TD v R [2026] NSWCCA 139 | Case summary | Zoe

NSWNSWCCA

TD v R

[2026] NSWCCA 139

Court of Criminal Appeal (NSW)|2026-09-11|Before: N Adams CJ at CL at [1] Dhanji J at [3] Roberts J at [4]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-09-11

Before

N Adams CJ at CL at [1] Dhanji J at [3] Roberts J at [4]

Catchwords

SENTENCING — Appeal against sentence — Sexual offending against two child nieces — Finding of reduced moral culpability due to dysfunctional background — No finding as to whether general and/or specific deterrence should be moderated as a result

Source

Original judgment source is linked above.

Catchwords

SENTENCING — Appeal against sentence — Sexual offending against two child nieces — Finding of reduced moral culpability due to dysfunctional background — No finding as to whether general and/or specific deterrence should be moderated as a result

Judgment

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

Medium Neutral Citation: TD v R [2026] NSWCCA 139

Hearing dates: 1 May 2026

Date of orders: 11 September 2026

Decision date: 11 September 2026

Before: N Adams CJ at CL at [1]
Dhanji J at [3]
Roberts J at [4]

Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by the District Court on 20 December 2024.
(4) In lieu of the sentence imposed by the District Court, the applicant is sentenced to an aggregate term of imprisonment of 7 years, commencing 7 November 2023 and expiring 6 November 2030, with a non-parole period of 4 years, commencing 7 November 2023 and expiring 6 November 2027.

Catchwords: SENTENCING — Appeal against sentence — Sexual offending against two child nieces — Finding of reduced moral culpability due to dysfunctional background — No finding as to whether general and/or specific deterrence should be moderated as a result

Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 66C(1)

Cases Cited: Abed v R [2025] NSWCCA 223
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Carreno v R [2023] NSWCCA 20
Courtney v Regina [2007] NSWCCA 195; A Crim R 371
Craft v R [2021] NSWCCA 131
DG v R [2025] NSWCCA 137
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Hancock v R [2025] NSWCCA 213
Harris v R [2021] NSWCCA 322
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Luque v R [2017] NSWCCA 226 Monardo v R [2025] NSWCCA 199 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 NK v R [2025] NSWCCA 73 R v Dent (Court of Criminal Appeal (NSW), 14 March 1991, unrep) R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Tsiaras [1996] 1 VR 398 R v Wright [2013] NSWCCA 82 Regina v Israil [2002] NSWCCA 255 Sampson v R [2026] NSWCCA 117 Sarhene v R [2022] NSWCCA 79 Taylor v R [2026] NSWCCA 32 Tukuafu v R [2024] NSWCCA 84 Wornes v R [2022] NSWCCA 184

N ADAMS CJ at CL: I agree with the orders proposed by Roberts J for the reasons provided.
As her Honour has observed, it will not be in every case that error will be established by a sentencing judge’s failure to explain how a finding of reduced moral culpability has been reflected in sentencing purposes such as general deterrence. Error was established in this case because the sentencing judge had separately observed, uncontroversially, that sentences imposed for sexual offending against children must have a “very significant element of general deterrence”. In those circumstances it was unclear whether her Honour considered that sentencing purpose to be of reduced significance in this case given the finding of reduced moral culpability based on “Bugmy” factors: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. That uncertainty was exacerbated by her Honour’s finding that the applicant’s moral culpability was not reduced due to his mental health issues, a finding which was also arguably attenuated by error but which, as Roberts J has explained, it was not ultimately necessary for the Court to determine.
DHANJI J: I agree with Roberts J.
ROBERTS J: On 20 December 2024, the applicant, TD, was sentenced by Judge Bright at the Gosford District Court (sentencing judge) for one count of indecent assault of a child under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW); one count of sexual intercourse with a child of or above 10 years of age and under 14 years of age, contrary to s 66C(1) of the Crimes Act; and one count of sexual intercourse with a child under 10 years of age, contrary to s 66A(1) of the Crimes Act. Three further offences under s 61M(2) of the Crimes Act were taken into account on Form 1s in respect of each of the two complainants.
The two complainants were sisters, and nieces of the applicant. The applicant pleaded guilty in the Local Court and was entitled to (and received) a 25% discount on his sentences for his early plea. The indicative sentences were as follows:
Indecent assault upon complainant KID [1] (Sequence 2): 2 years 3 months imprisonment with a non-parole period of 1 year 4 months;
Sexual intercourse with a child between 10 and 14 years of age upon complainant KID [2] (Sequence 7) (with an indecent assault taken into account on a Form 1): 3 years imprisonment;
Sexual intercourse with a child under 10 years of age upon complainant KOD [3] (Sequence 9) (with two indecent assaults taken into account on a Form 1): 6 years imprisonment with a non-parole period of 3 years 8 months.
The applicant was sentenced to an aggregate term of imprisonment of 8 years, with a non-parole period of 4 years and 10 months. The sentence commenced on 7 November 2023. Accordingly, the non-parole period will expire on 6 September 2028.
The applicant seeks leave to appeal the sentence on two grounds as follows:
The sentencing judge erred in deciding that, before reduced weight could be given to general and specific deterrence in line with Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”)), the Applicant needed to establish a causal link between his mental health conditions and his offending; and
The sentencing judge erred in failing to find that the Applicant’s deprived background mitigated the significance of general and specific deterrence in the sentencing exercise.
The applicant requires an extension of time in which to appeal. The respondent accepts that, adequate reasons for the short delay in filing having been provided, the question of an extension of time should be determined based upon the merits of the appeal.
I would grant leave to file the appeal out of time**.** For the reasons which follow, I would uphold the appeal, and resentence the applicant.

The applicant was aged 32 years at the time of the sentencing proceedings in December 2024.
The applicant tendered a psychological report of Julie Dombrowski dated 13 December 2024 (psychological report). The report provided the following:
The applicant’s parents separated when he was 7 years of age and his mother’s use of alcohol and prescription medication impaired her ability to care for her children. The Department of Communities and Justice (DCJ) was involved with the applicant’s family from when he was aged 6. DCJ placed the applicant in 17 different temporary foster care arrangements during periods when his mother was unable to control her substance abuse;
The applicant was sexually abused by three different carers during placements when he was aged 7 or 8;
The applicant had made multiple self-harm attempts since age 16;
He reportedly incurred a traumatic brain injury from a road accident aged 17 which affected his memory;
The applicant had a close relationship with his mother (who died in 2019) and his half-brother (who died in 2018) and their deaths had a devastating impact on him;
He has had a number of relationships as an adult and has three young children with two former partners;
When the applicant was aged around 31, he was diagnosed with Post-Traumatic Stress Disorder (PTSD) associated with his childhood sexual abuse. Reported symptoms included intrusive thoughts, alterations in mood, and alterations in physiological arousal;
The applicant was prescribed various medications for mental health conditions between the ages of 6 and 16 but was not taking any medications between the ages of 16 to 23. Since the age of 23, he has taken various medications intermittently;
The results of a psychometric assessment indicated “evidence of severe personality pathology (ie an enduring pattern of dramatic and erratic thoughts, feelings and, behaviours that cause … clinically significant distress or impairment in psychosocial functioning) with borderline features….” However, “there were no elevations on the scales measuring antisocial and sadistic personality traits”;
The applicant accepted responsibility for the offending but denied any recollection of it. The psychologist questioned the authenticity of the lack of recall in circumstances where he could recall surrounding events. The applicant’s unwillingness, or inability, to talk about the offending resulted in it being “… not possible to determine whether there is a nexus between his Cluster B (Dramatic/Erratic) Personality Disorder with borderline features and/or his ... PTSD” with the offending;
The applicant had a lengthy history of drug use starting in childhood, and between the ages of 16 and 24 he was using opioids, benzodiazepines and methylamphetamine. He receives pharmacological treatment to manage substance dependence in custody;
In the context of assessing risk of re-offending, the psychologist opined that substance use, social intimacy deficits, difficulty managing negative mood states and a possible paedophilic arousal pattern may be relevant factors in understanding the sexual offending;
The applicant’s childhood experiences “disrupted his primary attachments, derailed his education, and have lead to longstanding difficulties consistent with Posttraumatic Stress Disorder … associated with his sexual abuse and neglect”.
There was no objection to the psychological report, nor did the Crown submit that the findings in the report should not be accepted by the sentencing judge.

The sentencing judge delivered sentence on 20 December 2024. Her Honour found the offending to be of “very serious objective criminality”. The complainants were found to be “completely vulnerable to the conduct of [the applicant]” by virtue of their young age and the trust they had in him. The sentencing judge found the applicant telling KOD she was going to gaol for disclosing the offending to be “particularly reprehensible”.
The sentencing judge extracted a passage from the judgment of Lee J in R v Dent (Court of Criminal Appeal (NSW), 14 March 1991, unrep) concerning the seriousness with which the community views the sexual abuse of children, before stating that “[s]entences imposed for offending in relation to children must not only have a very significant element of general deterrence but must also punish the offender and denounce the conduct”.
The objective seriousness of each offence was assessed as follows:
Sequence 7: just below the middle of the range, having regard to the nature of the sexual intercourse, the age of the complainant at the bottom of the age range captured by the offence, the age discrepancy between the complainant and the applicant, and the complainant being asleep and awoken by the offender when the offending commenced.
Sequence 2: the middle of the range, having regard to the nature of the indecent assault, the age of the complainant, the age gap, and the complainant being asleep in bed when the offending commenced.
Sequence 9: the middle of the range, having regard to the nature of the sexual intercourse, the age of the complainant, the age gap, and the complainant being asleep when the offending commenced.
The sentencing judge was satisfied that the offending was aggravated by reason of the applicant being in a position of trust in relation to each complainant, and because the offending took place in the home of the complainants’ grandparents, where they were entitled to feel safe.
The sentencing judge considered the victim impact statement of KOD, noting the ongoing impact of the offending upon KOD, who suffers from severe PTSD, anxiety, insomnia and depression, and that she experiences suicidal ideation, panic attacks, hypervigilance, nightmares, and intimacy difficulties with her partner. Her Honour found that the offending has had a “devastating impact on the life of this victim”. While KID did not provide a victim impact statement, the sentencing judge found that the offending would have also “profoundly impacted” her life.

The overarching principles were not in dispute in the present appeal. The difference between the parties concerned whether the sentencing judge had correctly applied them. In particular, the applicant contended that her Honour had not reduced the emphasis upon general deterrence and specific deterrence in sentencing the applicant, following the finding that his moral culpability was reduced. In contrast, the respondent argued that reading the sentencing judgment “fairly and as whole”, the sentencing judge should be understood to have reduced the weight to be given to those factors, as this would naturally follow her finding of reduced moral culpability.
As noted above, the Crown had conceded before the sentencing judge that the applicant’s dysfunctional background should lead to a finding that his moral culpability was reduced. The Crown Prosecutor submitted that “the Bugmy factors are present here and should be given full weight”, observing that “[r]ecent authority has made it reasonably clear that a reduction in moral culpability can be applicable notwithstanding whether there is a clear link between the offender’s deprived background and the offending”. The Crown specifically resisted the proposition that the significance of general deterrence should be reduced by reason of the applicant’s mental health. The Crown also submitted that general deterrence and specific deterrence are “still important factors to be taken into account in this sentencing exercise”.
In summary, whilst there was no issue between the parties that the applicant’s background (but not specifically his mental health) should lead to a reduction in moral culpability, the extent to which this should impact the various purposes of sentencing, and in particular, the significance of general deterrence, remained an issue for determination.
There were three references to deterrence in the sentencing judgment. First, the statement early in the judgment confirming the significance of general deterrence when sentencing for offences involving child sexual abuse (see above at [29]). Second, in the findings set out above at [33] rejecting the submission that the applicant’s mental illness rendered him a less suitable vehicle for general deterrence or that less weight should be given to specific deterrence. In addition, the sentencing judge stated that “in determining the appropriate sentences, I have taken into account the purposes of sentencing in section 3A, Crimes (Sentencing Procedure) Act”.
The applicant accepted in this Court that a finding that an offender is impacted by “Bugmy factors” does not inexorably lead to a finding that there should be reduced emphasis upon general or specific deterrence in all cases. However, the applicant argued that in this case, such a finding should have been made. He emphasised that the sentencing judge had not explained how or whether her Honour’s finding of reduced moral culpability had impacted the purposes of sentencing, and contended in the absence of the sentencing judge stating that this was what she had done, it could not be inferred that she had done so.
The respondent accepted that the sentencing judge made no express reference to the consequences for her finding of reduced moral culpability in terms of the purposes of sentencing, but contended that when the sentencing judgment is read fairly and as a whole, it is apparent that her Honour made a finding of reduced moral culpability and reduced the weight to be given to general deterrence as a result. In that respect, the respondent pointed to the detail with which the sentencing judge dealt with the applicant’s background, demonstrating her Honour’s understanding of its importance. The respondent drew a distinction with the findings of the sentencing judge with respect to the applicant’s mental health, whereby her Honour expressly rejected the submission about reduced emphasis on general deterrence, and placed significance on the fact that there was no such express rejection of the same or similar submission concerning the applicant’s background. Further, the respondent submitted that the sentencing judge’s citation of the key paragraphs of Bugmy imported a full understanding of the mitigatory relevance of an offender’s deprived background.
By referring to the decision of the High Court in Bugmy at [43]–[44], the sentencing judge may be taken to have understood and applied the principles emerging from those passages. That includes the process of reasoning whereby an offender’s deprived background is given “full weight” in the sentencing exercise. The observations from those passages, however, make clear that the ways in which an offender’s deprived background may impact the purposes of sentencing may vary. That is why, as explained in NK v R [2025] NSWCCA 73 (“NK v R”), and in DG v R*,* it will generally be necessary for the sentencing court to state how the offender’s reduced moral culpability, and the reasons for that reduction, bears upon the weight to be attached to the various sentencing factors such as general and specific deterrence, protection of the community, and rehabilitation. What will be required in order to demonstrate how a finding of reduced moral culpability has impacted upon the sentence to be imposed will depend upon the facts of the particular case and the matters in issue between the parties: Taylor at [116]; DS v R; DM v R at [93].
In the applicant’s case, a combination of features were present which may have been found to have reduced his moral culpability and impacted upon the sentence. The sentencing judge found that the applicant had a childhood “characterised by dysfunction, abuse, neglect and child sexual assault”, and accepted that the applicant’s “experiences of deprivation, trauma and neglect” in his childhood warranted “a reduction in his moral culpability” (emphasis added). There was no qualification upon the extent of this reduction: whether, for example, it was slight, or substantial. I do not intend to suggest that such a qualifier was required; had it been applied, however, it may have provided support for the Crown’s contention that further articulation was not required (see Sampson v R [2026] NSWCCA 117 at [32]–[35]). Separately, her Honour accepted the psychologist’s opinion that the applicant suffered mental illness arising from his dysfunctional background but rejected the submission that this reduced the role of deterrence in the sentencing exercise. Her Honour also found, as was open to her, that sentences imposed for sexual offending against children must have a “very significant element of general deterrence”.
The sentencing reasons do not express whether, and to what extent, the sentencing judge considered the proposition concerning the importance of general deterrence for offences involving the sexual abuse of children to have been ameliorated in the applicant’s particular case. As I have said, the need to elucidate such matters will depend on the circumstances of the particular case. It will often be straightforward to infer that a finding of reduced moral culpability has sounded in mitigation of the sentence imposed without the necessity to further explain that this was so. In this case, however, there was some complexity arising from the fact that her Honour dealt separately with the applicant’s background and his mental illness and made different findings with respect to each in circumstances where the expert evidence had very closely linked those features.
In considering this ground, I remain mindful of the well-established approach of an appellate court to sentencing reasons delivered ex tempore. Such reasons should not be overly scrutinised with an “eye attuned to error”: Hancock v R [2025] NSWCCA 213 at [77]; Tukuafu v R [2024] NSWCCA 84 at [133]. In the applicant’s case, proceedings on sentence took place on 17 December 2024, and the reasons for judgment were reserved, albeit for a short time, and delivered promptly thereafter on 20 December 2024. The sentencing judgment in the present case was therefore not delivered ex tempore, but the reasoning behind such an approach still has some relevance. The principle that the focus should be upon the substance of the reasons, reading them fairly and as a whole, is one of general application: Monardo v R [2025] NSWCCA 199 at [130]-[131].
Bearing that principle in mind, however, in the circumstances of this case, I am unable to accept the respondent’s contention that it may be inferred that the sentencing judge reduced the weight or emphasis to be placed upon general deterrence (or specific deterrence) in the overall sentencing exercise.
Two additional observations may be made. First, it may be observed that ground 2 is not framed as a complaint about reasons, but about the conclusion reached. In terms, ground 2 pleads error in failing to find, that is, to conclude, that the applicant’s deprived background mitigated the sentence. The above focus upon reasons arises (at least in part) because the respondent did not argue that this was a case in which the finding of reduced moral culpability should not (or did not) reduce the role for general deterrence to some degree but submitted that it should be inferred that the sentencing judge had done so. Once that submission is rejected, the error in substance is established.
Second, in respect of this ground of appeal, the applicant sought to rely upon remarks made by the sentencing judge during exchanges with the legal representatives in order to “make plain” his contentions about her Honour’s erroneous reasoning process. There are limited circumstances in which it will be necessary or appropriate to parse remarks made by a judge during a hearing to find error rather than determine the issues by reference to the judgment: Wornes v R [2022] NSWCCA 184 at [6] (“Wornes”); Taylor at [126]–[128]. I have not found it necessary to do so in this case.
In summary, in the circumstances of this case, having found that the applicant’s deprived background warranted a finding of reduced moral culpability for his offending, it was necessary for her Honour to make a finding as to whether general or specific deterrence should be moderated as a result. I accept the applicant’s contention that the absence of this finding constitutes error.
This ground of appeal should be upheld.

In the event of resentence, the applicant relied upon the affidavit of Danka Durovic, the applicant’s solicitor, affirmed on 16 April 2026, and his own affidavit also affirmed on 16 April 2026. The applicant’s affidavit addresses his time in custody since he was sentenced. Ms Durovic annexes materials relevant to the matters addressed.
The applicant explained that he was initially held in Hunter Correctional Centre, then moved to Cessnock, and then to Goulburn where he remained as at 16 April 2026. In Hunter, he was working as a ‘general hand’ but there were limited educational opportunities. He was also limited in his transfer opportunities due to being on the Buvidal injection (to manage substance addiction). The applicant has since ceased the Buvidal injections, indicating this was by his own choice to avoid issues with other inmates seeking to misuse it, and to expand his relocation, employment and educational opportunities in custody. The applicant was initially classified as a C1 security prisoner, and since 5 December 2025 has been classified as C2. At Cessnock, he worked in food services and has participated in courses in supply chain operations, a fitness and wellbeing program and a forklift course. Once classified C2, he was able to complete a 7 day ‘crane dogging’ course; a qualification that can be utilised upon release to seek employment. He has completed the EQUIPS addiction program for a second time, and the RUSH program about safe communication.
The applicant has received a misconduct charge for stealing. He sought to explain in his affidavit that he reluctantly accepted the demand of another prisoner that he take some ‘liquid nails’ back to the cells from where he was working but immediately confessed upon being stopped for the purposes of a random search. He was suspended from the worksite for 14 days as well as having family visits suspended for the same period.
The applicant has spoken to a counsellor and engaged with the chaplain, and according to the applicant (and supported by his Justice Health records), he is medicated with mirtazapine for depression and clonidine for his PTSD.
The applicant speaks with his former partner and their young daughter during short phone calls, as well as his father, who has declining health including dementia. The applicant hopes for the future to gain employment in the civil construction industry and to continue using a counselling service.

The applicant contended (under ground 1 and also in the event of resentence) that his mental health conditions, namely his PTSD and personality disorder, are matters which ought to be taken into account in determining a lesser role for general deterrence, specific deterrence and ultimately a lesser sentence. An offender’s mental health can affect the sentencing exercise in various respects. Where the state of an offender’s mental health materially contributes to the commission of the offences, his moral culpability for those offences may be reduced: De La Rosa at [177]; Taylor at [112]. As explained in Muldrock at [54], mental illness or cognitive impairment may have the effect that a particular offender has a reduced capacity to reason as to the wrongfulness of his or her conduct, thus lessening that offender’s moral culpability for the crime. Where it cannot be said that an offender’s mental health materially contributed to the commission of the crime, it may be that it nevertheless leads to the conclusion in a particular case that specific deterrence and/or general deterrence are entitled to less weight in the sentencing exercise: R**egina v Israil [2002] NSWCCA 255 at [25] (per Spigelman CJ) (“Israil”); Wornes at [32] (per Hamill J, Simpson AJA and Ierace J agreeing). The applicant did not submit that his mental health should be found to have materially contributed to his offending but argued that he should be found to be a less appropriate vehicle for general and specific deterrence without the need to establish such a link.
The applicant’s mental ill health is a feature which, taken together with the evidence of his dysfunctional childhood and upbringing, contributes to a finding of reduced moral culpability. As Yehia J explained in NK v R, an offender’s moral culpability may be reduced by reason of a combination of circumstances including a background of deprivation, mental health conditions and youth. It can be difficult, and unnecessary, to attempt to divide these several subjective factors which may have a cumulative effect on the reduction of moral culpability: DS v R; DM v R at [155]–[156].
In this applicant’s case, there is a “close nexus” between his dysfunctional childhood, and his mental health issues: Craft v R [2021] NSWCCA 131 at [50] (N Adams J, Garling and Beech-Jones JJ agreeing). Whilst his PTSD was not formally diagnosed until later adulthood, the applicant described to Ms Dombrowski experiencing alterations in mood and cognition since childhood. He gave a history of being medicated in childhood to manage psychiatric symptoms, which included depressed mood, heightened anxiety and dissociative episodes. He received in-patient treatment after engaging in suicidal behaviours during adolescence. Additionally, the applicant was abusing alcohol, methylamphetamine, opioids and cannabis over many years including the period of the offending.
The applicant’s background included disrupted attachment to caregivers, limited moral development and a derailed education; childhood sexual abuse perpetrated by foster carers and the development of significant psychological and mental ill health during adolescence which continued into early adulthood. The applicant’s moral culpability for the offending is reduced by comparison with an offender with an unremarkable upbringing or no (or lesser) mental health issues. The reduced moral culpability arises by reason of the applicant’s overall attenuated capacity for emotional and behavioural regulation and moral judgment which arises from his background and associated mental health issues. It does not require (and nor do I find) that the applicant’s mental health conditions materially contributed to the offending.
An additional feature of the applicant’s subjective circumstances, which was not given any prominence before the sentencing judge, is his relative youth at the time of the offences. His age when he committed the offences for which he was convicted was between 18 to 21 years. As pointed out in submissions before this Court, the date range for the earliest offence on a Form 1 extended to include a period when the applicant was 17. An offender’s youth is a significant consideration on sentence, having potential relevance to moral culpability, prospects of rehabilitation, the significance of general and specific deterrence, the moderation of denunciation, punishment, and hardship in custody: Abed v R [2025] NSWCCA 223 at [65]; Sarhene v R [2022] NSWCCA 79 at [25].
The applicant submits on resentence that this Court should “give full weight to the applicant’s youth at the time of the offending as a factor relevant to the applicant’s moral culpability (and therefore the appropriate level of denunciation) and to the role for general deterrence in the applicant’s sentence”. This careful manner in which this submission is framed may be taken to recognise the limitations upon the application of some of the broader principles when sentencing a person for offending which took place many years earlier when they were a youth or young adult. In particular, the considerable emphasis placed by the authorities on the need to emphasise rehabilitation when sentencing youthful offenders has less part to play when sentencing takes place many years later: Carre**no v R [2023] NSWCCA 20 at [73]. Nevertheless, the applicant’s relative youth at the time of the offending is a feature which must be understood to have contributed to his reduced cognitive and emotional capacity and judgment.
As a result of the applicant’s reduced moral culpability for the offending by reason of his background, mental ill health and youth at the time of the commission of the offences, I consider that the significance of general deterrence and of denunciation in the sentencing exercise should be moderated to a meaningful, but not substantial, degree. The applicant may be a less suitable vehicle for general deterrence, but he is not a person who is wholly unsuitable as an ‘example’. His offending involved repeated sexual abuse of his very young nieces: he was young but (aside from the Form 1 matter noted above) was still an adult many years older than they were. He took opportunistic advantage of the trust placed in him permitting access to them where they slept. Sexual offending against children causes significant harm to the victim and to the community. Substantial weight must still be afforded to deterrence and denunciation given the nature and seriousness of the offences committed by the applicant.
The applicant also submitted that there should be reduced emphasis placed upon specific deterrence, on the basis that the applicant’s compromised development, PTSD and personality disorder render him “less receptive to messages of specific deterrence through incarceration and punishment”. In this context, the applicant relies upon the expert opinion concerning the applicant’s dysfunctional upbringing, his experiences of childhood sexual abuse, disrupted attachment, PTSD, and substance misuse, resulting in compromised development in moral reasoning and emotional and behavioural judgment, with an unstable personality structure, rendering him a person more likely to “fall foul of the law”.
In the regularly cited passage from De La Rosa at [177], McClellan CJ at CL said:

R v Tsiaras [1996] 1 VR 398 concerned a prisoner who suffered an ongoing and serious psychiatric illness that included auditory hallucinations and possible delusions.
In Courtney v Regina [2007] NSWCCA 195; A Crim R 371, the CCA was concerned with the correctness of the approach taken by the primary judge to the determination of an appropriate limiting term for the appellant who was severely mentally ill and unfit to be tried. In that context, Basten JA observed at [26], that “[t]he overwhelming feature of the present case is that no imprisonment, past or present, has had or is likely to have any effect on the behaviour of the applicant.” The decision confirmed the principle that when assessing matters relating to mental illness which may sound in mitigation, it is necessary to also assess the countervailing considerations concerning protection of the community;
In R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, the CCA considered principles of double jeopardy as they related to Crown sentence appeals. JW was a 15-year-old boy who had committed robbery offences. The CCA held that it was appropriate to take into account the “distress and anxiety” manifested by the young person about the threat of imprisonment over 17 months awaiting resolution as a matter indicating that the “objective of personal deterrence [was] already being served” at [183]; [192].
As noted above, it is advanced on the applicant’s behalf that he is a person “less receptive to messages of specific deterrence through incarceration”, and therefore there should be reduced emphasis upon specific deterrence. It may first be observed that the very features relied upon to advance this submission, including the “erratic behaviour and instability of people with Cluster B personality disorders” are classically those which have the capacity to “pull in different directions” (Harris v R [2021] NSWCCA 322 at [89]) and invoke the “countervailing considerations” of an increased risk of re-offending and need for community protection.
Taking all matters into account (including prospects of rehabilitation discussed below), I do not consider that the evidence establishes that the applicant suffers a mental illness which renders him “notably unreceptive to messages of specific deterrence by way of punishment”. I do not accept the submission that the weight to be given to specific deterrence in the sentencing exercise should be moderated on this basis.
Finally, I conclude (as the sentencing judge did) that the applicant’s mental health issues and background will render his time in custody more onerous, and on that basis moderate the otherwise appropriate sentence.

In December 2024, the sentencing judge concluded that the applicant’s prospects of rehabilitation were “guarded”. Her Honour could not be satisfied that he was unlikely to reoffend, at least while his mental health issues and substance abuse issues remained untreated.
The applicant has a not insignificant criminal history in the period following the subject offences, including offences of violence in a domestic context and of animal cruelty. He has previously been sentenced to a good behaviour bond with a drug and alcohol rehabilitation condition (in 2016); a community corrections order (in 2019); an intensive corrections order (in 2019), each with similar conditions, and each of which it appears from his criminal history that he breached, although neither the details of those offences or those breaches are before this Court. He received his first full-time custodial sentence in 2020 for various domestic violence offences. His criminal history in the subsequent years is consistent with ongoing substance misuse issues and interpersonal relationship issues. It does not, however include any sexual offences against children.
One of Ms Dombrowski’s recommendations was that the applicant engage in treatment specifically for sexual offending to reduce the applicant’s risk of sexual recidivism. In the affidavit material there is no reference to sexual offence treatment programs or any previous attempts or future plans to engage in those. It may be that has not been possible, or it may be that the applicant has not sought to participate. Aside from this omission, the applicant has expressed a desire for treatment by way of counselling.
The applicant has a reasonable work history. He has been working in custody and is motivated to re-engage in employment upon his release. He has previously lost jobs due to substance misuse and periods of incarceration, but has been able to repeatedly regain employment in construction and building. The applicant had a significantly disrupted education yet taught himself to read, despite being unable to read or write by the time he ceased attending school in Year 8. He has been motivated to improve his position in custody and remain engaged in education, treatment and employment. His ability to address his substance misuse upon release from custody will be a critical factor in his rehabilitation and prospects of reoffending.
It may be observed that the applicant’s affidavit presents a more optimistic picture when compared with the applicant’s experience of incarceration as recorded by Ms Dombrovski (after approximately one year on remand) in which the applicant had been the victim of assaults and had himself made suicide attempts and been housed in protective custody. Since being sentenced, it appears the applicant has been able to engage in courses and employment and has sought to make plans for the future.
I find, as did the sentencing judge, that the applicant is remorseful. The applicant submits that based upon the additional evidence of rehabilitation since the time of sentencing, this Court would be “less pessimistic” as to the applicant’s prospects of rehabilitation than the sentencing judge was able to be. I accept that submission.
I am satisfied that special circumstances are established. A longer period on parole would give the applicant an opportunity to address his treatment needs and would vary the statutory ratio to give effect to this. I consider, as did the sentencing judge, that some notional accumulation is required between sentences to reflect the different occasions and different victims. The indicative sentences that I would impose are as follows:
For the offence of indecent assault upon complainant KID (Sequence 2) following a 25% discount for the guilty plea: 2 years imprisonment with a non-parole period of 1 year 2 months;
For the offence of sexual intercourse with a child between 10 and 14 years of age upon complainant KID (Sequence 7) following a 25% discount for the guilty plea (taking into account Sequence 8, an indecent assault upon KID on a different occasion): 2 years 8 months imprisonment;
For the offence of sexual intercourse with a child under 10 years of age upon complainant KOD (Sequence 9) following a 25% discount for the guilty plea (with two offences of indecent assault during the same incident taken into account on a Form 1 (Sequences 5 and 10)): 5 years 3 months imprisonment with a non-parole period of 3 years 2 months.
Taking account of principles of totality, the objective seriousness of the offending and the applicant’s subjective circumstances, the total aggregate term of imprisonment I would impose on resentence is one of 7 years imprisonment, with a non-parole period of 4 years. The sentence will commence on 7 November 2023 and the aggregate non-parole period will expire on 6 November 2027.

TD v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

JUDGMENT

Factual background

Offending against KID

Offending against KOD

Post offence conduct of the applicant

The applicant’s subjective case

Submissions of the parties

Findings of the sentencing judge

The applicant’s subjective circumstances

The appeal

Ground 2 – The sentencing judge erred in failing to find that the Applicant’s deprived background mitigated the significance of general and specific deterrence in the sentencing exercise.

Consideration

Ground 1 – The sentencing judge erred in deciding that, before reduced weight could be given to general and specific deterrence in line with De La Rosa, the Applicant needed to establish a causal link between his mental health conditions and his offending.

Re-sentencing

Additional evidence of matters which arisen since sentence

The offending conduct

The applicant’s background, mental health, youth and moral culpability

Prospects of rehabilitation

Conclusion

Endnotes

Parties

Legislation Cited (1)

Cases Cited (46)