circumstances, it is in the interests of justice that time be extended.

The further evidence and claimed vitiating procedural irregularity

113. The applicant sought leave to rely on an explanatory affidavit affirmed by him along with the psychological reports prepared by Dr Tagkalidis and Mr Sheehan. The Crown objected to the admission of that evidence on the basis that it was not before the sentencing judge. The Crown accepted it should provisionally be received by the Court. The applicant was cross-examined on that basis.

114. It is convenient first to refer to the contents of the two psychological reports, then to address the applicant’s explanation of why he did not raise his experience of childhood sexual abuse prior to being sentenced in February 2020, before considering whether the further evidence should be admitted and whether it establishes the claimed irregularity.

Further evidence sought to be adduced

115. As noted, Dr Tagkalidis’ report was prepared in November 2022 for the purposes of the applicant’s civil claim against DCJ. The applicant gave Dr Tagkalidis a detailed account of the sexual abuse he experienced while in juvenile detention. That account was not challenged by the Crown. That the abuse occurred is supported by the fact that DCJ itself accepted as much, apologised, and paid compensation.

116. In short, when the applicant was aged 16 he was sentenced to a period in custody because, when driving, he had hit and killed a 9 year old child riding a bike. Whilst in custody he was sent to a training school where, aged 17, he was twice abused within the first two weeks of his stay by a “section officer”, being a male aged in his 40s. The first time he was forced to fellate the officer, who ejaculated into his mouth. The second time the officer anally raped the applicant, ejaculating inside him.

117. He first disclosed the abuse in 1993 to his then partner, whilst drunk, but thought she did not believe him.

118. Dr Tagkalidis concluded that the applicant was afflicted by persistent depressive disorder, complex PTSD and alcohol use disorder (in remission in gaol). He considered that the applicant “was developing largely normally in life prior to the car accident incident”. The sexual abuse was said to have “caused a substantial and irretrievable detrimental effect on his emotional trajectory which resulted in major compromises in his functioning and emotional wellbeing”. Dr Tagkalidis considered that the abuse incidents “and their long term sequelae contribute approximately 70% of his long term and ongoing emotional vulnerability and distress, and the remaining 30% results from the car accident incident preceding his detention”. In his view the effects of the abuse had altered the applicant’s life trajectory, and had affected many aspects of the applicant’s life including his “intimate interpersonal relationships”.

119. Mr Sheehan, in his report, indicated he had discussed the applicant’s experience of sexual abuse with him. The applicant had said that he “only gave a partial account of the events to [Mr Knight] because he was not ready to discuss the matter in any detail, having long avoided discussing or recognising it at all”. The applicant recalled “feeling shamed and ‘not wanting to tell anyone anything’ for fear of being judged”. He reported “feeling inadequate, worthless and ‘less of a man’ because of what happened”. The applicant reported that the experience of abuse “affected his relationships with women, feeling insecure, ‘belittled’, and overcompensating with aggressive anger”.

120. Mr Sheehan noted that the applicant “reported a long term vulnerability to substance abuse” beginning at age 13, being before he was sexually assaulted at age 17.

121. Mr Sheehan agreed with Dr Tagkalidis’ diagnosis of PTSD, linked to the applicant’s experience of sexual abuse. He did not offer an opinion on the relative proportion of the applicant’s mental distress caused by the abuse as opposed to the death that he had caused.

122. Mr Sheehan also concurred in the diagnosis of alcohol use disorder, in remission in a controlled environment, noting that the applicant met the criteria for polysubstance use disorder. Mr Sheehan agreed with Mr Knight that the applicant met the criteria for antisocial personality disorder, but did not agree that the applicant met the criteria for fetishistic disorder. In respect of antisocial personality disorder, Mr Sheehan said:

I cannot agree with the opinion of Dr Tagkalidis (24 November 2022) that Mr Jacono’s development was following “a largely normal life” prior to the onset of trauma aged 16-17 years. It is my view that the evidence shows a trajectory towards antisociality prior to the trauma experiences, and that the trauma experiences aggravated or exacerbated preexisting problems with his personality development.

123. Mr Sheehan concluded as follows:

Given that Mr Jacono reported poor memory of this offending, he was unable to assist in examining his thinking at the time and any possible specific causal link to his PTSD. Under the circumstances, I can offer no direct specific causal link between the sexual humiliation aspects of Mr Jacono’s offending and his PTSD. … In my view the broader platform for his partner violence (alcoholism, emotional dysregulation, anger, insecurity and overcompensation through aggression) can be linked to his PTSD as these factors are known correlates of PTSD. That is, his PTSD has influenced his alcoholism, emotional dysregulation, anger, insecurity and overcompensation through aggression, which are all features of his domestic violence behaviours.

124. The conclusions of the two psychological reports were not challenged by the Crown and should be accepted. Where there are differences I prefer the report of Mr Sheehan. It is more recent and manifests a careful and balanced assessment directed to the issues at hand.

125. Specifically, I reach the following conclusions, which are also consistent with the evidence of the applicant himself given in this Court. The applicant suffers complex PTSD which is causally linked to his experience of childhood sexual abuse, although not solely caused by that abuse. The applicant has antisocial personality disorder, the tendency towards which pre-existed the sexual abuse but was exacerbated by it. The applicant has alcohol use disorder, in remission whilst in custody, but he does not have a fetishistic disorder. The sexual abuse altered the applicant’s life trajectory and affected, amongst other things, his intimate relationships with women. It cannot be said that the applicant’s PTSD played a direct causal role in the subject offending, but that condition, and generally his experience of childhood sexual abuse, played at least an indirect causal role insofar as it had manifested in alcoholism, emotional dysregulation, anger, insecurity and overcompensation through aggression.

The applicant’s explanation for his limited disclosure prior to sentencing

126. As noted, the applicant was asked specific questions by Mr Knight about having had any experience of child sexual abuse. He made only a partial disclosure, saying that a male corrective services worker had “flashed” his penis at the applicant while he was in custody as a juvenile.

127. The applicant described the reason for his late full disclosure of the childhood sexual abuse in an affidavit. He said, consistently with what he told Dr Tagkalidis, that he had first disclosed his experience to a previous partner while very drunk and this experience had “made me crawl back into myself even more and continue to keep the abuse a secret”. As a result, he did not mention the abuse to the solicitor representing him on sentencing as he “wasn’t ready to talk about it”. When Mr Knight asked the applicant whether he had ever experienced child sexual abuse, the applicant deposed that he “froze and didn’t know what to say”. He “felt embarrassed and ashamed” and “put on the spot” and he “wasn’t ready to tell the full truth about the abuse and its effects on me”. The applicant said he “did not understand the full effects this experience had on me and that this could be something relevant or important to my sentencing”.

128. He referred to seeing a pamphlet about the National Redress Scheme and engaging with the scheme, which then gave him details for two law firms, leading him to retain one. Subsequently, after reading the report of Dr Tagkalidis, he discussed it with another inmate who told him it could have been relevant to his sentencing. That inmate helped put him in contact with a lawyer. That lawyer helped him submit a Legal Aid application.

129. In cross-examination, the Crown sought to elicit an admission that the applicant had understood the relevance of his experience to the sentencing proceedings but had nevertheless made a deliberate choice not to disclose it to Mr Knight. The applicant agreed that he had made an active decision not to speak to Mr Knight about his experience of abuse but maintained that he had not appreciated that that experience would be relevant to his sentence.

130. The applicant was asked why he had talked candidly with Mr Knight about his other intimate sexual experiences and interests but not the childhood abuse. He explained that he was comfortable talking about matters of an intimate nature when they had been “with a woman”. I understood the applicant’s evidence to be to the effect that he had been comfortable talking about his heterosexual sexual history and that, given the nature of the offences, he understood past sexual encounters “between me and females” to be relevant to the sentence imposed. He was not, however, prepared to speak about the sexual assault by a male prison officer, especially in circumstances where the applicant testified that he had not been mentally prepared to participate in such an interview: “I wasn’t even consulted about this psych report … The officers just called me up and I went into AVL”. Moreover, he did not appreciate that an event of that nature, involving a male perpetrator, could be relevant to his sexual offending against a female complainant.

131. The Crown seemed to suggest in questioning that the applicant made some sort of forensic calculation about keeping the evidence to himself, or at least that he had understood it might be relevant. The only specific matter referred to in that regard arose when the Crown adduced evidence from the applicant about the possibility of a “payout” having something to do with his decision to disclose the abuse. The applicant candidly agreed that this was one factor in his decision-making: he thought that “it would be a good thing for someone to pay for what happened to me”. But the point does not lead anywhere. There is no reason to think that he would have got a larger payout by not disclosing the abuse in his sentencing. Indeed, there was no apparent rational or strategic reason for him not to disclose the abuse to his then solicitor and Mr Knight.

132. The Crown also submitted that there was some element of the applicant seeking to recast his case. The position adopted on his behalf before the sentencing judge was to the effect that what occurred was something of an aberration driven by alcohol (a submission not accepted by her Honour). In this Court it was submitted that his behaviour was causally linked to his complex PTSD, and was thus more intrinsic. Yet the change is really an evolution in position, not a dramatic departure, given that the new evidence indicates the applicant’s alcoholism is linked to his mental health condition and his experience of sexual abuse.

133. Having observed him closely, I accept the applicant’s evidence in relation to why he did not disclose his abuse to his previous solicitor or to Mr Knight. His answers were consistent with previous representations in his affidavits and psychological evaluations. He appeared to be endeavouring to give honest answers based on his best recollection of events six years ago.

The evidence should be admitted and a vitiating irregularity is established

134. The applicant has provided a cogent and compelling explanation of why he did not disclose the past sexual abuse to either Mr Knight or his solicitor. He did not appreciate the potential significance of that abuse to his sentencing, and in any event was not emotionally or psychologically ready to disclose it. This evidence persuasively explains why the evidence in question was not raised at first instance. There is no hint of it being a choice made for forensic reasons.

135. The further evidence could realistically have affected the reasoning of the sentencing judge to the sentence that was imposed in a not insignificant way. As noted above (at [95]-[96]), the sentencing judge expressly proceeded on the basis that there were no issues of the applicant’s mental state being causally related to his offending behaviour, and there appeared to be no explanation for his violent sexual behaviour beyond a sense of entitlement related to a general hostility towards women. It is apparent with the benefit of the further evidence that these findings were incompletely informed. Those findings appear to have been material to the sentencing exercise undertaken by her Honour. Conversely, as discussed further below, the applicant lost the opportunity to argue that the history of childhood sexual abuse and its consequences on his mental health and state reduced his moral culpability for the sexual offending and the breach of the ADVO and reduced his suitability as a vehicle for general deterrence. Those points are ones of significance in sentencing the applicant.

136. The applicant has established a compelling case that, in light of the further evidence, a vitiating injustice and procedural irregularity has occurred, as he has not had a reasonable opportunity to put his case in mitigation. For that reason the further evidence – being his explanation for the limited earlier disclosure and the two psychological reports – should be admitted and the ground of appeal is made out. It is thus necessary to consider resentencing.

Resentencing

137. The applicant did not challenge any of the findings of the sentencing judge other than, based upon the new evidence, those relating to mental health and Bugmy considerations, along with his prospects of rehabilitation. Leaving those factors aside, I will proceed upon the findings of the sentencing judge, including as to the aggravating factors, objective seriousness and subjective circumstances. No complaint was made about the sentencing judge’s choice of starting date for the sentence, being 11 March 2018, and that also should be accepted.

138. The applicant is, of course, only to be sentenced for the matters with which he was charged and not, for example, his extended detention of the complainant, although that detention does form part of the context of his charged offending.

139. His sexual offending was brutal. He caused very substantial ongoing trauma to the complainant. The sentencing judge characterised the two offences as “far higher than a mid-range offence”.

140. The offending the subject of the dissuasion charge was extended and reprehensible, seeking to pressure a vulnerable person. The sentencing judge characterised it as “a serious example of the charged offence”.

141. Her Honour did not make findings in terms in relation to the objective seriousness of the contravention of the ADVO charge. The charge encompasses conduct over a 12 day period involving repeated threats and physical assaults, leaving aside what occurred with respect to the sexual assaults the subject of the other charges. I would characterise his extended behaviour as above mid-range in its seriousness. That the applicant acted as he did in defiance of the ADVO protecting the complainant attracts a need for specific and general deterrence and for denunciation: note Cherry v R [2017] NSWCCA 150 at [80].

142. The digital penetration charge was included on a Form 1 with respect to Count 2, and the attempted sexual intercourse and indecent assault charges were included on Form 1 with respect to Count 4. Those Form 1 charges increase both the need for personal deterrence of the applicant and the community’s entitlement to exact retribution for serious offences in relation to the two sexual offences for which he is being sentenced.

143. The applicant’s criminal record disentitles him to leniency, as the sentencing judge found. It also illustrates repeated breaches of ADVOs and threats and violence directed to partners (see above at [98]). The need for specific deterrence is a matter of significance in this sentencing task.

144. Subject to what follows, general deterrence is important as regards all four of the counts for which he is being sentenced. That is particularly so as regards the attempted dissuasion of a witness charge as such attempts tend to undermine the administration of justice and, if successful, will be difficult to detect or prove.

145. My findings about the significance of the applicant’s experience of childhood sexual abuse, based on the two further psychological reports, are set out above at [124]. The findings that he suffers from complex PTSD linked to that abuse, and that the abuse and PTSD materially contributed to the offending, are relevant insofar as they somewhat reduce his moral culpability for the sexual offending and the breach of the ADVO, and somewhat reduce the suitability of the applicant as a vehicle for general deterrence: note Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; see further Oliver v R [2025] NSWCCA 227 at [85]-[91]. However, I do not consider that it reduces his moral culpability or suitability for deterrence as regards the dissuasion offence, which was distinct, persistent and calculated conduct undertaken in order to seek to end his imprisonment. In my view the further evidence does not reduce the need for specific deterrence.

146. I do not consider that the further evidence gives any reason to conclude that the applicant’s time in custody weighs more heavily upon him.

147. The applicant’s counsel also referred in passing to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in this regard, although he said “this is not a quintessentially Bugmy situation”. It does not add anything to refer to Bugmy in this case. As the sentencing judge held, the applicant’s background was relatively unremarkable. That assessment now must be seen in light of the new evidence, but the significance of that evidence is taken into account sufficiently in the manner just identified.

148. Protection of the community is an important matter in this sentencing exercise, taking account of the nature of the subject offending and of the applicant’s criminal history. The diagnosis of antisocial personality disorder, and the causal role played by the applicant’s PTSD in his subject offending, tends to add to the significance of this factor. That being said, these concerns must also be seen in the context of the following evidence.

149. The applicant provided further evidence on the usual basis that since being remanded in custody he has had one internal charge for making alcohol; he has otherwise been well behaved; he has always worked when it was available to him; he has done a couple of TAFE courses; and he is now on C1 minimum classification. He is now on speaking terms with all five of his children, where previously he was estranged from two of them. He has also reconnected with his brother since being in custody. He gave evidence about future plans for when he is released from custody. These factors suggest he has made some progress in getting his life into order and restoring prosocial family ties.

150. He also stated:

Being in gaol has given me so much time to reflect. I have thought about all the things I have done and where I was at in my life and it is pretty scary to think about. When I think about my offending and the pain I have caused, I look back on it with disgust. Being in here and not drinking has given me the clarity to do that and I don’t ever want to go back to that. I have to do it not only for my kids but for myself.

151. In his oral evidence in this Court the applicant referred to his disclosure of his childhood abuse being “the best thing I done”, then said:

I was in different mind when I come to gaol. I was a totally selfish, disrespectful, alcoholic. And that’s basically was a nutshell for me. And I never want to go back to that life ever again. All the trouble I’ve caused people over the years it was disgusting. I don’t know.

You know, I can’t go back and change it, but I certainly can fix the future. And that’s, you know, regardless of what happened I’m still going to be the same person on 10 March 3030 [as said]. You know, that’s my earliest possible release date. And, you know, I get out that day. Well that’s the day I get out, but I definitely don’t want to go back to my old life.

152. I am prepared to accept that the applicant believed what he was saying. It must also be understood in a context where his alcohol use disorder is in remission due to him being in detention. Whether it remains in remission upon release is open to question. More generally, given his criminal history and his mental health conditions, there is cause for concern about his future behaviour when he is released. That said, I note that the applicant is now nearly aged 59 and will be in his 60s when he becomes eligible for parole. Mr Sheehan noted that the actuarial risk assessment indicates that the applicant will drop to a below average risk range after he turns 60.

153. Taking account of all of this further evidence, I consider that the applicant has some prospects of rehabilitation, being better prospects than appeared to the sentencing judge. Even in light of Mr Sheehan’s evidence, however, I remain of the view that protection of the community is of particular importance here.

154. The applicant suggested that the evidence also supported a finding of remorse. I disagree. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that remorse may be a mitigating factor if the offender has provided evidence that he has accepted responsibility for his actions, and has acknowledged or made reparations for any injury, loss or damage caused by his actions. These criteria are not met here. The sentencing judge correctly found that there was no evidence of remorse before her. The further evidence does not rise to the level of the applicant accepting responsibility for his actions with respect to the complainant and acknowledging the substantial harm he inflicted upon her.

155. I recognise the relevance of the other purposes of sentencing, including ensuring that the offender is adequately punished, denouncing his conduct, and recognising the substantial harm caused to the complainant.

156. The applicant gave evidence that he was subject to very long periods of isolation in custody due to COVID-19. I accept that that fact has made his time in custody somewhat more onerous that it would otherwise have been.

157. The applicant is entitled to a 10% discount on sentence for the utilitarian benefit of his late guilty pleas.

158. The relevant maximum penalties are 14 years for the two s 61I charges (with a standard non-parole period of 7 years), 5 years for the dissuasion offence, and two years for the contravene ADVO charge. There is no doubt that a sentence of imprisonment is necessary for these offences. I note that the applicant again did not articulate reasons for making a finding of special circumstances, beyond suggesting that the further evidence demonstrates that his time in custody will be more onerous, being a submission I have rejected.

159. I propose that the Court impose an aggregate sentence, indicating the following sentences after allowing the 10% discount:

160. for Count 2 (taking account of Count 1), 9 years with a non-parole period of 6 years 9 months;

161. for Count 4 (taking account of Counts 3 and 5), 9 years 10 months (rounded down), with a non-parole period of 7 years 4 months and 15 days,

162. for Count 6, 2 years 8 months (rounded down);

163. for the ADVO count, 1 year 1 month 15 days;

164. With respect to totality, as the Crown submitted there were three episodes of serious offending, albeit that two of the three were in the context of the applicant detaining the complainant: Count 2 occurred on 5 December 2017; Count 4 occurred on 8 December 2017, and was something of an escalation; and Count 6 occurred in December 2017 and January 2018, whilst the applicant was in custody. The period of the ADVO count encompassed the first two occurrences. There should be some degree of concurrency allowed, including so as to prevent the sentence being crushing.

165. Taking account of all the circumstances, in my view the appropriate aggregate sentence is 14 years, commencing on 11 March 2018, with a non-parole period of 10 years 6 months. The applicant will become eligible for parole on 10 September 2028.

Orders

162. The orders of the Court should be as follows:

163. Extend time for filing the notice of appeal to 4 February 2026.

164. Grant leave to appeal.

165. Allow the appeal.

166. Quash the sentences imposed by Syme DCJ on 28 February 2020 and, in lieu thereof, sentence the applicant to an aggregate sentence of 14 years commencing on 11 March 2018 and expiring on 10 March 2032 with a non-parole period of 10 years and 6 months expiring on 10 September 2028.

167. LONERGAN J: I agree with Kirk JA.

168. WEINSTEIN J: I agree with Kirk JA.

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