Skinner v R [2026] NSWCCA 131 | Case summary | Zoe

NSWNSWCCA

Skinner v R

[2026] NSWCCA 131

Court of Criminal Appeal (NSW)|2026-09-09|Before: Hamill J at [1] Rigg J at [2] Coleman J at [3]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-09-09

Before

Hamill J at [1] Rigg J at [2] Coleman J at [3]

Catchwords

SENTENCING — appeal against sentence — sentence manifestly excessive — where the sentencing judge’s factual or other findings were unchallenged — index offence of wounding with intent to cause grievous bodily harm — tension between reduced moral culpability and the need for community protection — applicant’s moral culpability found to be reduced on Bugmy, De La Rosa, and Henry principles — sentence imposed was unreasonable and plainly unjust in all the circumstances of this case — appeal allowed — resentence

Source

Original judgment source is linked above.

Catchwords

SENTENCING — appeal against sentence — sentence manifestly excessive — where the sentencing judge’s factual or other findings were unchallenged — index offence of wounding with intent to cause grievous bodily harm — tension between reduced moral culpability and the need for community protection — applicant’s moral culpability found to be reduced on Bugmy, De La Rosa, and Henry principles — sentence imposed was unreasonable and plainly unjust in all the circumstances of this case — appeal allowed — resentence

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Skinner v R [2026] NSWCCA 131

Hearing dates: 29 July 2026

Date of orders: 09 September 2026

Decision date: 09 September 2026

Before: Hamill J at [1]
Rigg J at [2]
Coleman J at [3]

Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed in the District Court on 11 April 2025.
(4) In lieu thereof sentence the applicant to a term of imprisonment with a non-parole period of 3 years and 6 months. The balance of the term is 2 years, 2 months and 11 days, making the term of the sentence 5 years, 8 months and 11 days.
(5) The sentence is taken to have commenced on 9 July 2022 and expires on 19 March 2028.
(6) The applicant became eligible for release to parole on 8 January 2026.

Catchwords: SENTENCING — appeal against sentence — sentence manifestly excessive — where the sentencing judge’s factual or other findings were unchallenged — index offence of wounding with intent to cause grievous bodily harm — tension between reduced moral culpability and the need for community protection — applicant’s moral culpability found to be reduced on Bugmy, De La Rosa, and Henry principles — sentence imposed was unreasonable and plainly unjust in all the circumstances of this case — appeal allowed — resentence

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)

The sentence proceeded in accordance with the statement of agreed facts.
On 16 April 2021, Mr Alchin (the victim) was at his partner, Ms Moore’s, house in Daceyville with a Mr Bingham. Earlier that day, Bingham had been punched in the head by a person named “Damo”, in the presence of the victim.
Between 15 April 2021 and 18 April 2021, Bingham’s phone had sent and received various text messages which were set out in the agreed facts. These text messages referred to, amongst other things, Bingham’s intentions regarding a confrontation and violence, however, none of the messages were sent from or received by the applicant.
At 12:28am on 18 April 2021, Bingham and the applicant were recorded on CCTV walking in the direction of the Daceyville premises where the victim and Moore were sleeping. When they arrived, they knocked on the door and asked to use the toilet. Moore initially declined but eventually let them in. They asked where the victim was. He was asleep in the lounge room and was woken when the applicant and Bingham knocked on the door. Moore went back to her bedroom. The victim also walked into the bedroom and lay on the bed.
The applicant went into the bedroom and asked the victim if he had any “stuff”, and the victim replied that he did not. At that stage, the applicant pulled out a machete, and the victim urged him to “stop waving that weapon around” as “[s]omebody's gonna get hurt” and “end up in hospital”. The applicant replied “yeah, you!”.
The applicant then raised the machete above his head and swung it at the victim. The victim raised his hand and was struck by the machete in the hand. This action gave rise to the single count in the indictment. The tip of the machete also scraped the victim’s leg.
Moore woke up to the victim yelling “why did you do that…?”. The applicant then left the residence. Bingham remained behind. In response to Moore’s question, Bingham said it was because he had been “cracked in the face”. Moore observed the victim had been wounded and blood was flowing from his hand.
The applicant was captured leaving the residence on CCTV at 1:47am. At 1:56am, Bingham was seen on CCTV running in the same direction taken by the applicant.
Triple 0 was called and the victim was taken to the hospital. He had sustained a large wound and deep laceration to his left hand, and an associated fracture to the fifth metacarpal bone. The victim was unable to flex his fourth and fifth digits, but his fingers were found to be neurovascularly intact. There was a superficial wound below his left knee.
The victim lost approximately 500 millilitres of blood, but the wounds were not life-threatening. He underwent a six-hour surgery which involved a plate and screw fixation of the bone, tendon repairs, muscle repair and nerve repair under a microscope. The treating surgeon described the damage as a “major hand injury with likely lifelong disability secondary to the multiple structures damaged”. He also opined that “[r]ecovery of bone to its pre-injured state is highly likely”, and further, while “there may be lifelong sensory loss to the little and part of the ring finger with a guarded expectation for recovery of feeling”, it is possible that “with therapy, time and some element of good luck,” the victim may fully recover the use of his hand.
As at 24 June 2024, the victim had restricted and limited movement in his left hand and could not straighten his left little finger or form a closed fist. There was no further evidence before the sentencing judge of the present state of the victim’s injuries or his need for ongoing medical care.

The sentencing judge made factual findings as above based upon the statement of agreed facts.
His Honour found that the extent of the victim’s injuries was of great significance in assessing the objective seriousness of the offence, however, it was not the only determinative factor and must be considered along with all other relevant circumstances of the offending. His Honour found that the victim had sustained substantial injuries to the hand with potential ongoing sequalae that might be lifelong. However, the injuries did not involve life-threatening blood loss and were responsive to emergency services intervention.
The sentencing judge found that the agreed facts did not disclose any particular planning or premeditation on the part of the applicant, apart from him being armed with the machete in the early hours of the morning at the residence where the victim was located.
His Honour found that the applicant voluntarily ceased his attack on the victim after the delivery of the single blow with the machete which caused the injuries. His Honour found that this was not a case where persistence in the attack constituted an aggravating factor.
It was held that there was no provocation at the time of the offending. Accordingly, a finding of the relative objective seriousness was to be made absent any consideration of a potentially mitigatory factor.
The sentencing judge found that the degree of violence was substantial and involved the use of a machete. His Honour noted the abhorrence held by the community and the courts in relation to the use of knives or equivalent weapons which was compounded by the use of the machete due to the wounds which it is capable of inflicting. It should be noted that having taken into account the use of the machete in assessing the objective seriousness of the offending, the sentencing judge did not “double count” by also taking the use of a weapon into account as an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing P**rocedure) Act 1999 (NSW) (CSPA).
His Honour found that the applicant was recruited by Bingham to commit the offence. This was taken into account as a mitigating factor relevant to the circumstances of the wounding. However, his Honour also found that the applicant “did not participate in the offence with the alacrity that seems apparent in the agreed facts document”.
His Honour found that the offending was at the “lower echelon of the middle range of relative objective seriousness for an offence contrary to s 33(1)(a)”.
As to aggravating factors under s 21A(2) of the CSPA, his Honour did not accept that the applicant’s record of previous convictions constituted such a factor. He was not satisfied that his previous criminal history warranted a finding that it met the criteria identified in authority such as Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14*.* However, his Honour was also satisfied that the applicant’s history of prior offending clearly disentitled him to leniency and that the index offence represented a significant escalation of offending and the seriousness of offending conduct by the applicant.
The offending was aggravated by reason of the fact that it was committed whilst the applicant was on conditional liberty with respect to other offences namely, parole for offences including common assault and specially aggravated break and enter. His Honour noted that the Court must not impose any form of double punishment by both taking this consideration into account as an aggravating factor and increasing the sentence for the index offence whilst also providing for partial accumulation to increase the total effective sentence to reflect the criminality of the offending for which he has been sentenced, namely, the breach of parole sentence and the index sentence.
With respect to the subjective circumstances of the applicant, his Honour made findings based upon the breach of parole reports, numerous medical, schooling and psychological assessment reports, a letter of support written by his mother and his custodial history.
The applicant was 33 years of age at the time of offending and 38 years of age at the time of sentence. His father died when he was eight years of age, this having been a very challenging situation for the applicant. He had a difficult time academically and behaviourally at school. He attended his local high school for less than one month before being placed into a special purposes school designed for students diagnosed with conduct disorder. He was expelled after three years. He then attended an independent school offering alternative education programs for young persons disconnected from mainstream education. He left school at the age of 15.
The applicant began smoking cannabis at age 12 and drinking alcohol at age 13. Between the ages of 12 to 17, he was placed in boys’ homes at least once per year due to criminal behaviour such as shoplifting. The time he spent in these boys’ homes range from between a single night to up to one week. He lived with his mother after leaving school, and described spending his days smoking cannabis, drinking alcohol, and engaging in criminal activities.
Since the age of 18, the applicant has spent time in and out of gaol. The longest he has spent living in the community is 13 months due to treatment for cancer. He reported to the neuropsychologist that he often ended up back in jail due to his methamphetamine use.
The applicant received a diagnosis of stage IV non-Hodgkin’s lymphoma in February 2023 whilst he was in custody. He spent two months in hospital receiving treatment. He is currently in remission and not on medication, however, he is aware that the cancer is likely to reappear at a later date.
The applicant reported that he may have depression and anxiety and had been prescribed medication for Attention Deficit Hyperactivity Disorder (ADHD) when tested. He also reported that he had been diagnosed with an intellectual disability and although he has NDIS support, he rarely engages with support workers when in the community due to his instability.
The applicant reported a history of illicit drug use, including stimulants, amphetamines and hallucinogens. He had a recurring cycle of addiction to methamphetamine since 2012, only marked by periods of abstinence during his time incarcerated.
The neuropsychologist, Dr Sarah Griffith, assessed the applicant as having intellectual functioning that is significantly below his age expectations, being in the “extremely low” range and commensurate with his reported diagnosis of an intellectual disability. Dr Griffith opined that the applicant’s intellectual abilities would likely have been further compromised by his drug use at the time of the offending, noting this would have had adverse effects on his reasoning, judgement, and abstract thinking. However, the sentencing judge noted that Dr Griffith opined that even absent the influence of drugs, the applicant’s cognitive functions were already significantly compromised, and he likely did not possess the capacity to adequately consider the consequences of his actions.
Dr Griffith opined that the applicant may fulfil the diagnostic criteria for ADHD in addition to his intellectual disability which would likely further impact his cognitive functioning, behaviour, and development. She further opined that the applicant’s intellectual disabilities may make him more susceptible to being influenced by others and to engage in risky or impulsive behaviour. Dr Griffith explained that the applicant’s repeated criminal offending, difficulty navigating living in the community, and substance use, is best understood within the context of his developmental history. She opined that whilst the applicant demonstrated a “growing awareness” of the factors that contributed to his ongoing substance use and related criminal behaviour, his intellectual disability which impacts his impulse control, judgement, and ability to resist peer influence, hinders his ability to alter his circumstances. This renders him particularly susceptible to exploitation within a custodial setting.
The sentencing judge noted Dr Griffith’s opinion that the applicant’s risk of re-offending could be reduced through tailored psychological therapy that accommodates his intellectual disability to address his substance abuse. Dr Griffith recommended access to ongoing psychological therapy of this type be added to his NDIS package should he still be a participant to ensure he has tailored support in the community.
The sentencing judge also referred to a report from the Acute Crisis Management Unit (ACMU) from the Bathurst Correctional Centre. In 2010, whilst on remand at that centre, the applicant was housed in the ACMU for an extended period due to serious behavioural and safety concerns, including incidents of self-harm and threats. The report stated that the applicant had abusive conduct towards other inmates at the ACMU and for safety reasons was isolated. His behaviour was described as aberrant, highly impulsive, and characterised by extreme mood swings. He had limited insight into his behaviour or its impact.
It was reported that the applicant was assessed by a psychiatrist. No mental health diagnoses were made, however, he was reported to have behavioural issues and to be functioning in the “extremely low” range of intellectual ability. The report further outlined difficulties the applicant had faced in custody and recommended that he would be better managed with intensive community support to prevent him from spending “countless years involved in the criminal justice system”. The sentencing judge gave further details of that report, including its overview of the applicant’s drug and alcohol use and extensive history of incidents of self-harm. It recorded the applicant scored in the “severe” range for depression and “moderate” for anxiety on the Depression Anxiety and Stress Scale (DASS) when tested.
The sentencing judge noted that the report identifies the applicant’s risk factors as alcohol and substance use disorder, impulsivity, history of trauma, major physical illness, family history of suicide, and previous suicide attempt.
The sentencing judge referred to a letter of support written by the applicant’s mother. The letter referred to the circumstances of the diagnosis of the applicant’s lymphoma and how she cared for him upon his release from hospital. The applicant’s mother expressed that he had the support of his family through his recovery from the cancer, but they were worried about his health and would support him should he be released into the community.
Having surveyed the material referred to above, the sentencing judge concluded that the applicant had a history of disadvantage, including the unexpected loss of his father, incomplete schooling, and academic disengagement during a critical developmental period. His Honour concluded that the applicant’s objective circumstances brought the matter within the ambit of the principles referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy), and constituted “substantial deprivation in the circumstances of the history and background” of the applicant. His Honour said that those considerations would be taken into account in “attenuating the moral culpability of the [applicant] for the index offence and the sentence ultimately imposed”.
The sentencing judge also concluded that in view of the contents of the reports placed before the Court on sentence, he was satisfied that there was a causal nexus between the mental health issues of the applicant and the intellectual disability of the applicant and the index offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at [177]. His Honour said that even if he had not found that causal nexus, he would have been satisfied that the mental health issues and intellectual disabilities of the applicant nevertheless remained part of the factual matrix relevant to the sentencing synthesis. He concluded that the mental health and intellectual disability considerations also attenuated the moral culpability of the applicant and the sentence ultimately imposed.
His Honour stated that he would take the applicant’s mental health issues into account on sentence as they render considerably more onerous the service of a full-time custodial sentence on the applicant than on an offender who did not have such issues.
The sentencing judge then reviewed the material with respect to the applicant’s health issues arising from his diagnosis of lymphoma. The applicant had six rounds of chemo-immunotherapy following his diagnosis in February 2023. As at 5 November 2024, the applicant was assessed as having an intermediate risk with a good prognosis and possible long-term survival provided he remained in remission for a further 12 months. The medical opinion by the haematologist was that if the applicant would relapse within 24 months, he would fall into a worse prognosis group.
As the applicant is in remission, the diagnosis has no impact on his day-to-day function. However, he does require monthly treatments, regular appointments, and blood tests. Additionally, the applicant is immunocompromised, making him susceptible to infection and leaving him at a higher risk of secondary malignancies. The haematologist reported liaising with Justice Health to ensure the applicant receives necessary treatments.
The sentencing judge said that in formulating the sentence, the health issues were taken into account on the basis that they would render considerably more onerous the service of a full-time custodial sentence than would be the case for an offender who does not suffer from that condition.
The sentencing judge found that the applicant commenced using drugs at a young age, and that his intellectual disability and mental health problems contributed to his drug addiction issues. He began to smoke cannabis and drink alcohol at the ages of 12 and 13 respectively. Prior to 2010, he was using those substances heavily each day. He began abusing methamphetamine from about 2007 when he was 20 years of age. He also took other illicit substances. The sentencing judge was satisfied that the principles concerning early childhood and/or adolescent drug abuse applied (see R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (Henry)), meaning his addiction was not an addiction of choice, and further ameliorated the moral culpability of the applicant for the offence.
The sentencing judge found:

His Honour applied a 5% discount pursuant to s 25D(3)(c) of the CSPA having regard to the timing of the applicant’s plea of guilty. This finding is not the subject of any challenge.
The sentencing judge found that there was no evidence or other material which demonstrated that the applicant showed any remorse and/or contrition for the index offending. He found the applicant’s prospects of rehabilitation as guarded, and that it was premature to make a positive finding that the applicant was unlikely to re-offend in the future.
The sentencing judge noted that COVID-19 had not returned with its full effects but took into account its potential deleterious effect as part of the instinctive synthesis of sentencing.
The sentencing judge moderated the weight afforded to general deterrence that otherwise would have been warranted had it not been for the mental health and intellectual disability issues of the applicant. His Honour allowed additional weight to the consideration of community protection by reason of the interplay between the applicant’s mental health, intellectual disability, drug abuse issues, and history of criminal offending.
His Honour surveyed several comparative cases to which he was referred to, noting they served to demonstrate the range of sentences imposed in those particular cases and did not necessarily predicate the full range of sentences for offences of the same type. His Honour concluded that the comparative cases provided limited assistance but had regard to them in the synthesis of sentencing.
His Honour took into account the maximum penalty, standard non-parole period, and the purposes of sentencing in s 3A of the CSPA particularly to ensure that the applicant was adequately punished, to give appropriate weight to the considerations of general deterrence (moderated by reason of the applicant’s mental health, intellectual disability and other issues referred to), specific deterrence and community protection, to make the applicant accountable for his actions, to denounce his conduct and to recognise the harm done to the victim and the community whilst also allowing enhancement of the applicant’s prospects of rehabilitation. His Honour was satisfied that no penalty other than a full-time imprisonment was appropriate. He found special circumstances by reason of the applicant’s mental health and intellectual disability needs.
His Honour determined that the appropriate start date of the sentence was 9 July 2022. There is no challenge to this finding. His Honour imposed a sentence of a non-parole period of 4 years and 8 months, the term of the sentence being 7 years, 1 month and 15 days. This was after the 5% discount, with the starting point being 7 years and 6 months.

The applicant accepted that he must establish the sentence is unreasonable and plainly unjust in all the circumstances of the case.
Counsel for the applicant submitted that the starting point for the sentence of seven years and six months was severe in contrast with the findings that the offence fell at the lower level of the mid-range of objective seriousness and that moral culpability was reduced. Counsel submitted that the outcome could not be justified based on the findings that there was a need for additional protection of the community, or the aggravating factor that the offence was committed while subject to conditional liberty. Counsel for the applicant also submitted that whilst there are no squarely comparable cases, a consideration of the cases that were brought to the sentencing judge’s attention also support the conclusion that the sentence imposed was so severe that it exceeds the bounds of a proper exercise of the sentencing discretion.
As to objective seriousness, Counsel for the applicant accepted that the finding of the sentencing judge that the offending fell on the lower level of the mid-range was proper. That was because of the extent and nature of the injury (which was not life-threatening) but nevertheless a substantial wound that whilst still causing some ongoing symptoms bore a possibility of full recovery. Further, it was submitted that the finding based on the degree of violence really came down to the applicant’s use of the machete. It was submitted that the violence was confined to a single blow with the applicant voluntarily desisting. Whilst the words used to accompany the strike reflected the intention to cause grievous bodily harm, the intention was tempered by the applicant’s compromised intellectual and high-level cognitive executive skills, and his incapacity to adequately consider the consequences of his actions.
Counsel for the applicant also noted that the offence was committed in the victim’s home which is an aggravating feature. This aggravating factor appears to have been overlooked at first instance by both Counsel and the sentencing judge. It was submitted, however, that given the parties had known one another for some years and the applicant was allowed into the victim’s home; these circumstances would not aggravate the offending such that it alters the conclusion with respect to the objective seriousness.
It was also submitted that the fact that the offending was committed whilst the applicant was subject to two parole orders was a serious circumstance of aggravation. However, the sentencing judge allowed for total concurrency with a period of revoked parole (21 days), so any leniency was nominal. In any event, the applicant was very close to completing both sets of parole orders, thus ameliorating this circumstance of aggravation.
Counsel for the applicant accepted that there was tension between reduced moral culpability and the need for community protection. However, she submitted the sentence needed to reflect both. Counsel observed that the sentencing judge had accepted Dr Griffith’s opinions with respect to the applicant’s intellectual disability and functioning being in the “extremely low range” and that this impairment reduced his capacity to consider the consequence of his actions and predisposed him to impulsive behaviour.
It was submitted that there was further amelioration in the moral culpability of the applicant due to his history of social deprivation, mental health and substance abuse issues that commenced at a very young age. Counsel submitted that any one of these features ought to have had a meaningful impact on the assessment of the applicant’s moral culpability. In combination, it was submitted that the amelioration of the applicant’s moral culpability ought to have been substantial. This is not reflected in the sentence.
Additionally, the multiple subjective circumstances outlined in the remarks on sentence clearly support a finding that custody was more onerous for the applicant. It was submitted that this finding was not adequately reflected in the sentence. Counsel for the applicant noted that the sentencing judge had moderated the weight afforded to general deterrence due to the applicant’s reduced moral culpability. It was submitted, however, that this did not appear to have been weighed against the purposes of punishment and denunciation.
Counsel for the applicant took the Court to some sentencing statistics with respect to the offence of wound with intent to cause grievous bodily harm. Noting the limitations on the use of such statistics, she observed that between 24 September 2018 and 30 September 2025, there were 241 individuals sentenced for the offence. Of the 213 who were sentenced to full-time imprisonment, the applicant is 1 of 13 people who received a head sentence greater than 7 years. Of those 13, 8 were being sentenced for multiple offences and only 5 were being sentence for a single offence. Of the 126 people sentenced to full-time imprisonment for a single offence of this type, the applicant’s head sentence falls in the top 4% of those sentences. There are only four offenders who received higher sentences than the applicant.
Counsel for the applicant referred to the four cases which were referenced in the sentencing judgment. She accepted that none of the cases were squarely comparable with the objective and subjective features of the current case. Most notably, none appear to have involved offenders with findings that imprisonment would be more onerous as arose in the applicant’s circumstances. She submitted that overall, these authorities support a conclusion that the sentence imposed in this case does not reflect an offence in the lower level of the mid-range with reduced moral culpability and a more onerous prison sentence due to the applicant’s mental and physical health problems.

The Crown noted that an applicant seeking to challenge a sentence on the ground of manifest excess bears 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”: TH v R [2025] NSWCCA 121 at [5] citing He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(4)]; R v Elemes [2000] NSWCCA 235 at [22]-[23].
The Crown observed that the sentence fell to be considered against the maximum penalty of 25 years with a standard non-parole period of seven years. It was submitted these are significant guidelines.
The Crown also noted that the findings of the sentencing judge were not challenged in asserting the ground of appeal, and that the finding of significant moral culpability is only challenged in the event of resentence.
The Crown submitted that the applicant did not contend that the finding of objective seriousness was not one that was reasonably open to the sentencing judge. It accepted that the offence properly fell in the “lower echelon” of the mid-range of objective seriousness. The Crown identified several factors which supported that finding, but as the finding is not in dispute, it is not necessary to set them out in full.
The Crown also referred to the fact that the applicant was not remorseful and that his criminal history disentitled him to leniency. The Crown referred to the applicant being subject to conditional liberty at the time of the offending. Whilst he was close to the end of the parole period, the parole was for offending that could not be considered insignificant. It included offences such as specially aggravated (weapon) break and enter and commit serious indictable offence, detain for advantage, possession of an unauthorised pistol, common assault, dishonesty offences, custody of a knife in a public place, assault and intimidate police. The applicant’s sentence was backdated to subsume the entirety of his revoked parole.
The Crown also noted that the applicant had the benefit of a finding of special circumstances such that the non-parole period was 65.5% of the head sentence. This was in recognition of the applicant’s subjective case including his mental health, intellectual disability needs, and substance abuse issues.
With respect to moral culpability, the Crown submitted that the sentencing judge made findings that the applicant’s mental health and intellectual disability attenuated both moral culpability and the sentence ultimately impose. The sentencing judge also found that those considerations would make the applicant’s time in custody more onerous. The sentencing judge moderated the weight to be afforded to general deterrence; however, additional weight was given to community protection.
The Crown also accepted that the offending was aggravated by reason of having been committed in the home of the victim (see s 21A(2)(eb) of the CSPA) – a fact which was overlooked at first instance. The Crown submitted that if it were included, this feature would have placed upward pressure on the sentence imposed. The fact that the parties had known one another for some years and that the applicant was allowed into the home cannot moderate the degree of that aggravation in the present circumstances. The Crown submitted that ultimately, on sentence, the applicant had the benefit of this aspect not being considered and placing upward pressure on the sentence.
The Crown submitted that the sentencing judge’s reference to the applicant’s background of social deprivation, intellectual disability and mental health, and substance abuse issues were appropriately taken into account and did not overwhelm the requirement for the imposition of a sentence that reflected the appropriate balance between the objective and subjective circumstances. The Crown submitted the sentencing judge’s finding that whilst the applicant’s moral culpability was reduced, it remained quite significant, was well open to his Honour in circumstances where, even allowing for peer influence, impulsiveness, a lack of consequential thinking, history of social deprivation, mental health and substance abuse issues, it was the applicant himself who produced and used the machete, doing so with the words “yeah, you” when the victim was expressing alarm at the prospect of someone being hurt. Further, the applicant left the scene by himself without providing assistance to the victim, unlike Bingham, and then failed to demonstrate remorse on sentence.
The Crown noted that in asserting manifest excess, the applicant has not pleaded any ground alleging patent error and does not contend that any of the findings of the sentencing judge were findings that were not reasonably open to his Honour.
The Crown also referred to the comparable cases, distinguishing each.
The Crown submitted that there is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate. It submitted that the sentence imposed here appropriately reflected the whole of the criminality of the applicant as ameliorated by his reduced moral culpability. The Crown submitted the applicant has not demonstrated that the sentence is unreasonable or plainly unjust, and the appeal ought to be dismissed.

As Gleeson CJ and Hayne J emphasised in Dinsdale v the Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion” and “frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive”. Accepting the heavy practical burden placed on an applicant who relies on a ground of manifest excess, I consider that the sentence imposed was unreasonable and plainly unjust in all the circumstances of this case.
The sentencing judge found that the applicant’s moral culpability was reduced both because of his history of disadvantage enlivening the application of the Bugmy principles, and his mental health issues and intellectual disability enlivening the application of the De La Rosa principles. After making each of those findings, his Honour said that those considerations would be “… taken into account as attenuating the moral culpability of the [applicant] for the index offence and the sentence ultimately imposed” (Emphasis added). That is, his Honour held that there were two separate bases which resulted in the reduction of the applicant’s moral culpability and the sentence to be imposed.
The applicant’s moral culpability was also found to have been reduced by reason of the application of the principles in Henry by reason of his early childhood and/or adolescent drug abuse.
A finding of reduced moral culpability does not necessarily result in a reduced sentence: see Harris v R [2021] NSWCCA 322 at [89] per Dhanji J; Morris v R [2026] NSWCCA 119 (Morris) at [46] per N Adams CJ in CL. In Morris, the sentencing judge made findings that the moral culpability of the offender was reduced because of Bugmy and De La Rosa factors and that the sentence had been reduced by reason of these factors. Similarly, here, the sentencing judge said that the application of each of those principles would be taken into account as attenuating the moral culpability and the sentence. That is, each of those matters would reduce the sentence. N Adams CJ at CL in Morris said in that case at [50]:

The applicant reads an affidavit affirmed 30 June 2026. In that affidavit he deposes that he had been held in non-association in custody because he was getting threats to, and was fearful for, his safety. He has found semen in his sandwiches and faeces in his hot dinners. He has been self-harming.
The applicant has moved to a different correctional facility, however, he remains a target. He is now in protection awaiting transfer to yet another facility. He said he will ask to continue to be held in non-association once there as he remains fearful for his safety.
He deposes that his cancer remains in remission. He previously had face-to-face regular appointments with his doctor at the Prince of Wales Hospital, however, has now more sporadic video calls with staff at the Mater Hospital following his move to a different correctional facility.
He takes monthly Buvidal injections. He has dental problems and is awaiting treatment to remove some teeth he has been told need to come out. He has constant toothache as a result.
Whilst in custody, the applicant had a job as a sweeper until he went into segregation. Before that, because of his low immune system, he could not work in custody.
He had completed four sessions on trauma and drug addiction. He had to cease those on entering segregation.
The applicant says he has good family support. He talks to his mother every day on the phone and has regular video-link visits with her. He has had in-person visits from his siblings.
On release, the applicant says that he will live away from Maroubra/Coogee where he comes from in order to get as far away as possible from the people he had been associating with. He would like to get a job and has been compiling a resume with the help of the Salvation Army. He said he would like to go into residential rehabilitation so that he does not go backwards onto drugs. He is willing to get treatment to help him stay off drugs.
The applicant says that when he looks back at the offending, he feels he “should not have got involved. It was not my problem. I feel very bad for what happened to the victim”.
The applicant reads an affidavit of Frances Anne Low affirmed 17 July 2026. That affidavit annexes the applicant’s relevant updated custody records. Those records confirm his segregated status due to threats from other inmates, and his imminent move to another gaol. He has had no post-sentence disciplinary infractions.
The records otherwise corroborate the matters in the applicant’s affidavit, including as to his health and dental issues, and his plans on release.

The unchallenged finding of the sentencing judge is that the offending is at the lower end of the mid-range of objective seriousness. That reflects the level of violence and the use of the machete by the applicant. It also takes into account that the applicant was recruited into committing the offence by Bingham.
The aggravating factors under s 21A(2) of the CSPA found by the sentencing judge were not challenged. The offending was committed whilst the applicant was on parole in relation to other offences. There was not a significant time left on parole; however, it remains an aggravating factor. As observed above, the offending is aggravated by reason of it taking place in the home of the victim’s partner. This factor was overlooked.
Whilst none of the findings of the sentencing judge were challenged in support of the ground of manifest excess, if that ground was made out (as it was) the applicant does challenge the finding of the sentencing judge that despite the findings made as to his subjective circumstances, the applicant “nevertheless has quite significant moral culpability” for the offending. I agree that, on resentence, this finding cannot be maintained.
I have set out above the findings of the sentencing judge on the applicant’s subjective case going to the reduction of his moral culpability for the offending conduct. He had an upbringing of deprivation and disadvantage. He has mental health issues and an intellectual disability which, on the evidence, are causally related to his offending. He has substance abuse and addiction issues from an early age which indicates his continuing addiction is not one of choice.
I consider the findings of the sentencing judge on the subjective case that the applicant has a “lamentable” subjective case, which include the Bugmy and De La Rosa factors, must lead to a significant reduction in his moral culpability for the offending conduct. Further, those findings (with which I respectfully agree) mean that less weight should be given to general deterrence, denunciation, and the degree of punishment required in the sentencing synthesis.
The applicant’s record of prior offending disentitles him to the leniency he may otherwise have been afforded. His prospects of rehabilitation are guarded, although he will have the support of family on his release and those prospects would be enhanced if additional funding is provided by the NDIS for non-clinical mental health support. The applicant has said he would like to address his drug addictions by treatment, including residential rehabilitation. His risk of re‑offending is presently difficult to assess, and a more definitive assessment of that issue would depend on what treatment and assistance he receives for his mental health conditions and substance abuse. I accept that his mental health and drug abuse issues bring into consideration the protection of the community as a relevant sentencing factor.
Despite his lymphoma being in remission, he will require ongoing monthly treatments, regular appointments, and blood tests. His time in custody will be considerably more onerous by reason of his health condition, his mental health issues, and intellectual disability. His affidavit of 30 June 2026 conveys the difficulty he has had in prison. He is the constant butt of threats and intimidation because inmates know they will get a reaction out of him. He is, and will likely remain, isolated from the rest of the prison population.
His affidavit acknowledges that he should not have got involved in the incident, as it was not his problem. I infer he is referring to Bingham’s apparent antagonism to the victim, which is consistent with the finding that Bingham recruited the applicant to come with him and engage in the conduct he did.
The applicant says he feels very bad for what happened to the victim. This may not be a complete expression of remorse, however, together with his plea of guilty, I am prepared to accept that the applicant has expressed regret for his involvement and for the harm he had caused the victim. Together with him saying he should not have gotten involved, I consider he is displaying some insight into his conduct and its consequences.
There is no doubt, nor dispute, that the only appropriate sentence is one of full-time imprisonment. In setting the sentence I will impose, I have had regard to the maximum penalty for this offence and the standard non-parole period as legislative guideposts to the seriousness with which such violent conduct must be regarded. I have had regard to the purposes of sentencing in s 3A of the CSPA. As I have observed, because of the applicant’s subjective circumstances and the consequent reduction in his moral culpability, there is less weight in the sentencing synthesis for the application of general deterrence, denunciation and the need for punishment. Nevertheless, the sentence must indicate to the applicant that his conduct should not be repeated and recognise the harm done to the victim.
I would sentence the applicant to a term of imprisonment of 6 years. With the 5% discount to reflect the utilitarian value of his guilty plea, and the timing of the making of that plea, this is a term of 5 years, 8 months and 11 days.
By reason of his mental health issues and intellectual disability, and the significantly more onerous nature of full-time custody for him, I find special circumstances so as to alter the statutory ratio of the non-parole period.
The non-parole period I would impose would be 3 years and 6 months.
As found by the sentencing judge, the sentence is taken to have commenced on 9 July 2022.
The sentence will expire on 19 March 2028.
The applicant was eligible for release on parole on 8 January 2026.

Skinner v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

In relation to the applicant’s appeal against sentence

In relation to resentence

JUDGMENT

The Offending

The Remarks on Sentence

Manifest Excess

Applicant’s Submissions

Crown Submissions

Comparable cases

Porter v R [2015] NSWCCA 59 (Porter)

Muggleton v R [2015] NSWCCA 62; (2015) 250 A Crim R 180 (Muggleton)

Murray v R [2019] NSWCCA 235 (Murray)

R v Austin [2021] NSWDC 440 (Austin)

Other cases

Determination

Resentence

Material on the Usual Basis

Determination

Orders

Amendments

09 September 2026

Parties

Legislation Cited (4)

Cases Cited (45)