/

/

Stuckey v R [2025] NSWCCA 216 | Case summary | Zoe

NSWNSWCCA

Stuckey v R

[2025] NSWCCA 216

Court of Criminal Appeal (NSW)|2025-12-10|Before: Mitchelmore JA at [1]Ierace J at [2]McNaughton J at [3]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2025-12-10

Before

Mitchelmore JA at [1]Ierace J at [2]McNaughton J at [3]

Catchwords

CRIME – appeal against sentence – misapplication of principle
– irrelevant considerations – error at sentence
–
applicant’s criminal history not to be considered in determining the

Source

Original judgment source is linked above.

Catchwords

CRIME – appeal against sentence – misapplication of principle– irrelevant considerations – error at sentence–applicant’s criminal history not to be considered in determining theobjective seriousness of an offence CRIME – appeal againstsentence – re-exercise of sentencing discretion – no lesser sentencewarranted

Judgment

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

Medium Neutral Citation: Stuckey v R [2025] NSWCCA 216

Hearing dates: 12 November 2025

Date of orders: 10 December 2025

Decision date: 10 December 2025

Before: Mitchelmore JA at [1]
Ierace J at [2]
McNaughton J at [3]

Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIME – appeal against sentence – misapplication of principle – irrelevant considerations – error at sentence – applicant’s criminal history not to be considered in determining the objective seriousness of an offence
CRIME – appeal against sentence – re-exercise of sentencing discretion – no lesser sentence warranted

Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 166, 168
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 33

Cases Cited: AA v R [2024] NSWCCA 132
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 Dickinson v R [2016] NSWCCA 301 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Hawat v R [2020] NSWCCA 121 Kelly v R [2017] NSWCCA 82 Lovell v R [2006] NSWCCA 222 MacBlane v R [2025] NSWCCA 52 McCabe v R [2016] NSWCCA 7 R v Dawson [2022] NSWSC 1632 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Ponfield (1999) 49 NSWLR 327; [1999] NSWCCA 435

The next section of the remarks on sentence was headed “General principles and objective seriousness of the armed robbery offence”. In this section, the sentencing judge referred to the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. His Honour noted that offences of this type identified in the guideline by Spigelman CJ generally meant the imposition of between four and five years’ imprisonment for the full term. In that case “common features” of such offences were identified as including a young offender with little or no criminal history; weapon like a knife capable of killing or inflicting serious injury; limited degree of planning; limited if any actual violence but a real threat thereof; victim in a vulnerable position such as a shopkeeper or taxi driver; small amount taken; and a plea of guilty, the significance of which was limited by a strong Crown case.
His Honour then went on to observe in the instant matter that the applicant was not a young person, he had been convicted of similar offences as well as offences of violence and others, and that a plea of guilty had been entered in the Local Court. The sentencing judge then stated that “having regard to the matters I have identified, I have concluded this offence falls below the mid-range of objective seriousness for offences of its type but not at the bottom of the range.” (I note in passing that the phrase “having regard to the matters I have identified” close to the determination of objective seriousness may suggest a problem similar to the one identified in the ground of appeal. However, the context would appear to be slightly different, and no issue is taken with this passage by the applicant).
The sentencing judge then dealt with the driving offences where a penalty was to be imposed.
The next section of the Remarks on Sentence dealt with the impact on the victims. Amongst other things the sentencing judge detailed the difficulties faced by the victims of the specially aggravated break and enter offence as a result of the trauma occasioned to them by the offending. Whilst observing their ongoing distress and anxiety, his Honour found that this harm did not qualify as “substantial” within the meaning of s 21A(2)(g) of the Sentencing Act (noting that he did not intend in any way to diminish the trauma and harm felt by the victims).
In the next part of the remarks, the sentencing judge turned to the applicant’s subjective case under a heading “The offender’s subjective case”. The sentencing judge noted that the applicant was 30 years old, the middle child of three and he grew up in the Nowra area. His mother told Dr Rogers he was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and severe learning difficulties during his childhood. He had difficulty focussing at school and was prescribed Ritalin for a number of years. He reported that whilst attending Nowra High School, he was sexually assaulted by a learning support teacher on multiple occasions during Years 7 and 8, in relation to which, he told Dr Rogers, he had recently filed a formal report. Following these assaults, he reported experiencing heightened anxiety and low mood. He left school in Year 8 at the age of about 13 or 14 years and started to use cannabis heavily.
The sentencing judge did not accept that the Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 principles were enlivened. First, because the disadvantage did not rise to the level contemplated by that decision, nor was there any demonstrated causal link between any such disadvantage and his offending such as would reduce his moral culpability. The sentencing judge stated “[T]hat is not to say his background and personal circumstances are not a relevant and important aspect of his subjective case to which I will have regard.”
The sentencing judge noted Dr Rogers’ opinion that the alleged childhood sexual abuse was highly traumatic for the applicant and that he appeared to meet the diagnostic criteria for post-traumatic stress disorder, and the abuse would likely have impaired his social, emotional and moral development. His Honour also noted Dr Rogers’ opinion that the applicant suffers from a mild neurocognitive disorder which is stable and enduring, and that he has a reduced capacity for reasoning and judgment including inhibition, consequential thinking and problem solving abilities.
The sentencing judge referred to the principles concerning mental health conditions and sentencing, citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178]. The sentencing judge stated he was satisfied that given the applicant’s mental health difficulties and mild cognitive impairment that his moral culpability was somewhat reduced and that the applicant was a less appropriate vehicle for general deterrence than might otherwise be the case.
The sentencing judge continued to outline the applicant’s background, noting that his parents separated when the applicant was about 15 or 16. He first lived with his father who drank to excess, then returned to Nowra to live with his mother. He commenced abusing methamphetamine when he was around 17 or 18. From about that time his interaction with the criminal justice system commenced.
The applicant met his former partner at 21 or 22 through mutual drug use, but they subsequently supported each other to cease using. Together they have two children, 7 years and 4 years old, both of whom reside with the applicant’s former partner. He maintained a pro-social life for four to five years, but when his relationship started to deteriorate his methamphetamine use increased. This led to him leaving the family home and his drug use escalating. The sentencing judge noted that he had not used drugs since his most recent return to custody (albeit I note that more recent information indicates he had failed a prescribed drug test only a few days prior to the sentencing hearing).
Importantly, within the subjective case portion of the remarks, the sentencing judge stated:

The applicant pointed to decisions of this Court which makes it clear that, contrary to what was stated in R v Ponfield (1999) 49 NSWLR 327; [1999] NSWCCA 435, an offender’s criminal history is not relevant to an assessment of the objective gravity of any offence.
The applicant submitted that the sentencing judge erred in referring to Ponfie**ld without qualification, making no reference to the developments of the law since that case which circumscribed the effect of that authority. It was contended that, as set out at [23] above, the sentencing judge erred in specifically identifying the Ponfield decision as providing assistance in the assessment of the objective seriousness of the break and enter offences, in particular referring to the applicant’s past history of like offences. The applicant noted that the Crown had also referred to Ponfield in its written submissions before the sentencing judge and had failed to refer to the authorities qualifying the application of Ponfield in respect of past criminal history.
The applicant contended that in taking into account adversely to the applicant that he had a history of like offending, the sentencing judge necessarily assessed the three break and enter offences as being objectively more serious than his Honour would have otherwise assessed them had he applied the law correctly.
The respondent argued that any apparent deficiency in the structure of the remarks on sentence should pay due regard to the workload of the sentencing judge, albeit at the same time, in contrast, pointed to the sentencing judge’s “careful use of language”. It was clarified at the oral hearing of the appeal that the judgment could not be regarded in any way as ex tempore.
The respondent submitted that whilst the impugned passages were to be found under a heading of “General principles and objective seriousness of the break and enter offences”, it is clear that matters such as general and specific deterrence, which were obviously not related to the determination of objective seriousness, were also included under that heading. Further, it was argued that in the section of the Remarks on Sentence where both general principles and objective seriousness were dealt with, “seriousness” or “overall seriousness” were used when dealing with the Ponfield judgment, but “objective seriousness” was used when dealing with a factor relating specifically to the assessment of objective seriousness. The Crown argued “When referring to ‘overall seriousness’ his Honour must therefore have been referring to an assessment of the comparative seriousness of the case at hand, and not of the objective seriousness of the of the individual offences.”
In oral argument, the Crown referred to the decision of Hawat v R [2020] NSWCCA 121 where the same sentencing judge was found not to have misused the guideline judgment of Henry in his sentencing remarks in an allegedly similar fashion.

The question to be determined in this case is thus whether, on a fair reading of the impugned portion of the remarks, that is, without scrutinising them with a fine-tooth comb attuned to identifying error, the sentencing judge fell into error. Did the sentencing judge permissibly refer to the applicant’s criminal history as simply one of a number of factors bearing generally upon sentencing for offences of this kind (as, for example in Hawat or Dickinson) or was the reference to the criminal history impermissibly included as a matter bearing upon the objective gravity of the offences (as, for example, in Kelly)?
I am of the view that his Honour did fall into error. As noted above, the sentencing judge referred to the presence of “any” of the Ponfield factors which “increased the seriousness of the offending”. This wording came from Ponfield itself – and within Ponfield is clearly directed to the presence of factors which increase objective seriousness. Further, the impugned passage in the sentencing remarks appears under the heading “General principles and objective seriousness of the break and enter offences.” Whilst there was some initial reference to some general principles, including a reference to deterrence, his Honour then moved to consider matters relevant to the determination of “objective seriousness”. His Honour then referred to the decision in Ponfield without qualification. His Honour nominated, “several factors which the guideline judgment referred to […]” which included, amongst other things, that “the offender has a prior record of like offences” which is a clear reference to one of the factors identified in Ponfield at [48](iii): “the offender has a prior record particularly for like offences”. Further, at the conclusion of this section of the remarks the sentencing judge set out his findings in relation to the “objective seriousness of the break and enter offences”.
In the context of the judgment as a whole, it is difficult to see how the reference to “the seriousness of the offending” or the “overall seriousness” means anything other than the “objective seriousness of the offending” given the structure of the document, the references to objective seriousness in the relevant section of the remarks, the unqualified reference to Ponfield*,* and that the applicant’s subjective case, including his criminal history, was dealt with separately, in an entirely different section of the remarks.
Ground one is made out.

At the hearing of the appeal, three affidavits were read on behalf of the applicant relevant to the re-exercise of the discretion: one affirmed by the applicant himself on 24 October 2025, one by his ex-partner and mother of his children affirmed on 10 November 2025; and one by the applicant’s solicitor affirmed on 24 October 2025.
The applicant acknowledged he failed a prescribed drug test in custody on 5 December 2024 and set out how an increased dosage of buprenorphine had since assisted him. He has participated in the Involuntary Drug and Alcohol Treatment Program (IDATP) which he has found helpful. He candidly stated he had been sober for [only] two months, even though no further positive drug test had been revealed by the evidence. The applicant also set out that he had found pursuing the civil claim relating to abuse he had suffered as a child had made some days in custody especially difficult. He has found speaking to a psychologist helpful.
The applicant has been working most of the time in custody, for five or six days a week.
He misses his two children and wants to be a better father. He enjoyed undertaking a “Mini Dads at a Distance” program in custody. His mother used to visit once a month but since moving to his current correctional centre, she has been unable to visit because of the distance involved.
When he leaves custody, his goal is to have 50/50 custody of his children. He accepts it will be difficult to stay sober out in the community, but he now has more tools to cope with feelings and urges that come with his addiction.
The applicant’s ex-partner set out the emotional, physical and financial toll on her whilst the applicant is in custody. She currently works three jobs and has little time to spend with their children. It is easier for her and the children when the applicant is out of custody.
The applicant’s solicitor’s affidavit annexed copies of the applicant’s Corrective Services case notes, Justice Health file and a Corrective Services Custodial History report, confirming the information provided by the applicant himself.
In submitting that the Court would form the opinion that a less severe sentence is warranted in law, the applicant pointed to the undisturbed factual findings of the sentencing judge including that the significance of general deterrence was reduced because the applicant’s moral culpability was reduced, and that his offending was not aggravated by his criminal history. The applicant submitted that the sentencing judge’s findings otherwise reflected that the applicant had a strong subjective case including a “relevant and important” background of a difficult childhood and ongoing mental health issues; genuine remorse and some insight into his rehabilitation challenges; existing efforts towards rehabilitation; and prospects of rehabilitation “between guarded and hopeful”. Further, it was noted that the applicant’s subjective case gave rise to an undisturbed finding of special circumstances for the purpose of supporting his drug rehabilitation, mental health treatment and community reintegration.
The applicant contended that an assessment of the objective seriousness of the three break and enter offences which properly does not take account of the circumstances of the applicant’s history of like offending, together with the positive findings about the applicant’s subjective case, leads to the conclusion that lesser indicative sentences for those three offences are warranted.
In oral argument, it was also specifically submitted that the indicative sentence for the Bomaderry break and enter offence was clearly too high given that the jurisdictional maximum was 24 months, and the pre-discount indicative sentence was 20 months, even though the sentencing judge had found the objective seriousness to be “below the mid-range of objective seriousness but not at the bottom of the range”.
The applicant also submitted orally that the applicant’s criminal history of like offending was less extensive than the remarks on sentence indicated. That is, not only was it an error to take it into account, it was also not as extensive as it may first appear. Two of the three break and enter offences were committed when the applicant was a child in 2012 and 2013, and the one further break and enter offence was committed in August 2014, namely ten years before the current offending. He has no history of specially aggravated break and enter offences. Other offending which could potentially be regarded as similar involved two offences on the same date in November 2017, again many years before the current offending. The applicant further pointed to an approximately five-year period between 2018 and 2023 where the applicant ceased most of his criminal offending save for some driving offences. Finally, the applicant pointed to some additional hardship in custody revealed by the applicant’s affidavit as a result of dealing with his civil claim concerning his childhood abuse.
Consequently, the applicant submitted that a lesser aggregate sentence and corresponding non-parole period giving effect to the finding of special circumstances, is appropriate.

The respondent submitted, to the contrary, that the Court would find that no lesser sentence is warranted in law. In relation to the Austral break and enter offence, it drew to the Court’s attention the relatively high value of the goods and the fact there were two incursions, separated by some time. The premises was also left in some disarray. In relation to the Bomaderry offence, the respondent pointed to the fact that two separate locations were the subject of a break in, and the value of the goods stolen was significant.
In relation to the specially aggravated break and enter offence, the respondent noted that this culminated in the applicant, who had already broken into the victim’s home, threatening him with a replica pistol and demanding money. The respondent pointed out that breaking into a person’s house, at night, knowing that people are home, while armed with a dangerous weapon, in and of itself, is a very serious criminal activity. Presenting the dangerous weapon, when confronted by the homeowner, and demanding money, significantly elevated the seriousness, and the respondent further submitted, would also properly ground a charge of aggravated armed robbery. If he had been so charged, the respondent contended, the guideline in Henry would have been a relevant guidepost, that being a range of between 4 years to 5 years, albeit that range is for the less serious offence of armed robbery rather than aggravated armed robbery. Furthermore, the Henry guideline does not contemplate the offence involving the additional and significant factor of the offending occurring in the victim’s home. The respondent made clear that this comparison is simply to point out the objectively serious nature of the offending, in the context of the same maximum penalty.
The significant trauma from such a specially aggravated break and enter offence, whilst expected, was referred to by the victim in his Victim Impact Statement. The respondent submitted that this demonstrated the need to place meaningful weight upon one of the purposes of sentencing as set out in s 3A(g) of the Sentencing Act, “to recognise the harm done to the victim of the crime and the community”.
The respondent contended that all these matters mean that in none of the break and enter matters would the Court come to a different conclusion in relation to the objective seriousness of the offending, nor conclude that a lower indicative term is warranted.
Further, the respondent submitted that none of the applicant’s subjective factors operated to “overly mitigate” the sentence, and apart from his early pleas of guilty, his subjective case was not a “particularly favourable one”.
Finally, the respondent submitted that the three cases referred to by the applicant (Kelly; McCabe v R [2016] NSWCCA 7; and MacBlane) in fact indicated that not only were the indicative sentences in the instant case well within range, they were, in some respects, quite generous.

With one exception, I am of the view that, notwithstanding the error found to have occurred as identified in the single ground of appeal, the sentences indicated by the sentencing judge are nevertheless appropriate. In addition, I would add, in accordance with s 54B Sentencing Act, in relation to the specially aggravated break and enter, a non-parole period of 2 years and 7 months is indicated.
The one exception is that, in my view, the indicative sentence for the Bomaderry offence is too high. The indicative sentence of 20 months (prior to discount) and a sentence of 15 months (after discount), for a below mid-range offence in light of the jurisdictional maximum of 24 months shows that the sentencing judge fell into error in this respect. I would indicate a sentence, taking into account a discount of 25%, of 8 months.
The question then is whether a lesser aggregate sentence is warranted in law and should have been passed. After some deliberation, in my view the answer is ‘no’. Whilst I acknowledge the applicant’s mild cognitive impairment such that his moral culpability is somewhat reduced and also acknowledge that he is a less appropriate vehicle for general deterrence than might otherwise be the case, I also note the number of offences, which include an armed robbery, two separate break and enter offences, a specially aggravated break and enter offence, and two offences of stealing committed across the span of one week. This is a significant episode of overall criminality and requires recognition by way of meaningful notional accumulation. Further, as noted, one of the break and enter offences involved more than one incursion, and another involved more than one location. There are also the matters on the Form 1s, the largely unremarkable subjective case, and the lack of leniency afforded by the applicant’s criminal history. I also take into account the applicable maximum penalties, the standard non-parole period where relevant, and the principle of totality. Further, in my view, the discount provided by the sentencing judge to reflect the finding of special circumstances in relation to the non-parole period was relatively generous.
In all the circumstances, I am of the view that no lesser sentence is warranted in law.
I propose the following orders:
Grant leave to appeal.
Dismiss the appeal.