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[2026] NSWCCA 25
Court of Criminal Appeal (NSW)
2026-03-20
N Adams CJ at CL at [1], Hamill J at [162], Emmett J at [163].
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: MT v R [2026] NSWCCA 25
Hearing dates: 6 February 2026
Date of orders: 20 March 2026
Decision date: 20 March 2026
Before: N Adams CJ at CL at [1];
Hamill J at [162];
Emmett J at [163].
Decision: (1) Grant an extension of time to bring the appeal pursuant to r 3.5 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(2) Grant leave to appeal.
(3) Allow the appeal.
(4) Quash the sentence imposed on the applicant by Judge Kumar on 31 May 2024 and in lieu thereof sentence the applicant to an aggregate head sentence of 13 years and 6 months’ imprisonment to commence on 22 August 2022 and expire on 21 February 2036 with an aggregate non-parole period of 9 years’ imprisonment to commence on 22 August 2022 and expire on 21 August 2031. The first date that the applicant will become eligible for parole is 21 August 2031.
Catchwords: SENTENCING — appeal against sentence — sexual offences committed against biological daughters — whether sentence manifestly excessive — use of comparable cases — where indicative sentences are high — where the sentencing judge applied a significant degree of notional accumulation — aggregate sentence unreasonable or plainly unjust — appeal allowed and applicant resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1986 (NSW), ss 25AA(3), 32, 33, 44(2), 53A(2), 54B(6)
Crimes Act 1900 (NSW), ss 61HA, 61M, 66C(2), 66DA(a), 66DB(a)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(a)
Cases Cited: AJ v R [2023] NSWCCA 158
Baker v R [2022] NSWCCA 195; 302 A Crim R 60
BB v R [2021] NSWCCA 283
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; 224 A Crim R 204
Chartres-Abbott v R [2021] NSWCCA 239; 291 A Crim R 225
Conte v R [2018] NSWCCA 209
Davidson v R [2022] NSWCCA 153; 300 A Crim R 214
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 70 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; 307 A Crim R 149
Facer (a pseudonym) v R [2019] NSWCCA 180; 279 A Crim R 156
Harden v R [2024] NSWCCA 184
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 36
JM v R [2014] NSWCCA 297; 246 A Crim R 528
KS v R [2024] NSWCCA 147
Lee v R [2020] NSWCCA 244
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Moananu v R [2022] NSWCCA 85
MRW v R [2011] NSWCCA 260
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parker v R [2021] NSWCCA 175
PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
PN v R [2024] NSWCCA 86
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v BH [2023] NSWCCA 278
R v Eaton [2023] NSWCCA 125; 308 A Crim R 465
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v XX [2009] NSWCCA 115; 195 A Crim R 38
RA v R [2024] NSWCCA 149
TH v R [2025] NSWCCA 121
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Tindall v R [2019] NSWCCA 136
Wilson v R [2025] NSWCCA 86
Category: Principal judgment
Parties: MT (Applicant)
The Crown (Respondent)
Representation: Counsel:
Mr N Broadbent SC (Applicant)
Ms L Hutchinson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00248914; 2023/00016414
Publication restriction: Pursuant to s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any matter which is likely to lead to the identification of the complainants.
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty to four sexual offences committed against his biological daughters, SL and JT. These offences were two counts of aggravated sexual intercourse contrary to s 66C(2) Crimes Act 1900 (NSW), one count of intentionally sexually touching a child aged above 10 years and below 16 years contrary to s 66DB(a), and one count of intentionally sexually touching a child aged under 10 years contrary to s 66DA(a). Four further offences were also taken into account on Forms 1.
On 31 May 2024, the applicant was sentenced by Kumar DCJ to an aggregate term of 16 years’ imprisonment with a non-parole period of 11 years. The applicant sought leave to appeal against this aggregate sentence on the sole ground that it was manifestly excessive.
The Court (N Adams CJ at CL, Hamill and Emmett JJ agreeing) held, granting leave to appeal, allowing the appeal and re-sentencing the respondent:
Ibbotson (a pseudonym) v R [2020] NSWCCA 92; Wilson v R [2025] NSWCCA 86, considered.
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; 307 A Crim R 149; JM v R [2014] NSWCCA 297; 246 A Crim R 528; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; 224 A Crim R 204; R v Eaton [2023] NSWCCA 125; 308 A Crim R 465, referred to.
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; 307 A Crim R 149; R v BH [2023] NSWCCA 278; AJ v R [2023] NSWCCA 158; Facer (a pseudonym) v R [2019] NSWCCA 180; 279 A Crim R 156, considered.
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Conte v R [2018] NSWCCA 209; SB v R [2022] NSWCCA 164, applied.
N ADAMS CJ at CL: By notice of appeal dated 29 August 2025, the applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by her Honour Judge Kumar in the District Court of New South Wales on 31 May 2024. The applicant pleaded guilty in the Local Court to three sexual offences committed against his biological daughter SL and one sexual offence committed against his biological daughter JT. Four offences committed against SL were also taken into account on Forms 1: Crimes (Sentencing Procedure) Act 1986 (NSW), s 33 (“Sentencing Act”).
After applying discounts of 25% to the four indicative sentences for his plea of guilty, the applicant was sentenced to an aggregate term of 16 years’ imprisonment with a non-parole period of 11 years’ imprisonment. The sentence commenced on 22 August 2022. The non-parole period will expire on 21 August 2033, and the head sentence will expire on 21 August 2038.
The applicant seeks leave to appeal against the aggregate sentence on a single ground of appeal, namely, that the aggregate sentence imposed was manifestly excessive.
The applicant filed a Notice of Intention to Appeal on 6 June 2024. The Notice of Appeal was not filed until 29 August 2025, which is out of time pursuant to r 3.5(2)(a) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicant has applied for leave to file the notice of appeal out of time. In support of this application, the applicant relied on an affidavit of Janet Witmer affirmed on 29 August 2025. The delay was partially explained by delays in obtaining the transcripts and exhibits and counsel’s availability.
The applicant was sentenced for the following four offences:
Two offences of aggravated (under authority) sexual intercourse with a child above 10 and below 14 years old against SL contrary to s 66C(2) Crimes Act 1900 (NSW) (sequences 1 and 7): Maximum penalty of 20 years’ imprisonment and Standard Non-Parole Period (“SNPP”) of 9 years;
One offence of intentionally sexually touching a child above 10 years and below 16 years against SL contrary to s 66DB(a) Crimes Act (sequence 10): Maximum penalty of 10 years’ imprisonment; and
One offence of intentionally sexually touching a child under 10 years against JT contrary to s 66DA(a) Crimes Act (sequence 1): Maximum penalty of 16 years’ imprisonment and SNPP of 8 years.
Four further offences were taken into account on two Form 1 documents:
In relation to sequence 1, three offences of intentionally sexually touching a child over 10 years and under 16 years against SL contrary to s 66DB(a) Crimes Act (sequences 6, 8, and 9); and
In relation to sequence 7, one offence of aggravated (under authority) sexual intercourse with a child under 10 and over 14 years old against SL contrary to s 66C(2) Crimes Act (sequence 2).
The following summary is based on the Agreed Facts.
The applicant has three biological children: SL, his eldest daughter (born 11 October 2008), JT, his second daughter (born 12 May 2012) and a younger son. At the time of the offences, all three children were in the primary care of the applicant. They lived together at various addresses. From around 2019 to August 2022, they lived in Kellyville. From August 2022 until the applicant’s arrest, they lived in a house in Plumpton. The applicant had sole care of the children at the time of the commission of the offences.
On an occasion in 2019 when SL was 10 or 11 years old, the applicant took all three children on a trip to the beach, where they stayed at beachside accommodation in Sydney or a surrounding coastal area in NSW for one night. On the first night at the beach side accommodation, the applicant and the children watched movies together. At about 1am, SL and JT went to the single bedroom in the house and slept in the shared bed.
At some point in the night, the applicant came into the bedroom and lay down next to SL, who was at the time sleeping on her back. SL woke up when she felt the applicant’s hand inside her underwear. The applicant moved his hand down to SL’s vagina and pushed his finger inside her vagina, which caused stinging and pain. The applicant then started moving his finger in and out of SL’s vagina. SL tried to push the applicant’s hand away several times, but he continued moving his finger in and out of SL’s vagina.
SL said to the applicant, “Dad what are you doing”. The applicant indicated to her to be quiet by making a “shush” sound and continued moving his finger in and out of SL’s vagina.
SL tried to kick the applicant and told him to “stop” for 2-3 minutes (she did so by whispering, because she did not want to wake up her sister who was asleep in the bed). The applicant did not stop. The incident lasted for “half an hour or so”. When the applicant did stop, SL got out of the bed, ran into the bathroom and locked the door. She stayed in the bathroom for a period of time crying.
The applicant called SL to come out of the bathroom. After she came out, he said, “I never meant to do this to you. I just did this because I don’t want you to be, like, one of those girls”. He also said, “I’m doing this because I love you” and “I’m doing this for a lesson”. The applicant told SL not to tell anyone.
The applicant sexually offended against SL on multiple occasions at their home in Plumpton and Kellyville Ridge. However, SL was only able to particularise a number of these incidents.
On an occasion between 11 October 2019 and 10 October 2021 at her home at Kellyville Ridge when SL was 11 or 12 years old, she was sitting on a sofa in the living room. Her siblings were also in the room, sitting on a separate sofa, and the applicant was sitting on the floor next to the sofas.
At some point, the children all fell asleep. SL was laying on the sofa on her back. The applicant, whilst still sitting on the floor next to SL’s sofa, moved his hand inside SL’s pants and underneath her underwear. This caused SL to wake up, but she did not move or say anything.
The applicant moved from the floor onto SL’s sofa so that his body was over hers. The applicant removed SL’s pants completely and lifted her legs, placing them on either side of his shoulders. The applicant placed his hands on SL’s shoulders and licked SL’s vagina for a “long time”, though she was unsure how long.
SL then ran into the bathroom and stayed there for a period of time crying. The applicant called SL to come out of the bathroom, and they went into another room. The applicant said, “I just hope you know that I love you” and “this is for a lesson”.
The applicant then told SL to go back to sleep. SL went to her bedroom, locked the door and slept the remainder of the night. She did not tell anyone about the incident at the time.
On an occasion between 11 October 2019 and 10 October 2021 at her home at Kellyville Ridge when SL was 11 or 12 years old, she was in the living room with the applicant and her two siblings, watching the movie “Jurassic Park” on the television. Her two siblings were laying on the sofa under a blanket, while SL and the applicant were laying on a mattress on the floor. SL and the applicant were laying on their side underneath a blanket, with the applicant positioned behind SL and both facing the television.
At some point, while watching the movie, the applicant moved closer to SL so that his front was touching her back. The applicant’s penis was erect. SL tried to move away from the applicant by sliding her body forward on the mattress; however, the applicant also moved so that he was laying behind her in a “spooning” position. They were both still covered by the blanket.
The applicant slowly pulled SL’s shorts and underpants down underneath the blanket and started rubbing his penis against SL’s anus. The applicant continued rubbing his penis against SL’s anus until he ejaculated, then lay back down on the mattress.
SL tried to discretely pull her pants up so that her siblings would not see. She then got up from the mattress and went to the bathroom, where she observed “white stuff” on her. She had a shower.
SL did not say anything to anyone at that time.
On one occasion between 12 May 2020 and 31 December 2020 at their home in Kellyville Ridge when JT was 8 years old, she was sleeping in the lounge room on the floor.
At some point, JT woke up. The applicant had slid his hand under JT’s dress up to her underwear. The applicant began to rub or massage JT’s genital area on the outside of her underwear.
JT moved the applicant’s arm from her body, got up from the floor and moved to the couch where SL was sleeping. When she moved to the couch, she saw the applicant sleeping and heard him snoring.
JT did not tell anyone about this incident at the time.
This was the only occasion upon which the applicant offended against JT.
On an occasion between 1 August 2022 and 16 August 2022 at their home at Plumpton when SL was 14 years old, she and her sister JT were asleep together on a single bed mattress in their room at the Plumpton address. Their cousin was also staying over and was sleeping in the lounge room. The applicant was out socialising with a friend and was consuming alcohol on this occasion.
Around 6 to 7am in the early morning, the applicant returned home and came into the bedroom where SL and JT were asleep on the mattress. The applicant lay down at the foot end of the mattress.
The applicant placed his hand on SL’s thigh, which caused her to wake up. The applicant rubbed his hand on SL’s thigh and inner thigh for several minutes. He then held her leg and started to pull her towards him on the mattress. SL pulled her leg from the applicant’s grasp and immediately got out of the bed. The applicant asked her, “where are you going?”. She replied, “Oh, I’m just going to the bathroom”. SL left the bedroom and went to the living room where her cousin was sleeping. She did not return to the bedroom that night and slept in the living room with her cousin.
On an occasion between 1 August 2022 and 16 August 2022 at their home in Plumpton when SL was 14 years old, she was asleep in her bedroom. In this bedroom SL was sharing a mattress with the applicant, who lay on her right side, and her two siblings, who lay on her other side to the left of the mattress.
The applicant lifted SL’s shirt and bra up to expose her breast. He started rubbing and/or squeezing her breasts with his hands and then started to suck on her nipple hard enough to cause SL to feel pain (sequence 8).
The applicant then removed his mouth from SL’s breast and started kissing her on the lips. As he was kissing her, the applicant tried to push his tongue inside her mouth. This continued for several minutes (sequence 9). SL then pushed the applicant away from her, got out of the bed and left the bedroom. She did not return to the bedroom that night and slept in another room.
In August 2022, SL was spending time with her paternal aunt, the applicant’s sister. SL disclosed the sexual abuse to her aunt who then told other family members including the applicant’s parents.
The applicant was confronted about the allegations by his parents and sister. The applicant started crying and apologised to them, saying “I fucked up”.
Later that day, the applicant spoke to SL who confirmed she had disclosed his conduct. He was upset and said words to the effect of “you got me in trouble” and “the whole family hates me”. Once the applicant became aware the police were to be notified, the applicant took the three children out for dinner and said, “I wanted to hang out with you guys one last time”. At the restaurant, the applicant said, “sorry for this to happen to you”. He told them he loved them and would miss them. The applicant drove them back to their aunt’s house and left.
The matter was reported to police. On 22 August 2022, the applicant voluntarily attended Blacktown Police Station where he was arrested in relation to these offences.
Before turning to consider the applicant’s subjective case and the findings of the sentencing judge, it is necessary to note some minor differences between the particulars on the Charge Certificate and the Agreed Facts. The applicant relied upon these discrepancies as a possible contributing factor to the purported latent error in the aggregate sentence imposed. These differences were:
Sequence 1 relating to SL:
(a) the date range on the Charge Certificate was 1 April 2019 to 31 March 2021, whereas the Agreed Facts stated that the offending was “[i]n 2019”; and (b) the age range of SL was 9 to 12 years old on the Charge Certificate and 10 to 11 years old in the Agreed Facts.
(a) the date range was 1 January 2022 to 16 August 2022 on the Charge Certificate and 1 August 2022 to 16 August 2022 in the Agreed Facts; and (b) the age of SL was 14 on both the Charge Certificate and the Agreed Facts. However, SL would have been 13 years old in both date ranges.
(a) the date range was 1 January 2022 to 16 August 2022 on the Charge Certificate and 1 August 2022 to 16 August 2022 in the Agreed Facts; and (b) the location of the offence was Kellyville Ridge on the Charge Certificate and Plumpton in the Agreed Facts.
(a) the date range was 1 April 2019 to 31 March 2022 on the Charge Certificate and 11 October 2019 to 10 October 2021 in the Agreed Facts; and (b) the age range of SL was 10 to 13 years old on the Charge Certificate and 11 to 12 years old in the Agreed Facts.
(a) the date range was 1 July 2019 to 12 October 2021 on the Charge Certificate and 12 May 2020 to 31 December 2020 in the Agreed Facts; and (b) the age of JT was 8 on the Charge Certificate and the Agreed Facts. However, JT would have been 6 to 9 years old in both date ranges.
The proceedings on sentence took place on 15 April 2024. In addition to the Agreed Facts, Charge Certificates and Forms 1, the Crown tendered the applicant’s criminal and custodial history. Victim impact statements of SL and JT were tendered and read during the proceedings on sentence.
In her victim impact statement, SL spoke eloquently of her trauma, flashbacks and suicidal ideation as well as her guilt about reporting the offences because it meant her younger brother will grow up without a father. She described how what “hurt the most” was having to live without a father figure and how she needed a father who would protect her from harm. She was 15 years old at the date of her victim impact statement. JT similarly wrote of there not being a day when she does not think about what the applicant did and how it is “not so easy just to forget the past”. She was 10 years old at the time of her letter to the court.
The applicant gave evidence during the sentencing proceedings and was cross-examined. He stated that he did not realise that he had problems with alcohol until he entered custody. He also relied on the following documents to establish mitigating factors on sentence:
Psychological report of Dr Mamta Sidhu dated 20 March 2024; and
Letter of the applicant’s mother dated 11 March 2024.
The applicant and the Crown relied on written submissions on sentence. Her Honour’s attention was drawn to the decisions in PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107, Parker v R [2021] NSWCCA 175 and MRW v R [2011] NSWCCA 260 on the question of not double counting breach of trust and the aggravating feature of being in a position of authority. Her Honour’s attention was also brought to the decisions in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; 307 A Crim R 149 (“DPP v TH”) and R v B**H [2023] NSWCCA 278 (“BH”) as “comparable” cases.
The sentencing judge reserved her decision and delivered her remarks on sentence on 31 May 2024. Although no patent error is relied upon, I propose to set out her Honour’s findings in some detail in order to consider some of the discrete submissions made on behalf of the applicant.
The sentencing judge first discussed the general principles that apply in sentencing for child sexual assault offences. These include the following:
The community regards sexual offences against children, particularly young children, with abhorrence.
General deterrence is particularly important where the offender is in a position of trust in relation to the victim, as was the case here.
Child sexual assault offences are objectively serious and cause significant and long-lasting harm to victims. Courts must send a very strong message of both general deterrence and denunciation when imposing sentences for offences of this kind.
Her Honour went on to note the impact of the offending on the victims under s 25AA(3) of the Sentencing Act. Her Honour observed the following:
I have expressly had regard to the trauma of sexual abuse on children. I have used the common experience of the courts and I have also had regard to the victim impact statements. The victim SL outlined the profound impact the offences have had (and continue to have) on her. SL recounted idolising her father before she understood what he was doing to her. She described the emotions and pain she experienced because of the offending behaviour, including not having the father she needed and deserved. SL described feelings of betrayal, a breach of trust and initial anger which has subsided into numbness and disappointment. She also expressed a need to understand why the offending behaviour occurred and it resulted in a loss of self-worth and loathing because of it. SL described her mixed emotions and tension between her teenage self which hates the offender and her inner child which still yearns for his love. She articulated her guilt for coming forward with the complaint and the impact of that on her siblings. SL stated that she experiences flashbacks, has been bullied at school and finds it difficult to socialise, trust and get close to people because she has bravely managed to push through and engage in prosocial activities. She described herself as a “survivor”.
The victim JT wrote in her victim impact statement that she struggles to forgive the offender. Of loving him but feeling hurt. Of struggling to forget. JT said that she has “flashbacks of happy memories and not so happy memories”. She clearly articulated her emotional struggles and the impact of the offences on her mentally. She has tried to leave the past in the past, but it still “deeply hurts”, noting that despite what has happened she does love the offender.
I accept the Crown submission that there can be no doubt that the victims have suffered and will continue to suffer for a long period of time as a result of what the offender has done.
In assessing the objective seriousness of the four offences, her Honour took into account the following features which were common to all of the offences:
The applicant is the biological father of SL and JT;
The age differential between the applicant and SL was substantial, namely 18 years;
The age differential between the applicant and JT was even greater, being 22 years;
The applicant was their primary caregiver at the time of the offences;
As a biological father, the applicant was in a position of authority and trust in respect of SL and JT; and
The applicant should have protected his children but instead he exploited their innocence for his own means.
As to sequence 1 committed against SL, the sentencing judge had regard, inter alia, to the following factors:
SL was aged 10 to 11 years which is within the lower to mid threshold;
The offence occurred at a beach house during a vacation;
The offence appeared more opportunistic than planned;
The applicant approached SL while she was asleep in a bed shared with her sister during holiday;
The fact that SL was asleep at the beginning of the offence added to some degree to her vulnerability;
The applicant placed his hand under SL’s underwear while she was sleeping which is what woke her up;
The offence was digital penetration of SL’s vagina which caused her pain when the applicant moved his fingers in and out;
The applicant persisted in the face of SL’s physical and verbal resistance;
When SL asked the applicant what he was doing he tried to silence her;
SL’s words and actions at the time clearly indicated her opposition to what the applicant was doing. The applicant dismissed her objections and continued to digitally penetrate her;
The offence took half an hour or so which is not a short duration;
Immediately after the offence SL ran away and locked herself in the bathroom and cried. This was indicative of her obvious distress at the time of the offence and immediately afterwards which must have been apparent to the applicant; and
When SL came out of the bathroom the applicant tried to “justify, excuse and normalise” his behaviour and told her not to tell anyone in an apparent attempt to ensure her silence.
The sentencing judge accepted the Crown submission that the objective seriousness of this offence “falls at or slightly above the midrange”.
As for the three Form 1 offences attached to sequence 1 (sequences 6, 8 and 9), the sentencing judge noted that they were “objectively less serious” than sequence 1, but neither were they “trivial” offences and they “warrant[ed] some upward pressure on the penalty imposed” for sequence 1.
In relation to sequence 7 committed against SL, the sentencing judge had regard to, inter alia, the following factors:
SL was aged between 11 or 12, within the lower to mid threshold;
The offence occurred in SL’s home in which she was entitled to feel safe and secure, which was an aggravating factor;
The offence appeared more opportunistic than planned;
The applicant approached SL while she was asleep in the lounge;
While she was sleeping the applicant placed his hand inside SL’s pants and underwear causing her to wake up;
The fact that she was sleeping added to some degree to her vulnerability;
On this occasion SL did not say or do anything, but the absence of struggle or resistance is not a mitigating factor;
The applicant then digitally penetrated SL (sequence 2 on the Form 1);
The applicant then positioned his body on top of SL’s body;
The applicant removed SL’s bottom clothing and lifted her legs up, placing them on either side of his shoulders;
The applicant then performed cunnilingus on SL for a “long” but otherwise unknown time;
When the offending finished, SL again fled to the bathroom in apparent distress which must have been evident to the applicant; and
The applicant called SL out of the bathroom and ultimately told her he loved her and was teaching her a lesson which was in clear disregard for her welfare and feelings.
Her Honour found that this offence fell within the mid-range of offences of this type. Sequence 2 (taken into account on a Form 1) was also found to be a serious offence which “warrants a reasonable amount of upward pressure being applied to the penalty for the substantive offence”.
In relation to sequence 10, the sentencing judge had regard to, inter alia, the following factors:
SL was 11 or 12;
The offending occurred in SL’s home;
The offending was more opportunistic than planned;
The offending occurred when SL and the applicant were laying on a mattress;
The applicant’s penis was erect, indicative of him being sexually aroused despite his denials about that matter;
The applicant removed SL’s bottom clothing and rubbed his penis against her anus, skin to skin. This continued to the point of ejaculation. The contact was direct genital to anus contact and skin to skin; and
After the assault SL discreetly pulled her pants up and went to the bathroom where she observed “wet stuff” on her body and had a shower.
The sentencing judge found that the offence fell “above the mid-range” of objective seriousness.
In relation to sequence 1 against JT, the sentencing judge had regard, inter alia, to the following factors:
JT was 8 years old which was the higher end of the age threshold for the charge;
The offence occurred in the home;
The offence appeared opportunistic more than planned;
There was no skin to skin contact and the contact stopped when JT moved away; and
The offence was aggravated by a breach of trust.
The sentencing judge found that the offence fell “towards the lower end” of the range of objective seriousness.
The sentencing judge made various findings about the applicant’s subjective case by reference to the applicant’s evidence and the psychological report of Dr Sidhu.
The applicant was 34 years old at the time of sentence. He is Samoan and was born in New Zealand. He lived in Samoa in his early years and relocated to Australia when he was 7 years old. He reported a financially stable and loving home environment, free of any domestic violence, abuse, neglect or addiction. He feels “very lucky” to have the continued support of his family and has remained in contact with his mother and siblings by telephone while in custody.
The applicant completed Year 12 and began working at around 18 years old. He denied any long periods of unemployment.
The applicant started drinking alcohol at 18 years old. He reported drinking “quite a bit” to manage his emotional distress. The applicant gave evidence that since entering custody he has recognised that his consumption of alcohol was problematic and he was prepared to engage in treatment.
The applicant denied any mental illness, self-harm or suicide attempts and had no symptoms consistent with psychosis, drug-induced psychosis, bipolar disorder, mania or schizophrenia at any time in his life. He described the breakdown of his marriage and separation from his wife, whom he married at 21 years old, as “stressful and a difficult adjustment” but stated that he “managed”.
The sentencing judge found that the applicant’s good character and lack of antecedents did not assist in the commission of any offending. Although the offending took place over a few years and undermined good character somewhat, her Honour ultimately accepted the applicant’s submission that he was deserving of leniency due to his lack of prior offending and general good character.
The sentencing judge noted the pleas of guilty and confirmed that she proposed to apply a 25% discount to reflect the utilitarian value of the plea. Her Honour also took the pleas into account “as an acknowledgment of responsibility and to show remorse”. Her Honour found that the applicant expressed genuine remorse for his offending through his evidence in court, and used his remorse to mitigate his sentence.
The sentencing judge noted that the applicant had ongoing family support, a strong employment history and an absence of broader antisocial attitudes.
Dr Sidhu reported that the applicant “displayed limited insight into the offending and the drivers for his sexual offences”, as well as a lack of understanding regarding his treatment needs to reduce the risk of reoffending. The sentencing judge noted this as a matter of concern. The applicant stated during his interview with Dr Sidhu that he was “unsure of the charges” and “did not do half of the offences”. He stated that he was unable to recall the offending in detail as he was inebriated, but denied being sexually aroused at the time of the offending or ejaculating, which was noted to be contrary to the agreed facts. However, he acknowledged that the victims were “not lying, I must have done it”.
The sentencing judge concluded that:
I am prepared to accept that he has reasonable prospects of rehabilitation but, that his prospects of reoffending and rehabilitation are connected and dependent on him addressing his sexual interest in children and, the fact that his offending was committed for sexual gratification.
The sentencing judge imposed the following indicative sentences after applying a 25% discount for the early pleas:
For sequence 1 involving SL, 8 years and 3 months’ imprisonment;
For sequence 7 involving SL, 6 years and 4 months’ imprisonment;
For sequence 10 involving SL, 4 years and 6 months’ imprisonment; and
For sequence 1 involving JT, 4 years and 1 month’s imprisonment.
As outlined above, the aggregate sentence was 16 years’ imprisonment with a non-parole period of 11 years commencing on 22 August 2022.
After pronouncing the indicative sentences and aggregate sentence, there was the following exchange between the sentencing judge and counsel:
FERNANDO: Section 54B requires that an indicative non-parole period also be indicated for Sequences 1, 7 and Sequence 1 for JT because they are charges with standard non-parole periods.
HURFORD: That is correct.
HER HONOUR: All right. The standard non-parole period for those will be, I will just work those out. Can I provide those in the orders or I just need to calculate them, noting the time, it’s twenty five past four. Just working those out, so for Sequence 1, Sequence 7 and is it Sequence 1 for JT?
The sentencing judge then indicated the indicative non-parole periods for these offences:
For sequence 1 involving SL, an indicative non-parole period of 5 years and 8 months;
For sequence 7, an indicative non-parole period of 4 years and 4 months; and
For sequence 1 involving JT, an indicative non-parole period of 2 years and 9 months.
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
[4] Mere disagreement by appellate judges with the sentence imposed is not enough to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that, within a range of acceptability, the judgment of a sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28].
[5] As noted in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”, citing R v Elemes [2000] NSWCCA 235 at [22]-[23].
… with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ [sic] and Adamson J agreed and cases cited thereat; “JM”). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; “Beale”). The “potentials for accumulation” of the various notional sentences can be examined to determine whether the “aggregate sentence represents a sound exercise of sentencing discretion” (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The “principle”, or even ultimate, “focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved” (JM at [40]).
Although the applicant did not identify any patent error in the sentencing reasons, he identified two “irregularities” with the sentence that, it was submitted, would lead the Court to conclude that there has been some misapplication of principles by the sentencing judge. These two matters are:
Discrepancies between the date range of offences and ages of the complainants in the Charge Certificate and those in the Agreed Facts; and
The failure to indicate non-parole periods for the offences to which SNPPs applied until after the sentence was announced.
First, as to the discrepancies between the Charge Certificate and the Agreed Facts, set out above at [42], the applicant submitted that the cumulative inaccuracies may have contributed to latent error giving rise to manifest excess. This is because the presence of the wider date and age ranges on the Charge Certificate may have led to an impression that the offending conduct extended for a wider period than that which was ultimately agreed between the parties in the Agreed Facts.
Secondly, the applicant submitted that the sentencing judge’s failure to initially pronounce indicative non-parole periods may have hampered her Honour’s capacity to properly assess the degree of accumulation in the sentence passed, instead engaging in a “formulaic exercise”.
Despite identifying these two matters as potential explanations for what was said to be a manifestly excessive aggregate sentence, the applicant’s submissions focussed on the severity of the indicative sentences and the sentencing judge’s approach to totality.
The applicant submitted that the starting points of the indicative sentences for the s 66C(2) offences committed against SL before the 25% discount were severe, namely 11 years for sequence 1 and 8 years, 5 months and 14 days for sequence 7. The applicant relied on the findings of objective seriousness of “at or slightly above the midrange” for sequence 1 and “within the mid-range” for sequence 7 and the applicant’s subjective case as an offender with no prior record, remorse and reasonable prospects of rehabilitation.
In relation to JT, the applicant submitted that the starting point for the indicative sentence for sequence 1 (5 years, 5 months and 14 days) was high, particularly given the finding that the offence fell “towards the lower end of the range” and involved touching outside the clothing where no Form 1 matters attached.
Finally, the applicant submitted that the aggregate sentence was manifestly excessive. Without the 25% discount, the starting point for this sentence was 21 years and 4 months with a non-parole period of 14 years and 8 months. It was submitted that there may have been some error in the sentencing judge’s application of the principle of totality in this case.
During the hearing of this application, the Court was taken to four decisions: DPP v TH, BH, AJ v R [2023] NSWCCA 158 (“AJ”) and Facer (a pseudonym) v R [2019] NSWCCA 180; 279 A Crim R 156 (“Facer”). I will consider those decisions below.
In response to the first purported irregularity, the Crown submitted that each instance of narrowing or “discrepancy” between the Charge Certificate and the Agreed Facts operated in the applicant’s favour. Further, the Agreed Facts constituted the basis on which the applicant was to be sentenced, and the applicant agreed to the date ranges and ages of the victims in these Agreed Facts.
As for the sentencing judge’s belated indication of indicative non-parole periods, it was submitted that this did not contribute to any latent error in the exercise of the sentencing discretion. Instead, the sentencing judge appears to have set non-parole periods for the indicative sentences which reflect the same ratio as between the aggregate head sentence and aggregate non-parole period. The Crown noted the decisions of Ibbotson (a pseudonym) v R [2020] NSWCCA 92 (“Ibbotson”) and Wilson v R [2025] NSWCCA 86 on this point, which I will consider further below.
As for the starting points for the indicative sentences, the Crown noted that sequences 1 and 7 were both accompanied by charges on Forms 1 and the sentencing judge found that these offences warranted some “upward pressure” on the penalty for the substantive offences. The Crown also submitted that the indicative sentences reflected the seriousness of the applicant’s offending. The Crown also relied on the decisions of D**PP v TH, BH, AJ and Facer. I will consider these decisions further below.
Finally, to the extent that the applicant relied upon the Judicial Commission’s Judicial Information Research System (“JIRS”) statistics, the Crown noted the judicial warnings as to the need to exercise caution when relying on bare statistics.
I shall consider the significance of the two purported discrepancies first. I am not satisfied that either of them had the capacity to affect the aggregate sentence adversely to the applicant. As the Crown noted, all of the instances of narrowing or “discrepancy” between the Charge Certificate and the Agreed Facts operated in the applicant’s favour. The applicant was sentenced based on the Agreed Facts which in each instance narrowed the date range of offending. Further and in any event, the only references in the sentencing remarks to the date range of the offending were in general terms and consistent with both time frames.
As for her Honour’s belated recording of the non-parole periods for the three offences which carried a SNPP, even if her Honour had failed to record them at all, that would not have disclosed error. This issue was considered in Ibbotson in which Leeming JA observed the following at [18]:
… [T]he failure to specify a non-parole period for the “indicative” sentences can have no effect upon the ultimate aggregate sentence which was imposed in the present case. Indeed, I struggle to think of any case where it is at all likely that the power to impose an aggregate sentence would be exercised where it could make any difference.
… although an applicant does not need to establish that an error has had an actual effect on the sentence imposed, he or she still is required to show that an error has the capacity to influence the sentence. I am unable to see how a failure to state the non-parole period on an indicative sentence has the capacity to influence the aggregate sentence imposed. The applicant did not rely upon any decision in which it has been found that such an error is amenable to intervention by this Court. (Emphasis in original.)
[71] I am not of the view that the failure to indicate a non-parole period for a standard non-parole period offence could never, or even necessarily rarely, result in an error requiring this Court to resentence. It follows that I would not state the matter as emphatically as Leeming JA and N Adams J did in Ibbotson. In my view, a failure to state the non-parole period for a standard non-parole period offence may reflect, or result in, a failure to advert to the non-parole period that might have been imposed, had individual sentences been imposed. It is to be borne in mind in this context that, as Leeming JA pointed out in Ibbotson (at [9]), “the court’s decision to exercise the power to impose an aggregate sentence should not alter the outcome”. Such a failure may have the capacity to impact on the total sentence imposed, given the limitation in s 47(4) of the CSPA which does not allow a sentence to be served consecutively to commence later than the date of the expiry of the preceding non-parole period.
[72] By way of example if, for two offences, indicative sentences of 12 years imprisonment were nominated, and an aggregate sentence of 22 years was imposed, it would be difficult, without some explanation in the reasons, to escape the conclusion that the failure to advert to the non-parole periods that would have been set, had individual sentences been imposed, had the capacity to (and in fact did) impact the outcome. That is because in the absence of some explanation, non-parole periods set at three-quarters of the head sentence would be expected. If, as a result, a non-parole period of 9 years was set, even if the second sentence was made fully cumulative to the first, the total would be 21 years. The same conclusion is, of course, likely to result, whether the offences bore standard non-parole periods or not. But, nonetheless, where standard non-parole period offences are involved it could not, in my view, be said that the failure to comply with s 54B(4) of the CSPA did not have the capacity to affect the outcome.
It is clear from these passages that Dhanji J did not contend that a failure to state the non-parole period for an indicative sentence would necessarily have the capacity to influence the aggregate sentence imposed; rather, his Honour provided an example of when it might.
The applicant in the present appeal did not go so far as to contend that the belated fixing of the non-parole periods for the indicative sentences had the capacity to affect the sentence; only that it is a possible explanation for what was said to be a manifestly excessive sentence. It was common ground that the non-parole periods for the indicative sentences ultimately fixed reflected the same ratio as that between the aggregate non-parole period and the aggregate head sentence: approximately 68%. In these circumstances I am not satisfied that the belated fixing of these non-parole periods had the capacity to impact the aggregate sentence imposed.
Nor am I satisfied that any other patent error can be identified. Her Honour’s reasons were careful and thorough. She explained in detail why she made each of her findings on objective seriousness and the subjective findings as well as stating the relevant sentencing principles. The ultimate question is whether, despite no patent error being apparent from the sentencing reasons, the aggregate sentence is nonetheless “unreasonable and plainly unjust”.
As Beech-Jones CJ at CL observed in DPP v TH at [56], a complaint about the manifest inadequacy (or excessiveness) of an aggregate sentence can commence with a consideration of the indicative sentences. I propose to adopt that course. In JM v R [2014] NSWCCA 297; 246 A Crim R 528, the observations of R A Hulme J at [40] in relation to the consideration of indicative sentences in an appeal against an aggregate sentence can be summarised as follows:
The indicative sentences recorded in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence;
Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive;
A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved; and
This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.
I note in passing that the preponderance of authority in this Court is that latent error in an indicative sentence cannot establish error in an aggregate sentence in the absence of a corresponding ground of appeal that the aggregate sentence is manifestly excessive: RA v R [2024] NSWCCA 149, KS v R [2024] NSWCCA 147 and PN v R [2024] NSWCCA 86. The applicant did not contend that it could be established that the aggregate sentence was manifestly excessive by simply identifying that one (or more) of the indicative sentences were manifestly excessive, so it is not necessary to consider this issue further in order to determine this ground.
I have assessed the four indicative sentences as against the applicant’s subjective case. It was a highly positive aspect of the applicant’s case that he entered early pleas of guilty and expressed genuine remorse. The sentencing judge made a finding that he had reasonable prospects of rehabilitation and should be afforded leniency for his good character and remorse. Her Honour also noted the observation by Dr Sidhu that the applicant was “poorly motivated to engage in treatment if recommended”. Dr Sidhu’s view was that the applicant “is not yet able to reflect honestly regarding his offending, as doing so will result in acceptance of offending against children”. Despite this, her Honour made favourable findings as to his risk of re-offending and rehabilitation.
There was nothing put before the Court capable of reducing the applicant’s moral culpability for the offending. He did not rely on the principles derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. Nor did he rely on any mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 70 NSWLR 1; [2010] NSWCCA 194 at [177]. I note this as it is a relevant distinguishing factor when comparing some of the other decisions of this Court relied upon by both the applicant and the Crown.
Turning to the objective case, sequences 1 and 7 were offences of aggravated (under authority) sexual intercourse with a child of or above 10 years and under the age of 14 years. Those offences carried a maximum penalty of 20 years and a SNPP of 9 years.
As for sequence 1, I have already set out the factors relevant to the assessment of objective seriousness for these offences at [51] above. Her Honour found that the objective seriousness of sequence 1 was “at or slightly above the midrange of objective seriousness”. In short, the act involved digital penetration of the 11 to 12-year-old victim SL by her natural father which went for half an hour and caused stinging and pain. The applicant persisted despite both verbal and physical protest. SL was visibly distressed afterwards. In response the applicant told her that he did it because he didn’t want her to be “one of those girls”, because he loved her and he was doing it “for a lesson”.
A finding of objective seriousness for this offending of “at or slightly above” does have an element of imprecision. As Basten JA observed in Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; 224 A Crim R 204 at [88]:
… [I]t is rarely explained what is meant by the “middle of the range”. Clearly a range is not a point on a scale, but it could cover anything from 25% to 75% of a most serious case, or it could be far more narrowly defined. Unless it is narrowly defined, it is unlikely to provide useful guidance for the sentencing judge, let alone for those reading the judgment.
… [W]hile it has become increasingly common for judges to [place objective seriousness on a putative range], exposing the reasons for the ultimate sentencing outcome does not generally require a sentencing judge to place the objective seriousness of the offence on some putative scale from “low range”, through “mid-range”, to “high range”. In cases involving a standard non-parole period, it will usually be desirable to do because it is only if the case falls in (or above) the so called “middle range of objective seriousness” that the standard non-parole period applies.
(Emphasis added.)
For my part, I consider it desirable to make assessments of the objective seriousness of SNPP offences on a putative range.
In the present matter I have proceeded on the basis that the finding of “at or slightly above the midrange of objective seriousness” means that the assessment was, at the least, at the higher end of the very broad assessment of mid-range offending as explained by Basten JA. That is consistent with the factors her Honour recounted as having been taken into account to arrive at that finding.
Another relevant factor when assessing the indicative sentences in this matter is the fact that three Form 1 matters were attached to sequence 1 and one Form 1 matter was attached to sequence 7. Section 32(1) of the Sentencing Act provides as follows:
(1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
… [T]he Form 1 offences can be taken into account on sentencing as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment (Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); “Abbas” and Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; “Attorney General’s Application”). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General’s Application at [18]).
Accordingly, it was open to the sentencing judge to observe that the Form 1 matters would lead to some “upward pressure” on the indicative sentences for sequences 1 and 7.
The indicative sentence for sequence 1, after a discount of 25%, was a non-parole period of 5 years and 8 months (against a SNPP of 9 years) and a sentence of 8 years and 3 months. Having regard to the statutory guideposts, finding of objective seriousness and subjective case it is not obvious that this indicative sentence is outside “any conception of the proper range of sentences for such offending”: see DPP v TH at [56]. It is, however, a stern indicative sentence.
As for sequence 7, I have already set out the factors relevant to the assessment of objective seriousness for this offence at [54] above. In short, the applicant woke up his 11 to 12-year-old victim, his natural daughter, from her sleep in her own home and following an act of digital penetration (taken into account on a Form 1) he put the child’s legs around his shoulders and performed cunnilingus on her for a “long” time. She fled to the bathroom in apparent distress. He said to her, “I just hope you know that I love you” and “this is for a lesson”. The finding of objective seriousness was “within the mid-range of objective seriousness”. As against the SNPP of 9 years’ imprisonment and a maximum penalty of 20 years, the indicative sentence (after a discount of 25% was applied) was a non-parole period of 4 years and 4 months with a head sentence of 6 years and 4 months. Again, this indicative sentence is not patently manifestly excessive.
It was submitted on behalf of the applicant that the reason for the disparity between this indicative sentence for sequence 7 and that for sequence 1 was not apparent. Although there is some force in that submission, that factor alone does not lead to a conclusion that either of the indicative sentences were excessive.
The third offence in relation to SL was sequence 10. It was an offence of sexual touching of a child above 10 years but under 16 years of age. There was a maximum penalty of 10 years with no SNPP. The offence was aggravated by being a breach of trust: see PC v R, Parker v R and MRW v R.
I have already set out the factors relevant to the assessment of objective seriousness for sequence 10 at [56] above. SL was aged 11 or 12 years, and the offence occurred in her own home and was committed by her natural father. The applicant rubbed his erect penis against SL’s anus, skin to skin, for some time until he ejaculated on her. The sentencing judge found that the offence fell “above the mid-range” of objective seriousness for this “sexual touching”. The indicative sentence was 4 years and 6 months. (No non-parole period was indicated but, applying the same ratio as for all of the other indicative sentences and the aggregate sentence of 68%, the non-parole period for this offence would be just over 3 years’ imprisonment).
Again, I am unable to conclude that this indicative sentence is excessive. It was a particularly serious example of a sexual touching.
Turning to the one offence in relation to JT, it was an offence of sexual touching with a child under 10 years of age. It carries a maximum penalty of 16 years’ imprisonment and a SNPP of 8 years. The description of this offence in the Agreed Facts is somewhat brief. The applicant touched JT when she was 8 years old on her genital area outside her clothing. The applicant “rubbed” that area through clothing. The child moved the applicant’s arm away and left to go and sleep on the couch. When she got to the couch and looked back, the applicant was already asleep. This was the only act pertaining to JT. The finding of objective seriousness was “towards the lower end”. The indicative sentence (after a 25% discount for the plea of guilty) was a non-parole period of 2 years and 9 months (as against the SNPP of 8 years) and a head sentence of 4 years and 1 month.
I have reached a different conclusion in relation to this count. Even having regard to the maximum penalty and SNPP, a starting point of 5 years and 5 months’ imprisonment for an isolated act of brief non-skin-contact sexual touching is arguably manifestly excessive.
Before turning to consider whether the aggregate sentence is manifestly excessive, I propose to briefly consider the indicative sentences identified in some other decisions of this Court relied upon by the parties.
At the risk of stating the obvious, the utility of considering these cases is not to contrast and compare the aggregate sentences imposed with the aggregate sentence imposed on the respondent in this case. Given that each aggregate sentence relates to range of different offences, such a comparison has little or no utility other than revealing the application of the totality principle in different cases (Sharma v R [2022] NSWCCA 190 at [4]−[6] and [8]). Instead, the relevant comparators are the indicative, or individual, sentences for particular offences. In this respect, these cases speak in unison about the very significant custodial sentences that are imposed or indicated for offences under ss 66A and 66C(2) (or s 61J(1)), especially those that involve penile penetration.
In DPP v TH, Beech-Jones CJ at CL (with whom Garling and Yehia JJ agreed) allowed a Crown appeal against the manifest inadequacy of an aggregate sentence imposed for sexual offences on the applicant’s young stepson. His Honour reviewed a number of decisions considering sentences imposed for offences contrary to ss 66A, 66C and 61J of the Crimes Act. The sentencing judge had imposed an aggregate sentence of 7 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months for four offences and three offences on a Form 1. The victim was TH’s stepson, aged between 9 and 13.
Counts 2 and 3 were both offences contrary to s 66C(2) of the Crimes Act. Count 2 involved fellatio on the victim, who was 12 years old, and there was also a Form 1 matter involving fellatio. The indicative sentence following this Court’s resentence (after allowing a discount of 25%) was 6 years and 4 months’ imprisonment with a non-parole period of 4 years and 3 months.
Count 3 involved penile-anal intercourse and was accompanied by an uncharged act of the use of a vibrator. The indicative sentence imposed by this Court was 7 years and 10 months’ imprisonment with a non-parole period of 5 years and 2 months.
TH had been sexually abused himself as a child, was indigenous, and a finding was made that his “[m]ental health and social isolation caused by the trauma he experienced as a child, contributed to the offences in a material way”. His moral culpability was reduced “to an extent” and it was concluded that he was a “[s]omewhat less appropriate” vehicle for general deterrence: see at [33].
By comparison with the indicative sentences in DPP v **TH, the indicative sentence for sequence 1 is higher than both and the indicative sentence for sequence 7 is the same as for count 2 in DPP v TH.
In BH, the respondent in a Crown appeal was convicted of thirteen offences contrary to s 66A of the Crimes Act, with a maximum penalty of life imprisonment and a SNPP of 15 years. The victim was the respondent’s biological daughter aged between 6 and 8 years. Of these offences, four involved fellatio, two involved penile-vaginal intercourse, two involved cunnilingus and five involved digital penetration. On resentence, this Court imposed an aggregate sentence of 18 years’ imprisonment with a non-parole period of 12 years.
One of the offences in BH was an indecent assault contrary to s 61M(2) of the Crimes Act, similar to the offending in sequence 1 against JT, for which the indicative sentence of 2 years’ imprisonment with a non-parole period of 1 year and 3 months was not disturbed on appeal. However, as the Crown noted and the applicant accepted, a s 61M(2) offence carries a maximum penalty of 10 years’ imprisonment, whereas a s 66DA offence (the subject of sequence 1 against JT) carries a maximum penalty of 16 years’ imprisonment.
In AJ, the applicant was sentenced for offences against his biological son and daughter, who were aged between 7 and 12 years. Both victims were cognitively impaired. Relevantly, three of the counts were offences contrary to s 66C(2) of the Crimes Act, all involving the applicant’s 12 year old son performing fellatio on the applicant until ejaculation. The remaining three counts were offences contrary to s 61M(2), with Form 1 matters. On resentence, the starting points of the indicative sentences for the three s 66C(2) offences were 12 years and 6 months, 11 years, and 12 years respectively (a discount of 10% was applied to them). That is to be compared with starting points of 11 years (sequence 1) and 8 years, 5 months and 14 days (sequence 7). This Court on resentence in AJ imposed an aggregate sentence of 14 years’ imprisonment with a non-parole period of 9 years.
Finally, Facer involved six offences committed by the applicant against his granddaughter over a five-year period when she was aged between 9 and 14. There were three counts of aggravated sexual intercourse involving digital penetration contrary to s 66A(2) of the Crimes Act, with a maximum penalty of life imprisonment and a SNPP of 15 years. There were also two counts of aggravated sexual intercourse contrary to s 66C. On resentence, an aggregate sentence of 16 years and 6 months’ imprisonment with a non-parole period of 12 years and 4 months was imposed. The indicative sentences for the s 66C(2) offences were 12 years and 16 years respectively (both higher than the starting points for sequences 1 and 7). The applicant relies on the application of totality in this decision.
All of these cases had different charges, different subjective cases and many involved a greater number of offences. It cannot be said that any of them are truly comparable. But comparing the indicative sentences does not suggest that the indicative sentences in the present matter are obviously outside the range of these other cases, although it is to be accepted that they appear high.
(a) the penetration to any extent of the genitalia or anus of a person by—
(i) any part of the body of another person, or
(ii) any object manipulated by another person, or
(b) the introduction of any part of the genitalia of a person into the mouth of another person, or
(c) the application of the mouth or tongue to the female genitalia, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
Sequence 1 involved digital intercourse and sequence 7 involved cunnilingus. There is authority for the proposition that some categories of intercourse may generally be regarded as less serious than others: Ibbs v The Queen (1987) 163 CLR 447 at 451; [1987] HCA 36. Despite this, as Simpson J (as her Honour then was) observed in R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [24], the seriousness of offending is not a “hierarchy” based on the type of sexual intercourse the subject of the charge; what is important is the context in which the assault occurs.
In Tindall v R [2019] NSWCCA 136, Simpson AJA revisited this principle at [10] in the context of rejecting a submission that an act of forced fellatio is “somehow less serious than offences involving anal or vaginal penetration”. After setting out the definition of sexual intercourse at [11], her Honour went on to observe the following at [12]:
There is nothing in this definition which indicates that any form of sexual intercourse (without consent) is more or less serious than any other form. There is no “hierarchy” of sexual offences ranked by the level or degree of seriousness according to the particular kind of penetration or sexual connection: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [24]. In R v Gavel [2014] NSWCCA 56, this Court said:
“97 … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].”
See also Doe v R [2013] NSWCCA 248 at [54]ff and Bravo v R [2015] NSWCCA 302.
Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled and provided the limitations explained in the extract from Barbaro above are observed. The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set. (Footnotes omitted.)
Having regard to the JIRS statistics for the period of 24 September 2018 to 31 December 2024, a total of 92 sentences of imprisonment were handed down for offences contrary to s 66C(2), 62 of which involved a guilty plea. For sequence 1, nine offenders who pleaded guilty received a higher sentence than the applicant, or 14.5%. For sequence 7, 21 offenders who pleaded guilty received a higher sentence than the applicant, or 33.8%. 65.8% of sentences were imprisonment for 8 years or less, or 85.5% for those involving a guilty plea. The highest sentence for an offender who pleaded guilty was 12 years’ imprisonment and the highest non-parole period was 8 years.
For offences contrary to s 66DB(a), a total of 52 sentences of imprisonment were handed down in the relevant period, 34 of which involved a guilty plea. No other offender who pleaded guilty received a higher sentence than the applicant for sequence 10. 94% of sentences were imprisonment for 4 years or less, or 97% for those involving a guilty plea.
For offences contrary to s 66DA(a), a total of 42 sentences of imprisonment were handed down in the relevant period, 33 of which involved a guilty plea. Five offenders who pleaded guilty received a higher sentence than the applicant for sequence 1 involving JT. 78% of sentences were imprisonment for four years or less, or 84.8% for those involving a guilty plea. The highest sentence for an offender who pleaded guilty was 7 years’ imprisonment and the highest non-parole period was 4 years and 6 months.
These statistics show that the indicative sentence for sequence 10 is the highest imposed and that the other indicative sentences are towards the higher end of the range.
A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.
…[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
In any case concerning multiple victims the proper application of the totality principle will invariably mean that an offender will serve less time in custody for the criminality pertaining to each count and each victim than would be the case had there only been one victim and/or one charge. This consequence of the proper application of the totality principle may well leave victims of crime feeling that the offender has received little additional punishment in relation to the offences committed on them. (Emphasis in original.)
Senior counsel for the applicant suggested that the “undiscounted” aggregate head sentence was 21 years and 4 months’ imprisonment with an undiscounted aggregate non parole period of 14 years and 8 months. This figure was arrived at by adding back on the 25% discount. Of course, that arithmetic only works when an offender is being sentenced on one offence. When an aggregate sentence is imposed, s 53A(2)(b) of the Sentencing Act mandates that a factor such as the discount for the plea of guilty is to be applied to the indicative sentence not the aggregate sentence. This process was explained by Leeming JA in Ibbotson at [11]-[13]. In short, the fact that the discount of 25% is applied to the indicative sentences and not the aggregate sentence means that it is not possible to state precisely what the undiscounted aggregate sentence would have been.
There is some “divergence of opinion” in this Court as to whether it is ever appropriate to even try and work out the pre-discounted starting point for an aggregate sentence. In Chartres-Abbott v R [2021] NSWCCA 239; 291 A Crim R 225, Brereton JA (with whom Campbell and Hamill JJ agreed) acknowledged the difficulty at [23] but stated that it could be done “[a]t least for the purpose of comparison with other sentences”. In BB v R [2021] NSWCCA 283 (“BB”), Wilson J, with whom Bathurst CJ and Wright J agreed, cited the relevant passage from Chartres-Abbott v R above and then observed at [68] that it was “difficult” to see how such a comparison could ever be useful.
I considered this issue in Davidson v R at [243] and [245] as follows:
It seems to me that the divergence of opinion on this point is, for practical purposes, between, on the one hand, identifying the correct approach under s 53A of the Sentencing Act and, and on the other hand, finding a meaningful way to compare aggregate sentences imposed following pleas of guilty with those imposed following a trial. It is only after a proper application of the totality principle that an aggregate sentence is arrived at but courts, both at first instance and on appeal, will often be asked to compare discounted and undiscounted aggregate sentences for the purposes of fixing an appropriate sentence, or in order to comply with the parity principle. There must be a shorthand way for this to be achieved.
…
The approach is taken purely for the purpose of a shorthand comparison acknowledging that it may be a few years out either way. The precise figure cannot be known because one of the purposes of the enactment of s 53A was to remove the requirement of sentencing judges to state the start and finish dates of each sentence thus the precise nature of the application of the totality principle cannot be identified. But it seems to me that there needs to be some way to nominate approximately what a particular undiscounted aggregate sentence is for the purpose of comparison. I note that Hamill J and Leeming JA took the approach that this can be done as a “rough guide” in Moananu. That is all it is: a rough guide.
Accepting the limitation of the comparison, I am prepared to proceed on the basis that as a “rough guide” the undiscounted aggregate head sentence imposed in this matter was about 21 years and 4 months’ imprisonment.
Another aspect of the totality principle upon which there is some divergence of opinion in this Court is whether the indicative sentences can be added together to highlight the degree of notional concurrence. For example, in B**H, which was a Crown appeal, the Crown relied upon the fact that the total of the indicative sentences for the 14 offences was 94 years’ imprisonment whereas the aggregate head sentence imposed was 14 years. These figures were said to suggest that there had been excessive notional concurrence and the sentence failed to reflect the totality of the offending (at [49]). The persuasiveness of this sort of arithmetic argument has been doubted by Hamill J in Harden v R [2024] NSWCCA 184 at [6]-[9]. For my part I do find it to be of some assistance for the reasons explained in Harden v R at [385].
In the present case, putting to one side the application of the totality principle, the indicative head sentences for the four offences add up to a total of 23 years and 2 months’ imprisonment as against the aggregate head sentence of 16 years. It is to be accepted that the greater the number of offences that an offender is being sentenced for, the greater the degree of notional concurrence. The applicant was only sentenced for four offences. The fact that there would have been more notional concurrence had he been sentenced for more offences is not to the point. The question is whether the aggregate sentence is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26.
I have considered the aggregate head sentence in the context of the applicant’s early pleas of guilty and remorse and the positive findings made by her Honour. The applicant’s plea of guilty mitigated the sentence beyond the application of the 25% discount. I observed the converse in Baker v R [2022] NSWCCA 195; 302 A Crim R 60 at [125] when I observed that an offender who had pleaded not guilty lost not only the 25% reduction on his sentence but also a finding of remorse and more favourable findings as to the risk of re-offending and rehabilitation.
I would also note that the Agreed Facts disclose that the applicant sexually offended against SL on multiple occasions at their home in Plumpton and Kellyville Ridge, but she was only able to particularise a number of those incidents. It is important to consider the relevance of this background to the sentencing process. The applicant’s sentence is not to be increased on that basis; it simply means that the offences are not mitigated by being isolated incidents.
As Gleeson CJ and Hayne J observed in Dinsdale v The Quee**n (2000) 202 CLR 321; [2000] HCA 54 at [6], a finding of manifest excess is a “conclusion”. Payne JA and Button J (Schmidt J in dissent) observed the following in Conte v R [2018] NSWCCA 209 at [9] in the context of considering a ground contending manifest excess:
… [J]ust as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors.
The process of considering the applicant’s proposed ground must be, to a degree, an instinctive one, as is the procedure for determining sentence at first instance. Just as there is no single or mathematically correct sentence that should be imposed by a sentencing court, there is no mathematical equation by which an intermediate appellate court can conclude that a sentence is manifestly excessive or inadequate. The Court may be informed by considering sentencing statistics and other decided cases, or by conjecturing as to the level of notional concurrence or accumulation that may underlie an aggregate sentence, but questions of the excessive or inadequate nature of a sentence are matters for evaluative judgment. Considering all of the facts and circumstances that apply in a particular case, and having regard to the applicable principles of law, is the sentence imposed so far outside the acceptable range of sentence that it is erroneous?
Having undertaken this evaluative process, I have reached the conclusion that a combination of high indicative sentences and a significant degree of notional accumulation has resulted in an aggregate sentence that is unreasonable or plainly unjust in the circumstances of this case.
I would uphold this ground and re-sentence the applicant.
On resentence, the applicant relied on two affidavits: an affidavit of the applicant affirmed on 16 December 2025 and an affidavit of his solicitor Ms Janet Witmer affirmed on 15 December 2025, which annexed his custodial records. This material was nearly all favourable to the applicant’s case on re-sentence; the only minor exception being that some suboxone was located in the applicant’s cell in custody on one occasion. The applicant maintains contact with his family who visit him frequently.
The applicant reported to a case worker that he was in denial when he first came into custody, but now experiences deep shame for the harm he caused to his daughters. While the applicant is pursuing vocational education and computer literacy and painting classes, his custodial records note that he is not eligible for any offence-related programs due to his low risk assessment. The applicant also noted the possibility of deportation to New Zealand at the conclusion of his sentence.
With the exception of urging a more favourable finding on prospects of rehabilitation, it was not suggested that this Court would depart from any of the findings of the sentencing judge. I would sentence on the same principles and findings as the sentencing judge. I have already set them out above at [48] to [72] and do not propose to repeat them here. I would also vary the statutory ratio for the same reasons as the sentencing judge but allow a slightly more favourable ratio of 66% rather than 68% following the finding of special circumstances.
It has now been confirmed that the applicant’s low risk assessment makes him ineligible for any offence related programs. It is difficult to identify what more he can do to establish good prospects of rehabilitation, and I am satisfied that a positive finding should be made in this regard.
The indicative sentences are as follows (after a discount of 25% is applied):
Sequence 1: 7 years and 6 months’ imprisonment; non-parole period of 5 years.
Sequence 7: 6 years and 9 months’ imprisonment; non-parole period of 4 years 6 months.
Sequence 10: 4 years and 6 months’ imprisonment.
Sequence 1 (JT): 3 years’ imprisonment; non-parole period of 2 years.
I would propose the following orders:
Grant an extension of time to bring the appeal pursuant to r 3.5 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Grant leave to appeal.
Allow the appeal.
Quash the sentence imposed on the applicant by Judge Kumar on 31 May 2024 and in lieu thereof sentence the applicant to an aggregate head sentence of 13 years and 6 months’ imprisonment to commence on 22 August 2022 and expire on 21 February 2036 with an aggregate non-parole period of 9 years’ imprisonment to commence on 22 August 2022 and expire on 21 August 2031. The first date that the applicant will become eligible for parole is 21 August 2031.
HAMILL J**:** I agree with the orders proposed by the Chief Judge at Common Law and, subject to one observation of little moment, with her Honour’s reasons. I agree that this is a case “where the indicative sentences are very high and there is a substantial degree of [notional] accumulation” with the result that “the total sentence finally imposed is manifestly excessive”: cf Moananu v R [2022] NSWCCA 85; (2022) 297 A Crim R 513 at [161]. N Adams CJ at CL has identified at [148] the issue upon which we expressed differing views in Harden v R [2024] NSWCCA 184. I maintain that there is little utility in a case involving multiple offences to calculate the sum of the individual (or indicative) sentences, compare that total to the aggregate sentence imposed, and to use that comparison to determine whether the totality principle was applied correctly. The inutility is greater where, as here, the indicative sentences are all very high or, in one case, excessive. In circumstances where I agree with the orders proposed and otherwise with the Chief Judge’s carefully explained reasons, it is not necessary to repeat what I wrote in Harden v R at [6]-[9].
EMMETT J: I agree with the Chief Judge at Common Law.
MT
R [2026] NSWCCA 25
(2013) 249 CLR 571
(2000) 202 CLR 321
(2010) 70 NSWLR 1
(1987) 163 CLR 447
(1988) 166 CLR 59
(2017) 96 NSWLR 155
(2022) 108 NSWLR 181
(1998) 194 CLR 610
(1997) 189 CLR 295
(2015) 256 CLR 550
(1999) 195 CLR 665
(2001) 207 CLR 584
(2005) 228 CLR 357
(2010) 242 CLR 520
(2021) 104 NSWLR 518
(2002) 56 NSWLR 146