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[2026] NSWCCA 101
Court of Criminal Appeal (NSW)
2026-07-06
Free JA at [1] Campbell J at [42] McNaughton J at [43]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Macauley v R [2026] NSWCCA 101
Hearing dates: 24 June 2026
Date of orders: 6 July 2026
Decision date: 06 July 2026
Before: Free JA at [1]
Campbell J at [42]
McNaughton J at [43]
Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIME – Appeals – appeal against sentence – drug supply and proceeds of crime offences contravening Drug Misuse and Trafficking Act, s 25(1) and Crimes Act, s 193BA(a) – Form 1 offence – aggregate sentence of 2 years 3 months with non-parole period of 18 months – sentencing principles – Bugmy principles – De La Rosa principles – mental illness (PTSD and ADHD) – causal connection between mental health and offending – reduction in moral culpability – impulsivity submission rejected – limited findings as to motivation – adequacy of reasons as to causal connection - no error established CRIME – Appeals – appeal against sentence – mental illness – onerousness of custody – special circumstances – adequacy of reasons – consideration of relevant sentencing factors – no error established CRIME – Appeals – appeal against sentence – procedural fairness – alleged adverse finding without notice – nexus between mental illness and offending – adequacy of reasons – failure to consider relevant matters – no denial of procedural fairness
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), s 193BA
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 76AO
Cases Cited: Aslan v R [2014] NSWCCA 114
Birkic v R [2026] NSWCCA 53
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
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
McLaughlin v R [2025] NSWCCA 13
O’Neill-Shaw v R [2010] NSWCCA 42
R v Nguyen [2025] NSWCCA 42
Snounou v R [2025] NSWCCA 231
Turner v R [2025] NSWCCA 3
Category: Principal judgment
Parties: Shannon Macauley (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation: Counsel:
T F Woods / N Franco (Appellant)
B Page (Respondent)
Solicitors:
Kiki Kyriacou Lawyers (Appellant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2024/161986
[This headnote is not to be read as part of the judgment]
The applicant, Shannon Macauley, pleaded guilty to two offences, being supply of an indictable quantity of methylamphetamine (contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW)) and recklessly dealing with proceeds of general crime with a value of greater than $100,000 (contrary to s 193BA(a) of the Crimes Act 1900 (NSW). The sentencing judge also took into account, on a Form 1, a further offence of failing to comply with a digital evidence access order (contrary to s 76AO(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)). On 21 November 2025, the applicant was sentenced to an aggregate term of imprisonment of 2 years and 3 months, with a non-parole period of 18 months.
The offending involved the applicant storing 136.75 grams of methylamphetamine and $297,535 in cash at his residence. The applicant was on parole at the time of the offending.
The applicant relied upon reports recording diagnoses of complex post-traumatic stress disorder (PTSD) and attention deficit hyperactivity disorder (ADHD). The sentencing judge accepted that the applicant’s moral culpability and the need for deterrence were reduced having regard to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. His Honour also found special circumstances, reducing the non-parole period to provide an extended period of supervision upon release.
The applicant sought leave to appeal against sentence on three grounds. First, he contended that the sentencing judge denied him procedural fairness by making an adverse finding, without notice, that there was no nexus between his mental ill health and the commission of the offences. Secondly, he argued that the sentencing judge failed to consider, or failed to adequately explain how he considered, a submission that the applicant’s mental ill health would make imprisonment more onerous. Thirdly, in the alternative to the first ground, he contended that the sentencing judge failed to take into account, or failed adequately to explain how he had taken into account, the contribution of the applicant’s mental ill health to the offending.
The Court held (Free JA, Campbell and McNaughton JJ agreeing), granting leave to appeal but dismissing the appeal:
As to the first and third grounds of appeal
Read fairly and as a whole, the sentencing remarks disclosed that the sentencing judge accepted the evidence that the applicant’s PTSD and ADHD contributed to the offending, subject only to rejecting the opinion that those conditions prevented the applicant from fully appreciating the wrongness of his conduct. His Honour rejected a more specific submission that the offending was impulsive because the evidence did not permit a finding as to the applicant’s motivation. No adverse finding was made without notice, and no failure to take into account a relevant sentencing consideration was established: [14]-[33]. Ground 1 and 3 of the appeal should therefore be rejected.
O’Neill-Shaw v R [2010] NSWCCA 42, McLaughlin v R [2025] NSWCCA 13, considered.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, R v Nguyen [2025] NSWCCA 42, applied.
Director of Public Prosecutions (Cth*) v De La Rosa* (2010) 79 NSWLR 1; [2010] NSWCCA 194; Aslan v R [2014] NSWCCA 114, cited.
As to the second ground of appeal
The sentencing judge did not fail to consider the submission that the applicant’s mental ill health would render imprisonment more onerous. Read in context, the finding of special circumstances tied to the fixing of the non-parole period reflected consideration of that submission. The reasons were adequate and disclosed no sentencing error: [34]-[40].
Director of Public Prosecutions (Cth*) v De La Rosa* (2010) 79 NSWLR 1; [2010] NSWCCA 194, Aslan v R [2014] NSWCCA 114, considered.
Turner v R [2025] NSWCCA 3, Snounou v R [2025] NSWCCA 231, Birkic v R [2026] NSWCCA 53, applied.
FREE JA: The applicant, Shannon Macauley, seeks leave to appeal against the sentence imposed on him in the District Court at Campbelltown on 21 November 2025. The applicant pleaded guilty to one offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) of taking part in the supply of an indictable quantity of methylamphetamine (sequence 6) and one offence under s 193BA(a) of the Crimes Act 1900 (NSW) of recklessly dealing with proceeds of general crime with a value of greater than $100,000 (sequence 5). The sentencing judge also took into account, on a Form 1 attached to sequence 5, a further offence of failing to comply with a digital evidence access order contrary to s 76AO(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
An aggregate sentence of 2 years and 3 months imprisonment, with a non-parole period of 18 months, was imposed. The applicant will be eligible for parole on 31 October 2026. The indicative sentence identified by the sentencing judge for the sequence 6 offence, after applying a discount of 25% to reflect the early guilty plea, was 18 months imprisonment. The indicative sentence for the sequence 5 offence was 2 years and 3 months.
The applicant relies on three grounds of appeal:
The applicant was denied procedural fairness in that the sentencing judge made an adverse finding without notice.
The sentencing judge erred by failing to take into account a relevant consideration or failing to provide adequate reasons in that his Honour:
(a) failed to address a submission squarely put as to the applicant’s mental ill health making it more likely that custody would weigh more heavily upon him; and/or (b) failed to make a finding one way or the other as to whether the applicant’s mental ill health was mitigating because it was calculated to make his experience of custody more onerous.
(a) by failing to take into account that the applicant’s mental ill health contributed to the commission of the offences, or (b) in failing to explain in the reasons how the matter had been taken into account.
Sentencing proceeded on the basis of agreed facts and other evidence. The offending occurred when the applicant was 42 years old and living in Oran Park with his partner and their two children. On 1 May 2024 police attended the premises to conduct a firearms prohibition order compliance check. Police observed a plastic bag containing approximately 28 grams of methylamphetamine on the floor of the main bedroom. A further search was carried out that afternoon after a warrant was obtained. During that second search police discovered a plastic bag containing $297,535 in cash. Police also confirmed that the bag in the main bedroom contained 27.2 grams of crystal methylamphetamine. In the garage police found two sandwich bags containing a total of 109.55 grams of crystal methylamphetamine. In total, police found 136.75 grams of methylamphetamine.
The applicant told police when interviewed that the cash did not belong to him but he had agreed to hide it, after taking possession of the money the previous night. The applicant told police that he had put the drugs in the garage because he wanted to keep them away from the children. The applicant was presented with a digital evidence access order, requiring him to provide the access codes for two mobile phones that had been seized by police. The applicant declined to provide those codes.
The sentencing judge found that the applicant received the money from an associate and held it at his premises. It was not possible to make a finding about how long the applicant possessed that money. His Honour found that the applicant knew that he was dealing with a substantial amount of money, although it was possible that he did not know the precise amount. In holding the cash the applicant played an important and trusted role for his criminal associate or associates. The sentencing judge could not make a finding on the evidence about the applicant’s motivation, but it was conceded by the applicant that he engaged in the offending for reward (the extent of which could not be established).
In relation to the drug supply charge the sentencing judge again found that the applicant played an important and trusted role by storing the drugs at his house. His Honour was not satisfied beyond reasonable doubt that the applicant knew the amount of the drugs that he was storing. Nor did the evidence allow for a finding to be made about how long the applicant possessed the drugs, or why he did so.
The applicant was found to have an extensive criminal history, beginning in the Children’s Court. He has been convicted of offences of dishonesty, intimidation, violence and robbery. In December 2019 the applicant had been sentenced to 11 years imprisonment (with a non-parole period of 6 years) for various offences of supplying prohibited drugs. The sentencing judge found that the applicant’s past offending displayed an attitude of “continuing disobedience of the law”. The applicant was on parole at the time of committing the offences that are the subject of this application for leave to appeal.
The applicant did not give evidence at the sentencing hearing, but relied on evidence including a report of registered psychologist Vanessa Edwige (Edwige Report) and a report of forensic and general psychiatrist Matthew Jones (Jones Report). The sentencing judge accepted the opinion of Ms Edwige that the applicant suffered from complex post-traumatic stress disorder (PTSD) and attention deficit hyperactivity disorder (ADHD).
The applicant had been exposed to alcohol and domestic violence in the family home as a child. As explained further below, the sentencing judge found that the principles considered in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) were engaged and the moral culpability of the applicant was reduced, as was the need for deterrence. The applicant reported being sexually assaulted as a child by a juvenile justice caseworker. That abuse was the subject of a claim by the applicant through Shine Lawyers.
The sentencing judge was satisfied that the applicant had shown a measure of remorse and contrition, which justified some benefit to him in the sentencing. The applicant’s prospects of rehabilitation were guarded. His Honour was satisfied that the applicant’s prospects would improve if he engaged in drug and alcohol counselling and followed the treatment plans of Ms Edwige and Dr Jones.
In determining the non-parole period the sentencing judge found that special circumstances justified a proportionate reduction in the non-parole period from the usual ratio. His Honour found special circumstances to exist “based upon the offender’s need for an extended period of supervision to assist him with his substance use issues as well as his emotional and mental health issues, the risk of institutionalisation and the accumulation of sentences”.
It is appropriate to deal with grounds 1 and 3 together, as they each concern how the sentencing judge did, or did not, take into account the applicant’s contention that his mental ill health contributed to the commission of the offences. The applicant submitted to the sentencing judge that he suffered (and had suffered at the time of the offending) from ADHD and PTSD. He was supported in that regard by the Edwige Report and the Jones Report. From that premise, the applicant made a number of overlapping submissions about how his mental ill health should favourably affect the determination of sentence:
the mental health impairments suffered by the applicant at the time of the offending significantly impacted on his decision-making and judgment;
the applicant’s PTSD contributed to the offending in a material way;
the applicant’s ADHD, which was untreated, also made a material contribution to the offending;
the applicant’s ADHD justified a reduction in moral culpability given the impulsivity associated with the offences;
the applicant was impacted in his daily functioning by his ADHD;
in light of his mental conditions the applicant’s moral culpability is significantly reduced, and there was also reason to moderate the application of principles of general and specific deterrence;
because of his mental health conditions, the applicant’s time in custody has been more onerous and any further time in custody will weigh more heavily upon him; and
there were compelling factors in the applicant’s case to find special circumstances (informing the determination of an appropriate non-parole period) and facilitate a longer period of intensive support to assist the applicant to transition into the community. One such factor was the applicant’s background of significant trauma and mental illness.
The applicant properly acknowledged in his submissions to the sentencing judge that in considering the extent to which his PTSD, associated with his deprived upbringing, contributed to the offending and pointed towards a reduced moral culpability, there was an overlap with the application of Bugmy principles. Senior Counsel for the applicant submitted orally that the applicant’s mental health issues and Bugmy principles “bleed into each other because of the historical events that happened to this offender”. Senior Counsel returned to the topic and further submitted that the applicant’s case was:
a very powerful case of how there was a nexus between the problems that he was having that are all grounded in his disadvantaged childhood that again without double counting both bleed into putting downward pressure on the moral culpability that your Honour would find in respect of this offender.
The Crown likewise emphasised in its submissions to the sentencing judge that care was required to avoid double counting when considering the relationship between the applicant’s PTSD and the history of childhood deprivation that engaged Bugmy principles.
The Crown acknowledged that the reports relied upon by the applicant did conclude that the applicant’s mental health conditions would have impacted his decision-making and judgment at the time of the offending. However, the Crown submitted that whilst there appeared to be “some nexus”, it was “slight”. The Crown noted the circumstances in which the offending had occurred and drew attention to the applicant’s acknowledgement that he had made a “stupid decision” and was “hanging around with idiots and doing stupid things”. The Crown submitted that the mental health conditions of the applicant would not have impacted on his knowledge of the wrongfulness of his actions.
In making the various submissions summarised above the applicant relied on the principles considered in D**irector of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]:
Where the state of a person’s mental health contributes to the commission of the offence in a material way; the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.
It may reduce or eliminate the significance of specific deterrence.
Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence … (Citations omitted.)
[34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
[35] A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2).
The applicant contends that the sentencing judge erred in the way in which he responded to the applicant’s submissions about the connection between his offending and his mental health conditions. The applicant puts the argument in two alternative ways. The applicant’s primary contention (in ground 1) is that the sentencing judge engaged with the issue but wrongly refused to accept that there was a relevant connection between the offending and the applicant’s mental health conditions. This was said to amount to making an adverse finding without affording the applicant procedural fairness. The adverse finding which is said to have been made is that “there was no nexus between the applicant’s mental ill health and the commission of the offences”.
The applicant places particular weight on the concession by the Crown before the sentencing judge that there was a nexus between the offending and the applicant’s mental health conditions, albeit a “slight” one. The applicant argues that in such circumstances the principle expressed by Basten JA (with whom Howie and Johnson JJ agreed) in O’Neill-Shaw v R [2010] NSWCCA 42 at [26] was engaged:
As explained by Howie J in [R v Palu [2002] NSWCCA 381; 134 A Crim R 174], the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.
As noted by Dhanji J (with whom Davies and Huggett JJ agreed) in R v Nguyen [2025] NSWCCA 42 at [46], O’Neill-Shaw was a case involving evidence of fact. Different considerations can arise where opinion evidence is concerned, including because there may be deficiencies in the factual foundation for the opinion or the reasoning expressed.
The applicant also sought to rely on McLaughlin v R [2025] NSWCCA 13 at [121]-[128]. However, McLaughlin concerned the requirements of procedural fairness in circumstances where the sentencing judge had indicated that she proposed to make a finding, consistent with the submission of an offender, that there was a connection between his offending and his mental health disorder, but then reached a contrary conclusion without giving any further indication to the offender. There is no analogy with the present case. The applicant does not submit that the sentencing judge indicated any preliminary inclination about his attitude to the issue at the sentencing hearing.
The applicant’s alternative contention (in ground 3) arises if the sentencing remarks are construed as indicating that the sentencing judge made no finding about the connection between the applicant’s offending and his mental health conditions. Such a conclusion would signify (the applicant argues) that the sentencing judge failed to take that matter into account or failed to explain in his reasons how the matter had been taken into account.
The reasoning of his Honour touching on the connection between the offending and the applicant’s mental health conditions is contained in the following passage:
He reports being diagnosed with anxiety by his general medical practitioner in 2016 when he would have been about 35 years old and prescribed medication. However, he stopped his medication because they had little effect on him. He takes no medication at present. He was diagnosed with PTSD in 2024 by a doctor. I accept the opinion of Ms Edwige that the offender presents with complex post-traumatic stress disorder and also he has been diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD). At page 18 of her report she stated:
“It is my opinion that these disorders had a significant impact on Mr Macauley’s ability to make considered and appropriate choices and impaired his ability to make reasoned judgment, think clearly, regulate his behaviour and fully appreciate the wrongfulness of the act. I consider this and Mr Macauley’s childhood background and development to be a contributing factor to the offences committed”.
The offender describes a childhood adolescence characterised by early exposure to alcohol and drugs, domestic violence, emotional deprivation, disadvantage and child sexual abuse. I find his moral culpability for the offences and the need for the deterrence reduced having regard to the well-known principles in Bugmy v The Queen (2013) 249 CLR 571. However, these matters are also relevant to my assessment of his prospects of rehabilitation and the need to protect the community. Having regard to the offender’s criminal history and prior drug related offences, I do not accept that part of Ms Edwige’s opinion that he would not have fully appreciated the wrongfulness of his act.
Mr Djemal submitted the offences were impulsive referring to what Mr Picken, clinical psychologist, stated at page 10 of his 30 October 2024 report (p 58 of the Crown bundle) and, in accordance with the principles in DPP (Cth*) v De La Rosa* (2010) 79 NSWLR 1 applicable to those offenders suffering from a significant mental illness, further reduced his moral culpability and the need of deterrence beyond that to which I have already referred.
Mr Picken stated the following at page 10 of his report:
“Shannon presented for assessment of attention-deficit/hyperactivity disorder (ADHD) due to an established lifelong history of acting in ‘impulsive’ and ‘erratic’ ways”.
I accept that ADHD may contribute to an individual acting impulsively. However, as earlier started I am unable to make a finding about the offender’s motivation in taking part of the offences - that is, whether it was a considered decision to store the drugs and cash for profit or some other consideration or impulsively arrived at reason.
The sentencing judge can be seen to have expressly accepted that, as diagnosed by Ms Edwige, the applicant suffers from complex PTSD and ADHD. His Honour then quoted a paragraph from the Edwige Report in which Ms Edwige went further and opined that both disorders had a significant impact on the applicant’s ability to make considered and appropriate choices, think clearly and regulate his behaviour. Ms Edwige also expressed the conclusion in that paragraph that these disorders impacted on the applicant’s ability to fully appreciate the wrongfulness of his actions.
The sentencing judge did not state expressly whether he accepted every aspect of Ms Edwige’s opinion as set out in that paragraph. However, when the passage extracted above is read as a whole, it is clear enough that his Honour did accept that the mental health conditions were a contributing factor to the offences committed, in the sense that they had a significant impact on the applicant’s ability to make considered and appropriate choices, think clearly and regulate his behaviour.
This involved one qualification to his Honour’s acceptance of the opinion of Ms Edwige as it touched on the connection between the offending and the applicant’s mental health conditions. His Honour rejected the proposition, advanced by the applicant with reliance on the Edwige Report, that the applicant would not have fully appreciated the wrongfulness of his actions because of his mental health disorders. The express rejection of only that particular aspect of the Edwige Report is a strong contextual indication that the sentencing judge otherwise accepted Ms Edwige’s opinion about the relevant connection between the applicant’s PTSD and ADHD disorders and his offending.
The acceptance of the connection between the offending and the mental health disorders (subject only to this qualification) fed into his Honour’s finding that the moral culpability of the applicant for the offences was reduced, as was the need for deterrence. In reaching those conclusions his Honour said that he had regard to the well-known principles in Bugmy. That is consistent with an appreciation, also reflected in the submissions of both parties to the sentencing judge, that in circumstances where the applicant’s PTSD was linked to his deprived upbringing there was an overlap between taking account of those two factors when considering moral culpability and deterrence. To seek to differentiate between the reduction in moral culpability linked to the applicant’s deprived background and the reduction in moral culpability linked to the applicant’s consequential PTSD would have been artificial and not constructive: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [155]-[156]. The applicant’s submission on appeal – that the reference to Bugmy reveals that his Honour rejected any connection between the offending and the applicant’s mental ill health – ignores this point of intersection.
The sentencing judge also rejected a specific submission that an additional reduction in the applicant’s moral culpability was justified because the offences were impulsive. The sentencing judge accepted as a general proposition that ADHD may contribute to a person acting impulsively. However, when it came to determining whether this was in fact the explanation for the applicant’s offences, the sentencing judge found that there was not a proper evidentiary basis to make such a finding. His Honour was unable to make a finding about what motivated the applicant to offend. As the sentencing judge indicated in the passage extracted above, it was possible that the applicant had made a considered decision to store the drugs and cash for profit or for some other reason. It was also possible that the applicant had done so for a reason that was arrived at impulsively. The sentencing judge was not satisfied that the evidence allowed for a positive finding to be made in this regard, including to accede to the applicant’s proposition that his offending conduct could be explained in the quite particular sense of being a product of the applicant’s impulsivity.
Once these matters are appreciated, it can be seen that ground 3 cannot succeed. His Honour did take into account the connection between the applicant’s mental ill health and the offending. His Honour broadly accepted the connection as alleged by the applicant, which in turn supported a reduction in the moral culpability of the applicant. No more elaborate explanation in the reasons was required in order to signify that the matter was taken into account.
As for ground 1, the sentencing judge did not, as the applicant argued, make an adverse finding that there was no connection between the offending and the applicant’s mental health conditions. His Honour dealt appropriately with the submissions that were advanced by the applicant on this topic, which were broadly accepted. To the extent that there were specific aspects of those submissions that were not accepted, this did not amount to an adverse finding in circumstances where the sentencing judge was either bound to accept the applicant’s contention, or bound to give the applicant some further opportunity to be heard before finalising the matter.
The applicant was given a fair opportunity to advance such submissions and evidence as he wished going to the connection between the offending and the applicant’s mental health conditions. The applicant took up that opportunity. The Crown did not concede that those submissions ought be accepted in every respect. To the extent that the Crown conceded that there was a “slight nexus” between the applicant’s mental health conditions and his decision-making and judgment at the time of the offending, that was not a proposition that was rejected by the trial judge. To the contrary, as explained above his Honour found that there was such a nexus. The applicant therefore has no basis to mount an argument that there were agreed or conceded matters that the sentencing judge was obliged to accept, or at least required to raise for particular attention by the applicant before making an adverse finding.
My submission is … that your Honour could sentence him taking into account I think it’s 563 days that he’s done in custody which adds up to approximately a year and a half … and allow him supervision in the community which he genuinely needs and it would promote protection of the community, his prospects of rehabilitation and that sort of term of imprisonment having regard to what De La Rosa says that people with these sorts of ailments suffer more onerous custody that your Honour could do justice to the matter.
As recognised in De La Rosa, one of the ways in which mental ill health may influence the determination of an appropriate sentence in a particular case is where imprisonment will be particularly burdensome for the offender because of that subjective factor. It is important to bear in mind that none of the principles in De La Rosa is an absolute: Aslan v R at [34]. De La Rosa serves to recognise the various potential effects, in any given case, of a mental disability.
Here the applicant put forward the onerous nature of imprisonment for the applicant arising from his mental health conditions as a matter of particular relevance to the fixing of the non-parole period of the sentence. An extended period of supervision in the community on parole was said to be warranted in the interests of rehabilitation and described as being consistent with De La Rosa because that decision recognises that offenders with ailments like that of the applicant suffer more onerous custody.
Given the way those arguments developed, it is unsurprising that the sentencing judge addressed the applicant’s mental illness in the context of finding that there were special circumstances warranting a change to the usual ratio of the head sentence and the non-parole period. His Honour found that special circumstances existed which warranted an extended period of supervision to assist the applicant with his substance use issues “as well as his emotional and mental health issues” and other factors.
His Honour did not elaborate on why “mental health issues” were relevant to that conclusion. As the applicant correctly submits, his Honour did not in terms refer to the onerousness of custody for the applicant having regard to his mental health conditions. However, read in context, this reference should be read as reflecting an acceptance of the submission that a reduction in the period of the sentence required to be served in custody was warranted because the mental health conditions of the applicant made incarceration more onerous. There is no other more plausible explanation for the reference in this context to “mental health issues”. The sentencing judge did not find, for example, that the applicant could receive treatment for his mental health in the community which he could not receive in custody.
So understood, the treatment of the issue by the sentencing judge demonstrates engagement with the proposition that the applicant would find custody more onerous because of his mental health issues. As the respondent correctly submitted, it is orthodox for the onerous nature of custody, arising from an offender’s mental health impairments, to be taken into account as a factor going to special circumstances warranting a proportionately reduced non-parole period: see Turner v R [2025] NSWCCA 3 at [53]; Birkic v R [2026] NSWCCA 53 at [101], [113].
In the circumstances, ground 2 must be rejected. The sentencing judge did not ignore the applicant’s submission that custody would weigh more heavily on him. Nor did the sentencing judge fail to make a finding one way or the other as to the link between the applicant’s mental health conditions and the onerousness of custody.
Leave should be granted, but the appeal dismissed.
CAMPBELL J: I agree with Free JA.
McNAUGHTON J: I agree with Free JA.
**********
Macauley
R
[2026] NSWCCA 53
[2013] HCA 37
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2022) 109 NSWLR 82