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11
Court of Criminal Appeal 5 September 2025

DG v R

[2025] NSWCCA 137

Assault & violence
WEEK

Citation: DG v R [2025] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 5 September 2025
Judges: Bell CJ; Payne JA; N Adams J (judgment by N Adams J, Bell CJ and Payne JA agreeing)

Background

The applicant, an Indigenous woman whose primary languages are Warlpiri and Gurindji, pleaded guilty in the Local Court to intentionally causing grievous bodily harm to her 10-week-old daughter, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The victim was born prematurely with foetal alcohol syndrome, a cleft palate, and a cleft lip, following the applicant's chronic alcohol use during pregnancy and repeated serious physical assaults upon her by her partner. The victim sustained life-threatening injuries as a result of the offending and faces significant ongoing consequences, including cerebral palsy and infantile spasms.

The applicant had endured a profoundly disadvantaged childhood and background, which the sentencing judge found significantly reduced her moral culpability under the principles established in Bugmy v The Queen (2013) 249 CLR 571. After allowing a 25% discount for her early guilty plea, the sentencing judge in the District Court imposed a sentence of 6 years and 6 months' imprisonment with a non-parole period of 4 years and 2 months.

The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal, relying on a single ground: that the sentencing judge, having found her moral culpability was significantly reduced by Bugmy principles, erred by failing to consider whether that finding meant she was a suitable vehicle for general deterrence.

  • Whether a sentencing judge who finds an offender's moral culpability significantly reduced under Bugmy principles must then turn their mind to whether the offender remains a suitable vehicle for general deterrence.
  • Whether the sentencing judge erred in treating reduced moral culpability as a factor reducing the objective seriousness of the offence, given that these are distinct concepts.
  • Whether the sentencing judge's finding that the offending resulted from a "loss of control" caused by Bugmy and mental health factors was supported by the evidence.
  • Whether, on re-sentence, the Court of Criminal Appeal should impose a sentence more severe than that originally imposed.

Decision

The Court granted leave to appeal but dismissed the appeal, with N Adams J delivering the judgment and Bell CJ and Payne JA agreeing.

On the ground of appeal, the Court held that the sentencing judge did err. Having found that the applicant's moral culpability was significantly reduced by reason of her profoundly deprived background, his Honour was required to consider whether she remained an appropriate vehicle for general deterrence before deciding what weight to give that sentencing purpose. The failure to turn his mind to that question constituted a sentencing error. This approach is consistent with the High Court's observations in Bugmy and Munda v Western Australia (2013) 249 CLR 600, and with the recent decision of the Court of Criminal Appeal in NK v R [2025] NSWCCA 73.

On re-sentence, the Court did not adopt two of the sentencing judge's findings. First, the finding that reduced moral culpability diminished the objective seriousness of the offence was contrary to authority: objective seriousness and moral culpability are separate, though related, concepts. Second, the finding that the offending was explained by a "loss of control" resulting from Bugmy and mental health factors was not supported by evidence before the Court. The Court did, however, accept that the applicant was not a suitable vehicle for general deterrence given her significantly reduced moral culpability, while emphasising that the sentence still needed to reflect the need to protect the community and vindicate the victim's dignity.

Undertaking its own instinctive synthesis, the Court reached a sentence slightly higher than that imposed by the sentencing judge. Because the Court's settled practice is not to impose a more severe sentence on appeal (absent a formal Parker warning, which is impractical when judgment is delivered at a later date), the appeal was dismissed rather than the sentence increased.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • Under Bugmy principles, where a sentencing judge finds that an offender's moral culpability is significantly reduced by reason of a deprived background, the judge must then consider whether the offender is a suitable vehicle for general deterrence before determining what weight to give that sentencing purpose.
  • Objective seriousness and moral culpability are distinct concepts: a finding of reduced moral culpability does not, of itself, reduce the objective seriousness of an offence, and conflating the two constitutes a sentencing error.
  • Even where an offender with a profoundly disadvantaged background is found unsuitable as a vehicle for general deterrence, the sentence must still reflect the need to protect the community and vindicate the dignity of the victim, consistent with Munda v Western Australia.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that it will not impose a more severe sentence on appeal where no Parker warning has been given, even if its own instinctive synthesis yields a higher figure than that arrived at by the sentencing judge.
  • No error was established simply by contending that more or less weight should have been given to a sentencing factor; the appeal succeeded only because the sentencing judge failed to address a required step in the reasoning process.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(eb), 44(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- NK v R [2025] NSWCCA 73
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Camilleri v R [2023] NSWCCA 106
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Paterson v R [2021] NSWCCA 273
- Harris v R [2021] NSWCCA 322
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194