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[2026] NSWCCA 32
Court of Criminal Appeal (NSW)
2026-04-08
N Adams CJ at CL at [1], Fagan J at [157], Boulten J at [160].
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Taylor v R [2026] NSWCCA 32
Hearing dates: 6 March 2026
Date of orders: 8 April 2026
Decision date: 08 April 2026
Before: N Adams CJ at CL at [1];
Fagan J at [157];
Boulten J at [160].
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: SENTENCING — appeal against sentence — child sexual offences — expert evidence of applicant’s neurodevelopmental disorders — whether sentencing judge erred in failing to address whether moral culpability and the need for general deterrence was reduced — error established but no lesser sentence warranted on re-sentence — appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
Crimes Act 1900 (NSW), ss 66DB(a), 91G(1)(a), 91H(2)
Crimes Act 1914 (Cth), s 20
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Code Act 1995 (Cth), s 474.27A(1)
Cases Cited: Benn v R [2023] NSWCCA 24; 305 A Crim R 550
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DG v R [2025] NSWCCA 137
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DK v Director of Public Prosecutions (2021) 105 NSWLR 66; [2021] NSWCA 134
DS v R [2025] NSWCCA 53
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Harris v R [2021] NSWCCA 322
Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khan v R [2022] NSWCCA 47
Lee, Matthew v R [2016] NSWCCA 146
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
NK v R [2025] NSWCCA 73
Paterson v R [2021] NSWCCA 273
R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unrep)
R v Sabbah [2025] NSWCCA 203
R v Speechley [2012] NSWCCA 130; 221 A Crim R 175
Sampson v R [2025] NSWCCA 25
You, Jae Bok v R [2020] NSWCCA 71
Category: Principal judgment
Parties: Kyle Taylor (Applicant)
Rex (Respondent)
Representation: Counsel:
Mr T Ramrakha (Applicant)
Mr T Abdulhak (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00070231; 2023/00081248
Publication restriction: Pursuant to s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any matter which is likely to lead to the identification of the four victims.
[This headnote is not to be read as part of the judgment]
The applicant, Kyle Taylor, pleaded guilty to eleven State and Commonwealth sexual offences involving four separate child victims aged 13 and 15 years. After forming friendships with these young boys, the applicant intentionally sexually touched the victims and sent indecent material over Snapchat. The applicant also used deception to trick one 13-year-old victim into recording child abuse material.
On 22 November 2024, the applicant was sentenced by Ellis DCJ for the State offences to an aggregate term of 7 years and 6 months’ imprisonment with a non-parole period of 4 years. The sentencing judge had before him expert evidence of a psychologist that the applicant presented with attention deficit hyperactivity disorder and traits consistent with autism spectrum disorder.
The applicant sought leave to appeal against the aggregate sentence on the sole ground that the sentencing judge erred in failing to address whether the applicant’s mental health issues impacted on his moral culpability and affected the role of general deterrence in the sentencing exercise.
The Court (N Adams CJ at CL, Fagan and Boulten JJ agreeing) held, granting leave to appeal but dismissing the appeal:
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Director of Public Prosecutions (Cth*) v De La Rosa* (2010) 79 NSWLR 1; [2010] NSWCCA 194; NK v R [2025] NSWCCA 73; DG v R [2025] NSWCCA 137, considered.
Sampson v R [2025] NSWCCA 25, considered.
DG v R [2025] NSWCCA 137; NK v R [2025] NSWCCA 73; Harris v R [2021] NSWCCA 32, referred to.
You, Jae Bok v R [2020] NSWCCA 71; Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75, distinguished.
As to re-sentence:
R v Sabbah [2025] NSWCCA 203, considered.
N ADAMS CJ at CL: By notice of appeal filed on 13 November 2025, the applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Ellis in the District Court of New South Wales at Newcastle on 22 November 2024. The applicant pleaded guilty in the Local Court to a number of State and Commonwealth sexual offences relating to sexual touching of four separate child victims and the production and possession of child abuse material.
With respect to the State offences, after applying a discount of 25% for his guilty pleas, the sentencing judge imposed an aggregate sentence of 7 years and 6 months’ imprisonment with a non-parole period of 4 years. The sentence commenced on 9 March 2023. The non-parole period will expire on 8 March 2027, and the head sentence will expire on 8 September 2030.
With respect to the Commonwealth offences, the sentencing judge ordered that the applicant be released on a recognisance upon the applicant giving security in the sum of $2,000, without surety, and subject to the condition that he be of good behaviour for 3 years: Crimes Act 1914 (Cth), s 20(1)(a).
The applicant seeks leave to appeal against the aggregate sentence imposed for the State offences on a single ground of appeal, namely that the sentencing judge erred in failing to address whether the applicant’s mental health issues impacted on his moral culpability and affected the role of general deterrence in the sentencing exercise.
The offences to which the applicant pleaded guilty are as follows:
One offence of attempted sexual touching of a child under the age of 16 contrary to s 66DB(a) Crimes Act 1900 (NSW) (sequence 837/1): Maximum penalty of 10 years’ imprisonment;
Four offences of sexual touching of a child under the age of 16 contrary to s 66DB(a) Crimes Act (sequences 837/2, 837/5, 837/12 and 118/1): Maximum penalty of 10 years’ imprisonment;
Two offences of using a child under the age of 14 for the production of child abuse material contrary to s 91G(1)(a) Crimes Act (sequences 118/10 and 118/11): Maximum penalty of 14 years’ imprisonment and Standard Non-Parole Period (“SNPP”) of 6 years;
One offence of disseminating child abuse material contrary to s 91H(2) Crimes Act (sequence 118/12): Maximum penalty of 10 years’ imprisonment;
One offence of possessing child abuse material contrary to s 91H(2) Crimes Act (sequence 837/8): Maximum penalty of 10 years’ imprisonment; and
Two offences of using a carriage service to send indecent material to a person under the age of 16 contrary to s 474.27A(1) Criminal Code Act 1995 (Cth) (sequences 837/6 and 837/14): Maximum penalty of 10 years’ imprisonment.
The following summary is based on the Agreed Facts.
The first group of offences involved the victims CA, CR and JB and occurred between August to September 2022 and the end of December 2022. CA, CR and JB were in Year 10 together at high school and had been friends since kindergarten. As at the date of the offences, the applicant was 20 years old. The three victims were all aged 15.
The second group of offences involved the victim ZW. He was aged 13 at the time of the offending in February to March 2023.
At the time of the offences, CA was 15 years old. CA played rugby union for his local team. Around August or September 2022, the applicant joined the coaching staff of that club.
Not long after the applicant joined the coaching staff, CA began hanging out with him outside of rugby-based activities. The applicant would drive CA and other players from the team around.
On one occasion in the weeks after first meeting the applicant, CA was sitting in the front passenger seat of the applicant’s car, and the applicant was in the driver’s seat. Suddenly, the applicant tried to put his hand down the front of CA’s shorts. CA was able to stop the applicant by putting his hands over the waistband of his shorts.
CA told the applicant to stop, but the applicant continued to try and put his hand down CA’s shorts. CA started to wriggle down the seat, moving his body towards and underneath the dashboard of the car to get away from the applicant’s hands.
The applicant stopped. CA told the applicant to take him home and the applicant dropped him at Hungry Jack’s.
CA next saw the applicant about a week later. CA told the applicant not to do what he had done the previous week. CA told the applicant that he was not into that kind of stuff and that he just wanted to be mates. The applicant said he was only doing that stuff because he wanted to fit in.
CA provided a statement to police on 22 February 2023.
A few days later, the applicant picked CR up from CR’s home to go for a drive. They parked next to a creek. CR was in the front passenger seat, and the applicant was in the driver’s seat of his car.
The applicant asked CR if he wanted to “jerk off” and mark their territory. This was something the applicant had previously mentioned to CR. CR said, “nah”. The applicant continued to try to convince CR to do it by saying, “please, please, c’mon”. CR kept saying, “nah”.
The applicant then used his phone to bring some pornography up and he placed his phone on the dash of the car near the radio.
The applicant then removed his penis from his shorts and started to masturbate in front of CR. The applicant’s penis was erect. This made CR uncomfortable. There were people walking past at the time.
The applicant stopped and asked CR to start masturbating as well. CR put his hand down his pants and pretended to masturbate as he did not know what else to do. The applicant kept masturbating, and asked CR if he was hard.
The applicant stopped masturbating again and reached over to CR with his left hand. The applicant then put his hand down CR’s shorts and pulled CR’s penis out of them. The applicant had a firm grip on CR’s penis. CR was in shock and did not know what to do.
CR did not have an erection, and the applicant let go of CR’s penis. The applicant then continued to masturbate and eventually ejaculated into a blue towel.
Later that same day, the applicant drove CR to local soccer fields and stopped in a car park. They stayed there for about an hour. The applicant was watching sport on his phone, and they were just talking generally.
While they were parked, the applicant started to masturbate. He asked CR to do it as well. CR said, “no”.
The applicant went to grab CR’s penis. CR tried to move into the back of the car, by climbing over the centre console. While trying to do so, the applicant reached up CR’s shorts and pulled on CR’s penis.
The applicant then stopped suddenly and said something like, “this is wrong”. The applicant then dropped CR home.
CR provided a statement to police on 6 February 2023.
At the time of the offending, JB was 15 years old.
JB first met the applicant in or around November 2022, through CA. JB started seeing the applicant more after the first meeting, as the applicant had become friends with some of JB’s friends. The applicant would drive the boys around sometimes.
About 3 to 4 weeks after JB met the applicant, the applicant, CR and JB were sitting in the applicant’s car parked at the local sports oval. CR was in the front passenger seat, the applicant was in the driver’s seat, and JB was in the rear middle seat.
The applicant turned around and placed his hand on JB’s leg, right up near JB’s crotch. JB immediately moved his leg away and said something along the lines of, “fuck off!” The applicant laughed it off as if it was nothing.
At this time, the applicant and JB sometimes exchanged messages on Snapchat.
On 25 November 2022, JB was at CA’s house hanging out. While he was there, he received a Snapchat image from the applicant, which was a picture of a nipple. JB showed the photo to CA.
JB then “snapped” a photo back to the applicant, which was “something random” like a picture of the roof. Less than a minute later, the applicant sent JB another photo, which showed the applicant’s buttocks completely naked. There was no comment with the photo.
JB showed this photo to CA as well. CA took a screenshot of this photo.
JB did not consent to receiving these photographs from the applicant.
JB provided a statement to police on 24 February 2023.
At the relevant time, ZW was 13 years old. On one occasion, ZW was in the electronic “lobby” of an online gaming application “Fortnite” with his friend and the applicant. This was the first time ZW had “met” the applicant. While in the lobby, ZW and the applicant were talking over their headsets about school and hobbies.
The applicant subsequently added ZW on Snapchat and ZW added him back.
Within about a week, ZW started talking on Snapchat to a person he believed to be a 15-year-old girl from Sydney (“the female”). ZW had never met the female in real life.
The female then started using words to ZW like, “hey daddy”. She sent him photos of naked breasts and a naked vagina, which ZW assumed were photos the female had taken of herself. The female asked him if he would send her a nude. ZW sent her a photo of his penis.
About one week after ZW first met the applicant, the applicant sent ZW a message saying that he had seen the photo of the applicant’s penis “leaked” briefly on the female’s story. The applicant told ZW he could see ZW’s face in the photo. The applicant told ZW that he could help ZW get the photo taken down.
The applicant subsequently told ZW that he had talked the female into taking down the photo, but that the applicant and ZW had to keep sending her photos and videos otherwise she would leak the photo of ZW’s penis. ZW believed that if he did not do what was being asked of him, the female would send the photo of his penis to everyone she knew.
The applicant started contacting ZW to participate in Facetime calls with him. He did this by texting ZW through Snapchat.
The usual course of events was that the applicant communicated to ZW that the female had requested a video of the applicant and ZW masturbating to ejaculation on Facetime. The applicant and ZW started a Facetime call. ZW believed that the applicant screen recorded each call. The applicant and ZW masturbated until ejaculation. The applicant told ZW that he would send the video to the female to stop her from leaking anything.
The calls occurred at about 10:30 to 11pm. The videos would last about 15 minutes. This continued for nearly two weeks. Every now and then, ZW said that he could not participate in a call that night because his parents were around.
When the applicant’s phone was forensically examined, there was one video of ZW in his bedroom masturbating.
On 2 March 2023, the applicant told ZW they had to finish it. The applicant told ZW that the female wanted a video of the applicant and ZW together. If she received that, she would not request any more videos and she would not leak anything they had sent her.
By arrangement, the applicant picked ZW up before school in his car. The applicant drove ZW to a local sports complex. The applicant used the key to open the metal security gate to the men’s change rooms. The applicant and ZW entered the change room.
The applicant started a video recording on his mobile phone. The applicant placed the phone on top of the sink where it faced the applicant and ZW. The applicant and ZW started masturbating for the video (sequence 118/10).
ZW asked the applicant if the applicant would be able to blur ZW’s face out of the video, because he did not want it to be obvious that it was him. The applicant said he could not do it while he was videoing but that he would do it later.
When they were masturbating, the applicant and ZW were not wearing a shirt or shorts. Midway through the video, the applicant ejaculated into the sink. He continued to masturbate.
Toward the end of the video, the applicant told ZW they had to touch each other’s penises. ZW was not comfortable with this, but he complied and touched the applicant’s penis for about five seconds. The applicant simultaneously stroked ZW’s penis, pushing the skin back and forth (sequence 118/1).
ZW told the applicant to stop the video because ZW could not or did not want to ejaculate. The applicant stopped the video.
The applicant then drove ZW back to school.
Later that morning, at 8:50am, ZW sent the applicant a message that said, “Cab [sic] you please cut out the bit of us jerjibg [sic] each other off”.
At 8:51am, ZW sent another message that said, “Can you please cut out the bit of us herkibg [sic] each other off”.
At 10:23am, ZW sent a message that said:
Please don’t send that vid. Can you please delete cause I’m just too young for it. I’d rather get leaked for a dick pick than a petrol act with 22 yr old.”
ZW had intended to write “jerking” instead of “jerjiba” or “herkiba” and “a paedo act” rather than “a petrol act”.
ZW did not hear back from the applicant. ZW did not tell anyone about what had happened with the applicant.
On 2 March 2023, police attended the home of the applicant and arrested him on charges relating to CA, CR and JB. He was brought to Belmont Police Station, where he then participated in an Electronically Recorded Interview with a Suspected Person (“ERISP”). During that ERISP, he denied the allegations made by CA and CR. He also denied the allegations made by JB other than the sending of photos.
The applicant admitted that he sent two images to JB on Snapchat, one being a picture of his nipple and one of his naked buttocks. He said that he had had a few beers when he sent the photos, and it had been a stupid choice. He was shown the two photos and admitted they were of him and he had taken and sent them.
On 3 March 2023, the applicant contacted ZW and told him that he had been arrested and that the arrest was a set-up. The applicant requested that ZW delete all messages on his phone that related to the applicant. ZW did so. ZW did not hear from the applicant again.
Following arrest on 2 March 2023, police seized the applicant’s mobile phone and had it forensically examined by way of a Cellebrite download.
Upon reviewing the content of the Cellebrite, Senior Constable Swift identified a number of messages between the applicant and ZW and he formed the view that ZW might be another complainant. On 10 March 2023, ZW provided a statement.
On 11 March 2023, the applicant was arrested and charged in relation to ZW. He declined to participate in a further police interview.
Police subsequently conducted a Premium Cellebrite download of the applicant’s phone. In that download, police located a message exchange on Snapchat between the applicant (using the Snapchat handle “kylet7611”) and a person using the handle “johnnny96”.
On 2 March 2023, the applicant and johnnny96 exchanged several messages on Snapchat.
At 9:32am, the applicant sent to johnnny96 a video file depicting the applicant and ZW engaged in an act of masturbating with each other in a public bathroom or change room. This video was made while committing sequence 118/10.
At 9:37am, the applicant sent to johnnny96 a video file depicting ZW engaged in an act of masturbation in a bedroom. The video was made while committing sequence 118/11.
As part of that message exchange, johnnny96 sent the applicant the following child abuse material:
Two video files of a male aged between 12 and 14 years engaged in an act of masturbation; and
A video file of two young males aged between 10 and 12 years engaged in an act of penile-anal intercourse.
The proceedings on sentence took place on 22 November 2024. The Crown tendered the Agreed Facts, the applicant’s criminal and custodial history, and the victim impact statement of CR, which was read during the proceedings by a support officer.
The applicant did not give evidence at his proceedings on sentence. Rather, he relied on the following documents to establish mitigating factors on sentence:
The psychological report of Caroline Hare dated 4 October 2024; and
The handwritten letter of the applicant to the Court.
Both the Crown and the applicant relied on written submissions on sentence. A key issue at the proceedings on sentence was the relevance of the expert opinion of Ms Hare that the applicant exhibited neurodevelopmental deficits, including Attention Deficit Hyperactivity Disorder (inattentive presentation) (ADHD) and traits consistent with autism spectrum disorder (ASD), although testing did not support a definite diagnosis.
The offender has clinically significant difficulties with communication and cognitive inflexibility (traits of Autism spectrum disorder) and ADHD (inattentive presentation) which have negatively impacted his social development. He is an individual whose social functioning is underdeveloped. His communication skills are poor with difficulties understanding social cues and picking up on the emotions of others. He found a sense of belonging among younger aged peers by reason of his social ineptitude and has a strong need for social acceptance which has resulted in him seeking social acceptance from inappropriate sources.
It is submitted that the offender’s moral culpability for the offending is reduced as there is a causal link between the offender’s ne**urodevelopment diagnosis and the offending.
(Emphasis added.)
56. … [H]e is a young man who has persistently struggled to form meaningful social connections with others due to his poorly developed verbal and nonverbal communication skills, and difficulties understanding social cues and picking up on the emotions of others. He was socially rejected by same-aged peers at school, and subjected to chronic bullying, which impacted his self-esteem. This situation encouraged him to gravitate towards younger peers as he entered adolescence. Mr Taylor's overall social functioning remains under-developed, and he is socially naïve. Alongside these difficulties, he experiences a strong need for social acceptance, which he has sought from inappropriate sources, including younger males and connections formed and maintained online. These issues are linked to his neurodiversity, and thus I perceive a causal link between his neurodevelopmental diagnoses and his current offending behaviour, as outlined below.
57. I suggest Mr Taylor's social immaturity, combined with his strong need for social inclusion, renders him vulnerable to exploitation. Indeed, prior to him offending against the first three complainants, it seems likely they associated with Mr Taylor because he was willing to transport them places (as the only one old enough to drive). Mr Taylor described observing what he termed “horseplay” between the first three complainants, including wrestling, occasionally grabbing each other's genitals, and discussing issues such as masturbation and girls. These behaviours are age-appropriate and a normative stage of the sexual development journey for adolescents (which corresponded to the age of the complainants, but not Mr Taylor). Mr Taylor experienced a sense of marginalisation when he witnessed this conduct between the complainants, and I hypothesise that his sexual offending against the first three complainants reflected his desire for inclusion, poor understanding of social and sexual boundaries, limited understanding of others' emotions, lack of awareness of/ consideration for the impacts of his behaviour on others, and general impulsivity.
58. … In my opinion, Mr Taylor’s social naivety, poor social and sexual boundaries, sexual preoccupation, and fixation with engaging with online contacts increased his likelihood of connecting with sexually deviant individuals online, which culminated in him exchanging child abuse material with the individual using the handle johnny96.
(Emphasis added.)
Mr Taylor was diagnosed with learning disorder, ADHD, Autism Spectrum Disorder (ASD), and generalised anxiety disorder when he was 18 years old. Ms Hare opines that “elements of the neurodevelopmental disorders (i.e., learning disorder, ADHD and ASD) remained present in his clinical presentation during the current assessment which is expected given neurodevelopmental disorders persist across the lifespan”. (Hare report at [41]) The offender is not neurotypical therefore the offender is not the most appropriate vehicle for a sentence containing the usual component for significant general deterrence. Hence less weight should be given to general deterrence.
It is submitted that the imposition of a custodial sentence will itself be a significant personal deterrent for this offender.
(Emphasis in original.)
The Crown does not agree with the contents of paragraph [57] of Ms Hare's report – which hypothesises that the first three victims exploited the offender and he was mimicking behaviours he witnessed them doing.
The Crown does not take issue with paragraphs [56] and [58] of the report, however, which supports that there was a causal link between the offender's neurodevelopmental diagnosis and his offending, such that a reduction in moral culpability is appropriate.
The Crown submits any such reduction would not be significant given the extent of the offending, that the offender knew it was wrong (e.g. Agreed Facts [26]) and persisted after clear refusals.
(Emphasis added.)
The Crown accepts the role of general deterrence is reduced given the offenders [sic] ADHD and “clinically significant difficulties with communication and cognitive inflexibility, which are traits of ASD” (Ms Hare, [56]). The Crown submits the need for general deterrence is not eliminated.
But it’s accepted that against what I’ve just outlined, this is an offender who suffers from neuro-developmental diagnoses. It’s accepted, based on Ms Hare’s report, that he has ADHD and traits of autism spectrum disorder that has resulted in him having a number of naivetes and social issues throughout his life on top of the bullying. It does provide some explanation for him engaging in friendships with the younger males and, again, the Crown accepts that because of that causal link as outlined by Ms Hare, his moral culpability compared to the typical offender who would prey on young boys is reduced.
…
The Crown’s accepted that, given his conditions, the [sic] general deterrence has a lesser role to play but there is a need in the sentence to make it clear to the offender that this type of behaviour is not okay …
(Emphasis added.)
After noting the maximum penalties for each State offence and the SNPP where applicable, the sentencing judge assessed the objective seriousness of the State offences as follows:)
Sequence 837/1 was “below the mid-range”;
Sequence 837/2 was “mid-range”;
Sequence 837/12 was “mid-range”;
Sequence 837/5 was “below mid-range”;
Sequence 118/1 was “mid-range”;
Sequence 118/11 was at the “lower end of mid-range”;
Sequence 118/10 was at the “lower end of mid-range”;
Sequence 837/8 was “below the mid-range”; and
Sequence 118/12 was “in the mid-range”.
As for the Commonwealth offences, his Honour concluded that both sequences 837/6 and 837/14 were “below the mid-range of offending”.
The applicant’s plea of guilty was a mitigating factor on sentence, and his Honour found that there were no aggravating factors: Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”), s 21A.
The sentencing judge noted that the applicant was aged 20 to 21 years at the time of offending and was 22 years old at the time of sentence. He had no prior criminal convictions.
The sentencing judge noted the content of Ms Hare’s report as follows:
The Court has taken into account the psychological report by Caroline Hare, that is a comprehensive document which runs to approximately 24 pages. It sets out the offender's history. It is fair to say that whilst he had supportive parents who provided him with a loving home environment which was not, as is often the case, subject to domestic violence et cetera. The reality is that he has a number of underlying mental health issues that have significantly adversely impacted his childhood, not the least of those is the ADHD assessment and the fact that he suffers from a number of quite significant symptoms which are consistent with Autism, which have meant that his interpersonal skills have been pretty well non-existent seemingly so that he was not able to form friendships during his schooling and when he did attempt to form friendships later in his teenage life, it was generally with those who were two, three or four years younger than him.
The report notes that he has some issues in terms of education; he was suspended because of his response at times to bullying and perhaps also to the fact that he had a propensity to open his mouth and say exactly the wrong thing in given situations which often then led to consequences in terms of an inability to form friendships and or worse, for there to be frequent examples of him physically fighting with his peers.
…
He did get to know a number of people through his participation in sport and indeed, it seems that it was his participation in rugby union that gave him at least the initial contact with the first three victims and thereafter again, given that those individuals were some five years younger than him, he attempted to form some sort of relationship, but it is probably fair to say that those relationships were somewhat superficial and to a degree, he was being used as a transport driver more than anything.
… The Court notes the content of the report in relation to his issues in relation to substance misuse, gambling history and sexual issues. It is said that his statements to the psychologist in terms of what occurred were generally consistent with the agreed facts. It is clear that in relation to things such as the horse playing that he may well have made connections really that were not there to be made in relation to teenage boys mucking around.
(Emphasis added.)
The sentencing judge observed that “[i]t is clear from the report and his history that he definitely experiences difficulties getting on with other individuals”.
On the applicant’s neurodevelopmental diagnoses, his Honour noted the following:
The Court notes the testing that had taken place with him when he was eighteen years of age and notes the results which are set out on pp 14 and 15 of the report. The Court specifically then notes the risk assessment which essentially placed him in the high risk of recidivism. The Court notes the conclusion reached in terms of the appropriate diagnoses which certainly was consistent at least in relation to the ADHD diagnosis but in relation to the Autism spectrum diagnosis it was noted that whilst he endorsed clinically significant difficulties with communication and cognitive inflexibility which were traits of ASD, and that he has persistently struggled to form meaningful social connections, that his overall social functioning remains undeveloped and he is socially naïve, that he did not entirely meet the full diagnostic criteria for Autism. It is also noted that it is likely his involvement in many of these acts had at least some motivation of him or his desire to be included in these friendships and demonstrated a poor understanding of social and sexual boundaries limited by his understanding of emotions that others feel and his lack of awareness or consideration of others or the impact of what he was doing on others and his general impulsivity.
(Emphasis added.)
It is noted that he has expressed his remorse and that he feels ashamed and disgusted at what he has done. He has stated he recognises the likely impact, indeed having read the victim impact statement of CR, he specifically stated that he had never really thought through the consequences and that seems to be consistent with what Ms Hare said, that whilst he is not ruthless and does not perhaps deliberately do it, his issues in relation to ADHD and his partial Autism, if I could use that term, have meant that he was essentially oblivious more often than not to the likely consequences of his conduct which in simpler examples for instance of saying things perhaps that he should not have said led to a loss of a prospective friendship without him realising that and in this case, to the impact as set out within CR's victim impact statement which was read to the Court today.
… The Court has taken into account the letter that the offender has written to the Court in which he does also express his understanding of the criminality of what he has engaged in, he has expressed remorse and contrition and has expressed a desire to move forward down a path of rehabilitation so that he does not repeat this offending in the future.
(Emphasis added.)
The sentencing judge determined that there was no sentence other than a sentence of imprisonment that would be appropriate for the State offences having regard to the total level of criminality: Sentencing Act, s 5.
His Honour found that there were special circumstances because this was the applicant’s first time in custody and his experience of custody was more onerous than for a normal inmate. A longer period on parole was also needed to assist him in relation to his mental health issues and to comply with Ms Hare’s recommendations concerning ongoing treatment.
Following a 25% discount for the plea of guilty, the sentencing judge imposed the following indicative sentences for the State offences:
Sequence 837/1 – 1 year and 3 months’ imprisonment;
Sequence 837/2 – 2 years and 3 months’ imprisonment;
Sequence 837/12 – 2 years and 3 months’ imprisonment;
Sequence 837/5 – 1 year and 3 months’ imprisonment;
Sequence 118/11 – 1 year and 6 months’ imprisonment with a non-parole period of 12 months;
Sequence 118/1 – 2 years and 3 months’ imprisonment;
Sequence 118/10 – 1 years and 6 months’ imprisonment with a non-parole period of 12 months;
Sequence 837/8 – 1 year and 3 months’ imprisonment; and
Sequence 118/12 – 1 year and 6 months’ imprisonment.
As set out above, the sentencing judge imposed an aggregate sentence of 7 years and 6 months’ imprisonment with a non-parole period of 4 years.
The applicant contended that the sentencing judge erred by failing to address whether the applicant’s moral culpability was reduced or whether general deterrence had a reduced role to play due to the applicant’s mental health issues. It was submitted that these questions were central issues for the sentencing judge’s determination, following the approach set out by this Court in NK v R [2025] NSWCCA 73 at [100]-[103].
While the Crown conceded at sentence that there was a causal link between the applicant’s mental health issues and his offending, the applicant pointed to the fact that issue was joined between the parties as to the extent of any reduction to moral culpability, such that it was necessary for the sentencing judge to resolve the conflict.
The applicant submitted that it could not be inferred from the remarks that the sentencing judge made any findings as to moral culpability and general deterrence. While the remarks were delivered ex tempore, this did not diminish the need for adequate reasons: Lee, Matthew v R [2016] NSWCCA 146 at [34].
The applicant relied on the decision of this Court in Sampson v R [2025] NSWCCA 25 which was said to be similar to the present case. I will consider this decision further below.
The Crown submitted that reading the remarks on sentence “fairly and as a whole”, it is apparent that the sentencing judge dealt with the issues of moral culpability and general deterrence in substance. The Crown pointed to those portions of the sentencing remarks that dealt with the applicant’s neurodevelopmental disorders and how they contributed to his offending, including his maturity, poor interpersonal skills and naivete. It was submitted that these findings demonstrate that the sentencing judge was satisfied that the applicant was less morally culpable than an offender who was not affected by these disorders.
Similarly, as the Crown noted, the sentencing judge indicated that he had taken into account the principles of sentencing set out in s 3A of the Sentencing Act, which include general deterrence (s 3A(b)). In these circumstances, it was submitted, no error could be demonstrated by the absence of explicit statements that moral culpability and the role of general deterrence were reduced.
It was submitted that the effect of the parties’ written and oral submissions was that there was no real issue as to the applicant’s diagnoses, the casual relationship between these diagnoses and his offending, and the consequent reduction in his moral culpability and need for general deterrence. The Crown submitted that the brevity of the ex tempore remarks reflected the significant agreement between the parties on these issues, from which it could be inferred that these matters were taken into account. In this respect, the Crown relied on the decisions in You, Jae Bok v R [2020] NSWCCA 71, Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75 (“Hay”) and DK v Director of Public Prosecutions (2021) 105 NSWLR 66; [2021] NSWCA 134. I will consider the principles derived from these decisions below.
Before turning to consider the competing submissions, it is helpful to restate the principles underlying the alleged error relied upon by the applicant.
Since the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) in 2011 and the later decision of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) in 2013, it has become a common feature of proceedings on sentence for a submission to be made that an offender’s “moral culpability” for the offending is reduced.
An offender’s “moral culpability” for an offence refers to the offender’s moral blameworthiness for their offending: Paterson v R [2021] NSWCCA 273 at [29]. It is a separate finding to that of objective seriousness. The most common bases upon which an offender’s “moral culpability” for the offending may be reduced are either by reason of a mental illness or intellectual impairment, based on the decisions in M**uldrock and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (“De La Rosa”), or on account of an offender’s profoundly deprived childhood, based on the principles derived from Bugmy.
A finding that an offender has reduced “moral culpability” for the offending will often, but not always, lead to a finding that general deterrence has a lesser role to play in the sentencing exercise. In Muldrock, the High Court, after observing that the purpose of general deterrence in sentencing is to deter others who might be minded to offend, cited the following passages from an earlier decision of Lush J in the Victorian Court of Appeal decision of R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unrep) at 5, 8 (at [53]):
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
… [The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community. (Emphasis added.)
Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].
Thus, it is well established that where the state of a person’s mental health or cognitive impairment contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced and the offender may be an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
In support of this ground, the applicant relied on the decision of Yehia J (with whom Ball JA and Fagan J agreed) in NK v R. That case concerned the application of B**ugmy principles, but it seems to me that the approach stated by Yehia J in that decision at [110]-[113] is apt for cases where De L**a Rosa principles apply and can be modified as follows:
First, a sentencing judge must make an assessment of whether there is evidence which reduces the offender’s moral blameworthiness. Consistent with the principles in De L**a Rosa, such a finding might be made if there is expert evidence before the court that the state of a person’s mental health or cognitive impairment contributed to the commission of the offence in a material way.
Secondly, if the court is satisfied that the offender’s moral culpability is reduced, then a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. For instance, a reduced moral culpability may mean that the sentencing principles of general deterrence and denunciation have less relevance than in a case where the offender does not suffer from a mental impairment or cognitive disability. On the other hand, the reduction in moral culpability may be offset by the weight afforded to factors such as the protection of the community and recognition of the harm to the victim(s).
Thirdly, even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more purposes of sentencing, it may be relevant in other ways including that their time in custody might be more onerous (see De La Rosa at [177]).
Since the decisions in Muldrock and Bugmy, sentencing courts are required not only to make findings as to the objective seriousness of the offence(s) but also to make separate findings concerning an offender’s moral culpability for the offence(s) in cases where an offender has, for example, a mental illness, an intellectual disability or Bugmy considerations. Where an offender’s moral culpability is found to have been reduced, the court must then consider how that finding bears upon the weight to be attached to various sentencing factors such as general deterrence.
In some cases, the Crown accepts that the evidence supports the finding urged on behalf of the offender; in some cases (such as in the applicant’s case) the Crown accepts the evidence but joins issue as to the degree of any reduction; and in other cases the Crown disputes that there should be any finding that moral culpability is reduced at all.
Given that a potential finding of reduced moral culpability is now a feature of many sentencing proceedings, if a submission is made that moral culpability should be reduced then the sentencing judge is required to consider that submission and then make a finding as to how any reduction in moral culpability impacts on the sentence.
In DG v R [2025] NSWCCA 137, the sentencing judge accepted that the offender’s moral culpability was reduced but found that general deterrence still played an important part in the sentencing process because of the nature of the crime (a violent assault on a baby). In reliance on, inter alia, the decision in NK v R, this Court (myself with whom Bell CJ and Payne JA agreed) held that the sentencing judge erred in failing to turn his mind to whether the applicant would be an appropriate vehicle for general deterrence due to her reduced moral blameworthiness before declining to reduce the weight given to general deterrence in the sentencing exercise. It was observed at [125] that:
Although the weight to be afforded to each of the sentencing factors in s 3A of the Sentencing Act was wholly within the sentencing judge’s discretion, the High Court decisions of Bugmy and Munda suggest that when considering the impact of a finding of reduced moral culpability, the sentencing factor that may be of less significance is general deterrence: Bugmy at [44], Munda at [54]. That reflects an understanding that a person who has reduced moral blameworthiness for an offence is not a good vehicle to be used as an example to deter others. But even though the significance of general deterrence will often be reduced for a person who has had their moral culpability “significantly” reduced, as occurred here (at [79]), it may mean that other factors such as community protection and recognition of harm to the victim may have more significance. (Emphasis in original.)
With these principles in mind, I turn to consider the sole ground of appeal.
The Crown accepted that there was no express finding made by his Honour as to the applicant’s moral culpability and its relevance to the sentencing process but argued that no error was established on three bases, which to some extent overlapped.
The first argument relied upon by the Crown was that, despite there being no reference to “moral culpability” in the sentencing reasons, it is apparent that the sentencing judge dealt with the issues of moral culpability and general deterrence in substance.
As the portions from the sentencing reasons extracted at [89]-[91] above reveal, there can be no doubt that the sentencing judge took into account and gave weight to the expert evidence of the psychologist, Ms Hare, regarding the applicant’s diagnoses. The difficulty is that his Honour made no finding as to the extent of any reduction in moral culpability, to the relevance of general deterrence in this sentencing process nor to the concept of moral culpability at all.
To the extent that the Crown contended such a finding can be inferred, the applicant relied on the decision in Sampson v R. In Sampson v R the sentencing judge had regard to both the applicant’s childhood deprivation and his mental health issues in holding that Bugmy principles applied. This Court was prepared to infer that his Honour regarded the applicant’s moral culpability to have been reduced. This Court was also satisfied that the sentencing judge took these factors into account both in the finding of special circumstances and that the applicant’s time in custody would be more onerous. Despite this, this Court was not satisfied that the sentencing judge engaged with the submission regarding the effect of the applicant’s mental health issues on specific and general deterrence as identified in De La Rosa. Relevantly, Davies J (with whom Dhanji and Huggett JJ agreed) observed this at [96]-[97]:
[96] … [A] specific submission was made in the present case which the sentencing judge said nothing about. Nor is it possible to infer from the way his Honour dealt with the mental health issues that, at least, the issue of general deterrence had been considered by his Honour.
[97] The failure to make reference to general deterrence or the applicant’s submission about it was an error: Shine v R [2016] NSWCCA 149; (2016) 260 A Crim R 534 at [76].
Even where general deterrence or some factor that is said to mitigate the weight to be given to general deterrence is identified, it is expected that a judge will make reference to the weight to be given to general deterrence when sentencing for offences, and whether mental health issues make an offender an inappropriate vehicle for general deterrence.
The principles derived from Sampson v R, as well as DG v R, N**K v R and Harris v R [2021] NSWCCA 322 answer the Crown’s suggestion that the reference by his Honour to the purposes of sentencing in s 3A of the Sentencing Act, which include general deterrence, was sufficient in the circumstances of this case. The applicant’s complaint is not that there was no express or implied reference to the sentencing principle of general deterrence, but rather, that there was a failure to address how that particular purpose of sentencing applied to the particular circumstances of this applicant.
The Crown further submitted that the brevity of the ex tempore remarks reflected the significant agreement between the parties on these issues. In such circumstances, it was submitted, recourse can be had to the transcript of the proceedings on sentence to demonstrate that the sentencing judge was relying on the agreement between the parties as to moral culpability in his ex tempore judgment. Having had regard to the principles derived from those decisions relied upon by the Crown, I am not satisfied that they assist the Crown in the circumstances of this case.
You, Jae Bok v R was a sentence appeal in which the error asserted by the applicant related to an exchange between counsel and the sentencing judge concerning the use of a guideline judgment. Basten JA found that no error could be imputed “by importing something said in the course of an exchange with counsel into the written judgment” (at [19]). His Honour went on to observe the following at [20], which is the passage relied upon by the Crown:
Very occasionally, that course [of construing reasons by reference to exchanges with counsel] may be warranted, for example where an ex tempore judgment is given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions. This case did not fall into that category; the reasons were comprehensive and clear and were delivered two months after the hearing. (Emphasis added.)
… [I]t may be that in some circumstances exchanges during submissions may assist in understanding the sentencing judgment: Hughes v The Queen. However, the applicant seeks to use the exchange to explain the sentence and establish error rather than to assist in the understanding of any particular statements made in the sentencing judgment. (Footnotes omitted.)
It is clear however that her Honour used the expression a “full-time custodial sentence” to distinguish a sentence of imprisonment that was not to be served by way of an ICO from one that was. This can arguably be inferred from the terms of the judgment but the inference is put beyond doubt when regard is had to the transcript of the submissions to her Honour on sentence. Recourse to the transcript is permissible at least in a case “where an ex tempore judgment is given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions” (You, Jae Bok v R [2020] NSWCCA 71 at [20] per Basten JA).
These decisions do not assist in this case. Although the Crown conceded before the sentencing judge that the applicant’s moral culpability for the offending was reduced based on the expert evidence of Ms Hare, the parties joined issue on the extent to which that moral culpability was reduced. That was the live issue for determination by the sentencing judge. Further, an agreement that moral culpability has been reduced is not the end of the exercise, as cases such as NK v R make clear; the sentencing court is then required to go on and consider what such a finding means for the application of the various purposes of sentencing.
The Crown also relied upon DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [93] (“DS; DM”) in support of the submission that where a factor clearly operated to reduce an offender’s moral culpability, “it may suffice” if the sentencing judge makes it clear how that factor affected the sentencing considerations without necessarily using the phrase “moral culpability”. In that decision the Court (Beech-Jones CJ at CL, myself and Cavanagh J) considered the interaction between a reduction in moral culpability and other sentencing factors and observed the following at [93]:
So far as moral culpability is concerned, each of the discussions of this concept in Veen (No 2) (at 476 to 477), Muldrock (at [54]), Bugmy (at [44]) and Munda (at [54]) considered how the offender’s reduced moral culpability, and the reason for that reduction, bore upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, retribution, and promotion of rehabilitation, etc. In some cases, where there is a factor that clearly operated to reduce an offender’s moral culpability, it may suffice if the sentencing judge made it clear how that factor affected the sentencing considerations without necessarily using the phrase “moral culpability” (Khan v R [2022] NSWCCA 47 at [1] to [12]). Further, in some cases, it will be clear how an express determination that an offender’s moral culpability was reduced bore on the sentencing exercise. In other cases, that may need to be expressly stated. (Emphasis added.)
I would make two observations about reliance on this passage. First, the Court in DS; DM emphasised at [93] that a finding of reduced moral culpability bears upon the weight to be attached to, inter alia, general deterrence. That is the argument relied upon by the applicant. Secondly, the statement of principle relied upon by the Crown is derived from the decision of Khan v R [2022] NSWCCA 47, which is a very different case to the present case.
In Khan v R, there was a dispute as to the extent to which general deterrence should be modified on account of the offender’s mental illness. The sentencing reasons reflected that the sentencing judge allowed some mitigation of the full application of general deterrence on account of the applicant’s mental illness notwithstanding that there was no causal connection between that illness and the offence in that case. In that context, Beech-Jones CJ at CL (with whom Rothman and Wilson JJ agreed) observed the following at [12]:
In the end result, this complaint reduces to a contention that his Honour erred by not actually invoking or using the phrase reduced “moral culpability”. However, as I have sought to explain, the substance of his Honour’s reasoning was an acceptance that it was so reduced, albeit not by much. If it was not then his Honour had no basis to moderate general deterrence, as his Honour did, albeit not significantly.
In Khan v R, the reasons disclosed that the sentencing judge had reduced the significance of general deterrence based on evidence of the applicant’s mental health issues. The only basis for doing so was following a finding of reduced moral culpability. It was in that context that passage in DS*;* DM at [93] needs to be read.
I have considered the fact that the sentencing judge’s reasons were delivered ex tempore and borne in mind the following observations of Johnson J in R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [34]:
... [I]t is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be “as robustly structured as they might otherwise have been” (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may “lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing” (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]). (Emphasis in original.)
It is to be accepted that sentencing judges may feel a sense of frustration when a sentence appeal brought in this Court does not challenge the length of the sentence but is allowed on the basis of a legal error such as failing to have regard to a particular principle. By way of example, during the proceedings on sentence in the present matter, the sentencing judge observed in passing that sentencing remarks are for the “accused and the victims”.
Delivering sentencing reasons ex tempore avoids offenders and victims and their families the suspense of waiting to learn of the sentencing result. It is to be encouraged, and this Court will always be less likely to scrutinise ex tempore reasons for error than sentencing reasons which have been reserved. But once it is accepted that sentencing reasons are provided for, inter alia, the accused, then it follows that the accused is entitled to know whether submissions made on his or her behalf were rejected or accepted. The sentencing judge in the present matter delivered prompt sentencing reasons that addressed most of the arguments put, but the applicant now complains that his Honour failed to consider one disputed issue. He is left wondering how his Honour dealt with a central part of his case on sentence. Regrettably, despite his Honour’s otherwise careful reasoning, the complaint must be accepted.
I would uphold this ground.
In the event of re-sentence, the applicant relied on the affidavits of Danka Durovic, the applicant’s solicitor, affirmed on 16 February 2026 and 5 March 2026, and the affidavit of the applicant affirmed on 13 February 2026.
The applicant’s affidavit addresses his time in custody. He has not received any punishments since sentence and has been employed in the officer’s mess. He completed the Real Understanding of Self-Help (RUSH) program, a First Aid course, safe food handling practices and a digital literacy course. The applicant is willing to participate in the Moderate Intensity Sex Offender Program (MISOP) but this program will not be available until he has only 12 months left of his sentence. NSW Corrective Services case notes annexed to the affidavit of Ms Durovic of 16 February 2026 describe the applicant as polite and well-mannered. The applicant has reported health issues and difficulties in custody, including being assaulted several times, problems with arthritis in his back, finding blood in his stool and pain suffered from not being able to access proper shoes.
The applicant relied on the psychological report of Ms Sarah Brann dated 2 February 2026, which was annexed to Ms Durovic’s affidavit of 16 February 2026. This report also set out the applicant’s difficulties in custody (at [28]-[31], [36]), including being physically assaulted on multiple occasions. Ms Brann opined that this demonstrates the applicant’s social problems including difficulty understanding social nuances and self-awareness, which is common amongst people with ASD. The Crown did not object to the admissibility of this evidence of the applicant’s experience in custody.
The applicant also asked this Court to take into account further protective factors identified by Ms Brann (at [106]), including the applicant’s willingness to engage in sex offender treatment, his presentation as open and forthcoming with information, and the prosocial support of his parents. This was said to be relevant to this Court’s assessment of the applicant’s risk of reoffending. The Crown, however, pointed to Ms Brann’s assessment that the applicant represented a “high risk of sexual reoffending”.
The parties before this Court joined issue on whether aspects of Ms Brann’s report relating to the applicant’s ASD and ADHD diagnoses and psychometric testing were admissible on re-sentence as “fresh” evidence, given the psychological report of Ms Hare was before the sentencing judge. The applicant referred to the paragraphs in which Ms Brann notes the applicant’s increased maturity and insight into his condition since sentencing. It was submitted that the psychometric testing in relation to ASD was fresh evidence because it reflected the applicant’s current psychological presentation and self-reports.
The Crown specifically objected to four paragraphs of the report ([101]-[104]) in which Ms Brann discussed the effect of these neurodevelopmental disorders on the applicant’s offending. The Crown submitted that Ms Brann expresses new opinions, including an actual diagnosis of ADHD, that go beyond the evidence before the sentencing court. This includes Ms Brann’s opinion that it is unclear how the applicant planned the manipulative and deceptive offending against ZW given his cognitive abilities, which the Crown submitted is inconsistent with the Agreed Facts and the basis upon which the matter was conducted in the court below.
[185] The relevant principles pertaining to the admission of new or fresh evidence in sentence appeals were recently considered by Yehia J (with whom Garling and Cavanagh JJ agreed) in Lawavou v R [2025] NSWCCA 35. Her Honour observed the following at [110]-[111], albeit in the context of an appeal by an offender:
[110] It is well-established that a party is generally bound by the conduct of counsel at first instance, who has a wide discretion in conducting proceedings: R v Birks (1990) 48 A Crim R 385; (1990) 19 NSWLR 677 at 683, 685; R v Fordham (1997) 98 A Crim R 359 at 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals: Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 (“Khoury”) at [104].
[111] Moreover, an appeal to the Court of Criminal Appeal does not afford the applicant an opportunity to recast his or her case: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”); Eden v R [2023] NSWCCA 31 (“Eden”) at [32]. Sentence appeals are reviews of a discretion and not a rehearing with different evidence: Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44 at [81] Johnson J, McClellan CJ at CL and Rothman J agreeing). The rule is not absolute, and as noted by Simpson J (Davies J and Grove AJ agreeing) in Khoury, has been “diluted over the years”: at [105]. The rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King (1939) 61 CLR 167; [1939] HCA 4 per Latham CJ; Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 per Barwick CJ.
[186] Her Honour noted (at [117]) that the distinction between “fresh” and “new” evidence (in the context of an appeal against sentence) was explained by Hamill J in Barnes v R [2022] NSWCCA 140; 299 A Crim R 483 (“Barnes”) (Gleeson JA and Ierace J agreeing). Hamill J characterised the difference between the two forms of evidence in the following manner at [28]:
… Evidence will constitute “fresh evidence” if it was not available to a party, “could not have been discovered with the exercise of reasonable diligence” at the time of sentence, and its admission will depend on whether it had the “capacity to affect the outcome of proceedings at first instance.” “New” evidence is material that was available but not used, or was discoverable with reasonable diligence at the time of sentence. (citations omitted)
[187] Yehia J contrasted the approach taken by the Court in Barnes with that taken in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 (Simpson J with whom Davies J and Grove AJ agreed). Her Honour also noted (at [125]) that whether the additional evidence is categorised as “fresh” or “new” evidence, the appropriate test to be applied in considering whether the evidence ought to be admitted is whether the admission of the additional evidence would avoid a miscarriage of justice. This principle is derived from the High Court’s decision in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”). At [2], French CJ, Kiefel, Bell, Gageler and Gordon JJ set out the general rule for the reception of new evidence in an appeal against sentence:
As a general rule, the appellate court’s assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. (Emphasis added.)
[188] The High Court then set out these principles in the context of an appeal against sentence by an offender at [10]-[12]:
[10] … it is well settled that the Court of Criminal Appeal’s power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence … None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.
[11] It is accepted, however, that the appellate court may receive evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. Evidence of this description is routinely received by the Court of Criminal Appeal on the limited basis that it may be taken into account in the event the Court comes to re-sentence. (footnotes omitted)
[189] At [14], the High Court rejected the appellant’s submission that once error is shown, new evidence can be admitted for the purpose of re-sentence, and found that an offender will generally be held to their forensic choices:
Forensic choices are made in the conduct of the offender’s case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge’s discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct. (Emphasis added.)
[190] The High Court held that whether the power to receive new evidence is conferred by ss 6(3) or 12(1) of the Criminal Appeal Act, “the interests of justice will not usually be served by the reception of new evidence of matters that are the subject of the sentencing court’s unchallenged factual findings” (at [16]).
[191] These principles were applied in Veljanoski v The Queen [2021] NSWCCA 255 in which the applicant sought to rely upon a psychological report as new evidence on re-sentence in circumstances where the appellant had previously been examined by two psychologists before the sentencing hearing. Davies J (with whom Harrison J (as his Honour then was) and Dhanji J agreed) held at [61]:
In my opinion, there are no exceptional circumstances which would justify the admission of this report of Dr Hughes. No satisfactory explanation has been provided for the need for her examination and report. In the light of the material in the reports of Ms Cortes and Ms Van De Velde, particularly the causal connection made by Ms Cortes between his mental health and the offending, it cannot be said that any miscarriage of justice is occasioned by the refusal to receive the report into evidence in this Court.
[192] Although these principles are well established, it was common ground that the principles applicable to the admission of new evidence on a Crown appeal have not been the subject of any judicial consideration.
[193] In R v Deng [2007] NSWCCA 216; 176 A Crim R 1, the respondent in a Crown appeal sought to rely on new evidence which had not been before the sentencing judge. The new evidence conflicted with the agreed facts upon which the respondent had been sentenced. This evidence was not admitted by the Court and James J (with whom Mason P and Hislop J agreed) observed at [48]:
In my opinion, the respondent is bound by the way in which the proceedings on sentence were conducted and cannot on an appeal, even in a re-sentencing by this Court, adduce evidence about the facts of the offence in conflict with the agreed statement of facts on the basis of which he was sentenced.
I would adopt all of the same findings as the sentencing judge, including that the applicant’s time in custody is more onerous based on the expert evidence. I have set them out above and there is no need to repeat them here. In addition, I would make a finding that the applicant’s moral culpability is reduced based on the expert evidence. As to the extent of any reduction, it is complicated by the fact that the applicant clearly knew that what he was doing was wrong, as is evident from the Agreed Facts.
I have found the question of how the finding of reduced moral culpability operates on this sentence to be a difficult one. I am satisfied that, consistent with the principles I have set out above, it makes the applicant a less suitable vehicle for general deterrence and retribution. But his risk of reoffending and the fact that his victims were all children means that other factors such as community protection and recognition of harm to the victims have more significance. Overall, I have concluded that the sentence should be ameliorated on the basis of the applicant’s reduced moral culpability.
As to the appropriate indicative sentences for each offence, exercising my sentencing discretion afresh I have arrived at indicative sentences very similar to that imposed by the sentencing judge except for the last three offences in relation to which I have arrived at slightly higher ones.
I have found the incidents involving the 13-year-old victim ZW to be particularly troubling. In relation to sequence 118/11 (using a child under 14 for the production of child abuse material), that offence carries a maximum penalty of 14 years’ imprisonment. It involved a degree of planning and deception. Each recording in which the child was tricked into masturbating on film lasted 15 minutes. As for sequences 118/1 and /10, these two offences involved intentionally sexually touching the 13-year-old child and a further charge of producing child abuse material. They also included the deception of the child being tricked into making child abuse material on the pretence that a fictional woman (in fact the applicant) would post a compromising image of him online. Whilst coercing the child to make footage of them both masturbating, the applicant stroked ZW’s penis, pushing the skin back and forth, and had the child do the same to him. These facts are set out in more detail above at [50]-[56].
These were serious offences involving four separate victims. But for the reduction in the applicant’s moral culpability a higher aggregate sentence would have been imposed. But even having regard to the applicant’s reduced moral culpability for those offences, I have arrived at higher indicative sentences for the last three sequences than those stated by the sentencing judge. Upon then applying the principle of totality, I have arrived at an aggregate sentence that is also slightly higher than that imposed at first instance.
Although the language of s 6 of the Criminal Appeal Act permits this Court to impose a sentence that is “more or less severe” than that imposed at first instance, it is not the practice of this Court to impose a more severe sentence.
As French CJ, Hayne, Bell and Keane JJ observed in Kentwell at [43]:
The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal.
It is highly likely that in [re-sentencing], this Court will arrive at a different sentence. That is particularly so when the applicant is being sentenced for multiple serious offences and an aggregate sentence is to be imposed. As the High Court has stated, there is no “correct” sentence”: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 is [27].
Sometimes the new aggregate sentence imposed will be higher than that which was imposed at first instance and sometimes it will be lower. Sometimes the new aggregate sentence will be higher even though some of the indicative sentences were lower, but the application of the totality principle has resulted in a greater degree of notional accumulation. Sometimes the new aggregate sentence will be higher even having regard to factors favourable to the applicant which were not taken into account by the sentencing judge, including a discount. In such a case, it does not mean that there was no recognition of the discount. It simply means that, consistent with a proper application of the principles derived from Kentwell v The Queen, this Court arrived at higher indicative sentences before the application of the discount and went on to arrive at a higher aggregate sentence. In such cases, the practice is to dismiss the appeal for the reasons explained in RO v R [2019] NSWCCA 183. That is what occurred in this case.
Accordingly, the orders I would propose are as follows:
Grant leave to appeal.
Dismiss the appeal.
FAGAN J: I agree with the Chief Judge. The sentencing judge expressly stated in his remarks that he took into account the evidence of Ms Hare regarding the applicant’s Attention Deficit Hyperactive Disorder, his symptoms consistent with Autism and his consequent limited understanding of others’ emotions and the impact of his own conduct. The applicant squarely sought a finding that moral culpability was reduced. The Crown supported that position and acknowledged that, accordingly, “general deterrence has a lesser role to play”. It was necessary in those circumstances for his Honour to go beyond acknowledging Ms Hare’s evidence and to state (1) whether he accepted that moral culpability was diminished and (2) if so, how that affected the weight to be given to sentencing objectives, in particular general deterrence. As the Chief Judge points out, it follows from the High Court’s decisions in Muldrock v The Queen and Bugmy v The Queen that a finding on whether moral culpability is reduced must be made when the evidence and submissions on sentence raise that as an issue.
Taking into account all sentencing factors, particularly the objective gravity of the offending, the aggregate sentence imposed is of a length consistent with effect having been given to the applicant’s submissions on reduced moral culpability and moderation of general deterrence. However, in the absence of express conclusions on those aspects, the Court cannot impute to his Honour unstated findings. I think it highly likely that the only real deficiency of the learned judge’s disposition of the sentencing task lies in an insufficiency of reasons, rather than in substantive oversight, but on the face of the sentencing remarks the Court must accept the applicant’s ground that there has been a failure “to address” whether moral culpability was reduced and whether general deterrence assumed less importance.
The application for leave has no practical utility because, upon full consideration of all sentencing factors, including events post sentence and up to the hearing of the application, no lesser penalty than that imposed by his Honour is warranted. I agree with the reasons of the Chief Judge for that conclusion. Objectively the whole episode of offending was very serious, causing undoubted significant harm to four separate victims, all of them boys in their vulnerable and impressionable early teens. The gravity of the applicant’s conduct escalated over time. The fourth victim was subjected to calculated and persistent manipulation, blackmailed to take part in sexual conduct of which he wanted no part.
BOULTEN J: I agree with the orders proposed by N Adams CJ at CL. I have reached the same conclusion as her Honour that the sole ground of appeal has been established and that the applicant should be resentenced and, although I also consider that no lesser sentence should be imposed, I prefer to outline how I have approached the re-sentencing task with some brief reasons of my own.
As her Honour found, the learned sentencing judge did not explain how he dealt with the evidence that the applicant’s moral culpability was reduced because of his cognitive impairments. This was a material error. Accordingly, this Court needs to re-sentence the applicant afresh.
I agree that only those aspects of Ms Brann’s report which relate to the applicant’s experiences in custody should be admitted in re-determining the sentence.
I also am content to adopt the sentencing judge’s findings. In light of the error identified in the learned sentencing judge’s reasoning, I need to outline my own conclusions about the impact of the findings about the applicant’s cognitive impairments on the sentencing exercise.
During his school years the applicant had trouble developing verbal and non-verbal communication skills and struggled to make meaningful social connections. He was the target of bullying and drifted into associations with younger students. Post-adolescence, he failed to develop mature social functioning. By the time of his offending, he was socially naïve and strongly desired social acceptance from younger males. These issues were linked to his neurodiversity. The psychologist, Ms Hare, explained in her report that "his neurodevelopmental diagnoses" were causally linked to his offending behaviour. [1]
The applicant used on-line connections as opportunities to engage in sexual discussions, the sharing of sexual images and to view pornography. He used these impersonal sexual outlets as emotional mechanisms because of his blunted social development. I accept Ms Hare's opinion that the offending involving the first three victims reflected the applicant's desire for inclusion, his poor understanding of social and sexual boundaries, his limited understanding of others' emotions, a lack of awareness of and consideration for the impacts of his harmful behaviour on others and his impulsivity. [2]
In that background, the applicant was significantly less culpable for the offending against those first three victims than would be a person with typical neurodevelopment. His offending against the fourth victim, ZW, involved more serious manipulation and, in my view, the applicant had greater insight into the wrongfulness of his acts. Even so, the applicant's culpability for those offences is still reduced.
I agree that the risk that the applicant may re-offend in similar ways is increased as a result of his impairments, but the fact that he will have spent a number of years in custody by the time of his return to the community is, in my view, likely to have some positive influence on him in the future. All of that being so, I conclude that the applicant's reduced moral culpability should operate so as to place less emphasis on the need for general deterrence and retribution by a significant degree in relation to the offences relating to the first three victims and by a somewhat lesser measure in the case of the offences concerning the fourth victim, ZW.
I also give some weight to the difficulties that the applicant has been facing in prison which are likely to continue. His cognitive profile makes him a comparatively vulnerable prisoner. The sentencing judge did recognise the fact that the applicant will have greater difficulties in custody than would others without his profile, but in the light of the evidence I regard that hardship as another aspect of his cognitive disadvantages. I am not counting that issue twice, but it is significantly in the mix.
Ultimately, I would also pass very similar indicative sentences for the offences involving the first three victims and I agree with her Honour's assessment of the seriousness of the offences involving ZW which were quite serious. They demonstrated manipulative and exploitative conduct towards a 13 year old child that, in my opinion, warranted greater punishment than the three indicative sentences that were originally passed in the District Court. After having regard to the principles of totality and the need to work out appropriate degrees of accumulation between the various indicative sentences, I too would not impose a more lenient sentence than the aggregate sentence that was imposed by the learned sentencing judge.
That is why I agree with her Honour’s orders as proposed.
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Hare Report, 20.
Hare Report, 21.
Taylor
R [2026] NSWCCA 32
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2021) 105 NSWLR 66
(2022) 109 NSWLR 82
(2014) 252 CLR 601
(2011) 244 CLR 120
(1990) 19 NSWLR 677
(2016) 258 CLR 420
(1939) 61 CLR 167
(1974) 131 CLR 510
(2005) 228 CLR 357