//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCCA 149
Court of Criminal Appeal (NSW)
2026-09-23
Payne JA McNaughton J Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Worrell v R [2026] NSWCCA 149
Hearing dates: 4 September 2026
Date of orders: 23 September 2026
Decision date: 23 September 2026
Before: Payne JA
McNaughton J
Emmett J
Decision: (1) Grant leave to appeal.
(2) Appeal dismissed.
Catchwords: CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — where applicant advanced evidence of ‘childhood-origin substance use’ and childhood deprivation — whether sentencing judge failed to take into account De La Rosa and Bugmy considerations — whether sentencing judge erred in treatment of applicant’s mental illness — whether sentencing judge erred by failing to find that the applicant had shown remorse
CRIME — Appeals — Appeal against sentence — Manifest excess — whether Court should have regard to sentencing statistics of aggregate or effective sentences for the same offence — whether sentence was manifestly excessive
CRIME — Appeals — Appeal against sentence — whether sentencing judge erred in failing to apply 25% discount under Pt 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Original judgment source is linked above.
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 22, 25A, 25B, 25D, 25E
Crimes Act 1900 (NSW), s 37(1)
Criminal Procedure Act 2007 (NSW), ss 166, 168(3)
Cases Cited: Aslan v R [2014] NSWCCA 114
Astill v R [2024] NSWCCA 118
Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cowan v R [2026] NSWCCA 105
Delleci v R [2020] NSWCCA 4
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Harris v R [2021] NSWCCA 322
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoang v R [2020] NSWCCA 324
Iglesias v R [2006] NSWCCA 261
MLP v R [2014] NSWCCA 183
Narayan v R [2026] NSWCCA 94
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Periasamy v R [2026] NSWCCA 89
R v Munday [1981] 2 NSWLR 177
R v Sabbah [2025] NSWCCA 203
Skocic v R [2014] NSWCCA 225
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: William Worrell (Applicant) (Self-represented)
Rex (Respondent)
Representation: Counsel:
B Page (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00452213
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant was convicted, following a jury trial in the District Court, for two offences, being:
(i) intentionally choking a person so as to render them unconscious, insensible or incapable of resistance, contrary to s 37(1) of the Crimes Act 1900 (NSW), and
(ii) contravene apprehended domestic violence order (‘ADVO’), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
On 12 December 2025, her Honour Judge Bright sentenced the applicant to an aggregate term of 4 years and 6 months’ imprisonment, with a non-parole period of 2 years and 11 months. In doing so, the sentencing judge nominated indicative head sentences of:
(i) for count 3 (choking), a term of 4 years and 6 months’ imprisonment, discounted by 10% for a guilty plea to 4 years and 18 days’ imprisonment.
(ii) for sequence 6 (contravene ADVO), a term of 16 months’ imprisonment, discounted by 10% for a guilty plea to 14 months and 2 days’ imprisonment.
On the application for leave to appeal against the sentence, the applicant contended that:
(i) the sentencing judge erred in her Honour’s treatment of the applicant’s “childhood-origin substance use” (ground 1);
(ii) the sentencing judge erred in her Honour’s treatment of the applicant’s mental illness (ground 2);
(iii) the sentence was manifestly excessive (ground 3);
(iv) the sentencing judge erred in failing to find remorse shown by the applicant (ground 4);
(v) the sentencing judge erred in failing to apply a 25% discount, having regard to the Early Appropriate Guilty Plea (‘EAGP’) scheme (ground 5);
(vi) consideration should be given to further evidence of what the notice of appeal described as “emerged protective factors” (ground 6).
The Court (Payne JA, McNaughton J and Emmett J) held, granting leave to appeal against sentence, but dismissing the appeal:
Ground 1: the sentencing judge’s treatment of the applicant’s “childhood-origin substance use”
(1) The sentencing judge did not err in the application of the principles in Bugmy. Her Honour expressly accepted the applicant’s evidence of deprivation and took that into account in the reduction of the applicant’s moral culpability: [52]. Her Honour considered the interrelationship between the applicant’s deprivation, his mental health and his addiction: [56].
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 considered; Director of Public Prosecutions (Cth*) v De La Rosa* (2010) 79 NSWLR 1; [2010] NSWCCA 194 considered; Cowan v R [2026] NSWCCA 105 applied.
Ground 2: the sentencing judge’s treatment of the applicant’s mental illness
(1) The sentencing judge’s reasoning was consistent with the principles enunciated in De La Rosa: [62]. The factors leading to reduced moral culpability do not automatically translate to a reduced sentence. A finding of reduced moral culpability may be counterbalanced by a corresponding need for community protection: [63].
De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 considered; Harris v R [2021] NSWCCA 322 applied.
(2) The concession made by the applicant’s counsel that the applicant’s mental health should be taken into account in terms of a reduction in his moral culpability “to a small degree” (as opposed to the “hugely significant role” for which the applicant contended in this Court) was a considered one, properly made in light of the evidence before the Court: [64]-[66]. No error had been disclosed with relation to the oral submission, and in any event, an applicant is bound by the conduct of his counsel: [65]-[67].
Aslan v R [2014] NSWCCA 114 considered; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 applied*;* Periasamy v R [2026] NSWCCA 89 applied.
Ground 3: whether the sentence was manifestly excessive
(1) The Court must be cautious before relying on sentencing statistics, without more information regarding how results in other cases were arrived at: [79]. The use of statistics to establish some form of range of appropriate sentences is misconceived: [79]. The statistics advanced by the applicant, even if they were reliable, disclose nothing about whether the applicant’s case is truly comparable to any other cases in which a lower sentence was imposed: [84].
Hili v The Queen (2010) 242 CLR 520*;* [2010] HCA 45 considered; Skocic v R [2014] NSWCCA 225 considered; MLP v R [2014] NSWCCA 183 considered; Narayan v R [2026] NSWCCA 94 applied; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 considered; Hili v The Queen (2010) 242 CLR 520*;* [2010] HCA 45 applied.
(2) Where the impugned sentence is an aggregate sentence, statistics going towards an indicative sentence, referable to a single component of the overall offending, are of limited, if any, utility: [80].
Astill v R [2024] NSWCCA 118 considered; Delleci v R [2020] NSWCCA 4 applied.
(3) Nothing else in this case warranted a conclusion that the sentence was manifestly excessive: [81]-[89].
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 applied.
Ground 4: whether the sentencing judge erred by failing to find remorse shown by the applicant
(1) The sentencing judge did not overlook aspects of the psychologist’s report placed before her Honour at sentence which recounted the applicant’s expressions of remorse [70]-[73]. Her Honour recognised that the author of the report described the applicant as remorseful, but was not minded to accept that opinion: [74]. No error has been shown in her Honour’s approach to the question of whether the applicant had demonstrated remorse: [75].
Ground 5: whether the sentencing judge erred by not applying a 25% discount for an early guilty plea
(1) The sentencing judge acted consistently with s 25D(2)(b) of the Crimes (Sentencing Procedure) Act in granting the applicant a 10% discount to his sentence on the basis of his early guilty plea: [103]. The applicant did not adduce evidence of a ‘negotiations document’, which would be required to engage s 25E: [104]-[105]. In respect of count 3, there was no error in the application of s 25D of the Act: [106]. In respect of sequence 6, the sentence for that offence was not subject to Div 1A of the Act; while the sentencing judge was not required to grant a particular discount by operation of s 25D, there was no error in her Honour allowing a 10% discount: [108].
(2) The applicant’s replacement counsel, who represented him at the sentencing hearing, confirmed that a 10% discount was agreed. The applicant is bound in this regard by his counsel’s conduct of the case: [108].
Ground 6: whether this Court should take into account the “emerged protective factors” advanced by the applicant
(1) It was not open to the applicant to rely on this post-sentence evidence where no error in the exercise of sentencing discretion had been disclosed, and the applicant had not demonstrated any of the recognised exceptions that might justify reliance on fresh or new evidence: [68], [110].
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 applied*; R v Munday* [1981] 2 NSWLR 177 applied*, Iglesias v R* [2006] NSWCCA 261 applied*; Hoang v R* [2020] NSWCCA 324 applied.
The applicant seeks leave to appeal against an aggregate sentence imposed on 12 December 2025 for two offences:
intentionally choke a person so as to render them unconscious, insensible or incapable of resistance, an offence under s 37(1) of the Crimes Act 1900 (NSW) with a maximum penalty of 10 years’ imprisonment (count 3); and
contravene apprehended domestic violence order (‘ADVO’), an offence under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) with a maximum penalty of 2 years’ imprisonment (sequence 6).
In dealing with the applicant for count 3, the sentencing judge took into account a further offence on a Form 1 (sequence 3) of contravening an ADVO under s 14(1) of the Crimes (Domestic and Personal Violence) Act.
The sentencing judge imposed an aggregate sentence of 4 years 6 months’ imprisonment dating from 13 December 2023, with a non-parole period of 2 years and 11 months. The applicant will therefore be eligible for parole on 12 November 2026 and the sentence will expire on 12 June 2028. The sentencing judge nominated indicative head sentences of:
for count 3 (choking), a term of 4 years 6 months, discounted by 10% for a guilty plea to 4 years 18 days;
for sequence 6 (contravene ADVO), a term of 16 months, discounted by 10% for a guilty plea to 14 months 2 days.
There are six appeal grounds:
the sentencing judge erred in her Honour’s treatment of the applicant’s “childhood-origin substance use”;
the sentencing judge erred in her Honour’s treatment of the applicant’s mental illness;
the sentence was manifestly excessive;
the sentencing judge erred in failing to find remorse shown by the applicant;
the sentencing judge erred in failing to apply a 25% discount having regard to the Early Appropriate Guilty Plea (‘EAGP’) scheme;
further evidence of what the notice of appeal describes as “emerged protective factors”.
For the reasons that follow, leave to appeal should be granted but the appeal should be dismissed.
It is convenient to deal with grounds 1, 2 and 4 before dealing with grounds 3, 5 and 6.
The applicant was sentenced on the basis of an agreed statement of facts, which were adopted by the sentencing judge in her Honour’s reasons.
The complainant and the applicant had been in a domestic relationship. On 4 July 2022, a provisional ADVO was served on the applicant including conditions (amongst others) that restricted the applicant from contacting or approaching the complainant, or from assaulting her, threatening her, harassing her or intimidating her.
On 18 June 2023, the applicant contacted the complainant on multiple occasions in person and by telephone saying she had his car jack. She agreed to bring it to his home. Later that evening, the complainant attended the applicant’s home in her car and handed him the car jack through the car window. The applicant reached through the window to unlock the car door, then opened the car door and tried to pull the complainant out of the car. He snatched the keys from the complainant and went inside. The complainant followed him inside to get her keys back. The applicant started shouting at the complainant, then grabbed her hair and hit her head against the front door.
The applicant went away briefly, then returned, asking for the complainant’s phone. The two engaged in a scuffle over the complainant’s phone. They wrestled each other, falling to the floor while doing so. The applicant was pulling the complainant’s hair, and managed to obtain her phone.
The applicant then took the complainant’s phone and left for about 20 minutes. The complainant stayed, trying unsuccessfully to find her car keys. When the complainant returned the applicant told her to come into his bedroom. She followed in the hope of getting her phone and keys back.
In the applicant’s bedroom they started fighting. The applicant grabbed the complainant by the hair and threw her onto the bed. He got on top of her, straddling her so that his entire body weight was on her. The complainant tried to get up, but she was unable to. The applicant put his two hands around the complainant’s throat. The complainant could not breathe and lost consciousness.
When the complainant came to, the applicant said that the complainant had brought this on herself, and that he could have killed her if he wanted to. The applicant told the complainant to cuddle him, which she did. When she asked for her keys and phone, the applicant said, “[w]hen I’ve had enough of my cuddle.” The applicant returned the complainant’s keys and phone.
When the complainant got home and removed her clothes, she realised she had wet and soiled herself. The complainant’s injuries included bruises on both arms, redness to her chest, redness and swelling to her neck, a scratch on each of her shoulder and her left breast, and a blood blister on her left thumb. She also recorded that her voice was raspy.
As for the context in which the choking occurred, the fact that an offence contrary to s 37(1A) occurred in the context of a domestic relationship is a highly relevant factor. When an offender exerts pressure with both hands to a victim’s throat, that victim becomes powerless to the offender and is cognisant that the offender could end their life at any moment by restricting their breathing. For a person to commit such a potentially dangerous act as a means of control over their domestic partner is a serious abuse of trust and a betrayal. As the second reading speech clearly stated, the new offence was created specifically with domestic violence offending in mind.
The offence created in s 37(1A) of the Crimes Act is a relatively new one. There has been little consideration in this Court of the relevant factors a sentencing judge should have regard to when assessing the objective seriousness of such an offence. I accept the following factors identified by the Crown to be a non-exhaustive list of relevant factors to be considered when assessing the objective seriousness of an offence contrary to s 37(1A):
(1) The nature of the relationship between the respondent and the victim, including that the conduct is domestic violence perpetrated on an intimate partner;
(2) The purpose or motivation for the conduct and whether the offence was committed in order to scare, coerce or control the victim;
(3) The force of the choking, suffocation or strangulation including the degree to which the victim was deprived of the ability to breathe;
(4) The duration of the offending;
(5) Any circumstances of humiliation or degradation accompanying the act; and
(6) Whether the offending caused any symptom or injury that persisted after the conduct ceased.
Having had regard to the nature of the relationship between the applicant and the complainant, the context in which the offending occurred, the applicant’s attitude to the offending, the degree of force involved in the offending and the injuries that it caused to the complainant, the sentencing judge assessed the objective seriousness of the offence of choking to be within the middle of the range.
In assessing the objective seriousness of sequence 6, the sentencing judge took into account the nature and extent of the breaches. In light of the significance and number of breaches and the nature of those breaches, the sentencing judge was satisfied that the objective seriousness of that offence was above the middle of the range.
The applicant’s criminal history commenced in 2008 with driving matters. In addition to drug offences and dishonesty offences, it included:
in 2013, two offences of breaching a violence restraining order in Western Australia;
in 2014, two offences of breaching a violence restraining order in Western Australia;
in 2021, four offences of contravening an AVO and one offence of stalk and intimidate;
in 2022, a further offence of contravening an AVO;
in 2023, hindering/resisting police and contravening an AVO;
in 2024, two further convictions for contravening an AVO, for offences that occurred at around the same time as the offences the subject of the 2023 convictions.
The applicant received terms of imprisonment for the 2021, 2022 and 2023 convictions.
In light of this history, the sentencing judge was satisfied that the applicant’s criminal history disentitled him to leniency. The sentencing judge also raised the importance of specific deterrence as a consideration on sentence in circumstances where despite previously serving terms of imprisonment for contraventions of ADVOs, the applicant continued to offend in the very same way.
The sentencing judge summarised the applicant’s description of his background. This included the applicant’s description of his home environment as unstable and volatile, that his mother struggled with significant alcohol use and mental health difficulties, and that he regularly witnessed physical altercations during his childhood.
The applicant also reported that two of his siblings were regularly involved with criminal behaviour. The applicant also described that he was subjected to sexual abuse by his older brother on multiple occasions, as well as by an adult outside the family home.
The applicant reported having few close friendships, and that his relationship with the complainant began in 2002, and was ‘on and off’, with an emotionally unstable dynamic.
The applicant considered himself an above average student at school. However, he described experiencing bullying due to an eye condition and disengaged from education during adolescence due to instability at home and escalating drug use. The applicant enrolled in university initially in psychology and then in chemical engineering, however he withdrew during his first year due to ongoing social stressors including Family Court proceedings involving his daughter (who was born during a relationship that commenced when the applicant was 19).
The applicant’s employment history commenced at age 14 in various retail, labouring and mining roles. Ms El-Hassan noted that the applicant’s employment had been frequently disrupted by substance misuse, unstable relationships, injuries and periods of incarceration.
The applicant suffers from a longstanding eye condition (astigmatism), for which he previously had surgery. He also reported a history of physical injuries, including from assaults sustained prior to the offending, as well as upon his entry into custody.
The applicant reported his suspicion that he may have an acquired brain injury from repeated assaults, but no evidence of a formal assessment was placed before the sentencing judge.
The applicant reported diagnoses of ADHD, bipolar disorder, and post-traumatic stress disorder (‘PTSD’). The applicant reported one suicide attempt in 2022 in the context of grief following the death of his mother.
In custody, the applicant was prescribed medication for depression, as well as Buvidal for opioid substitution.
The sentencing judge found that the applicant’s childhood – characterised by dysfunction, neglect and trauma including a child sexual assault – warranted a reduction in his moral culpability, in accordance with the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
The sentencing judge accepted that the applicant suffered from PTSD, and a Cluster B personality type. The sentencing judge was satisfied that the applicant’s mental health was causally connected to the offending, and that this warranted some reduction in his moral culpability. The sentencing judge found that the applicant’s mental health conditions would make custody more onerous for him: D**irector of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (‘De La Rosa’). However, the sentencing judge also found that those same mental health issues – while untreated – meant that the applicant represented a danger to the community.
Despite the reduction in culpability occasioned by the applicant’s childhood experience, and poor mental health, the sentencing judge found that considerations of general and specific deterrence remained important.
Having taken into account the maximum prescribed penalty for each offence, the objective seriousness of the offending, the applicant’s subjective circumstances and his plea of guilty, the sentencing judge was satisfied that no penalty other than imprisonment would be appropriate, pursuant to s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Crimes (Sentencing Procedure) Act’).
Accordingly, the sentencing judge imposed an aggregate sentence of 4 years and 6 months’ imprisonment, with a non-parole period of 2 years and 11 months’ imprisonment. The sentencing judge nominated an indicative sentence of 4 years and 18 days’ imprisonment in respect of count 3 (taking into account the Form 1 offence), and of 1 year 2 months and 11 days in respect of sequence 6.
The applicant says the sentencing judge erred in her approach to the evidence of the applicant’s addiction or substance use.
The applicant points to evidence that his substance use originated in early adolescence (alcohol from age 11, cannabis from ages 14 to 15, amphetamines and ecstasy from ages 15 to 16, methylamphetamine from age 22) and that it was in response to a childhood characterised by parental violence, neglect and child sexual abuse. The applicant says this means his addiction was itself a manifestation of the deprivation which engaged the principles in Bugmy*,* and that the sentencing judge was obliged to separately address his childhood-origin substance dependence “as a discrete mitigatory matter”.
There is no error in the application of the principles in Bugmy. The sentencing judge expressly accepted the evidence of deprivation, and took that into account in reduction of the applicant’s moral culpability.
Before the sentencing judge, the applicant’s counsel drew attention to the observations of Dhanji J (Simpson AJA and Ierace J agreeing) in Harris v R [2021] NSWCCA 322 (‘Harris’) at [86]:
[T]he background of deprivation, mental health and the circumstances leading to addiction were interrelated both as to their source but also with respect to the manner in which they impacted the purpose of sentencing. That is, it is to be kept in mind that they are not separate matters to be regarded individually with a consequent iterative impact. Nonetheless, each finding was significant, and together they warranted consideration of their impact on the sentence to be imposed.
Her Honour recognised that these matters were interrelated in the applicant’s case and not separate matters that were to be regarded individually with iterative impact. This reflects the approach taken by this Court in Cowan v R [2026] NSWCCA 105 which at [65] observed that the sentencing judge in that case was not required to take the same factors into account twice, once under Bugmy principles and once under De La Rosa principles.
The applicant contends that the circumstances leading to his addiction were his background of deprivation. That background was expressly taken into account by her Honour. Her Honour also recognised the applicant’s expert psychological evidence that:
the applicant’s adverse childhood experience had a profound effect on his psychological development, contributing to chronic psychological distress and the development of PTSD symptoms; and
his Cluster B personality disorder underpinned by complex PTSD predisposed him to negative mood states and emotional instability, which contributed to his poor mental health; and
he had difficulty managing his substance use because of his personality vulnerabilities, and his illicit drug use exacerbated his personality vulnerabilities in a cyclic fashion.
Plainly, her Honour recognised the interrelationship of the applicant’s deprivation, his mental health and his addiction.
The applicant says further that his addiction should also have been taken into account in assessing the weight to be given to rehabilitation as a purpose of sentencing. On a fair reading of the sentencing remarks, the sentencing judge took into account his addiction in considering the prospects of rehabilitation. Her Honour noted evidence that he was at high risk of re-offending without sustained treatment and structured supervision, and that he had not yet had intensive therapy “for his complex mental health issues and substance use issues” (emphasis added). Her Honour nevertheless recognised positive signs, including counselling, programs in custody and an expressed desire to engage in psychological treatment upon release.
It was a matter for the sentencing judge what weight to place on rehabilitation as a purpose of sentencing and no error has been shown in the way her Honour approached the issue.
Ground 1 should be rejected.
The applicant contends that it was contrary to this Court’s decision in De La Rosa for the sentencing judge to hold that any reduction in the applicant’s sentence for mental health should be moderated by the greater danger the applicant posed to the community in the absence of treatment.
It is important to understand her Honour’s reasons on mental health. They include:
I accept the evidence of Ms El-Hassan that the offender suffers from post-traumatic stress disorder and a Cluster B personality type (the specific type yet to be determined). The latter increasing his risk of engaging in emotionally reactive and violent behaviours.
In such circumstances, I am satisfied his mental health is causally connected to the offending warranting some reduction in his moral culpability. Despite this reduction in moral culpability, considerations of a general and specific deterrence remain important.
Also, those mental health issues mean that he represents a much greater danger to the community particularly in the absence of treatment. In those circumstances, any reduction in the otherwise appropriate sentence will be moderated.
I am further satisfied that because of the offender’s mental health conditions custody will be more onerous for him (see generally DPP v De La Rosa …).
The simple reason why ground 2 cannot succeed is that the reasoning to which the applicant objects is entirely consistent with De La Rosa. The Crown rightly draws attention to the summary by McClellan CJ at CL of the principles to be applied where an offender is suffering from a mental illness, intellectual handicap or other mental problem in De La Rosa at [177]. Those principles are (references omitted):
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.
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.
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.
It may reduce or eliminate the significance of specific deterrence.
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.
As Dhanji J observed in Harris at [89], the factors leading to reduced moral culpability do not automatically translate to a reduced sentence. A finding of reduced moral culpability may be counterbalanced by a corresponding need for community protection.
The applicant further contends that his counsel was incorrect to submit that the applicant’s mental health would be taken into account in terms of a reduction in his moral culpability “to a small degree”. The applicant in this Court contends (or seeks to contend) that his mental health conditions had “a hugely significant role” in the reduction of moral culpability.
No error has been disclosed. The oral submission on moral culpability and general and specific deterrence, which was entirely consistent with authority and the evidence before the Court, was:
Your Honour, in accordance with the principles in De la Rosa, it would to a small degree be taken into account in terms of a reduction in his moral culpability. I say that PTSD in particular is a diagnosis that does affect impulse control, and trigger responses and the like. I’m not suggesting that it plays a significant role in the reduction of the moral culpability but certainly he is by reason of those conditions, a less appropriate vehicle for general deterrence, accepting that specific deterrence still - it is, again a qualified reduction.
The concession was a considered one, properly made in light of the evidence before the Court. It is always necessary to examine the facts to determine whether, in the specific case, the mental condition has the consequences contended for: Aslan v R [2014] NSWCCA 114 at [34] (Simpson J, Adams and McCallum JJ agreeing). There are often good forensic reasons to make appropriate concessions. As the Crown submitted, in this case there was a good forensic reason to make the concession, given the applicant had not yet been treated for his mental health conditions – the greater the significance of his untreated mental health conditions, the greater the threat to the community which the sentencing judge may take into account against the applicant.
In any event, an applicant is bound by the conduct of his counsel. An application for leave to appeal to this Court is “not the occasion for revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made”: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81] (Johnson J, McClellan CJ at CL agreeing); see also Periasamy v R [2026] NSWCCA 89 at [97] per Sirtes J (Stern JA and Huggett J agreeing).
In oral submissions to this Court, the applicant contended that he no longer posed a threat to the community, or perhaps that the risk had been reduced, having regard to treatment he has undergone and programs he has completed since being sentenced. While this treatment and these programs are to the applicant’s credit, they do not assist the applicant in demonstrating error, which must ordinarily be shown by reference to the sentencing judge’s reasons on the material that was before the Court below: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10]. “The review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court”: R v Munday [1981] 2 NSWLR 177 at 178 (Street CJ, Moffitt P and Lee J agreeing). The evidence was adduced and admitted on the usual basis only (as to which, see Betts at [4] and [46]). The applicant did not point to or demonstrate any grounds upon which new or fresh evidence may be adduced beyond the usual basis. This typically requires showing “exceptional circumstances” (see, eg, Iglesias v R [2006] NSWCCA 261 at [8]-[11], McClellan CJ at CL, R S Hulme and Hall JJ agreeing), or a basis for an “exception to the general principle” (Hoang v R [2020] NSWCCA 324 at [16], Payne JA, Beech-Jones and Fagan JJ).
Ground 2 should be rejected.
It was not submitted on behalf of the offender that the Court would find that remorse has been established as required as a matter of law. Notwithstanding the absence of remorse, I accept by his plea of guilty that the offender has accepted responsibility for the offending.
Mr Worrell expressed regret and stated that he did not intend to cause harm, saying that he “didn’t mean for any of this to happen” and he wished he had “just walked away.” He attributed his actions to emotional distress, unresolved grief, substance use, and poor coping in the moment. He acknowledged that his behaviour caused fear and distress and described a desire to “make things right,” improve his mental health, and avoid further offending.
The sentencing judge did not overlook this paragraph. It was quoted in full in the sentencing remarks.
Ms El-Hassan went on to refer at [28] to what she described as the applicant’s “expressions of remorse”. Consideration of the sentencing judge’s discussion with the applicant’s counsel on this topic demonstrates that the sentencing judge did not overlook this part of the report. The exchange in full is (emphasis added):
MCKENSEY: Your Honour, just in relation to the remorse. I note that no specific submission has been made to the Court that a positive finding of remorse would be found and I don’t seek to change that position and say that your Honour would make a positive finding. However, what I would say in relation to the contents of paras 7 and 8, it certainly does - the explanations from the offender as to how the situation occurred, that is his reality of - his explanation of how we got there but I accept that evidence is a less than full-throated acceptance of—
HER HONOUR: It’s an explanation for why he did what he did.
MCKENSEY: That’s it—
HER HONOUR: In fact, there is no explanation.
MCKENSEY: There’s not.
HER HONOUR: For what he did.
MCKENSEY: No. There is not.
HER HONOUR: In trying to explain it means that he’s not truly remorseful.
MCKENSEY: I accept that, your Honour. There’s been no submission to that end made, and as I said, I don’t seek to make that at this point in time. I will say that the comments in the psychological report, obviously that is the report writer’s opinion as to how they’ve interpreted some things that have been said to them. It is accepted that he expresses regret and accepts that he wishes that it didn’t happen and didn’t walk away but it’s accepted that there’s a difference—
HER HONOUR: Again, that’s not remorse.
MCKENSEY: It’s a different - yes.
HER HONOUR: I expect every offender regrets what they did.
MCKENSEY: Yes.
HER HONOUR: Especially when they’re to be sentenced.
MCKENSEY: Yes.
HER HONOUR: So it requires something more than an expression of regret.
MCKENSEY: It does, your Honour.
HER HONOUR: I think the difficulty is, the author of the report says, “He is remorseful”. That does not explain about what or why they form that opinion.
MCKENSEY: Yes.
HER HONOUR: If that is the opinion of the author of the report, they should say why—
MCKENSEY: Yes.
HER HONOUR: --that’s their opinion. It doesn’t assist the Court simply to say someone is remorseful.
MCKENSEY: No, and I’m making that concession, your Honour, that I accept—
HER HONOUR: So you’re not seeking a positive finding?
MCKENSEY: I am not seeking a positive finding in respect of remorse, your Honour. Just to make that clear. The highest that I will take it your Honour, is that there are suggestions there that with significant assistance as the report writer says, they are - and I think as my friend appropriately categorises - perhaps burgeoning realisation as to what might need to be done to ensure that his rehabilitation can be supported, but that would be the highest that those comments could be taken and how they ought be utilised.
The emphasised passage shows her Honour recognising that the author of the report described the applicant as remorseful, but clearly indicating that her Honour was not minded to accept that opinion. It was entirely appropriate for the applicant’s counsel to make the concession she made and not to press for a positive finding of remorse.
The extracted exchange between the sentencing judge and the applicant’s counsel also demonstrates that the applicant was clearly on notice that her Honour might not accept Ms El-Hassan’s view that the applicant was remorseful. It was a matter for her Honour whether or not to accept this view. No error has been shown in her Honour’s approach to the question of whether the applicant had demonstrated remorse.
For the reasons set out at [69] above, the applicant’s expressions of remorse in oral submissions in this Court do not assist in discerning error in the decision below.
Ground 4 should be rejected.
The applicant relies on sentencing statistics indicating that more than 50% of the aggregate or effective sentences for offences under s 37(1) of the Crimes Act have been 4 years or less, and that more than 50% of the aggregate or effective non-parole periods have been 2 years or less.
It is well-established that the Court must be cautious before relying on sentencing statistics, without more information regarding how results in other cases were arrived at: see, eg, Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (‘Hili*’*) at [48]-[49]; Skocic v R [2014] NSWCCA 225 at [19]-[20]; MLP v R [2014] NSWCCA 183 at [41]-[46]. In particular, the use of statistics to establish some form of range of appropriate sentences is misconceived: Narayan v R [2026] NSWCCA 94 (‘Narayan’) at [67]-[68] (McGuire J, Kirk JA and Yehia J agreeing).
It is important to emphasise that the sentence subject to appellate review is the aggregate sentence. The question for this Court must be whether the aggregate sentence is excessive having regard to the totality of the criminality involved in both offences for which the applicant was sentenced. While indicative sentences may be a guide as to whether error is established in relation to the aggregate sentence, an aggregate sentence will not necessarily be excessive even if the indicative sentence is assessed as being excessive: see, eg, Astill v R [2024] NSWCCA 118 at [78] (Bell CJ, Stern JA and Button J agreeing). In that context, if statistics referable to a single component of the overall offending have any utility at all, the Crown was correct to submit that such utility can only be limited: see, eg, the observations of Hoeben CJ at CL in Delleci v R [2020] NSWCCA 4 at [58]-[60] and the cases cited there.
Even if attention were confined to the choking offence (which would exclude relevant aspects of the overall offending of the applicant in this case) we do not accept that the statistics on which the applicant relies in this case establish that the applicant’s sentence was manifestly excessive.
The maximum penalty under s 37(1) is imprisonment for 10 years. This reflects the high risk of serious harm (or death) to a victim where someone intentionally chokes, suffocates or strangles them to the point of unconsciousness or insensibility.
Only slightly more than 50% of head sentences have been 4 years or less (approximately 56%), and only slightly more than 50% of non-parole periods have been 2 years or less (again, approximately 56%). The same statistics demonstrate that 30% of the head sentences were more than 6 years and 30% of non-parole periods were more than 42 months – terms well above the indicative sentence for the choking offence and even the aggregate sentence imposed on the applicant. Even if these statistics were to be relied upon as a guide, they would not tend to establish that the applicant’s sentence was towards the upper bound, or beyond the upper bound, of sentences that have been imposed in the past for offending of this kind.
While consistency of decisions – treating like cases in like manner – is a proper consideration for sentencing (see, eg, Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6] per Gleeson CJ), “the consistency sought is consistency in the application of relevant legal principles, not some numerical or mathematical consistency”: Hili at [18]; see also at [48]-[49]. As their Honours went on to say at [18], this requires proper regard not only to what has been done in other cases but why it was done. It is only upon examination of the whole of the circumstances that gave rise to previous sentences that any unifying principles might be discerned: Hili at [54]; see also Narayan at [68] and the cases cited there. The statistics advanced by the applicant, even if they were reliable, disclose nothing about whether the applicant’s case is truly comparable to any other cases in which a lower sentence was imposed.
Nothing else in this case warrants a conclusion that the sentence was manifestly excessive.
While the applicant had a number of subjective matters in his favour (including the Bugmy and De La Rosa principles addressed in the context of grounds 1 and 2 above), there were other factors that militated in the other direction. The sentencing judge found that the objective seriousness of the choking offence was in the middle of the range. Her Honour had earlier described the agreed facts as disclosing “very serious objective criminality”. Given the finding that the offending occurred in the context of exercising coercion or control (because the applicant took the complainant’s keys and phone), and the nature and extent of the injuries found to have been caused by the applicant, this finding was well open. The sentencing judge rightly took into account the applicant’s poor criminal history, including multiple offences for contravening apprehended violence orders. Not only did this disentitle the applicant to leniency for good character, but it heightened the importance of specific deterrence.
The proper approach to a manifest excess ground was summarised by this Court in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows (references omitted):
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
The sentence is within the range of permissible or appropriate sentences, having regard to the circumstances of this case. The applicant has not established that the sentence was unreasonable or unjust.
Ground 3 should be rejected.
The applicant says that he pleaded guilty “within 5 minutes” of the DPP proposing an amended indictment and that he should have received a 25% discount for his guilty plea.
In order to understand why this ground must be rejected, some procedural background is useful.
On 5 November 2024, the applicant was committed for trial on three charges:
1. On 18 June 2023, in Woongarrah in the State of New South Wales, [the applicant] assaulted [the complainant], thereby occasioning to her actual bodily harm.
S 59(1) Crimes Act 1900 Law part code 64870
2. On 18 June 2023, in Woongarrah in the State of New South Wales, [the applicant] choked [the complainant] so as to render her unconscious, insensible, or incapable of resistance, and did so with the intention of enabling himself to commit intimidation.
S 37(2) Crimes Act 1900 Law part code 82222
3. On 18 June 2023, in Woongarrah in the State of New South Wales, [the applicant] intentionally choked [the complainant] so as to render her unconscious, insensible, or incapable of resistance, and was reckless as to rendering her unconscious, insensible or incapable of resistance.
S 37(1) Crimes Act 1900 Law part code 82221
The indictment was presented on 3 December 2024 and the accused pleaded not guilty on 12 December 2024.
Three further charges were transferred to the District Court as related offences pursuant to s 166 of the Criminal Procedure Act 2007 (NSW):
sequence 1, act with intent to influence witness;
sequence 3, contravene ADVO, which was ultimately dealt with on a Form 1 as explained above; and
sequence 6, contravene ADVO, for which the applicant was sentenced by the sentencing judge, as explained above.
On 22 August 2025, the Crown informed the Court that the matter had “resolved”. The Crown said the proposed course was as follows:
the applicant would plead guilty to count 3 of the indictment and that once that plea was entered counts 1 and 2 would be withdrawn;
sequence 3 was to be taken into account on a Form 1 attached to count 3;
sequence 6 was to be a related matter under s 166 to which the applicant would plead guilty;
sequence 1 (act with intent to influence a witness) was to be remitted to the Local Court to proceed to hearing separately.
At the time, the trial was due to start on 8 September 2025, so the proposed plea would be entered more than 14 days before the first day of the trial (albeit not, as acknowledged in the applicant’s written submissions below, more than 14 business days before the trial).
At the hearing on 22 August 2025, the applicant pleaded guilty to count 3 and sequence 6, and confirmed his guilt in relation to sequence 3 (with a view to it being taken into account on a Form 1). According to the Crown Sentence Summary which formed part of Exhibit A before the sentencing judge, the date on which the applicant provided notice to the prosecution offering to plead guilty was 18 August 2025. There is no evidence of the applicant pleading guilty, or making a written offer to plead guilty, to any of these charges on an earlier date.
The applicant’s counsel, in written submissions on sentence in the Court below, conceded that the Court should apply a 10% discount on sentence. As indicated above, her Honour applied this discount when sentencing the applicant for both count 3 and sequence 6.
In his written submissions, the applicant puts his argument as follows:
I would have [pleaded] guilty if the current charge structure on the form 1 with duplicate charges withdrawn that was sentenced on 12.12.25 had been on the initial EAGP.
This submission cannot support a higher discount for count 3 in light of the terms of Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act. That Division applies to sentences for offences dealt with on indictment (relevantly for present purposes, count 3). The Division provides for the discounts for pleas of guilty at different stages.
Pursuant to s 25A(2), the Court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which the Division applies.
Sections 25D and 25E are as follows:
25D Sentencing discounts for guilty plea for offences dealt with on indictment
(1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.
(2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—
(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Judge of the Local Court in committal proceedings for the offence,
(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender—
(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or
(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,
(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.
(3) Discount variations—new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows—
(a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,
(a1) a reduction of 25% in any sentence that would otherwise have been imposed, if—
(i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and
(ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,
(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender—
(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or
(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,
(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply.
(4) However, the discount in subsection (3) (a) does not apply if—
(a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or
(b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.
(5) Discount variations—person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Judge of the Local Court for continued committal proceedings, is as follows—
(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried,
(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender—
(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or
(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,
(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.
(6) Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).
25E Sentencing discounts to apply in certain cases where guilty plea offer made for different offences and refused when made
(1) Discount where offer not accepted In determining the sentence for an offence, the court is to apply a sentencing discount in accordance with this section if—
(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and
(b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and
(c) the offer was not accepted by the prosecutor, and
(d) the offer was not subsequently withdrawn, and
(e) the offender was found guilty of the different offence or an offence that is reasonably equivalent to the different offence.
For the purposes of this subsection, an offence is reasonably equivalent to a different offence if—
(a) the facts of the offence are capable of constituting the different offence, and
(b) the maximum penalty for the offence is the same or less than the different offence.
(2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if—
(a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and
(b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and
(c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and
(d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender.
(3) Discount variation—offer to plead guilty to different offence The discount to be applied by the court is as follows—
(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made—
(i) before the offender was committed for trial, or
(ii) for an offender found fit to be tried after being committed for trial and whose matter was not remitted to a Magistrate for continued committal proceedings—as soon as practicable after the offender was found fit to be tried,
(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offer was made after the offender was committed for trial and at least 14 days before the first day of the trial of the offender,
(c) a reduction of 5% in any sentence that would otherwise have been imposed, if the offer was made less than 14 days before or on or after the first day of the trial of the offender.
(4) In determining, for the purposes of subsection (3)(a)(ii), whether the offer was made by the offender as soon as practicable after the offender was found fit to be tried, the court must take into account whether the offender had a reasonable opportunity to obtain legal advice and instruct a legal representative.
Consistent with s 25D(2), the applicant was entitled to a 10% discount but no greater discount.
As to the operation of s 25E, nothing before this Court indicates that the applicant made an offer to plead guilty that was “recorded in a negotiations document”. The language of the legislation is clear that it is only an offer recorded in a negotiations document which engages s 25E. “Negotiations document” is defined in s 25B as follows:
negotiations document means—
(a) if an offender was represented by an Australian legal practitioner in proceedings—
(i) a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986, or
(ii) any other document that records an offer made by the offender to plead guilty to an offence specified in the document, served on the prosecutor in proceedings for the offence—
(A) following committal for trial or sentence, or
(B) after an indictment containing a new count offence is filed, or
(b) if an offender was not represented in proceedings, any document served on the prosecutor in the proceedings that records an offer made by the offender to plead guilty to an offence specified in the document.
While the applicant asserted in oral submissions to this Court that he instructed his lawyers to make an offer before committal, there is no evidence of that offer, nor is it possible for this Court to conclude that the offer would have engaged s 25E even if it had been made in a negotiations document. It may be inferred that at least one purpose for the requirement in s 25E that the offer be recorded in a negotiations document to ensure that there is a reliable record of the date and terms of any such offer.
So far as the sentence for count 3 is concerned, there was no error in the application of s 25D of the Crimes (Sentencing Procedure) Act.
Turning to sequence 6, the sentence for that offence was not subject to Div 1A. Since it was a related offence which had been transferred to the District Court under s 166, the District Court had the same functions, and was subject to the same restrictions and procedures, as the Local Court: s 168(3) of the Criminal Procedure Act. Accordingly, any discount for a guilty plea would fall to be assessed under s 22(1) of the Crimes (Sentencing Procedure) Act. That provision provides as follows:
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account—
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty, and
(c) the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
This means that, while the sentencing judge was not required to impose a 10% discount by operation of s 25D, it was open to her Honour to impose a lower discount. Especially given the absence of any evidence of the applicant offering to plead guilty to sequence 6 earlier than 18 August 2025, it was an understandable forensic decision for the applicant’s counsel to ask the Court in written submissions to apply a 10% discount generally (rather than risk a lower discount being applied to sequence 6 given the proximity of the trial). The applicant’s replacement counsel, who represented him at the hearing, confirmed that this 10% discount was agreed. The applicant is bound in this regard by his counsel’s conduct of the case.
Ground 5 should be rejected.
This ground is based solely on post-sentence treatment and courses which have been completed or are being undertaken in custody following the applicant’s sentence. Our observations at [69] above apply to this evidence. It is not open to the applicant to rely on this evidence where (a) no error in the exercise of the sentencing discretion has been disclosed and (b) the applicant has not demonstrated any of the recognised exceptions that might justify reliance on fresh or new evidence.
Ground 6 should be rejected.
Leave to appeal should be granted, to facilitate the final disposition of the applicant’s contentions. The appeal should be dismissed.
The orders of the Court are therefore:
Grant leave to appeal.
Appeal dismissed.
**********
Coversheet - corrected representation
Worrell
R
[2013] HCA 37
[2026] NSWCCA 105
[2026] NSWCCA 94
[2026] NSWCCA 89
(2002) 56 NSWLR 146
(2016) 258 CLR 420
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2010) 242 CLR 520
(2017) 96 NSWLR 155
(2001) 207 CLR 584
(1999) 195 CLR 665
(2000) 202 CLR 321
(2005) 228 CLR 357