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[2026] NSWCCA 106
Court of Criminal Appeal (NSW)
2026-07-15
Stern JA at [1]; Huggett J at [86]; Sirtes J at [87]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Smith v R [2026] NSWCCA 106
Hearing dates: 1 June 2026
Date of orders: 15 July 2026
Decision date: 15 July 2026
Before: Stern JA at [1];
Huggett J at [86];
Sirtes J at [87]
Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by Sutherland SC DCJ on 27 June 2025 and, in lieu thereof, sentence the applicant to an aggregate term of imprisonment of 8 years, commencing on 15 November 2023 and expiring on 14 November 2031, with a non-parole period of 6 years expiring on 14 November 2029.
Catchwords: CRIME — appeals — appeal against sentence — whether sentencing judge made a De Simoni error taking into account a circumstance of aggravation such that the applicant was sentenced on basis of a more severe offence — whether sentencing judge mistook facts — whether sentencing judge erred in failing to bring into effect his Honour’s finding concerning backdating the term of imprisonment to a specific period into a revoked period of parole where no De Simoni error — where sentencing judge’s factual error in remarks on sentence did not have capacity to influence sentence — where sentencing judge was not indicating precise period of backdating — where sentencing judge made an arithmetical error in commencement date — where arithmetical error went to mechanics of implementing discretionary judgment — where Court not required to re-exercise sentencing discretion
Original judgment source is linked above.
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 11, 17
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A
Crimes Act 1900 (NSW), ss 38, 66C, 66EB, 91H
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 10
Cases Cited: Bakewell v R (Court of Criminal Appeal (NSW), 27 June 1996, unrep)
Bourke v R [2010] NSWCCA 22
Callaghan v R [2006] NSWCCA 58
CTM v R [2007] NSWCCA 131; 171 A Crim R 371
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Davies v R [2019] NSWCCA 45
Hamzeh v R [2022] NSWCCA 232
Hancock v R [2025] NSWCCA 213
Periasamy v R [2026] NSWCCA 89
R v Lawless (Court of Criminal Appeal (NSW), 24 June 1994, NSWCCA, unrep)
R v Smith [2025] NSWDC 374
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Wakeling v R [2016] NSWCCA 33
Category: Principal judgment
Parties: William Henry Smith (Applicant)
Rex (Respondent)
Representation: Counsel:
D Mulligan (Applicant)
B Page (Respondent)
Solicitors:
Legal Aid (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/274190
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibit the publication of any matter which is likely to lead to the identification of the victim, who was a child at the time of the offending.
[This headnote is not to be read as part of the judgment]
The applicant sought leave to appeal against the aggregate sentence of 8 years with a non-parole period of 6 years imposed on him on 27 June 2025 in respect of five offences to which he had pleaded guilty, namely one count each of: possessing child abuse material (possess child abuse material offence), failure to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPORA) (reporting offence), and intentionally procuring a child (MM) for unlawful sexual activity (procurement offence); and two counts of having sexual intercourse with a child (MM) between 14 and 16 years (cunnilingus and fellatio offences, respectively). MM, the victim of the three most serious offences, was aged 14 at the time of the offending, is a person with autism and ADHD, and suffered from depression. Three offences were taken into account on a Form 1, in respect of the fellatio offence.
The offending occurred between 24 and 28 August 2023.
The applicant was sentenced on the basis of a statement of agreed facts, signed by the Crown Prosecutor and the applicant. This was tendered, without objection, by the Crown on sentence.
MM and the applicant messaged on the Telegram app from 24 August 2023. MM informed the applicant that she was 14 years old. The applicant sent MM child abuse material. Over the following four days the applicant groomed MM and procured her for unlawful sexual activity with him. The applicant made arrangements to meet up with MM before school on 28 August 2023. The agreed facts included that on that day, inside the toilet block near where they met up, the applicant asked MM if she wanted to “smoke something” and she said, “I don’t really know”, to which he said, “it’s not going to hurt you, it will just make you like, more awake or relaxed”, and she agreed. The agreed facts also recorded that results from testing later that day established MM had methylamphetamine in her system.
The applicant performed cunnilingus on MM and then told her to perform fellatio on him. During the fellatio, the applicant asked to record her and MM agreed because she was “out of it” and not very focussed on what was happening. During the fellatio, at times the applicant pushed her head and she would gag and throw up.
At the time of his offending and arrest on 28 August 2023 for these offences, the applicant was on parole for three offences of possessing child abuse material. On his arrest parole was revoked, and the balance of the term of the applicant’s previous sentence was completed on 1 February 2024. In his remarks on sentence, the sentencing judge indicated that he “propose[d] to allow a balance of approximately two and a half months of the period served as the balance of term”. His Honour backdated the applicant’s sentence to commence from 15 December 2023, which was a little over three and a half months after the applicant’s arrest.
The agreed facts recorded that the applicant had messaged MM from 24 to 28 August 2023 using a Telegram username he had failed to report to the police, contrary to the requirements of CPORA, comprising the reporting offence. The agreed facts also included that the applicant was the user of a particular mobile service over the period of 3 May to 28 August 2023. In his remarks on sentence, the sentencing judge erroneously referred to the applicant as having used the Telegram username between 3 May and 28 August 2023.
The issues before the Court were whether:
(i) in assessing the objective gravity of the cunnilingus and fellatio offences, the sentencing judge made a De Simoni error in taking into account a circumstance of aggravation under Crimes Act 1900 (NSW), s 66C(5)(g) such that the applicant was sentenced on the basis of the aggravated offence, being Crimes Act, s 66C(4);
(ii) the sentencing judge mistook the facts concerning the reporting offence insofar as his Honour conflated the duration of the applicant’s use of his mobile phone number with the duration of his use of the Telegram username; and
(iii) the sentencing judge erred in failing to bring into effect his Honour’s finding concerning backdating the term of imprisonment to a specific degree into a revoked period of parole.
The Court (Stern JA, Huggett J and Sirtes J) held**, granting leave to appeal** and allowing the appeal:
As to issue (i)
(1) The sentencing judge did not fall foul of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. The remarks on sentence, read as a whole, did not suggest that his Honour was sentencing the applicant other than for the offences charged. On the facts as found by his Honour, it could not have been said that the applicant could have been found guilty of the more serious offence under s 66C(4): [24]-[60] (Stern JA); [86] (Huggett J); [87] (Sirtes J);
De Simoni; Davies v R [2019] NSWCCA 45, applied.
CTM v R [2007] NSWCCA 131; 171 A Crim R 371; Hamzeh v R [2022] NSWCCA 232, considered.
As to issue (ii)
(2) The factual error in the remarks on sentence as regards the duration of the applicant’s use of the Telegram username did not have the capacity to influence his Honour’s sentence. The sentencing judge was plainly aware of the period of offending identified in the charge. There was nothing in his Honour’s remarks to suggest that he categorised the offending as more objectively serious on account of that factual error: [61]-[66] (Stern JA); [86] (Huggett J); [87] (Sirtes J);
Hancock v R [2025] NSWCCA 213, applied.
As to issue (iii)
(3) His Honour made an error in identifying the commencement date of the sentence as 15 December 2023. His Honour intended to allow approximately two and a half months as the balance of the term, not the period of a little over three and a half months between the applicant’s arrest on 28 August 2023 and 15 December 2023: [76]-[81] (Stern JA); [86] (Huggett J); [87] (Sirtes J); and
(4) The error was an arithmetical error which went to the mechanics of implementing his Honour’s discretionary judgment and did not vitiate the exercise of the sentencing discretion itself. Accordingly, the Court was not required to re-exercise the sentencing discretion afresh but could instead correct the error in the calculation of the commencement date: [82]-[84] (Stern JA); [86] (Huggett J); [87] (Sirtes J).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255; Periasamy v R [2026] NSWCCA 89, applied.
STERN JA: On 27 June 2025 the applicant, having pleaded guilty, was sentenced to an aggregate sentence of 8 years imprisonment with a non-parole period (NPP) of 6 years imprisonment, in respect of five offences relating to the sexual abuse of children: R v Smith [2025] NSWDC 374. The most serious offences all related to one child victim, MM, who was aged 14 at the time of the offending, is a person with autism and ADHD and suffered from depression. The sentencing judge found that the applicant was entitled to a 25% discount on account of his early guilty pleas. His Honour also backdated the applicant’s sentence and NPP to date from 15 December 2023, such that his NPP expires on 14 December 2029 and his sentence expires on 14 December 2031. Three offences were taken into account on a Form 1.
The offences for which the applicant was sentenced, together with the applicable indicative sentences given by the sentencing judge (which reflected the 25% discount), are as follows:
possess child abuse material, being 97 videos and 3 images of child abuse material on 28 August 2023 contrary to the Crimes Act 1900 (NSW), s 91H(2) (sequence 9: possess child abuse material offence): indicative sentence of 2 years;
failure between 24 and 28 August 2023 to comply with reporting obligations contrary to the Child Protection (Offenders Registration) Act 2000 (NSW) (CPORA), s 17(1), being his failure to disclose an instant messaging username “Bit Inya” for the social media application Telegram (sequence 12: reporting offence): indicative sentence of 12 months;
two counts of having sexual intercourse with a child (MM) between 14 and 16 years on 28 August 2023 contrary to the Crimes Act, s 66C(3) (sequence 14: cunnilingus offence and sequence 15: f****ellatio offence): indicative sentence for the cunnilingus offence of 2 years and for the fellatio offence (to which the Form 1 offences attached) of 3 years; and
between 24 and 28 August 2023 intentionally procuring a child (MM) for unlawful sexual activity, namely sexual intercourse with himself, contrary to the Crimes Act*,* s 66EB(2) (sequence 19: procurement offence): indicative sentence of 4 years with an NPP of 3 years.
By way of background, at the time of this offending, the applicant was on parole, having been sentenced to an aggregate term of 18 months’ imprisonment with an NPP of 9 months for three offences of possessing child abuse material. By virtue of his convictions for those offences, he became a registrable person under the CPORA and was required to report personal information including his email addresses, internet usernames and internet messaging or chat room usernames to the New South Wales Police (NSW Police).
The offences taken into account (in respect of the fellatio offence) on the Form 1 were:
possessing a prohibited drug (0.13 grams of methylamphetamine) on 28 August 2023 contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 10(1) (sequence 8);
dissemination of child abuse material between 25 and 28 August 2023, being 10 videos depicting a child (MM) engaged in sexual activity contrary to Crimes Act, s 91H(2) (sequence 11); and
producing child abuse material, being a video of a child aged 14 (MM) engaging in sexual activity with himself contrary to Crimes Act, s 91H(2) (sequence 16).
The applicant seeks leave to appeal against his sentence under Criminal Appeal Act 1912 (NSW), s 5(1)(c) on three grounds:
in assessing the objective gravity of the cunnilingus and fellatio offences, both charged under s 66C(3), the sentencing judge made a De Simoni error in taking into account a circumstance of aggravation such that the applicant was sentenced on the basis of a more severe offence, being aggravated sexual intercourse with a child aged between 14 and 16 years pursuant to Crimes Act*,* s 66C(4) (ground 1);
the sentencing judge mistook the facts concerning the reporting offence, insofar as his Honour conflated the duration of the applicant’s use of his mobile phone number with the duration of his use of the Telegram username “Bit Inya” (ground 2); and
the sentencing judge erred in failing to bring into effect his Honour’s finding concerning backdating the term of imprisonment to a specific degree into the revoked period of parole (ground 3). The applicant accepts, however, that this error “may be understood to be arithmetical only” and may not engage any obligation to re-exercise the sentencing discretion as opposed to adjusting the commencement date of the sentence.
The Crown contends that none of these errors are made out. Alternatively, the Crown contends that if grounds 1 and/or 2 are upheld, the appeal should nonetheless be dismissed as no lesser sentence is warranted, and that if ground 3 is upheld, this would not amount to an error that would oblige this Court to re-sentence the applicant, it being an ‘arithmetical’ error only.
For the reasons set out below, leave to appeal should be granted. The appeal should be allowed on ground 3 only and the arithmetical error made by the sentencing judge should be corrected in the manner set out below.
The applicant was sentenced on the basis of a statement of agreed facts, signed by both the Crown Prosecutor and the applicant. This was tendered, without objection, by the Crown on sentence. The summary of relevant facts below is taken from the agreed facts.
The applicant messaged MM on Telegram, using his account name “Bit Inya”, on 24 August 2023. The applicant failed to report that username to the NSW Police within seven days, contrary to the requirements of CPORA*,* ss 11 and 17. This conduct comprised the reporting offence.
That day MM informed the applicant on Telegram that she was 14 years old. Between 25 and 28 August 2023 the applicant groomed MM and procured her for unlawful sexual activity with him. He and MM exchanged messages on Telegram, and text messages, including messages in which the applicant detailed sexual acts in which he fantasised MM taking part, sexual acts he instructed her to do to herself and sexual acts that he planned to engage in with her. He incited her to take sexually explicit photographs of herself and send them to him, and she did this on two occasions. The applicant promised to give MM money for a tennis racket that she needed for school but could not afford. This conduct comprised the procurement offence.
The applicant also sent MM a total of 54 media files, including 10 videos containing category 1 child abuse material, 10 videos containing category 2 child abuse material and 2 images containing category 1 and 2 child abuse material.
The applicant made arrangements to meet up with MM on 28 August 2023 before school. They met, as arranged, before 8 am that day. They walked together to a single public toilet block in a park near her school. The agreed facts included that:
Inside the toilet block, the [applicant] asked MM whether she wanted to “smoke something” and she said, “I don’t really know”. The [applicant] reassured her, “… it’s not going to hurt you, it will just make you like, more awake or relaxed” she agreed. Results from blood and urine tests conducted later that day established MM had methylamphetamine in her system.
The conduct set out above comprised the procurement offence and also includes the offending in sequence 11 (on the Form 1).
The applicant asked MM to sit on a toilet, which she did. Whilst MM was seated on a toilet the applicant performed cunnilingus on her for “a little bit”. MM did not like it that much and felt she just had to go along with it. This conduct comprised the cunnilingus offence.
The applicant then pulled his pants down and told MM to perform fellatio on him. MM started gagging. This continued for about a couple of minutes. The applicant asked to record her. MM agreed because she was “out of it” and not very focussed on what was happening. The applicant asked MM to get onto her knees and she complied. He began recording her using his phone. The applicant then put his penis in MM’s mouth again and this time he was rougher. He continued recording. At times he pushed MM’s head and she would gag and throw up. The applicant recorded MM performing fellatio on him for a period of approximately 2 minutes and 4 seconds. The applicant did not ejaculate. This conduct constituted the fellatio offence and the offending in sequence 16 (on the Form 1).
MM told her mother, friends and a teacher that she had “let a guy touch [her]”. Later that day she attended Hurstville Police Station where the police took a video of the Telegram and text message conversations. Police attended the applicant’s residence at about 5 pm on 28 August 2023 where he stomped his heel on the (blue) mobile phone (the blue mobile phone) that he had used for the Telegram messages. A search warrant was executed. In addition to the blue mobile phone, police located two laptops, a PlayStation 3, an ice pipe, an Aspera mobile phone (the Aspera mobile phone), five other mobile phones, a bag containing trace amounts of methylamphetamine, and a bag containing 0.13 grams of methylamphetamine. The last of these comprised the offending in sequence 8 (on the Form 1).
A review of the blue mobile phone identified 49 videos and 3 images containing child abuse material. A review of the Aspera mobile phone identified 48 videos containing child abuse material. The applicant’s possession of all of this material comprised the possess child abuse material offence.
After noting the parties’ respective submissions regarding the objective seriousness of the offences, the sentencing judge set out his findings in that regard. His Honour found that the possess child abuse material offence was towards the upper end of the midrange, the reporting offence was “well within” the midrange, the cunnilingus offence was within the midrange, the fellatio offence was towards the upper end of the midrange and the procurement offence was at the upper end of the midrange.
Whilst in this part of the judgment the sentencing judge did not elaborate upon why he made those findings, some indication of how his Honour evaluated the competing submissions of the parties can be gleaned from his Honour’s findings as to objective seriousness. In particular, the applicant submitted that all of the offences were within the midrange of objective seriousness, but not at the upper midrange. Those were his Honour’s findings as regards the reporting and cunnilingus offences. The Crown submitted that the procurement and fellatio offences were both at the upper end of the midrange, which was what his Honour found. The Crown submitted that the possess child abuse material offence was of the uppermost objective seriousness, and as to this offence, his Honour’s evaluation fell somewhere between this and the applicant’s submission. That is, of course, not to say that his Honour’s assessments were tied to the matters relied upon by either the applicant or the Crown.
Under the heading “Determination”, the sentencing judge said the following:
I have indicated earlier my assessment of the objective seriousness of the various offences.
In overview, this was a particularly egregious form of grooming/procuring involving a real child who suffered from Autism, ADHD, and depression, as contrasted with cases involving fictitious creations by police. It included a promise or offer to provide money for the purchase of a tennis racquet which the child wanted.
Unlike some other procuring offences, the circumstances of the present matter resulted in actual sexual intercourse in circumstances where the intercourse occurred with the 14-year-old victim in her school uniform and in a public toilet whilst she was on her way to school. The surrounding circumstances include that she was supplied with methylamphetamine to smoke and the act of fellatio was accompanied by some level of force or aggression and was filmed by the offender and subsequently sent to the victim. These surrounding circumstances are taken into account in determining an appropriate sentence with respect to the sexual intercourse fellatio assault. They also include matters included on the Form 1.
As to subjective circumstances, the sentencing judge took into account the applicant’s family background as set out in a report from Dr Mark Milic, forensic psychologist, dated 21 May 2025. Given the ambit of the applicant’s grounds of appeal, it is unnecessary to go into the detail of his Honour’s findings as to the applicant’s subjective case. It suffices to note that there was no evidence of any mental health diagnosis and the sentencing judge found that the applicant had a lack of insight into his offending and had demonstrated a lack of remorse. He was also mindful that the offences reflected an escalation of child sexual offending and a poor response to supervision and conditions. The sentencing judge found that the applicant had “very guarded prospects of rehabilitation which should be assessed as moderate at best” with a “concerning potential for reoffending”.
The sentencing judge gave detailed consideration to a number of cases relied upon as “comparative cases”.
The sentencing judge noted that the applicant conceded that the threshold under Crimes (Sentencing Procedure) A**ct 1999 (NSW) (CSPA), s 5 had been crossed and that the Court ought to impose a substantial fulltime custodial sentence. His Honour also noted that the applicant had been in custody since his arrest on 28 August 2023 and that the balance of the term of his previous sentence was completed on 1 February 2024. In the exercise of his sentencing discretion, his Honour allowed a period of approximately two and a half months of the period served as the balance of the term. This resulted in the sentence being backdated to 15 December 2023.
As is apparent from the indicative sentences (above at [2]) there was a significant degree of concurrence.
The accused person took advantage of the complainant being under the influence of alcohol or a drug in order to commit the offence.
The applicant contends that he was thus punished for an offence under s 66C(****4), being the offence of having sexual intercourse with a child aged between 14 and 16 years “in circumstances of aggravation”.
Whereas s 66C(3) has a maximum sentence of 10 years, the maximum sentence for the offence under s 66C(4) is 12 years.
In this context, the applicant contends that the approach taken by the sentencing judge fell foul of the principle established by Gibbs CJ (Mason and Murphy JJ agreeing) in The Queen v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31:
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing a sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
The applicant submits first, that on the agreed facts, the methylamphetamine was offered and taken at a time just before the cunnilingus and fellatio offences and at least during the latter part of the ongoing fellatio offence, MM was “out of it”. Second, that in these circumstances, the fact that the applicant offered methylamphetamine to MM, and she took it, should have been excised from the agreed facts. Third, that this was not done. Fourth, that neither the parties, nor the sentencing judge, turned their mind to the De Simoni risk arising from the ambit of the circumstance of aggravation in s 66C(5)(g). Fifth, having regard to what the sentencing judge said in the remarks on sentence, it is clear that his Honour made a factual determination that did not “avoid infringing the elements of s 66C(5)(g)”and that occasioned a De Simoni error.
The applicant also contends that this Court should infer that the sentencing judge embraced the Crown’s submission on sentence that the methylamphetamine was provided by the applicant to disinhibit MM “to be able to more readily sexually abuse her”.
As both parties submitted to this Court, s 66C(5)(g) has received some, albeit limited, appellate consideration.
In CTM v R [2007] NSWCCA 131; 171 A Crim R 371, an offender was found not guilty of an offence under s 66C(4), with the alleged circumstance of aggravation being that in s 66C(5)(g), but was instead found guilty of the statutory alternative under s 66C(3). In CTM, the Crown contended that the jury’s acquittal of the appellant of the offence under s 66C(4) must have been on the basis that the jury had a doubt about the complainant’s account of events. When considering that contention, at [55], Howie J (Hodgson JA and Price J agreeing) considered how the trial judge should have responded to the following question from the jury:
Are we to assume that if [the complainant] was under the influence of alcohol and that sex took place does that automatically imply she was taken advantage of?
Unless it was proved that the appellant had that knowledge, I do not understand how the aggravated offence under s 66C(4) could have been made out.
The question of what is required to prove the circumstance of aggravation in s 66C(5)(g) did not arise on the appeal to the High Court in CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25.
In Hamzeh v R [2022] NSWCCA 232, the applicant was found guilty of a number of offences including an offence against s 66C(4), with the circumstance of aggravation being that in s 66C(5)(g). The applicant contended on appeal that the verdict on that offence was unreasonable. The factual issue of particular significance to that ground was whether or not the evidence established beyond reasonable doubt that a particular drug had been given to the victim, where the Crown case was that three drugs had influenced the victim at the time of the offending (Price J at [113], Lonergan J agreeing at [121]; cf [72] Beech-Jones CJ at CL, as his Honour then was, dissenting on the unreasonable verdict ground). Relevantly for present purposes, at [54] Beech-Jones CJ at CL said that, for the offence under s 66C(4), it would suffice for the Crown:
[T]o prove that the victim was under [the influence of drugs generally, reflecting the evidence in that case] and that the applicant (knowingly) took advantage of that fact …
As set out at [12] above, the agreed facts clearly identified that that the applicant offered methylamphetamine to MM before the cunnilingus or fellatio offences took place, and that, when she responded to his offer by saying, “I don’t really know”, the applicant reassured her by telling her it would not hurt her but would make her, “like, more awake or relaxed”. The agreed facts also confirmed that testing on the day of those offences disclosed that MM had methylamphetamine in her system. There is no agreed fact about how much methylamphetamine MM had, nor the level of methylamphetamine disclosed by blood and urine tests, nor the extent to which MM was affected by the methylamphetamine before or during the offending (subject to the one matter considered at [39] below), nor whether it was apparent to the applicant that MM was affected by the methylamphetamine.
There was also no agreed fact to the effect that the methylamphetamine was given to MM by the applicant because he intended to take advantage of her being under the influence of the drug in order to commit the sexual offences, as opposed to it simply making her “more awake or relaxed”, which is what the agreed facts record that he told MM. Moreover, by the time that the applicant offered MM the methylamphetamine, he and MM were already inside the toilet block, and the applicant had already asked MM if she was “horny” to which she replied, “Mmm a little bit”.
The agreed facts also do not suggest that MM was under the influence of methylamphetamine at the time of the cunnilingus offence. Rather, as regards that offence, they state that MM “felt she just had to go along with it”. As regards the fellatio offence, the agreed facts record that the applicant pulled his pants down exposing his penis, held MM’s head and pulled it forward, put his penis inside her mouth causing her to gag and that after “a couple of minutes” he asked to record her and that MM “agreed because she was ‘out of it’ and not very focused on what was happening”. Thereafter, the fellatio offence continued. The agreed facts thus suggest that at some point during the fellatio offence, which continued for some time, the methylamphetamine affected MM.
The offender provided a prohibited drug to a 14-year-old – the Crown submits he did so to disinhibit her to be able to more readily sexually abuse her.
As is clear from my analysis of the agreed facts, there was no agreed fact which supported that submission.
The applicant’s written submissions on sentence included the following, under the heading “Objective Seriousness”:
It is conceded that the offending occurred whilst the offender was on conditional liberty, and that is an aggravating factor, as is the provision of a drug to the victim.
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
…
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance, …
During the sentencing hearing there was also some discussion of the relevance of the methylamphetamine being offered to, and being taken by, MM.
The Crown referred to the applicant having “offered and encouraged [MM] to smoke some methylamphetamine whilst in the [lavatory]”. When his Honour then said, “that’s relied upon as part of the procuring”, the Crown said:
That is not part of the procuring, your Honour. It just forms part of the offending; it doesn’t increase the objective seriousness. It’s not a separate standalone charge.
[Crown]: The Crown says it does increase objective seriousness, but the Crown says also that the Court would be very careful to be minded, that the terms of s 38 which are causing a substance to be taken, are not traversed; so there is no fear of a De Simoni issue. So the Crown says it does - it is something which informs the Court in terms of how to assess the objective seriousness; it does point to an increase, but the way the Crown says is that it needs to be framed in the way that there is a stepping away from any wording of s 38.
HIS HONOUR: Yes; the tight rope of De Simoni.
The reference here to “s 38” is to Crimes Act, s 38, which is an offence, with a maximum sentence of 25 years, of administering or causing another person to take an intoxicating substance with intent to enable an offender to commit an indictable offence.
The Crown then made a separate submission that “the act of fellatio was a fairly forcible one” in that it made MM vomit and that the applicant continued thereafter. This submission did not reference the methylamphetamine.
A little later in the sentencing hearing the sentencing judge asked counsel for the applicant whether he wanted to say anything “about the use of the meth”. The applicant’s counsel responded that this was “an aggravating circumstance … But you don’t want to fall into position of double counting … Because that in itself is already taken into consideration by 21A to it, I think it is … So we don’t want to then go – we don’t want to then breach 21A or 21A(5) or (4) or whatever it is. So that’s accepted”. The sentencing judge expressed his agreement with each of these propositions and added that he was “very conscious of [s] 38”.
Consistent with what I say at [43] above, I again infer that, in this exchange, the applicant’s counsel was referring to CSPA, s 21A, noting that s 21A(4) provides (and at the date of sentence provided) that:
The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
In the “Factual Background” section of the remarks on sentence, the sentencing judge set out the facts, including the agreed facts about the methylamphetamine at [12] above, adding the phrase “[t]he offender gave the child some methylamphetamine”.
When dealing with objective seriousness, the sentencing judge referred to the subject of the methylamphetamine. A number of observations about the sentencing judge’s reasoning in this regard should be made.
First, before turning to the parties’ competing submissions, the sentencing judge noted that “the drugging of the victim is not a standalone charge or an element of the procurement offence” and that the Crown had advised that “this conduct was contextual and served simply to increase the objective seriousness of the offending generally”.
Second, his Honour reminded himself of the principle in De Simoni, which he described as being that “I must not ‘take into account circumstances of aggravation which would have warranted a conviction for a more serious offence’”. Thus, whilst no submissions were made to the sentencing judge specifically addressing the danger of sentencing the applicant for the aggravated form of the offence pursuant to ss 66C(4) and 66C(5)(g), it is plain from interchanges during the sentencing hearing that the sentencing judge was very much alive to the De Simoni principle. In that regard, during the sentencing hearing his Honour referred to the risk of making a De Simoni error if he found that the applicant had caused MM to take an intoxicating substance with the intent of enabling himself to commit the offences, which would constitute the more serious offence under s 38. Whilst the requirements of s 38 differ materially from those in s 66C(5)(g), I would readily infer from the sentencing judge’s reference to De Simoni in the context of s 38, that his Honour was well aware of the need to be cautious only to sentence the applicant for the offences with which he was charged.
Third, when setting out the Crown’s submissions on the objective seriousness of the fellatio offence, the sentencing judge also referred to what he described as the Crown’s submission that:
[T]he fellatio assault, while not necessarily violent, did involve a level of force such that the victim gagged and vomited and that her capacity to resist may have been reduced by her drug intoxication.
Importantly, his Honour noted that the applicant conceded that “the provision of the drug” was an aggravating factor.
I would readily reject the applicant’s submission that, in respect of any of the matters set out above, the sentencing judge was adopting or embracing the Crown’s submissions. Read fairly, it is clear that his Honour was simply setting out the respective submissions of the parties (as his Honour understood them) in this part of his remarks on sentence.
Fourth, as is clear from the extract from the remarks on sentence at [20] above, the sentencing judge returned to the topic of objective seriousness, and the methylamphetamine, towards the end of his remarks on sentence when explaining his determination. Here, the sentencing judge’s findings went no higher than that the “surrounding circumstances include that [MM] was supplied with methylamphetamine to smoke”. There was no finding that MM was affected by the methylamphetamine, nor was there any finding that the offending was facilitated, or made more likely, by reason of the methylamphetamine having been taken by MM. Still less was there any finding as to the applicant’s knowledge in this regard.
Fifth, the facts as found fit neatly with the terms of CSPA, s 21A(2)(cb), namely as going simply to whether the applicant caused MM to “take … a narcotic drug … or other intoxicating substance”.
Reading the remarks on sentence fairly, and noting the matters I have just set out, I read his Honour’s reference to the supply to MM of methylamphetamine being taken into account on the fellatio offence as falling well short of making the sort of findings that would be required to ground liability for the aggravated form of the offence pursuant to ss 66C(4) and 66C(5)(g).
Sixth, there is nothing in the remarks on sentence to suggest that the sentencing judge gave any relevance to the methylamphetamine when sentencing the applicant for the cunnilingus offence. Contrary to the applicant’s submission, no assumption can be made that the sentencing judge’s reference to the fellatio offence in his remarks on sentence at [132]-[134] intended also to capture the cunnilingus offence.
Having regard to these matters, I am not persuaded that the sentencing judge fell foul of the principle in De Simoni when sentencing the applicant for the cunnilingus and fellatio offences. The sentencing judge did not err merely by reason of his recitation of the agreed facts relating to the methylamphetamine: see, by analogy, Bakewell v R (Court of Criminal Appeal (NSW), 27 June 1996, unrep) at 7, cited with approval in Wakeling v R [2016] NSWCCA 33 at [35]-[37]; Davies at [36]. Moreover, his Honour did not err in finding that the fact that the applicant supplied MM with methylamphetamine was a relevant surrounding circumstance. This fact properly went to the objective seriousness of the offending: Wakeling at [47]. The remarks on sentence, read as a whole, do not suggest that his Honour was sentencing the applicant other than for the offences charged. Moreover, his Honour did not address matters which would have had to be established if his Honour had been sentencing the applicant for the aggravated form of the offence pursuant to ss 66C(4) and 66C(5)(g): as to which, see above at [31]-[36]. Thus, on the facts as found by the sentencing judge, it could not be said that the applicant could have been found guilty of the more serious offence under s 66C(4): see eg R v Lawless (Court of Criminal Appeal (NSW), 24 June 1994, NSWCCA, unrep), cited with approval in Bourke v R [2010] NSWCCA 22 at [50]-[52].
I would also readily reject the applicant’s contention that ground 1 is buttressed by the fact that the indicative sentence for the fellatio offence was one year greater than that nominated for the cunnilingus offence. The fellatio offence went on for a longer period of time than the cunnilingus offence. The fellatio offence was also found by the sentencing judge to be accompanied by some level of force and aggression, and to have been filmed by the applicant. Moreover, the Form 1 offences were taken into account only as regards the fellatio offence. These matters readily explain the difference between the indicative sentences for the two offences.
In these circumstances, I am not satisfied that a De Simoni error was made by the sentencing judge. Ground 1 should be rejected.
Between 3 May 2023 and 28 August 2023 the offender utilised the encrypted social media and messaging application “Telegram” under the username “Bit Inya”. The detail of this username was not reported to police within 7 days as required by s 11 of the Child Protection (Offenders Registration) Act 2000. This conduct forms the basis of Sequence 12, the offence of failing to comply with reporting obligations.
The error is that the agreed facts, upon which the parties agreed the applicant was to be sentenced, included that the applicant was the user of a particular mobile service over that period (3 May 2023 to 28 August 2023), but as regards his use of the Telegram app and use of the account name “Bit Inya”, that he used that account name to message MM on Telegram on 24 August 2023.
The applicant contends that this factual error was material, because the terms of the offence under the CPORA, to which the applicant pleaded guilty, were that the applicant had failed to comply with his reporting obligations under the CPORA because of his failure to disclose the instant messaging username “Bit Inya”, and the period over which he had in fact been using that username thus went to the seriousness of the offending.
The relevant reporting obligation under CPORA, s 11 is to report any change in the person’s relevant personal information, which under s 9(1)(p) is defined to include details of instant messaging usernames, within seven days after the change occurs. The period of charged conduct, as set out in the amended charge certificate, was between 24 and 28 August 2023 (and not the period between 3 May 2023 and 28 August 2023 when the applicant was the user of the relevant mobile phone number). Thus, as the applicant submitted, on the agreed facts it may well have been that the applicant had only had the username “Bit Inya” for the seven-day period leading up to 28 August 2023. That would not be inconsistent with the applicant’s use of that username in communicating with MM over the period 24 to 28 August 2023.
I am not satisfied that this factual error in the remarks on sentence had the capacity to influence the sentence: see the discussion in Hancock v R [2025] NSWCCA 213 at [79]-[83]. The sentencing judge was plainly aware of the period of offending identified in the charge, as he identified this in the opening paragraph of the remarks on sentence. There is nothing in his Honour’s remarks to suggest that he categorised the offending as more objectively serious on account of his Honour’s factual error in recounting the period over which the agreed facts recorded that the applicant had used the “Bit Inya” username. Moreover, his Honour’s assessment at to the objective seriousness of the reporting offence as falling “well within the midrange” accorded with that proposed by the applicant’s counsel on sentence.
Ground 2 should be rejected.
In ground 3 the applicant challenges the sentencing judge’s decision to backdate the applicant’s sentence to commence on 15 December 2023, which was a little over three and a half months after the applicant was arrested on 28 August 2023.
It was common ground that the applicant had been in custody since 28 August 2023. However, the applicant was on parole at that date, and the offending led to the revocation of his parole from the date of his arrest. Thus, between 28 August 2023 and 1 February 2024, the applicant was serving the balance of the term for his previous offending. That meant that the applicant’s pre-sentence custody was solely referable to the offences for which he was being sentenced from 1 February 2024, a little over five months after the applicant’s arrest.
As is well established: see eg Callaghan v R [2006] NSWCCA 58 at [20]-[25], a sentencing judge has a discretion whether or not to backdate the commencement of sentence where pre-sentence custody is not exclusively referable to the crime for which the offender is being sentenced. The applicant did not submit that the period allowed was less than what the sentencing judge could properly have allowed. Instead, the applicant’s contention was simply that the sentencing judge made an arithmetical error, and thus the sentence actually imposed did not reflect his Honour’s intention.
Here the sentencing judge referred to, and was plainly aware of, the relevant dates. Having referred to these, his Honour noted the applicant’s submission that there should be a period of concurrency to allow for the possibility that the applicant could have been re-paroled during the course of the balance of the term for his previous offending, and said:
I propose to allow a period of approximately 2 and a half months of the period served as the balance of term in an exercise of that discretion.
The period of two and a half months would be approximately half of the period between applicant’s arrest (28 August 2023) and the date upon which his custody was solely referable to the offences for which he was being sentenced (1 February 2024). However, as set out at [73] above, the actual backdated commencement date for the applicant’s sentence is 15 December 2023, which is a little over three and a half months after 28 August 2023. That is approximately one month longer than the period of two and a half months that the sentencing judge said that he proposed to allow in his remarks on sentence. That difference is significant. It falls well beyond what might be comprehended by the adjective “approximately”.
The sentencing judge did not say anything beyond what I have extracted at [75] above to explain his conclusion as to the commencement date of the applicant’s sentence.
In these circumstances, the applicant’s contention of error should be upheld. I am satisfied that the sentencing judge made an error in identifying the start date for the applicant’s sentence as 15 December 2023 rather than 15 November 2023. A commencement date of 15 November 2023 would reflect what I am satisfied the sentencing judge intended, being to “allow” a period of two and a half months, of the approximately five month period served by the applicant between his arrest and the completion of the previous head sentence, as the balance of the term. Whilst 15 November 2023 it is not precisely two and a half months after 28 August 2023 (the date of the applicant’s arrest), I would infer that this is the date on which his Honour intended the sentence to commence, with the “error” being that the commencement month was identified as December rather than November.
I also note that, during the sentencing hearing, the sentencing judge observed that:
[T]here’s often been a rule of thumb followed by some but not by all, of lowering perhaps 50% of the time to recognise the fact that the person might have been otherwise eligible for reconsideration for parole. I’m not saying that’s what I will do, but that’s certainly an aspect that needs to be [at which point his Honour was interrupted by the Crown].
Whilst this observation does not itself suggest error in the sentencing judge’s determination (and both parties were given the opportunity to, and did, make submissions as to the appropriate starting date for the applicant’s sentence), it is consistent with the conclusion that I have reached in any event.
It follows that ground 3 should be upheld. The sentencing judge erred in determining that the applicant’s sentence commenced on 15 December 2023 when he plainly intended that it should commence approximately two and a half months after 28 August 2023.
Subsection 6(3) of the Criminal Appeal Act 1912 (NSW) provides:
On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
[47] The law recognises two types of sentencing error that can be dealt with differently by an appellate court.
[48] The first is where there has been some error that vitiates the exercise of the sentencing discretion. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at 617–618 [42], the High Court explained that where a sentencing judge commits an error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505, the discretion has miscarried and the appellate court is bound to re-exercise the sentencing discretion independently.
[49] However, not all errors in the sentencing of offenders vitiate that discretion: Kentwell at 618 [42]. This is the second type of error. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (Lehn) at 216 [72], Bathurst CJ (with whom Beazley P, R A Hulme, Schmidt and Wilson JJ relevantly agreed) observed in this regard that:
“That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles.”
(Emphasis omitted)
The orders I propose are:
Grant leave to appeal.
Allow the appeal.
Quash the sentence imposed by Sutherland SC DCJ on 27 June 2025 and, in lieu thereof, sentence the applicant to an aggregate term of imprisonment of 8 years, commencing on 15 November 2023 and expiring on 14 November 2031, with a non-parole period of 6 years expiring on 14 November 2029.
HUGGETT J: I agree with Stern JA.
SIRTES J: I agree with Stern JA.
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Smith
R
[2008] HCA 25
[2026] NSWCCA 89
[1936] HCA 40
(2008) 236 CLR 440
(1981) 147 CLR 383
(2014) 252 CLR 601
(2016) 93 NSWLR 205
(1936) 55 CLR 499