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[2026] NSWCCA 107
Court of Criminal Appeal (NSW)
2026-07-15
Cavanagh J at [1]; Rigg J at [2]; Roberts J at [3]
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: Shehade v R [2026] NSWCCA 107
Hearing dates: 27 May 2026
Date of orders: 15 July 2026
Decision date: 15 July 2026
Before: Cavanagh J at [1];
Rigg J at [2];
Roberts J at [3]
Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by the District Court on 15 September 2025.
(4) In lieu of the sentence imposed by the District Court, sentence the applicant to an aggregate term of imprisonment of 4 years, to commence on 7 August 2025 and to expire on 6 August 2029, with a non-parole period of 2 years and 4 months, to commence on 7 August 2025 and to expire on 6 December 2027.
Catchwords: CRIME – appeal against sentence – guilty pleas to two counts of armed robbery – applicant aged 18 years at the time of the offending – whether there was error in failing to consider principles applicable to sentencing young offenders – where limited submissions advanced before sentencing judge on the principles – whether general and specific deterrence should be moderated by reason of reduced moral culpability due to youth, immaturity and other features of the applicant’s background – significance of rehabilitation due to youth – applicant resentenced – aggregate term of imprisonment of 4 years imposed
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6
Crimes Act 1900 (NSW), s 97
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Cases Cited: Abed v R [2025] NSWCCA 223
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Coleman v R [2025] NSWCCA 211
DG v R [2025] NSWCCA 137
DS v R [2025] NSWCCA 53
Faaoloii v R [2026] NSWCCA 51
HJ v R [2014] NSWCCA 21
Howard v R [2019] NSWCCA 109
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
NK v R [2025] NSWCCA 73
R v Dalton [2004] NSWSC 446
R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37
Sarhene v R [2022] NSWCCA 79
Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353
Taylor v R [2018] NSWCCA 255
TM v R [2008] NSWCCA 158
Yildiz v R [2020] NSWCCA 69
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: Karim Shehade (Applicant)
The Crown (Respondent)
Representation: A Chhabra (Applicant)
E Curran (Crown)
File Number(s): 2023/00342663
[This headnote is not to be read as part of the judgment]
On 15 September 2025, the applicant, Karim Shehade, was sentenced in the District Court of NSW for two counts of armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW), with an additional offence under the same provision to be taken into account on a Form 1, having earlier entered pleas of guilty in the Local Court. The sentencing judge imposed an aggregate term of imprisonment of 5 years, with a non-parole period of 3 years.
The relevant offending, as detailed in a statement of agreed facts, concerned two occasions on which the applicant used a deceptive advertisement on Facebook Marketplace for the sale of a used car. On both occasions, the victims arrived at the address with an amount of cash intended to be exchanged in return for the car. However, instead of making good on the sale, the applicant threatened the victims with a knife, and demanded they hand over the cash, which the victims did on both occasions. On one occasion, the applicant also demanded and took the victim’s mobile phone. The applicant was aged 18 years and one month at the time of the offending.
The applicant sought leave to appeal his sentence on two grounds, each alleging patent error. The first ground concerned whether the sentencing judge erred by failing to take into account the applicant’s youth and immaturity, including by failing to consider: (a) whether the applicant’s moral culpability was reduced by reason of his age and lack of maturity; (b) whether general and specific deterrence should be moderated; and (c) the increased significance of rehabilitation as a purpose of sentencing. The second ground concerned whether the sentencing judge erred in the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and failed to take into account the applicant’s background of disadvantage when determining moral culpability and the purposes of sentencing.
The Court (Cavanagh, Rigg and Roberts JJ) held, allowing the appeal:
As to ground 1:
Sarhene v R [2022] NSWCCA 79 considered and applied.
As to ground 2:
As to resentencing
Accordingly, the Court resentenced the applicant and imposed an aggregate term of imprisonment of 4 years, with a non-parole period of 2 years and 4 months.
CAVANAGH J**:** I agree with Roberts J. For the reasons identified by her Honour, the applicant is entitled to succeed on ground 1 and must be resentenced. In those circumstances, it is unnecessary to consider ground 2, particularly as the principles applicable to such a ground are well established.
RIGG J: I agree with Roberts J.
ROBERTS J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by Judge Scotting in the District Court of NSW (the sentencing judge) on 15 September 2025. The applicant was sentenced following pleas of guilty in the Local Court for two counts of armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW), with a further count of armed robbery taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant was sentenced to an aggregate term of imprisonment of 5 years, commencing on 7 August 2025 and expiring on 6 August 2030, with a non-parole period of 3 years, expiring on 6 August 2028.
The applicant advances two grounds of appeal:
Ground 1: The sentencing judge erred by failing to take into account the applicant’s youth and immaturity, including by failing to consider: (a) whether the applicant’s moral culpability was reduced by reason of his age and lack of maturity; (b) whether general and specific deterrence should be moderated; and (c) the increased significance of rehabilitation as a purpose of sentencing.
Ground 2: The sentencing judge erred in the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and failed to take into account the applicant’s background of disadvantage when determining moral culpability and the purposes of sentencing.
At 6pm on Saturday 21 October 2023, the victim Ali Abotorabi contacted the applicant in relation to a car the applicant had listed for sale on Facebook Marketplace for $14,000. The applicant told the victim to bring cash to an address in Yagoona. The victim put $10,000 cash in the centre console of the car and $1000 in his pocket. When he arrived, and got out of the car, the applicant approached him wearing dark clothing and a face covering over his mouth and nose. The applicant held a silver knife at the victim’s chest and said, “give me the money”. The victim initially ran a short distance away but the applicant approached the victim’s car, which was not locked. The applicant opened the car door and took the bag of money and walked away. The victim then located his keys in the boot of his car and drove to look for the applicant without success before calling the police. The Facebook post had been removed.
The applicant was arrested on 28 October 2023. He was granted bail on 6 December 2023, and remained on bail from that date until the date upon which he was sentenced.
The proceedings on sentence were heard on 22 August 2025.
The evidence presented on behalf of the applicant at sentence included a letter of apology from the applicant; a number of character references; a report of psychologist Sam Albassit dated 19 August 2025; and a psychological treatment letter of Chafic Awit dated 21 August 2025. The sentencing judge also had before him the Sentencing Assessment Report (SAR) prepared 5 May 2025.
The applicant was born in September 2005. He was 18 years and one month of age when he committed the offences in October 2023, and was 20 (almost 21) at the time of the sentencing proceedings.
The SAR stated that the applicant lived with family members in stable accommodation and that they had a supportive relationship, although the applicant described having a “strained relationship” with his family at the time of the offences due to his drug use. The SAR stated that as at the date of the report the applicant was working full time as an apprentice plumber and had been doing so for 9 months. Other material presented on sentence established that this work had been more sporadic than described in the SAR, but that work in his uncle’s air conditioning business was available to the applicant. The applicant accepted responsibility for his offending and reported gambling and drug use at the time. The author of the SAR recorded that the applicant reported that drug and gambling addictions were the contributing factors to his offending, and that his motive for the offending was to recover money lost in gambling. The SAR stated that the applicant took full responsibility for his actions, that he did not minimise or justify his behaviour, and demonstrated remorse and a sound level of insight.
The applicant’s letter to the court was undated but tendered on his behalf on 22 August 2025. It commenced by offering his “sincerest apologies” and stated that his childhood was “difficult in many aspects”, referring to his parents separating, and moving in with his grandmother, and that he felt like a “burden, especially when [he] was diagnosed with ADHD and diabetes”. The applicant stated that he was “under immense pressure, owing over $30 000 to family members including my cousins”, due to gambling, which he had started at the age of 16. The applicant stated that he took responsibility for his offending. As to changes he had made, the applicant referred to the discipline of working for his uncle in his air conditioning business; addressing underlying issues through resuming psychologist appointments, and the support and positive influence of his family and friends.
The applicant tendered several character references: one from his mother; his girlfriend; two uncles (Ali Chehade and Bassam Chehade); three cousins (D’Mor Heidi Chehade, Hussam Bassam Chehade, and Bassam Chehade), and an aunt (Hadia Issa). Each of the referees spoke highly of the applicant and highlighted the applicant’s positive qualities; the closeness of family relationships and the applicant’s expressions of remorse and efforts to change course in the future. A number of the references spoke of difficulties the applicant had in his childhood with his parents’ separation, disrupted schooling and also with his diabetes and ADHD diagnoses. Whilst some said that they had had discussions with the applicant about the reasons for his offending, there was no reference to any awareness on the part of the authors of drug misuse, gambling addiction or large debts owed by the applicant to his cousins or other family members. This inconsistency contributed to but was not the sole reason for the rejection by the sentencing judge of the psychological report that relied upon that history.
The report by psychologist Sam Albassit stated that the applicant reported an erratic and troubled childhood, noting that his parents separated when he was 6 years old. After the separation, the applicant lived with his mother until he was 12, then with his father, and he then distanced himself from his family from the age of 13-14.The applicant reported that from that point, he was associating with a negative peer group and “living his life recklessly” including the use of drugs and gambling. Mr Albassit diagnosed the applicant with ADHD, substances use and gambling disorder and opined that in the period leading up to the offending, the applicant was experiencing “significant psychological and financial anxiety”. It was Mr Albassit’s opinion that the offending was “driven by the ongoing addiction and debt, which overwhelmed his already limited capacity for self-regulation and decision-making”. Mr Albassit opined that there “appears to be a correlation between Mr Shehade’s offending behaviour and his ongoing psychiatric/psychological conditions”.
The applicant commenced seeing Chafic Awit, psychologist, in December 2023 as a condition of his bail for treatment of his drug and gambling addictions. This was discontinued in April 2024, and resumed in February 2025.
As to the objective seriousness of the offending, the sentencing judge held that Sequence 1 involved “considerable objective gravity”, making reference to the “significant planning” involved to carry out the offence, the “very serious and repeated threats”, the significant value of the property taken, and observing that the applicant grabbed the victim by the shirt and held the knife towards him, that it would have been “terrifying” for the victim. He found that the offence was motivated by financial gain. As to Sequence 3, the sentencing judge found it involved “some objective gravity”. Again, there was planning, albeit as with Sequence 1 the method was not sophisticated and the applicant was likely to be detected. The applicant pointed the knife toward the victim but there was no physical contact. The offence was motivated by financial gain.
The sentencing judge observed that the report of Mr Albassit was based entirely upon the applicant’s self report, and that the character evidence relied upon by the applicant provided only limited support for that history. In particular, none of the applicant’s family members supported his account that at the time of the offences he had a serious drug problem, a serious gambling problem or that he owed any family members significant amount of money. The sentencing judge considered but rejected the proposition that the applicant may have been masking the true picture from his family members. The sentencing judge observed that there were a number of inconsistencies in the various accounts given by the applicant and between the accounts he had given and those given by his family members. In addition, the sentencing judge observed that the report contained references to a different offender (in some paragraphs), leaving him with “some concerns over the reliability of his opinion”. He held that “[n]one of the offender’s family members describe any observation of the offender as consistent with a person suffering a mental condition of the severity supported by Mr Albassit”. He rejected the opinions of Mr Albassit based upon this aspect of the applicant’s history. The sentencing judge also rejected the applicant’s assertion that he witnessed a prisoner injure another with a box cutter while on remand.
The sentencing judge continued:
[79] I accept that the offender suffered the hardship of his parents’ relationship breaking down and that he was cared for by different family members as a child and he was separated from his siblings at various times. I accept that he suffered low self-esteem growing up and had to rely on family members other than his parents for support.
[80] I accept that the offender was diagnosed with ADHD and that his schooling was disrupted and he had a poor educational outcome. I accept that he acted out at school. I accept that his offending behaviour demonstrated a serious lack of consequential thinking, which was probably related to a combination of his age, a lack of maturity and his ADHD. I cannot be satisfied of the extent of his mental condition at the time of the offences and I am not satisfied that his moral culpability is reduced by reference to it.
[81] To the limited extent that the offender had a deprived upbringing, I am not satisfied that it exposed him to crime, violence or drug use. I am not satisfied that the circumstances of his upbringing reduce his moral culpability for the crimes he committed. If he did have a substance use disorder or a gambling disorder at some point in time, I am not satisfied either of those conditions was a significant cause of his offending behaviour.
Deterrence
[88] General deterrence is of significance to the offences before the Court. The penalty imposed for the offences must signal to others contemplating committing these types of offences, that they will be met with significant punishment.
[89] This case involved the criminal use of a website used by the public to trade second hand goods. Individuals using those types of resources are entitled to expect that they can do so safely, and without the risk of being exposed to significant threats of violence and serious dishonesty.
[90] There is also a need for specific deterrence. Whilst the offender has expressed remorse to the extent of disgust in his action, in my view he lacks insight into how serious his offending was. He was given an opportunity to engage in treatment and work on bail, but his efforts in those endeavours faded. He ceased treatment with Mr Awit and stopped working for his uncle. This leads me to question how dedicated he is to progressing his rehabilitation in the community.
As to statutory mitigating factors, the sentencing judge took into account that the applicant did not have a significant record of prior convictions, and held that the applicant had good prospects of rehabilitation because of his youth; and that he had expressed remorse.
After taking into account the 25% discount for the pleas of guilty, the indicative terms were: for Sequence 1 (with the Form 1 matter): 4 years and 6 months; and for Sequence 3: 3 years and 6 months.
The sentencing judge made a finding of special circumstances, on the basis that it was the applicant’s first time in custody; he is a young man with good prospects of rehabilitation “by reference to his age”, and that he has some mental health issues which justified an extended parole period.
The aggregate term of imprisonment imposed was 5 years with a non-parole period of 3 years to date from 7 August 2025.
Under this ground, the applicant argued that the sentencing judge erred by failing to consider the principles applicable to the youth of the applicant in the sentencing exercise, in particular the relevance of his youth to his moral culpability; and the question of whether general and specific deterrence should be moderated in favour of an emphasis upon the sentencing purpose of rehabilitation. The applicant accepted that the written and oral submissions advanced on the applicant’s behalf did not directly address these principles, but submitted that on the facts as found by the sentencing judge, they were incontrovertibly engaged and the failure to consider them gives rise to a miscarriage of justice.
The respondent submitted that the sentencing judge did take account of the applicant’s youth in his finding that the offending itself was related to the applicant’s age and immaturity; in finding that the applicant had good prospects of rehabilitation by reason of it; that he gave effect to that latter finding in his finding of special circumstances. Further, a conclusion that general deterrence was still prominent in the sentencing exercise was a finding open to the sentencing judge. There was no error, so the respondent submitted, in the sentencing judge not addressing the topic any further where no submissions were advanced addressing the specific principles that he now submits were relevant.
A summary of applicable principles derived from earlier authorities of this Court were set out by Hamill J in Sarhene v R [2022] NSWCCA 79 (“Sarhene*”*) at [25] as follows (the citations included within the text are taken from the footnotes of his Honour’s judgment):
There is no doubt that the youth of an offender is a relevant factor, or a “most significant factor” in assessing what sentence should be imposed (HJ v R [2014] NSWCCA 21 at [56] (Garling J); R v Dalton [2004] NSWSC 446 at [17] (Adams J);
Considerations of general deterrence may be less significant when sentencing a juvenile or young offender (KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] (McClellan CJ at CL));
Rather, emphasis should be placed on the “need to provide an opportunity for rehabilitation” (KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] (McClellan CJ at CL));
While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; “emotional maturity and impulse control develop progressively during adolescence and early adulthood” (BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [5] (Hodgson JA); Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [55] (Bell P);
Where “immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years” (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]);
An offender’s youth and immaturity is also relevant to an assessment of their moral culpability (TM v R [2008] NSWCCA 158 at [33]-[36] (Hall J));
In some cases, where the young offender is said to have committed an “adult crime” or “conducted him or herself as an adult might”, the significance of youth, or the weight to be afforded to it, has been held to be less (KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [25]; R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]-[28]);
However, courts should not “be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult” (BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [6] (Hodgson JA); Yildiz v R [2020] NSWCCA 69 at [58] (Rothman J).
A sentencing judge is not expected to address all possible sentencing considerations without the assistance and submissions of the parties: Coleman v R [2025] NSWCCA 211 at [31]; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44. Nor, depending upon the circumstances of the case, is a sentencing judge required to refer in terms to every principle of law that might be regarded as relevant or mitigating factor upon which an offender might have relied, where no reference to those features of the case was made by an offender: Taylor v R [2018] NSWCCA 255 at [54]-[56].
Youth is a “significant consideration on sentence because of its potential relevance to moral culpability … prospects of rehabilitation, the significance of general and specific deterrence, the moderation of retribution and hardship in custody”: Abed v R [2025] NSWCCA 223 at [65].
The sentencing judge recognised the fact of the applicant’s youth and addressed it in the sentencing judgment, in the following ways: (i) at the commencement of his reasons the sentencing judge recorded the age of the applicant at the time of the offences; (ii) the sentencing judge found that the applicant’s youth gave rise to a finding that he had good prospects of rehabilitation despite what his Honour found was limited insight and questionable dedication to rehabilitation; and (iii) the sentencing judge found that the applicant’s offending demonstrated a lack of consequential thinking, related to his age, lack of maturity and ADHD.
Whilst these findings recognised the fact of the applicant’s youth, and some matters which arose from it (his lack of consequential thinking, his good prospects of rehabilitation), in the circumstances of the present case, it was necessary to go further and address how the applicant’s youth interacted with principles of sentencing.
The applicant was aged just over 18 years at the time of his offending and did not have a prior criminal history. His emotional development had been affected by aspects of his background, and it was undisputed that he had ADHD, which impacted him including by disrupting his education. His offending, while serious, displayed immature thinking and reasoning. Whilst it was well open to the sentencing judge to reject the proposition that the applicant’s moral culpability was reduced by reason of his mental health (and that finding was not challenged by the applicant), it is difficult to see the basis upon which the sentencing judge would not have found his moral culpability to be less than that of a more mature offender. This difficulty strengthens the applicant’s contention that this was a matter not expressly considered by the sentencing judge.
The sentencing judge found general deterrence to be of significance, noting the features of the offending including that it involved the criminal use of a website used by the public to trade second hand goods; and the entitlement of the public using such websites to do so without the risk of being exposed to significant threats of violence and serious dishonesty. His Honour also placed emphasis upon specific deterrence in light of his findings that the applicant lacked insight into the seriousness of his offending, and the applicant’s lack of dedication to progressing his rehabilitation. Whilst it was appropriate to place weight on these matters, particularly in respect of general deterrence, it is not apparent that the sentencing judge also engaged with the ways in which the applicant’s youth might be expected to moderate the role of general or specific deterrence in the sentencing exercise (even if that moderation was slight).
Notably, in Sarhene, which succeeded upon a similar ground to that advanced in the present case (by a majority of Hamill and Ierace JJ, Leeming JA dissenting), submissions articulating these important principles had been made to the sentencing judge on behalf of the appellant: see Sarhene at [27]. The sentencing judge in the present case did not receive that assistance, to which he was entitled. Despite this, I cannot accept the respondent’s contention that there was no error in the failure to apply these principles in the circumstances of this case.
I would uphold this ground of appeal.
Error having been demonstrated, the sentencing discretion must be exercised afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. The respondent did not submit that this was a case in which, having re-exercised the sentencing discretion afresh, this Court would nevertheless find that no lesser sentence is warranted in law: s 6(3) Criminal Appeal Act.
The applicant did not rely upon any additional or new material for the purposes of resentence. Nor did he press reliance upon the psychological report of Mr Albassit which had been rejected by the sentencing judge. Counsel for the applicant confirmed that should this Court proceed to resentence, it should be based upon the factual findings of the sentencing judge, in particular (as relevant to the applicant’s subjective case) at SJ [79] and [80].
As the sentencing judge found, the robbery offences were serious. Sequence 1 involved the applicant physically grabbing the victim’s clothing and pointing the knife at him whilst making serious threats. Sequence 3, committed one week later, also involved pointing the knife while demanding money. The lesser physical contact involved in the second offence may only have been a matter of happenstance, as the victim moved away, and the applicant was able to access the cash himself from the unlocked vehicle. On each occasion the amount taken was significant. As the sentencing judge found, the offences involved a measure of planning. The applicant exploited the trust of each of the victims by use of the ruse that he was selling a car on an internet site designed for such transactions. He disguised and armed himself. He then deleted the listing immediately afterwards in an unsuccessful attempt to avoid detection.
The applicant was aged 18 years and 1 month at the time of the offending (which occurred on two dates a week apart in mid-October 2023). He was diagnosed with ADHD and diabetes, and had disrupted schooling with poor educational outcomes. Due to the hardship of his parents’ relationship breakdown and disrupted living arrangements during his teens, including separation from his siblings, he had not enjoyed the uninterrupted support of his parents. He had low self-esteem and had become involved with gambling and drug use, which ultimately led to his decision to offend.
The applicant submitted that the applicant’s background was one of deprivation or disadvantage such as to necessarily engage the Bugmy principles (contrary to the finding of the sentencing judge). As was explained in NK v R [2025] NSWCCA 73 (“NK”) at [110]-[113], the significance of such engagement lies in the question of whether a sentencing court considers an offender’s background reduces their moral blameworthiness for an offence.
In the present case, whilst the applicant had difficult aspects of his upbringing which are relevant matters to his subjective case, the applicant’s background was not particularly remarkable. It was clear from the character references that he had the benefit of support from a large number of extended family members, who had provided and continue to provide a pro-social environment for the applicant. He did not grow up in an environment where exposure to crime and violence operated to normalise such conduct, and to impair his capacity to appreciate the wrongfulness of his actions.
Of course, there is no requirement that disadvantage meet the descriptor “profound” or “significant” before the principles may be engaged (Faaolo**ii v R [2026] NSWCCA 51 at [108]-[111]); nor is there a requirement to demonstrate a causal connection between a background of disadvantage and the offending (R v MJ [2023] NSWCCA 306 at [2]-[15] (Simpson AJA); Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [88] (Hamill J); DS v R [2025] NSWCCA 53 at [71] (Mitchelmore JA, Walton and N Adams JJ agreeing); DG v R [2025] NSWCCA 137 at [159] (N Adams J, Bell CJ and Payne JA agreeing)). However, the extent and nature of any disadvantage suffered is relevant to the evaluative assessment of whether and to what extent an offender’s background may diminish their moral culpability.
Were it necessary to consider the question of a disadvantaged background alone, I would not consider that this applicant’s background is one which led of itself to a significant reduction in moral blameworthiness for his offending. It is, however, neither necessary nor useful to reach separate conclusions by reference to individual matters subjective to an offender. An offender’s moral culpability may be reduced by an interplay between several subjective factors that may have a cumulative effect upon a reduction of moral culpability: DG v R [2025] NSWCCA 137 at [113]; NK at [101]-[103].
I consider that the applicant’s youth, immaturity, and ADHD diagnosis, in combination with the applicant’s background and its impact upon his emotional development, are all matters which contributed to his compromised capacity for mature decision-making, thereby reducing the applicant’s moral culpability for the offending. As the sentencing judge found, the applicant’s offending demonstrated a “serious lack of consequential thinking”.
In the applicant’s case, this reduction in moral culpability by reason of his youth and other factors, sounds in a reduced emphasis upon general deterrence in the sentencing exercise. However, general deterrence still remains a matter of significance in offending of this nature.
The applicant’s youth and immaturity is also capable of explaining his lack of full insight, and his intermittent commitment to his rehabilitation. It is well recognised that emotional maturity and impulse control develop progressively during late adolescence and early adulthood (Howard v R [2019] NSWCCA 109 at [13] per Fullerton J). The applicant’s letter to the sentencing court reflected his developing understanding of the seriousness of his offending and the need to take responsibility for his past conduct and for his future choices. Rather than increasing the need for specific deterrence by reason of immature insight, the applicant’s youth enhances the importance of an emphasis upon rehabilitation over punishment and denunciation in the sentencing exercise. Additionally, I agree with the finding of the sentencing judge that the applicant has good prospects of rehabilitation. He has indicated an intention to engage with a psychologist and to undertake regular work and training, eventually as a plumber. It is to be hoped that a sentence of such a length where he can see this future will encourage his stated commitment to rehabilitation.
The criminality involved in these matters is such that no sentence other than one of imprisonment is available. I would impose an aggregate sentence. The indicative terms of imprisonment, after taking into account the discount for the plea of guilty, are: for Sequence 1 (taking into account the matter on the Form 1), 3 years and 6 months; and for Sequence 3, 3 years.
I would make a finding of special circumstances based upon the applicant’s age, the fact that this is his first time in custody, and the need for an extended period of time on parole to provide an opportunity for him to rehabilitate himself once back into the community. The adjustment to the statutory ratio will be to slightly less than 60%.
The aggregate sentence I would impose is one of 4 years imprisonment, with a non-parole period of 2 years 4 months, to date from 7 August 2025. The non-parole period will expire on 6 December 2027 and the head sentence will expire on 6 August 2029.
Accordingly, I would propose the following orders:
Grant leave to appeal.
Allow the appeal.
Quash the sentence imposed by the District Court on 15 September 2025.
In lieu of the sentence imposed by the District Court, sentence the applicant to an aggregate term of imprisonment of 4 years, to commence on 7 August 2025 and to expire on 6 August 2029, with a non-parole period of 2 years and 4 months, to commence on 7 August 2025 and to expire on 6 December 2027.
**********
Shehade
R
[2013] HCA 37
[2026] NSWCCA 51
(2013) 249 CLR 571
(2014) 252 CLR 601
(2021) 105 NSWLR 451
(2020) 104 NSWLR 43