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10
Court of Criminal Appeal 18 August 2025

TH v R

[2025] NSWCCA 121

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHERE GOOD PROSPECTS OF REHABILITATION APPEAL DISMISSED

Citation: TH v R [2025] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 18 August 2025
Judges: Bell CJ, Garling J, Yehia J

Background

The applicant was 15 years and 11 months old when he committed two offences of aggravated sexual intercourse without consent against a 14-year-old victim. He pleaded guilty in the District Court and was sentenced by Herbert DCJ on 10 July 2024 to an aggregate term of 3 years and 9 months' imprisonment, with a non-parole period of 2 years and 3 months. The sentence was ordered to be served in a juvenile detention centre.

The offending was serious. The victim screamed during the first offence, clearly manifesting her lack of consent, and the sentencing judge found that the applicant was actually aware of that lack of consent. The victim's impact statement described deep distress and multiple attempts at suicide following the offending. The applicant also tracked the victim and her family after they relocated to Canberra.

The applicant sought leave to appeal, arguing that the sentencing judge had failed to give proper weight to his youth, deteriorating mental health, and disadvantaged background, and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to give sufficient weight to the applicant's youth when assessing moral culpability and the relevance of deterrence
  • Whether the sentencing judge erred by failing to give sufficient weight to the applicant's mental health background in the same assessment
  • Whether the sentencing judge erred by insufficiently accounting for the disadvantage suffered by the applicant, as required by Bugmy v The Queen (2013) 249 CLR 571
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Insufficient weight given to subjective factors

The Court unanimously rejected ground 1 and each of its sub-grounds. Following the principle in House v The King (1936) 55 CLR 499, a complaint that a sentencing judge gave too little weight to a particular factor does not establish a legal error. Questions of weight fall within the province of the sentencing judge. Yehia J (with Bell CJ and Garling J agreeing on this ground) found that the sentencing judge had, in fact, addressed the applicant's youth, mental health, and background of disadvantage, and that this was a careful, closely reasoned judgment delivered ex tempore.

The Court also commented on the use of labels such as "adult like conduct" in youth sentencing. Yehia J observed that the indicia of such conduct can be vague and equivocal, particularly where children now have increasing access to information, images, and depictions of conduct through social media and digital sources. Even where a child's acts resemble adult behaviour, neurodevelopment, emotional maturity, impulse control, and consequential thinking remain less advanced than in adults. The Court cautioned that the efficacy of such labels may be questionable in some cases.

Ground 2: Manifest excess (majority)

Bell CJ, with Garling J agreeing, dismissed this ground. An applicant challenging a sentence for manifest excess bears a "very heavy practical burden" and must demonstrate a disproportion so manifest as to indicate substantive legal error, not merely a difference of opinion. The seriousness of the offending, the victim's age, the applicant's awareness of her non-consent, the substantial harm suffered, and the absence of evidence of remorse beyond the guilty pleas all supported the sentence imposed. Bell CJ acknowledged that the applicant's youth and mental health challenges might have supported a slightly lesser sentence, but disagreed that this elevated the sentence to manifest excess.

Ground 2: Manifest excess (dissent)

Yehia J dissented on this ground. Her Honour accepted the seriousness of the offending but emphasised that the applicant was a child whose mental health was deteriorating in the lead-up to the offences, who had no prior criminal record, had not reoffended while on bail, and had good prospects of rehabilitation. In her Honour's view, the aggregate sentence went beyond what could be described as a stern or harsh sentence and was manifestly excessive. Yehia J would have allowed the appeal and resentenced the applicant to an aggregate term of 2 years and 9 months' imprisonment with a non-parole period of 1 year and 9 months, to be served in a juvenile detention centre.

Orders Made

The majority (Bell CJ and Garling J) made the following orders:

  • Leave to appeal granted
  • Appeal dismissed

Yehia J's proposed orders (in dissent) were:

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed and replaced with an aggregate term of 2 years and 9 months' imprisonment commencing 10 July 2024 and expiring 9 April 2027, with a non-parole period of 1 year and 9 months, with eligibility for parole on 9 April 2026
  • Sentence to be served as a juvenile offender pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW)

Key Takeaways

  • A ground of appeal asserting that a sentencing judge gave insufficient weight to subjective factors such as youth, mental health, or disadvantaged background does not, on its own, disclose a legal error of the kind required by House v The King. Weight is a matter for the sentencing judge.

  • Where a complaint about insufficient weight is pressed, its proper place is within a manifest excess ground, which requires showing a disproportion so apparent as to indicate substantive legal error rather than a mere difference of opinion.

  • The Court of Criminal Appeal cautioned against uncritical reliance on the label "adult like conduct" when sentencing young offenders, noting that children's neurological development, emotional maturity, and impulse control remain less advanced than those of adults even when their actions superficially resemble adult behaviour.

  • A 2-1 split on manifest excess illustrates that the line between a sentence that is stern and one that is manifestly excessive can be genuinely contestable, particularly where a child offender presents with deteriorating mental health, prior good character, and good rehabilitation prospects alongside serious offending.

  • Under s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW), a court may order that a juvenile offender serve a sentence in a juvenile detention centre even where the sentence is imposed in the District Court.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19(1)
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- House v The King (1936) 55 CLR 499
- Bugmy v The Queen (2013) 249 CLR 571
- Kentwell v The Queen (2014) 252 CLR 601
- He v Sun (2021) 104 NSWLR 518
- Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- BP v R (2010) 201 A Crim R 379
- KT v R (2008) A Crim R 112
- CW v R [2022] NSWCCA 50
- BAP v R [2024] NSWCCA 206
- Aiga v R [2024] NSWCCA 175
- Astill v R [2024] NSWCCA 118
- Buxton v R [2017] NSWCCA 169
- Conte v R [2018] NSWCCA 209
- Cowan v R [2015] NSWCCA 118
- Eldridge v R; Mackay v R [2015] NSWCCA 127
- Gal v R [2015] NSWCCA 242
- Cameron v R [2013] NSWCCA 224
- Church v R [2012] NSWCCA 149