Muldoon v R

Category: Principal judgment

Parties: Joshua Muldoon (Applicant)
Rex (Respondent)

Representation: Counsel:
R Pettit (Applicant)
FE Gray (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2024/00264350

Publication restriction: Nil

HEADNOTE

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

The applicant, Joshua Muldoon, sought leave to appeal against the sentence imposed on him in the District Court in relation to three counts of recklessly deal with proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW), with four further counts of the same offence taken into account on Form 1s.

At the time the applicant was sentenced, he was serving two sentences. The first was in relation to a series of State offences, which was entirely subsumed by the second, which was in relation to a series of Commonwealth offences. The sentence under appeal did not extend the overall total effective term, but did have the effect of increasing the non-parole period of the applicant’s total effective term by 7 months.

The grounds of appeal upon which the applicant sought to rely were as follows:

(1) The sentencing judge erred in the application of the principle of totality.

(2) The sentencing judge erred in failing to consider and make relevant findings, or alternatively failing to give adequate reasons, as to the application of the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

(3) The sentencing judge erred in:

(a) failing to make a finding of fact as to the offender’s childhood sexual abuse, or

(b) holding that no finding of fact could be made in circumstances where the offender did not give evidence, or

(c) failing to accord the applicant procedural fairness in respect of this finding.

The Court, at the conclusion of the appeal, made orders granting leave to appeal and allowing the appeal with reasons to follow. In giving reasons, the Court (Dhanji J, Stern JA agreeing and Fagan J agreeing with additional reasons**), held:**

As to ground 1:

(1) In the context of an absence of any real contest between the parties on the issue, and considering the sentencing judge’s remarks on sentence, it was apparent his Honour did not intend to extend the applicant’s pre-existing non-parole period. As such, his Honour erred in the application of the principle of totality, not due to misunderstanding of the relevant principles, but as a result of a miscalculation (Dhanji J at [17]-[31], Stern JA agreeing at [1], Fagan J agreeing at [2]).

R v Todd [1982] 2 NSWLR 517; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481, considered.

(2) Given ground 1 was established, it was neither necessary, nor appropriate in the circumstances of the case, to consider grounds 2 or 3 (Dhanji J at [32], Stern JA agreeing at [1], Fagan J agreeing at [2]).

JUDGMENT

1. STERN JA: My reasons for joining in the orders of the Court on 18 September 2026 accord entirely with those set out in the judgment of Dhanji J.

2. FAGAN J: The reasons of Dhanji J reflect my own reasons for having joined in the orders of the Court made on 18 September 2026, subject to one addition, as follows. I read the sentencing judge's reasons at [56] and [57], quoted by Dhanji J, as disclosing that the judge understood and intended that the whole of his sentencing order, including the date of expiration of the non-parole period, would have “nil effect” having regard to the extant State and Federal sentences. Relative to that understanding and intention, his Honour made a mistake in the orders he pronounced, either as to the commencement date of the sentence or as to the length of the non-parole period. The orders did not have “nil effect”. They increased the applicant's time in custody before eligibility for parole by seven months.

3. DHANJI J: On 18 September 2026, the Court made the following orders:

4. Grant leave to appeal.

5. Appeal allowed.

6. Quash the sentence imposed in the District Court on 14 August 2025 and in lieu thereof sentence the applicant to imprisonment for 2 years commencing on 14 August 2025 with a non-parole period of 1 year, 1 month and 5 days. The total term is due to expire on 13 August 2027. The non-parole period expires today, 18 September 2026. The earliest date on which the applicant is eligible for release on parole is 18 September 2026.

7. The Registrar is to notify the State and federal parole authorities of the applicant’s eligibility for release to parole.

8. These are my reasons for joining in those orders.

Preliminary

5. The applicant, Joshua Muldoon, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), sought leave to appeal against the sentence imposed on him in the District Court of New South Wales at Port Macquarie on 14 August 2025.

6. The applicant pleaded guilty in the Local Court to three counts of recklessly deal with proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW). Four further counts of the same offence were taken into account on Form 1s attached in accordance with Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The offences were in relevantly similar terms with the only material differences being their dates and the amount of money. The amount of money involved in each sequence for which the applicant was sentenced is as follows:

7. Sequence 11: $1,100. Sequence 10, concerning $600, was attached to this count on a Form 1.

8. Sequence 13: $2,200. Sequence 12, concerning $1,750 was attached to this count on a Form 1.

9. Sequence 17: $2,500. Sequence 15, concerning $1,750, and sequence 16, concerning $1,750, were attached to this count on a Form 1.

10. Following the application of a 25 per cent discount for the utilitarian value of his plea of guilty, King SC DCJ imposed an aggregate sentence of 2 years imprisonment, commencing 14 August 2025 and expiring 13 August 2027, with a non-parole period of 18 months expiring 13 February 2027. Indicative sentences were provided in accordance with s 53A(2)(b) of the Sentencing Act. The indicative sentences nominated were 6 months for sequence 11, 9 months for sequence 13 and 1 year for sequence 17.

11. The maximum penalty applicable to an offence against s 193B(3) of the Crimes Act is 10 years imprisonment. There is no standard non-parole period for the offence.

12. Relevant to the present appeal, at the time the applicant was sentenced he was serving two sentences, the first being in relation to a series of State offences (the extant State sentence) and the second in relation to a series of Commonwealth offences (the extant federal sentences). The extant State sentence was for a term of 4 years 6 months, commencing on 27 October 2023 and expiring on 26 April 2028, with a non-parole period of 2 years 8 months expiring on 26 June 2026. The extant federal sentences amounted to a total term of 5 years, commencing 14 July 2023 and expiring 13 July 2028, with a single non-parole period of 3 years imposed, expiring 13 July 2026. As can be seen, the extant State sentence is entirely subsumed by the extant federal sentences. The parole period of the extant federal sentences extends beyond that of the sentence under appeal. The sentence under appeal did, however, have the impact of increasing the non-parole period of the applicant’s total effective term by 7 months.

13. The grounds of appeal on which the applicant seeks to rely are as follows:

“Ground 1: The sentencing judge erred in the application of the principle of totality.

Ground 2: The sentencing judge erred in failing to consider and make relevant findings, or alternatively failing to give adequate reasons, as to the application of the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

Ground 3: The sentencing judge erred in:

a. failing to make a finding of fact as to the offender’s childhood sexual abuse, or

b. holding that no finding of fact could be made in circumstances where the offender did not give evidence, or,

c. failing to accord the applicant procedural fairness in respect of this finding.”

Circumstances of the offending

14. The reasons of the sentencing judge are available online: R v Muldoon [2025] NSWDC 509. Given this, and the determinative issue on the appeal, my summary of background matters will be brief. Agreed facts were tendered on sentence which were summarised by the sentencing judge as follows (at [4]):

“1. The offender was born on 10 May 1986 and was between the ages of 35 and 36 at the time of the offending, which occurred between 26 January 2021 and 9 June 2021. He was arrested on 18 July 2024.

2. The victims in this matter were five individual persons who sought to purchase puppies or kittens through the internet.

3. In August 2021, Kempsey Detectives commenced investigation into a syndicate involved in online shopping website scams. The scams involved cyber criminals purporting to be legitimate online businesses, selling products including pets, and customers were instructed to deposit funds into a specific bank account (mule account) in Australia. All communications between the syndicate and victim were then ceased and the product was never received by the victim.

The funds received in the mule accounts in Australia were then transferred to unknown overseas accounts, commonly through crypto currency remitters.”

15. His Honour then set out the various transactions, each of which involved the victim transferring the sum of money referred to in the relevant charge into one of five different bank accounts held by the applicant in his own name. The transactions occurred between January and June 2021. The total sum involved in the three offences for which the applicant was to be sentenced was $5,800. In relation to sequence 17, of the $2,500 obtained from the victim, $90 was refunded by the bank. A further $5,850 was obtained as a result of the four offences on the Form 1s. In relation to sequence 16, the whole of the $1,750 obtained from the victim was refunded by the bank.

Proceedings on sentence

16. The proceedings on sentence took place on 14 August 2025, with the sentencing judge providing remarks on sentence the same day. The Crown tendered a bundle comprising, amongst other things, the agreed facts, the applicant’s criminal history in New South Wales, Queensland, South Australia and Victoria, his custodial history in New South Wales and a Sentencing Assessment Report dated 10 July 2025. Tendered on behalf of the applicant was a report of psychologist Dr Mamta Sidhu dated 6 August 2025, Justice Health and Forensic Mental Health Network records and an Offender Work Assignments document. Both the applicant and the Crown provided written submissions and made oral submissions at the hearing.

Sentencing

17. While finding the applicant was motivated by greed, the sentencing judge found that the offences fell at the low end of objective seriousness, accepting the position of the parties in this regard. His Honour noted that the offences were committed while the applicant was on conditional liberty, in the form of a conditional release order, and this operated as an aggravating factor on sentence.

18. Having regard to the issues on the appeal it is unnecessary to set out his Honour’s assessment of subjective considerations relevant to sentence, save to observe that his Honour found there was “some relevance of Bugmy [v The Queen (2013) 249 CLR 571; [2013] HCA 37] in the current matter … reducing [the applicant’s] moral culpability and the need for the sentence to reflect general deterrence” (at [50]).

19. His Honour considered the applicant’s record including for similar offending, noting the presence of such offences which both pre-dated and post-dated the offences for which he was being sentenced. Some of that offending included the applicant’s involvement in similar online fraud in which victims sought to purchase puppies and kittens over the internet. The manner in which the sentencing judge dealt with the extant sentences which resulted from that offending is the subject of ground 1 and is dealt with below.

Ground 1 – the sentencing judge erred in the application of the principle of totality

20. As can be seen from the background set out above, the applicant came to be sentenced for the present matters some years after their commission and subsequent to him having been sentenced for a range of other matters, including matters that were committed both before and after and which bore some relationship to the present matters. The oft cited observation of Street CJ in R v Todd [1982] 2 NSWLR 517, that sentencing for a “stale crime” will, for a variety of reasons, call for “a considerable measure of understanding and flexibility of approach” (at 519), was made in the context of a delay of some years as a result of the offender serving an interstate sentence, but is apposite here.

21. The nature of the exercise when imposing a sentence which could have been dealt with at the same time as other offences were dealt with was discussed in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159. The Court (Spigelman CJ, Whealy and Howie JJ) said (at [99]):

“… we note the difficulty that confronts the second judge in trying to determine what the overall sentence would have been had a single judge been sentencing the offender for all offences for which he is, and has been, punished. That is in effect part of what an application of the principle of totality requires.”

22. There may be cases where, as a result of earlier sentences, “there is little, or no, room for a further penalty to be imposed upon the offender to achieve an appropriate purpose of punishment in the circumstances of the particular case”: R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [14].

23. The parties, and the sentencing judge, were clearly aware of these principles and their application to the present case. The Crown prosecutor provided detailed written submissions in which he acknowledged that the offences individually fell in the “low range of objective seriousness” such that, were they dealt with “in [isolation] … the Court may find that the s 5 threshold is not crossed”. The reference to s 5 was a reference to s 5 of the Sentencing Act which provides that a court “must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate”. While submitting that, as a result of the multiplicity of offences and the applicant’s record, custodial terms were warranted, the Crown prosecutor further submitted that had they been dealt with at same the time as the earlier offences, “practically speaking, it is likely the sentence imposed would be wholly subsumed by and run concurrent to the terms of imprisonment already imposed for other offences”.

24. Unsurprisingly, a similar submission was made in the written submissions of the applicant’s advocate, which stated, “[h]aving regard to the objective seriousness, subjective features to be taken into account, and purposes of sentencing, it is submitted the Court may find it appropriate to impose fixed terms of imprisonment to be wholly subsumed within the current non-parole period”.

25. Perhaps reflecting the absence of any real contest between the parties as to the ultimate disposition, the proceedings on sentence were relatively brief. The applicant’s advocate addressed the applicant’s subjective case and concluded:

“… my ultimate submission is to ask the [C]ourt to consider imposing perhaps fixed terms of imprisonment to start from today, that will be wholly subsumed within Mr Muldoon’s current non-parole period. There will, of course, be convictions be recorded, in terms of imprisonment imposed, to reflect the purpose of sentencing and denunciation of the conduct, et cetera, but in my submission, having regard to all the material before the [C]ourt, there are reasons not to interfere with the current non-parole period Mr Muldoon has, which would see him released 13 July next year.”

26. The Crown prosecutor made brief submissions in response including that “it may be that … the s 5 threshold is crossed”. On the sentencing judge indicating acceptance that it was, the Crown prosecutor said, “… if that’s the case, then ultimately the Crown doesn’t have a particular issue if the sentences of imprisonment are wholly subsumed by the current non-parole period that exists”. Nothing further was said. His Honour proceeded to sentence.

27. In giving reasons, having canvassed the evidence, including the sentences for the earlier matters and the applicant’s eligibility for release to parole with respect to those sentences on 13 July 2026, the sentencing judge said (at [49]):

“Had these matters been dealt with at the same time as his last batch of offending matters, I am of the view that it would not have made a significant difference to the penalty to be imposed.”

28. Subsequently, having pronounced the aggregate sentence, his Honour said (at [56]-[57]):

“56 I see no reason to vary the statutory relationship between the term of sentence and the non-parole period. Accordingly, the non-parole period is one year, six months and the offender will first become eligible for parole in relation to these matters on 13 February 2027. The two-year sentence will expire on 13 August 2027.

57 I note that that sentence is effectively rendered a nil effect as he will still be serving the sentences I previously referred to.”

29. The sentence imposed, however, as observed above, had the effect of extending the applicant’s non-parole period by 7 months.

30. Before this Court, the respondent submitted that his Honour’s remark, “I note that that sentence is effectively rendered a nil effect” was a reference to the total sentence and not to the non-parole period. Read in isolation, that sentence can be understood as a reference only to the total sentence. That reading is also supported, as was submitted by the respondent, by his Honour’s earlier reference to, and thus awareness of, the applicant’s pre-existing parole eligibility date.

31. It is, however, not possible to reconcile the sentence actually imposed with his Honour’s acceptance that, had the matter been dealt with at the same time as the earlier matters, “it would not have made a significant difference to the penalty to be imposed”. An extension of the non-parole period from 3 years to 3 years and 7 months cannot be described as involving an increase to the mandatory period to be served in custody that is not significant. Further, in simply stating that there were no “special circumstances”, his Honour did not address the fact that the new sentence had the effect of altering the ratio between the non-parole period and the total with respect to the total effective sentence from 60 per cent to 72 per cent.

32. An absence of any intention on the part of the sentencing judge to extend either the total sentence or the non-parole period to be served by the applicant is also apparent in a reading of the reasons in the context of the approach of the parties. That is, had his Honour intended to extend the non-parole period, and to do so to the extent that he did, it would have been expected that his Honour would have provided reasons as to why the position of the parties was not accepted. Those reasons would not necessarily have been detailed, but an indication that, for example, in his Honour’s view, contrary to the position of the parties, the additional criminality involved in the offences required some addition to the existing sentence would have been expected.

33. For the reasons given above, I am of the view that his Honour, in imposing the sentence, did not intend to extend the applicant’s pre-existing non-parole period and that his Honour, in imposing the sentence, mistook the effect of the sentence. As to establishing error on the basis of inadvertence (or less commonly, miscalculation) with respect to the effect of cumulation on the total effective sentence, an issue that arises not infrequently in the context of an alteration to the ratio between the non-parole period and the total, see Duncan v R [2026] NSWCCA 19 at [23], [28]-[29].

34. Ground 1 is made out. The sentencing judge erred in the application of the principle of totality. This was not due to any misunderstanding as to the principles but simply in their application, that being the result of a miscalculation.

Ground 2 - The sentencing judge erred in failing to consider and make relevant findings, or alternatively failing to give adequate reasons, as to the application of the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Ground 3 - The sentencing judge erred in: a) failing to make a finding of fact as to the offender’s childhood sexual abuse, or b) holding that no finding of fact could be made in circumstances where the offender did not give evidence, or, c) failing to accord the applicant procedural fairness in respect of this finding

35. In joining in the orders of the Court, having concluded that ground 1 was established, I was of the view that it was unnecessary to consider grounds 2 and 3. That is particularly so in the circumstances of this case. Grounds 2 and 3 make complaints with respect to the adequacy of this Honour’s reasons and fact-finding. In a context where, as has been established by ground 1, his Honour intended to accede to the submission that the applicant’s sentence should not be extended, it is understandable that his Honour’s reasons might be more perfunctory with respect to other issues than might have otherwise been the case. It is not appropriate in those circumstances to apply to the reasons the degree of analysis which the submissions of the applicant would require. In making this observation I do not intend to intimate that there is any inadequacy in the reasons in the respects articulated in the grounds – simply that it is both unnecessary and inappropriate to engage with the arguments.

Conclusion

36. In the result I was of the view that the appeal should be allowed and orders made that would result in the applicant being eligible for release on the day of the hearing. While those orders did extend the applicant’s non-parole period, there was no utility in setting an earlier day for the applicant’s eligibility for release on parole. The sentence imposed, while beyond that which was intended at first instance, is nonetheless within the available range. In that regard it reflects the additional criminality involved in the present offences.

**********