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Court of Criminal Appeal 3 October 2025

Teshabaev v R

[2025] NSWCCA 155

Sexual offences

Citation: Teshabaev v R [2025] NSWCCA 155
Court: Court of Criminal Appeal, NSW
Date: 3 October 2025
Judge(s): Adamson JA (leading judgment); McNaughton J and R A Hulme AJ agreeing

Background

The appellant was a young adult male, aged 24 to 26 at the time of the offending, who lived with the complainant's family as a relative of the complainant's stepfather. The complainant was a girl aged between 7 and 9 years old. The offending occurred on multiple occasions when the appellant and the complainant were alone together in the family home while her parents were temporarily absent.

Following a jury trial in the District Court, the appellant was convicted of all 15 counts on the indictment: three offences of exposing a child under 14 to pornographic material, and 12 offences of sexual intercourse with a child under 10 years. The offending escalated in gravity across the counts, from digital penetration to penile penetration. In November 2023, the sentencing judge imposed an aggregate term of 24 years imprisonment with a non-parole period of 18 years.

The appellant sought leave to appeal both the conviction and the sentence. On the conviction, he argued that the trial judge misdirected the jury on tendency reasoning. On the sentence, he argued that the sentencing judge made a factual error about the duration of one offence, and that the aggregate sentence was manifestly excessive.

  • Whether the trial judge misdirected the jury on the proper approach to tendency reasoning under s 97 of the Evidence Act 1995 (NSW), specifically by directing jurors to first be satisfied that particular conduct occurred before drawing a tendency inference.
  • Whether any such misdirection gave rise to a real possibility that the jury did not understand the Crown's obligation to prove each element of each charge beyond reasonable doubt.
  • Whether the sentencing judge made a factual error regarding the duration of count 14, causing the sentencing discretion to miscarry.
  • Whether the aggregate sentence of 24 years imprisonment was manifestly excessive having regard to the nature and extent of the offending.

Decision

Conviction appeal: tendency direction

The Court accepted that the trial judge's direction on tendency reasoning did not precisely conform to the preferred approach endorsed by the Court of Criminal Appeal in JS v R [2022] NSWCCA 145 and subsequently approved by the High Court in DPP v Benjamin Roder (a pseudonym) [2024] HCA 15. That preferred approach does not require jurors to first be satisfied that particular conduct actually occurred before considering whether a tendency is established. The direction given instead followed the then-current Criminal Trial Courts Bench Book formulation, which the subsequent case law has moved away from.

Despite this divergence in form, the Court held there was no realistic possibility that the jury was left without a proper understanding of the Crown's burden. The trial judge gave multiple directions on onus and standard of proof, provided each juror with a written document setting out the elements of each of the 15 counts, and gave a Markuleski direction (addressing the approach where multiple similar charges are before the jury), a Liberato direction (addressing how to approach a contest between prosecution and defence evidence), and a specific direction requiring the jury to be satisfied beyond reasonable doubt that the complainant was honest, reliable and accurate in vital respects. In those circumstances, the jury was not misdirected in any operative sense, and leave to appeal on this ground was granted but the appeal was dismissed.

Sentence appeal: factual error on count 14

The sentencing judge accepted agreed facts stating that count 14 lasted "about half an hour," but later referred in his reasons to "about an hour" when assessing the objective seriousness of that count. The Court found this apparent inconsistency was most plausibly explained either as a slip of the tongue by the judge or as a transcription error. It was implausible, the Court held, to conclude that the judge had disregarded his own factual findings and substituted a finding unsupported by the evidence. Leave to appeal on this ground was refused.

Sentence appeal: manifest excess

The Court found the aggregate sentence was well within range. The indicative sentences for each individual count fell significantly below the applicable standard non-parole periods, notwithstanding that none of the offences could be characterised as below the midrange of objective seriousness and that counts 11 and 14 were assessed as above it. The aggregate term reflected substantial concurrency and appropriate totality principles. There were few mitigating factors: the appellant had no prior criminal history, but he denied the offences, showed no remorse or insight, and the sentencing judge was unable to find that re-offending was unlikely. The offending involved a serious betrayal of trust, escalating abuse of a young child, and deliberate attempts to silence the complainant by warning her that disclosure might cause her parents to stop loving her. Leave to appeal against sentence was refused.

Orders Made

  • Time for filing the application for leave to appeal extended to 29 November 2024.
  • Leave to appeal against conviction granted.
  • Appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a tendency direction which departs in form from the approach approved in JS v R and DPP v Roder will not necessarily amount to a misdirection if, read as a whole, the jury was adequately directed on the Crown's obligation to prove each element of each charge beyond reasonable doubt.
  • The sufficiency of jury directions on tendency reasoning must be assessed in the context of all directions given at trial, including directions on onus, standard of proof, and how to approach credibility contests.
  • A minor verbal inconsistency in a sentencing judge's reasons, where the written reasons elsewhere reflect the correct agreed facts, will not readily be treated as a factual error causing the sentencing discretion to miscarry; the Court will consider whether a slip of the tongue or transcription error provides a more plausible explanation.
  • Aggregate sentences for serious, escalating, and repeated child sexual offending within a position of trust may be upheld as within range even where individual indicative sentences sit well below standard non-parole periods, provided the aggregate reflects appropriate concurrency and totality.
  • The absence of remorse, lack of insight, continued denial of offending, and an inability to find that re-offending is unlikely are all considerations that weigh against leniency at sentence in cases of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 66EB, 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), s 97
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
- JS v R [2022] NSWCCA 145
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290