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[2026] NSWCCA 153
Court of Criminal Appeal (NSW)
2026-09-30
Leeming JA at [1] Fagan J at [4] Emmett J at [13]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: King v R [2026] NSWCCA 153
Hearing dates: 14 September 2026
Date of orders: 30 September 2026
Decision date: 30 September 2026
Before: Leeming JA at [1]
Fagan J at [4]
Emmett J at [13]
Decision: (1) Pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW), extend time for bringing the application to 14 September 2026;
(2) Grant leave to appeal and allow the appeal;
(3) Quash the sentence imposed by the District Court on 16 May 2025 and in lieu thereof the applicant is sentenced as follows:
(a) For the Parklea offence, a sentence of 3 years’ imprisonment, commencing on 10 May 2023 and expiring on 9 May 2026, with a non-parole period of 1 year and 11 months, expiring on 9 April 2025.
(b) For the Blacktown offences, an aggregate sentence of 5 years and 6 months’ imprisonment, commencing on 10 April 2024 and expiring on 9 October 2029, with a non-parole period of 3 years and 3 months, expiring on 9 July 2027.
Original judgment source is linked above.
Catchwords: CRIME — Appeals — Appeal against sentence — Misapplication of principle — whether sentencing judge erroneously applied s 56 of Crimes (Sentencing Procedure) Act 1999 (NSW) — whether public policy underlying provision should still be taken into account on re-sentence
CRIME — Appeals — Appeal against sentence — Misapplication of principle — where sentencing judge discerned special circumstances warranting a non-parole period less than 75% of the head sentence — whether sentencing judge erred in sentencing applicant to an overall non-parole period that comprised 83.75% of the combined total sentence
CRIME — Appeals — Appeal against sentence — Re-sentence — where applicant sought departure from sentencing judge’s findings without bringing grounds of appeal in relation to those matters — findings made by sentencing judge were reasonably open — re-sentence on basis of sentencing judge’s findings — fresh evidence received on usual basis taken into account
CRIME — Appeals — Appeal against sentence — Extension of time in which to appeal — where plaintiff’s explanation for delay unsatisfactory — where Crown did not contest presence of errors — where Crown did not point to any particular prejudice arising from grant of extension — extension granted
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 56
Crimes Act 1900 (NSW), ss 59. 97(1), 112, 154F
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 10(1)(b)
Cases Cited: Al Maouie v R [2022] NSWCCA 30
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
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Duncan v R [2026] NSWCCA 19
Hancock v R [2025] NSWCCA 213
Harris v R [2021] NSWCCA 322
Hraichie v R [2022] NSWCCA 155
Quinlan v R [2021] NSWCCA 21
R v Fyffe [2002] NSWSC 751
R v Jeremiah [2016] NSWCCA 241
R v Millwood [2012] NSWCCA 2
Steele v R [2026] NSWCCA 99
Turnbull v R [2019] NSWCCA 97
Category: Principal judgment
Parties: Jonnathon King (Applicant)
Rex (Respondent)
Representation: Counsel:
A Bonnor (Applicant)
S Coombes (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00044237; 2024/00008778
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant entered pleas of guilty in the District Court for five offences, being:
(1) aggravated break and enter, contrary to s 112 of the Crimes Act 1900 (NSW) (sequence 6);
(2) robbery in company, contrary to s 97(1) of the Crimes Act (sequence 2);
(3) a second count of robbery in company, contrary to s 97(1) of the Crimes Act (sequence 3);
(4) steal motor vehicle, contrary to s 154F of the Crimes Act (sequence 4);
(together, the Blacktown offences); and
(5) assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act (the Parklea offence).
On 16 May 2025, his Honour Judge Colefax SC sentenced the applicant as follows:
(1) For the Blacktown offences, an aggregate term of 5 years and 8 months’ imprisonment commencing 10 February 2023 and expiring on 9 October 2028, with a non-parole period of 3 years and 8 months expiring on 9 October 2026. In doing so, the sentencing judge nominated indicative head sentences of:
(a) sequence 6: 3 years and 7 months’ imprisonment, with an indicative non-parole period of 2 years and 3 months’ imprisonment.
(b) sequence 2: 3 years and 4 months’ imprisonment, with an indicative non-parole period of 2 years and 6 months’ imprisonment.
(c) sequence 3: 3 years and 4 months’ imprisonment, with an indicative non-parole period of 2 years and 6 months’ imprisonment.
(d) sequence 4: 1 year and 2 months’ imprisonment, with an indicative non-parole period of 10 months’ imprisonment.
(2) For the Parklea offence, a sentence of 3 years commencing on 10 October 2026 and expiring on 9 October 2029, with a non-parole period of 1 year and 11 months expiring on 9 September 2028.
On the application for leave to appeal against the sentence, the applicant contended that:
(1) the sentencing judge erroneously proceeded on the basis that s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied; and
(2) although the sentencing judge discerned special circumstances warranting that all of the sentences have a non-parole period less than 75% of the head sentence, the combined effect of the sentences was that the applicant was sentenced to a total of 6 years and 8 months’ imprisonment with a non-parole period of 5 years and 7 months (ie, a ratio of 83.75%).
The Crown advanced no argument to the contrary.
The Court (Emmett J, Leeming JA agreeing with additional reasons, and Fagan J dissenting in relation to re-sentence) unanimously granted leave to appeal against sentence and allowed the appeal against sentence. The applicant was resentenced by the majority on the following terms (Emmett J, Leeming JA agreeing, Fagan J dissenting):
(1) For the Parklea offence, a sentence of 3 years’ imprisonment, commencing on 10 May 2023 and expiring on 9 May 2026, with a non-parole period of 1 year and 11 months, expiring on 9 April 2025.
(2) For the Blacktown offences, an aggregate sentence of 5 years and 6 months’ imprisonment, commencing on 10 April 2024 and expiring on 9 October 2029, with a non-parole period of 3 years and 3 months, expiring on 9 July 2027.
Section 56 of the Sentencing Procedure Act
(3) The sentencing judge erred in his application of s 56 of the Crimes (Sentencing Procedure) Act. The defined term “convicted inmate” does not include an inmate being held in custody on remand. Accordingly, s 56 did not apply: [61]-[63] (Emmett J, Leeming JA at [1] and Fagan J at [4] agreeing).
R v Jeremiah [2016] NSWCCA 241 applied.
Special circumstances in relation to the non-parole period
(4) Having found that special circumstances existed in relation to sentencing for all offences, the sentencing judge erred by setting an effective non-parole period substantially longer than 75% of the head sentence, without acknowledging or providing reasons for having done so: [64]-[65] (Emmett J, Leeming JA at [1] and Fagan J at [4] agreeing).
Duncan v R [2026] NSWCCA 19 applied.
Leave to appeal against sentence
(5) The circumstances of the case warranted a grant of leave to appeal: [67] (Emmett J, Leeming JA at [1] and Fagan J at [4] agreeing).
(6) Although the plaintiff’s explanation for delay was not satisfactory. There was no real dispute that errors arose in the case, and the Crown did not point to any particular prejudice that might arise from the grant of an extension. Accordingly, an extension of time to appeal was granted: [68] (Emmett J, Leeming JA at [1] and Fagan J at [4] agreeing).
Steele v R [2026] NSWCCA 99 applied.
Re-exercise of sentencing discretion and further evidence
(7) It was necessary for the Court to re-sentence the applicant for both the Blacktown offences and the Parklea offence: [69] (Emmett J, Leeming JA at [1] and Fagan J at [4] agreeing).
(8) The applicant submitted that the Court should depart from the sentencing judge’s findings on sentence in three respects which were not the subject of any separate ground of appeal in relation to those matters and which were not affected by fresh evidence received on the usual basis. The Court was satisfied that the findings made by the sentencing judge concerning those matters were reasonably open: [70]-[80] (Emmett J, Leeming JA at [1] and Fagan J at [8] agreeing).
Hancock v R [2025] NSWCCA 213 applied; DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 applied.
(9) The applicant was re-sentenced on the basis of the sentencing judge’s findings, except so far as the position was altered by fresh evidence received on the usual basis. Post-sentence evidence going to the applicant’s prospects of rehabilitation and experience of onerous conditions in custody were taken into account: [81]-[89] (Emmett J, Leeming JA at [3] and Fagan J at [4] agreeing).
R v Turnbull [2019] NSWCCA 97; R v Millwood [2012] NSWCCA 2 considered; Harris v R [2021] NSWCCA 322 considered; Quinlan v R [2021] NSWCCA 21 applied; Al Maouie v R [2022] NSWCCA 30 considered; Hancock v R (2025) 119 NSWLR 183; [2025] NSWCCA 213 applied.
(10) Although s 56 of the Crimes (Sentencing Procedure) Act did not apply in terms, it was appropriate to take into account the policy underpinning the provision, which reflected the Court’s concern to maintain public confidence in the administration of criminal justice, in respect of the implementation of concurrent sentences for serious criminal offences: [90] (Emmett J, Leeming JA at [1] agreeing).
R v Fyffe [2002] NSWSC 751 applied; R v Jeremiah [2016] NSWCCA 241 considered; Hraichie v R [2022] NSWCCA 155 considered.
(11) Having identified special circumstances in relation to the sentences for both the Blacktown offences and the Parklea offence, the applicant was resentenced: [91]-[101]. The majority nominated a non-parole period for the Blacktown offences that would result in an overall non-parole period that would cause the applicant to be eligible for parole after approximately 65% of the total sentence: [91] (Emmett J, Leeming JA at [1]-[3] agreeing, Fagan J at [5]-[12] dissenting).
LEEMING JA: As Emmett J explains, there was no opposition to the grounds of appeal. There should be a grant of leave, the appeal allowed, the sentence imposed by the District Court set aside and the applicant resentenced. I agree with the sentence proposed by Emmett J, and with his Honour’s reasons. In particular, I agree that this Court should not accede to the submissions challenging factual findings made by the sentencing judge which were neither the subject of a ground of appeal nor the subject of evidence tendered on the usual basis in this Court. That is procedurally wrong, as well as having the potential to produce unfairness, when no such challenge was articulated in the written submissions, and when decisions to adduce further evidence on the usual basis may be taken to have been made on the basis that resentencing should be based on the unchallenged findings made in the District Court: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
There is a minor divergence between the sentences proposed by Fagan J and Emmett J. It is trite that there is no single correct sentence, and both proposals are available. I prefer that proposed by Emmett J.
All members of this Court are agreed as to the total term of imprisonment, which will expire on 9 October 2029. There is a minor variation (two months) in the aggregate sentence for the Blacktown offences, reflecting the evidence made available to this Court in the event of resentencing, and the need to sentence afresh: see Hancock v R (2025) 119 NSWLR 183; [2025] NSWCCA 213 at [27]-[28], but in light of a commensurate variation in commencement date, it has no practical consequence. There is also a minor variation in the conclusion of the effective non-parole period. This does result in a difference in practice. The sentence proposed by Emmett J would permit the applicant to apply for parole on 9 July 2027, while that proposed by Fagan J would permit him to apply for parole on 9 October 2027. Although there is force in Fagan J’s observation that two years of supervised parole is a long period of time, the slightly shorter non-parole period proposed by Emmett J better reflects the finding of special circumstances and more closely accords with the ratio imposed by the sentencing judge.
FAGAN J: I agree that the grounds of appeal should be upheld. The learned sentencing judge erred in his conclusion that s 56 of the Crimes (Sentencing Procedure) Act was engaged. I agree that the sentences must be quashed and the applicant must be resentenced.
The Crown’s submissions in writing on the appeal included the following:
84 In exercising the sentencing discretion afresh, this Court will need to consider the application of totality, applying the principles in Pearce v The Queen (1998) 194 CLR 610, including consideration of the unrelated offences upon which the applicant was serving sentence, to ensure the overall sentence imposed is just and appropriate to the totality of the offending behaviour.
85 In resentencing the applicant, the non-parole period must itself appropriately reflect the criminality involved in the offence and cannot be reduced below the minimum required to reflect all the purposes of sentencing. The applicant does not challenge the findings made by the sentencing judge. In those circumstances, the resentencing of the applicant should proceed on the basis of the unchallenged factual findings made by the sentencing judge: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [9].
Emmett J has explained the Crown’s reference in [84] to “the unrelated offences upon which the applicant was serving sentence”. Between 9 February 2023 and 30 November 2023, a period of 9 months and 3 weeks, the applicant served sentences without entitlement to parole for offences entirely unrelated to the Blacktown and Parklea offences. One of the sentences was imposed for an assault on a correctional officer committed on 19 April 2023, while the applicant was on remand for the Blacktown offences and while he was concurrently serving a term of imprisonment for taking a conveyance without the consent of the owner.
The learned sentencing judge commenced the sentences that are now under appeal from 9 February 2023. That failed to give appropriate consideration to the principle of totality because it provided no accumulation upon the earlier sentences and made them ineffectual for all practical purposes. Upon resentencing in this Court, the commencement of whichever substituted sentence is to be served first must be from a date after 9 February 2023, to allow some measure of accumulation on the sentences passed for the unrelated matters.
I accept the submission made by the Crown at [84]. I approach resentencing on the basis that all the findings made by the learned judge were reasonably open to him. The applicant did not raise any ground of appeal to contend otherwise. In the additional evidence tendered by the applicant on the appeal, concerning circumstances current to the date on which this Court must resentence, I find nothing that would warrant any finding different from the primary judge’s conclusions, on any point that is touched by the additional evidence.
On the above basis, I consider that no lesser sentence is warranted for the Blacktown offences or for the Parklea offence, except to the extent that restructuring by amendment of commencement dates must be undertaken (a) to achieve an appropriate ratio between the overall non-parole period combined and the overall head sentence of the two terms of imprisonment and (b) to afford some accumulation on the earlier sentences that were imposed for unrelated matters. Subject to those considerations, which require adjustment of the dates of commencement, the length of the aggregate sentence for the Blacktown offences, the length of the sentence for the Parklea offence and the respective non-parole periods should be undisturbed.
As there is no Crown appeal, the Court must resentence under the constraint that expiry of the overall head sentence for the Blacktown and Parklea offences should not be extended beyond 9 October 2029, being the date of expiry fixed by the sentencing judge for the last of the sentences that he imposed. In my view the substituted sentences should be as follows:
For the Parklea offence a sentence of 3 years commencing on 10 May 2023 and expiring on 9 May 2026, with a non-parole period of 1 year and 11 months expiring on 9 April 2025.
For the Blacktown offences, a sentence of 5 years and 8 months commencing on 10 February 2024 and expiring on 9 October 2029, with a non-parole period of 3 years and 8 months expiring on 9 October 2027.
The effect of those commencement dates is, first, that there is an accumulation of 3 months (from 9 February 2023 to 9 May 2023) on the pre-existing sentences for the unrelated matters. Secondly, taking together the sentences for the Blacktown offences and the Parklea offence, the overall term is 6 years and 5 months, with a non-parole period of 4 years and 5 months – a ratio of 69%. Thirdly, taking those two sentences together with the pre-existing sentences there is an overall head sentence of 6 years and 8 months with a non-parole period of 4 years and 8 months – a ratio of 70%.
Those ratios are all greater than the internal ratios for the aggregate sentence for the Blacktown offences (65%) and for the Parklea offence (64%). That is an unavoidable consequence of repeated offending, including whilst in custody, and of the minimum requirements of punishment. The overall result still allows for 2 years on parole, if the applicant’s future behaviour in custody is considered by the State Parole Authority satisfactory to warrant release on conditional liberty. Two years on parole should be adequate to facilitate the applicant’s reintegration into the community and rehabilitation.
The applicant seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentences imposed by Judge Colefax SC in the District Court on 16 May 2025 upon pleas of guilty to the following offences:
aggravated break and enter into the first complainant’s premises, an offence under s 112 of the Crimes Act 1900 (NSW) punishable by 20 years’ imprisonment (‘sequence 6’);
robbery in company against the second complainant, an offence under s 97(1) of the Crimes Act punishable by 20 years’ imprisonment (‘sequence 2’);
robbery in company against the third complainant, also an offence under s 97(1) of the Crimes Act punishable by 20 years’ imprisonment (‘sequence 3’);
steal motor vehicle, an offence under s 154F of the Crimes Act punishable by 10 years' imprisonment (‘sequence 4’);
(together, the ‘Blacktown offences’); and
assault occasioning actual bodily harm, an offence under s 59 of the Crimes Act punishable by 5 years’ imprisonment (the ‘Parklea offence’).
In respect of sequence 6, the applicant admitted and asked the sentencing judge to take into account on a Form 1 an additional offence of being carried in a conveyance without the consent of the owner (‘sequence 5’).
The sentencing judge imposed sentences as follows:
an aggregate sentence for the Blacktown offences of 5 years and 8 months’ imprisonment commencing 10 February 2023 and expiring on 9 October 2028 with a non-parole period of 3 years and 8 months expiring on 9 October 2026, in respect of which the following indicative sentences were nominated:
(a) sequence 6: 3 years and 7 months’ imprisonment, with an indicative non-parole period of 2 years and 3 months’ imprisonment. (b) sequence 2: 3 years and 4 months’ imprisonment, with an indicative non-parole period of 2 years and 6 months’ imprisonment. (c) sequence 3: 3 years and 4 months’ imprisonment, with an indicative non-parole period of 2 years and 6 months’ imprisonment. (d) sequence 4: 1 year and 2 months’ imprisonment, with an indicative non-parole period of 10 months’ imprisonment.
for the Parklea offence, a sentence of 3 years commencing on 10 October 2026 and expiring on 9 October 2029, with a non-parole period of 1 year and 11 months expiring on 9 September 2028.
Each of these sentences reflected a 25% discount for a guilty plea.
These sentences involved two errors, which the applicant has established, with the Crown appropriately advancing no argument to the contrary. First, the sentencing judge erroneously proceeded on the basis that s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied. Second, although the sentencing judge discerned special circumstances warranting that all of the sentences have a non-parole period less than 75% of the head sentence, the combined effect of the sentences was that the applicant was sentenced to a total of 6 years and 8 months’ imprisonment with a non-parole period of 5 years and 7 months (ie, a ratio of 83.75%).
For the reasons that follow, the applicant should be granted an extension of time to bring his application and leave to appeal, the appeal should be allowed and the applicant should be re-sentenced. It is convenient to set out the circumstances of the offending and the primary judge’s sentencing remarks, before explaining the two errors which have been shown, then addressing the material that was before this Court for the purpose of re-sentencing.
The applicant was sentenced on the basis of an agreed statement of facts. The Blacktown offences involved a joint criminal enterprise with three co-offenders.
On the morning of 2 April 2022, the applicant and the three co-offenders entered the first complainant’s premises. The first complainant resided in the premises, and also leased rooms to the second and third complainants. By his plea of guilty to sequence 6, the applicant admitted that entry was obtained by “some form of a break and enter” (sequence 6). One member of the enterprise was carrying a weapon described as a “miniature scythe”. Another had a knife.
While the applicant remained in the loungeroom, but in communication with the co-offenders, the other co-offenders woke up the second complainant. The co-offenders stood over her while holding weapons and screamed, “where’s the money”. The co-offenders took the second complainant’s car keys, wallet and mobile phone from her bedside table (sequence 3). One of the offenders handed that mobile phone to the applicant.
Two of the co-offenders then entered the first complainant’s bedroom, still holding weapons. On entering the first complainant’s bedroom, the co-offenders demanded money from him and punched him a number of times, before taking his mobile phone and demanding his password. Cash and other items were taken from the first complainant’s cupboard.
Next, the co-offenders entered the third complainant’s bedroom. When the first complainant attempted to assist the third complainant, he was threatened with a weapon by one of the co-offenders. One of the co-offenders jumped on the third complainant’s bed, holding a 10-inch knife to his forehead, with the tip between his eyes. The co-offender demanded money from the third complainant, searching him and his room, before taking his work keys, car keys and mobile phone (sequence 2).
The applicant and two of the co-offenders left the premises. The last co-offender, while returning towards the second complainant’s bedroom, entered into a struggle with the first and third complainants. In the course of the struggle, that co-offender swung the knife in the direction of the first complainant, who was wounded near his ribs. The struggle ended after one of the co-offenders returned into the residence with an axe, which he swung at the third complainant.
One co-offender left the residence in the first complainant’s motor vehicle (sequence 4).
The applicant and the other two co-offenders then left the residence in a black motor vehicle, which had been stolen earlier that morning from residential premises in Blacktown (sequence 5).
The criminal misconduct on 6 June 2023 relates to events transpiring at Parklea Correctional Centre, where the applicant was being held on remand. At the time, in addition to the Blacktown offences, the applicant was facing charges for other sentences for which he was separately sentenced in the Local Court. The precise chronology in respect of those other offences is addressed below.
The applicant was in segregation as a result of his membership of the Finks Outlaw Motorcycle Gang. The complainant was situated in the adjacent cell to the applicant. At the back of each cell in the segregated division was a caged area, which looked out onto an open area. On the morning of 6 June 2023, when the applicant and complainant were in their respective cells, the applicant obtained a plastic bag filled with hot water, heated to approximately 80 degrees, from an unknown inmate. The applicant reached through the bars of the rear of the caged area, and threw the cup of steaming hot water into the complainant’s face. Having thrown the hot water into the complainant’s face, the applicant asked him: “Have you learnt your lesson?”, to which the complainant replied: “Yes”. The complainant sustained burns to the right side of his face, his left collarbone and his left forearm, including in some places, deep dermal burns.
The sentencing judge found that the applicant was morally and criminally culpable for all of the Blacktown offences. However, it was agreed between the applicant and the Crown that that moral and criminal culpability did not extend to the wounding of the first complainant by one of the co-offenders. The applicant was sentenced on this basis.
The sentencing judge observed that the applicant performed a “fully active role” including giving directions and receiving items. His Honour expressly rejected indirect evidence of what the applicant told the author of a sentencing assessment report and a psychologist who prepared a report, in which the applicant asserted that he did not know the index offences would be committed, and that he froze in the house and did not really want to be there.
The sentencing judge found that the applicant’s role extended to giving directions and receiving items, and that the applicant was fully aware of the presence of weapons.
The sentencing judge found that the applicant’s accounts of his “greatly reduced” involvement, made to the authors of the psychologist’s report and sentencing report, were untrue statements that the applicant made deliberately, in an attempt to distance himself from his criminal and moral misconduct.
As such, his Honour found that the applicant was not only equally legally responsible for each of the offences as his co-offenders, but that the applicant’s moral culpability was only very slightly less than his co-offenders.
The sentencing judge found that the Blacktown offences were “meaningfully above the mid-range but not into the upper range”. The sentencing judge reached this conclusion, having had regard to the number of offenders and the number and type of weapons involved. The sentencing judge also found that sequences 2 and 3 were aggravated because they occurred in the victims’ home and involved the use or threat of violence.
The sentencing judge found that sequence 4 was a mid-range offence.
Having regard to the facts of sequence 5 (the Form 1 offence), the sentencing judge found that it would result in only a slight increase in the sentence for sequence 6.
In respect of the criminal misconduct occasioned on 6 June 2023, the sentencing judge found that it was “meaningfully above” the mid-range of objective seriousness.
The sentencing judge found that the applicant’s education was marked by learning problems and inattention, which led to his expulsion from high school before completing Year 10.
The sentencing judge noted that there were inconsistent histories in the sentencing assessment report and the psychologist’s report as to the applicant’s employment history. The sentencing judge noted that the psychologist’s report tendered by the applicant recorded that, after leaving school, the applicant was mostly unemployed, and had only been employed as a boiler maker for 10 to 12 months, while the sentencing assessment report recorded that the applicant had a lengthy employment history as a boiler maker, commencing when he was 15 years old.
The sentencing judge recognised the importance of parity between co-offenders in relation to the Blacktown offences.
In considering the notion of parity, the sentencing judge noted that the sentence of one of the co-offenders, Mr Hall, deserved the most attention. His Honour noted that the applicant and Mr Hall were of similar age, and that although Mr Hall’s criminal history was different, it was not necessarily more significant. The sentencing judge did, however, note that Mr Hall was on conditional liberty at the time of the offending, whereas the applicant was not.
The sentencing judge found that while the applicant played a different role from that of Mr Hall, the applicant’s role was not subordinate, but was “an enthusiastic and fully engaged one”.
Considerations of parity played a significant role. The sentencing judge remarked that:
Unassisted by the remarks on sentence for your co-offenders, by having regard to my findings as to the objective seriousness of the offending, and giving full weight to your subjective case, I would have stated indicative sentences and ultimately imposed an aggregate sentence meaningfully more significant than [the sentence imposed].
The sentencing judge found that the applicant’s past association with an outlaw motorcycle gang meant that he would likely serve most of any period of imprisonment in segregation. The primary judge accordingly made a finding of special circumstances warranting variation of the statutory ratio of non-parole period to head sentence.
The sentences imposed are set out above. The non-parole period for the Blacktown offences is approximately 64.71% of the aggregate head sentence. The non-parole period for the Parklea offence was 63.89% of the head sentence. However, because the sentence for the Parklea offence commenced at the end of the non-parole period of the sentence for the Blacktown offences, the overall effective ratio of non-parole period to head sentence was 83.75%.
In order to understand the error in relation to s 56 of the Sentencing Procedure Act, and in order to explain this Court’s decision in setting the commencement date for the sentences imposed in this judgment, it is necessary to explain the chronology in relation to other offences for which the applicant was sentenced to terms of imprisonment.
The applicant was arrested and charged with the Blacktown offences on 9 February 2023 and remained in custody from that date. On 24 February 2023, he was sentenced to a period of 3 months’ imprisonment for driving a conveyance without the consent of the owner. That sentence ran from 9 February 2023 to 8 May 2023.
From 8 May 2023, the applicant remained in custody on remand for the Blacktown offences.
On 7 November 2023, the applicant was sentenced to 5 months’ imprisonment for offences committed while the applicant was in custody on 19 April 2023 (assaulting a correctional officer and possessing an offensive weapon or instrument in a place of detention). That sentence ran from 19 April 2023 to 18 September 2023.
On 2 April 2024, the applicant was sentenced to a further 14 months’ imprisonment, with a non-parole period of 7 months, for two counts of common assault occurring between 17 and 18 January 2023. This sentence was determined to run from 1 May 2023 to 30 June 2024.
Two things follow from this chronology. First, at the time of the Parklea offence, the applicant was in fact in custody on remand, although the sentences for his offences of 17-18 January 2023 and 19 April 2023 would later be nominated to commence earlier than the date of the Parklea offence. Second, by the time the applicant came to be sentenced for the Blacktown and Parklea offences on 16 May 2025, the applicant had served three sentences of imprisonment that were partly concurrent with each other and partly cumulative. The overall effective term of these three sentences (counting only the non-parole period of the sentence for the common assaults on 17 and 18 January 2023) was 9 months and 3 weeks, from 9 February 2023 to 30 November 2023.
The sentencing judge imposed the sentence for the Parklea offence on the mistaken basis that s 56 applied. As the Crown has candidly acknowledged in this Court, this reflected written submissions filed by the Crown below.
Section 56 provides as follows:
56 Sentences for offences involving assault by convicted inmate
(1) This section applies to—
(a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or
(b) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control.
(2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender—
(a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or
(b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.
(3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.
(3A) Such a direction may not be given in relation to—
(a) an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or
(b) an offence involving an assault, or other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control, unless the court is of the opinion that there are special circumstances justifying such a direction.
(4) A direction under this section has effect according to its terms.
(5) In this section, a reference to a sentence of imprisonment is taken to be a reference to—
(a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or
(b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set.
(6) In this section, a reference to another sentence of imprisonment, other sentence of imprisonment or further sentence of imprisonment is taken to include a reference to a period for which a person is required to be detained in a detention centre under an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.
The second error may have been influenced in part by the first. The sentencing judge was not obliged to conclude that special circumstances existed, but having found they existed in relation to sentencing for all offences before his Honour, there is no explanation for why the effective non-parole period was substantially longer than 75% of the total head sentence.
When a non-parole period exceeds 75% of the total sentence, the sentencing judge is, at least as a general proposition, expected to acknowledge that they are conscious of that outcome and their reasons for it: Duncan v R [2026] NSWCCA 19.
I am satisfied that the sentencing judge erred in the two respects for which the applicant contends and for which the Crown advances no argument to the contrary.
The circumstances of this case warrant a grant of leave to appeal, and the appeal should be allowed.
The applicant needs an extension of time to appeal. The explanation for delay is not satisfactory. It includes the passage of a number of months during which there is no explanation for to the delay. I refer to my observations in Steele v R [2026] NSWCCA 99 at [9] (Ward P agreeing at [1]). Despite those remarks, which apply equally in the present case, an extension of time is warranted, given that there is no real dispute that the errors arose in this case, and given that the Crown has not pointed to any particular prejudice that might arise from the grant of an extension.
It falls upon this Court to re-sentence the applicant for the Blacktown offences and the Parklea offence. For this purpose, the Court received on the usual basis an affidavit from the applicant and evidence on behalf of both the applicant and the Crown as to the applicant’s conduct and experience in custody since the sentences below were imposed.
The applicant raised additional matters in oral argument which the applicant said were not complained of as errors in the reasons, but which the applicant asked the Court to take into account on re-sentence. Two of the matters involved submissions based on further evidence admitted in this Court on the usual basis, being first that the post-sentence evidence warrants a more favourable finding as to the prospects of rehabilitation, and second that the prospects of rehabilitation were relevant to discerning special circumstances for the purposes of any non-parole period.
Before coming to the matters based on further evidence, it is appropriate to address three other matters raised in oral submissions. In three respects, the applicant submitted that this Court should depart from his Honour’s findings or assessments even though the position was not affected by further evidence received in this Court on the usual basis. In particular, the applicant asked this Court to re-sentence on the basis that:
(a) contrary to his Honour’s finding, the applicant was not an “enthusiastic” participant in the Blacktown offences, and was not shown to have been in possession of any of the weapons; (b) the principles in Bugmy and De La Rosa warranted consideration not only in the context of general deterrence, but in the context of assessing moral culpability; and (c) the Court should find that the applicant expressed genuine remorse even though the sentencing judge declined to make that finding.
In respect of these three matters, notwithstanding the applicant’s submissions, I am satisfied that the findings made by the sentencing judge concerning objective gravity, moral culpability and subjective circumstances were reasonably open to him: see, eg, Hancock v R [2025] NSWCCA 213. In the absence of any separate ground of appeal in relation to these matters, I would proceed to re-sentence on the basis of his Honour’s findings except so far as the position is altered by evidence received on the usual basis: see, eg, R v Turnbull [2019] NSWCCA 97 at [44].
As to the extent of the applicant’s participation in the Blacktown offences, the agreed facts recorded the applicant communicating with his co-offenders and there is no challenge to sentencing judge’s findings that the applicant’s role extended to giving directions to his co-offenders and receiving items from them. While the applicant was not armed personally, he knew that at least two of his co-offenders were armed. He must have appreciated the prospect of violent assaults of the kind that in fact occurred against people who were in their beds in their home, where they were entitled to feel safe. The fact that the weapons were not found later in his custody does not signify any greater distance between the applicant and the offending.
As for the principles in Bugmy, it is not obvious that they were ignored by his Honour in assessing moral culpability. The applicant draws attention to the observation of Simpson JA in R v Millwood [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing), “[c]ommon sense and common humanity dictate that [a person with a dysfunctional upbringing] will have fewer emotional resources to guide his (or her) behavioural decisions.” So much may be accepted.
As for mental health and the principles in De La Rosa, the primary judge expressly declined to find that the conditions which the applicant’s psychologist expert had diagnosed were in any way causative of the applicant’s criminal conduct in the Blacktown or Parklea offences. Although the Crown’s submission below was that there was not a “strong causal connection”, the primary judge was not obliged to find a causal relationship between the applicant’s mental health and the offending. There was considerable force in the Crown’s submission that the identified diagnoses did not obviously engage a causal link with the particular offending in this case, which appears in each case to have been planned and calculated, not involving any sort of uncontrolled, reactive outburst.
Furthermore, the psychologist’s report does not separate out the influence of mental health conditions from the influence of the applicant’s dysfunctional early life. As Dhanji J recognised in Harris v R [2021] NSWCCA 322 at [86] (Simpson AJA and Ierace J agreeing), deprivation and mental health conditions are not necessarily separate matters to be regarded individually “with a consequent iterative impact”, although each may be significant and together, they may warrant consideration.
As a result, I take into account the applicant’s dysfunctional childhood in assessing moral culpability, and recognise the interrelationship between this matter and the applicant’s mental health. However, I am not persuaded that the applicant has shown that his mental health contributed to his offending in a material way, such that his moral culpability should be further reduced by this matter.
As to remorse, while the evidence disclosed the applicant showing some insight – including appreciating that the experience must have been terrifying for the complainants – the evidence before the sentencing judge also disclosed ongoing attempts to distance himself from the offending, including by giving a version of events to the psychologist which minimised his offending and which the sentencing judge rejected as false. The applicant accepts that the sentencing judge was entitled to view with care unsworn statements by the applicant about his attitude towards his offending. Furthermore, the applicant’s statements do not demonstrate full insight. The applicant is recorded in a sentencing assessment report as saying he was “disgusted” by his co-offenders’ behaviour towards the female complainant, but the applicant did not there show insight into his own culpability in bringing that circumstance about.
While the evidence disclosed some degree of insight, the sentencing judge did not suggest that the applicant had shown no insight into the impact of his offending on the complainants. That is not the same as demonstrating genuine remorse.
The applicant’s position in this Court is no better. The applicant’s evidence, received on the usual basis, does not show any further evidence indicative of remorse or insight, despite having affirmed an affidavit in these proceedings. In considering the applicant’s prospects of rehabilitation, this Court should proceed on the same basis as the sentencing judge, that is, that the applicant has not demonstrated genuine remorse.
On the basis of the material before the sentencing judge, the appropriate conclusion was that the applicant’s prospects of rehabilitation were at best guarded.
The post-sentence evidence continues to present a mixed picture.
In the applicant’s favour, he has engaged in significant employment while in custody, including from 3 October 2025 to 15 December 2025, and from 20 January 2026 to 23 May 2026. Since being moved to the location which was current at the time of the hearing, Broken Hill Correctional Centre, the applicant had also worked as shower and kitchen cleaner and then floor polisher. The applicant says he has been enjoying this as it keeps him busy.
The material relied upon by the applicant records the applicant being “very motivated” to commence employment and wishing to participate in any courses available while in custody. There is evidence of family support which will improve the prospects of rehabilitation. These matters are all to the applicant’s credit.
However, set against this, the applicant’s custodial record includes seven custodial infringements between 26 February 2026 and 28 July 2026. Four of them relate to possession of a gaol-made tattoo gun or needles. Without minimising these infringements, the more serious infringements are two occasions where the applicant was involved in a fight, one on 9 May 2026 (resulting in two infringements, one for fighting and the other for failing to comply with correctional centre routine) and one on 28 July 2026. The recorded facts of the fight on 9 May 2026 are particularly concerning. After the fight broke out, at one point the applicant and four other inmates were kicking and punching one inmate on the ground.
In considering this conduct, I place full weight on the observations of this Court that the custodial environment is difficult and challenging for all inmates at the best of times, and that “the deprivation of liberty and the imposition of restrictions often operate disproportionately to magnify or distort responses to what might otherwise be matters of little importance”: see, eg, Quinlan v R [2021] NSWCCA 21 at [36] (Harrison J, Leeming JA and Adamson J agreeing); see also Al Maouie v R [2022] NSWCCA 30 at [51] (Harrison J, Payne JA and Rothman J agreeing). However, the particular question for this Court is to assess the applicant’s prospects of rehabilitation in circumstances where at least two of the offences during the applicant’s current period of incarceration occurred in custody. In the particular circumstances of this case, further custodial infringements, especially having regard to the facts of the conduct on 9 May 2026, should be not discounted as entirely immaterial. They warrant some weight, albeit not substantial weight, in assessing the applicant’s prospects of rehabilitation.
Taking all these matters into account, while the applicant’s prospects of rehabilitation may still appropriately be described as “guarded”, they have improved somewhat since the time of sentence. This should be taken into account in the applicant’s favour.
The applicant has experienced conditions of custody that may be regarded as more onerous than usual, including being in segregation for substantial periods. The custodial case notes record the applicant self-harming on 28 August 2025. This was reflected in the primary judge’s finding of special circumstances warranting a non-parole period less than 75% of the effective head sentence. The applicant does not seek to disturb this finding and accepts in submissions to this Court that care should be taken to avoid “double counting”. However, the applicant submitted that purpose of rehabilitation should also be taken into account as part of the special circumstances warranting a longer parole period than contemplated by the statutory ratio.
The applicant’s prospects of rehabilitation may be assisted by a longer parole period. It is not necessary to decide whether the sentencing judge failed to take this into account or erred in finding special circumstances without explicit reference to this matter. On re-sentence, I take the prospects of rehabilitation into account in fixing a non-parole period.
It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them
I would find special circumstances in relation to the sentences for both the Blacktown offences and the Parklea offence. This is based both on the matter raised by the primary judge, that conditions of custody have been and will be particularly onerous, and the prospects of rehabilitation, addressed at [88]-[89] above. The overall non-parole period resulting from these sentences combined should be such that the applicant is eligible for parole after appreciably less than 75% of the total sentence the applicant will serve. Restructuring the commencement dates is necessary.
In the sentences that follow, all of the figures have been discounted by 25% to reflect the applicant’s guilty plea.
The Parklea sentence should commence first, so that a non-parole period can be nominated for the Blacktown offence which ensures a period of eligibility for parole consistent with the finding of special circumstances. There should be a substantial degree of accumulation between the Parklea and Blacktown offences. They are unrelated sets of offences, and the policy underpinning s 56, as articulated in Hraichie and Fyffe, warrants full weight.
Similar considerations mean that the sentences imposed by this Court should start later than the sentences imposed below. The applicant had been sentenced to three successive sentences for unrelated offences, one of which was an assault on a correctional officer while on remand for the Blacktown offences and while serving a term of imprisonment for driving conveyance without consent. The effect of those earlier offences was that the applicant should serve a sentence of imprisonment, before being eligible for parole, from 9 February 2023 to 30 November 2023. While the sentences imposed by this Court should be concurrent to some extent with these sentences, there should be a significant degree of accumulation.
Dealing first with the Parklea offence, even taking into account the applicant’s subjective circumstances which are in some respects more favourable on the evidence before this Court, the seriousness of the offence means I would not nominate a shorter head sentence or non-parole period. The sentence for that offence should be 3 years’ imprisonment, with a non-parole period of 1 year 11 months.
As for the commencement date, it should be later than the date nominated by the judge below (10 February 2023). Rather than commencing on 10 February 2023, it should start three months later, on 10 May 2023. This ensures that there is a degree of accumulation with the three sentences that had been imposed earlier, albeit also allowing a substantial degree of concurrence.
Turning to the Blacktown offences, I would nominate the same indicative sentences for each offence as the sentencing judge. The applicant’s subjective circumstances warrant a slightly different aggregate sentence for those offences (ie, a higher degree of notional concurrence), but only slightly different. The appropriate aggregate sentence for those offences, in my view, is 5 years and 6 months’ imprisonment.
That sentence should commence 11 months after the commencement of the sentence for the Parklea offence. The Parklea offence sentence expires on 9 April 2024, so the sentence for the Blacktown offences should commence on 10 April 2024.
The non-parole period for the sentence for the Blacktown offences will be 3 years and 3 months, which equates to 60% of the aggregate sentence. If the sentences are considered together, the applicant will be serving a total period of 6 years and 5 months’ imprisonment, and will be eligible for parole after 4 years and 2 months, comprising a ratio of approximately 65%.
In summary, I would nominate the following indicative sentences for the Blacktown offences:
sequence 6: 3 years and 7 months’ imprisonment, with an indicative non-parole period of 2 years and 3 months’ imprisonment.
sequence 2: 3 years and 4 months’ imprisonment, with an indicative non-parole period of 2 years and 6 months’ imprisonment.
sequence 3: 3 years and 4 months’ imprisonment, with an indicative non-parole period of 2 years and 6 months’ imprisonment.
sequence 4: 1 year and 2 months’ imprisonment, with an indicative non-parole period of 10 months’ imprisonment.
I would impose the following sentences:
for the Parklea offence, a sentence of 3 years’ imprisonment, commencing on 10 May 2023 and expiring on 9 May 2026, with a non-parole period of 1 year and 11 months, expiring on 9 April 2025;
for the Blacktown offences, an aggregate head sentence of 5 years and 6 months’ imprisonment, commencing on 10 April 2024 and expiring on 9 October 2029, with a non-parole period of 3 years and 3 months, expiring on 9 July 2027.
I propose the following orders:
Pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW), extend time for bringing the application to 14 September 2026;
Grant leave to appeal and allow the appeal;
Quash the sentence imposed by the District Court on 16 May 2025 and in lieu thereof the applicant is sentenced as follows:
(a) For the Parklea offence, a sentence of 3 years’ imprisonment, commencing on 10 May 2023 and expiring on 9 May 2026, with a non-parole period of 1 year and 11 months, expiring on 9 April 2025. (b) For the Blacktown offences, an aggregate sentence of 5 years and 6 months’ imprisonment, commencing on 10 April 2024 and expiring on 9 October 2029, with a non-parole period of 3 years and 3 months, expiring on 9 July 2027. (c) The earliest day on which the applicant is eligible to be released on parole is 9 July 2027.
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King
R
[2013] HCA 37
[2026] NSWCCA 99
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2018) 265 CLR 215
(2025) 119 NSWLR 183
(1998) 194 CLR 610