Citation: Maloney v R [2025] NSWCCA 156
Court: Court of Criminal Appeal, New South Wales
Date: 1 October 2025
Judges: Price AJA, Ierace J, Rigg J
Background
The applicant pleaded guilty in the Local Court to one Commonwealth count of transmitting child abuse material using a carriage service (contrary to s 474.22(1) of the Criminal Code (Cth)) and one related State count of possessing child abuse material (contrary to s 91H(2) of the Crimes Act 1900 (NSW)). The offending occurred on 29 November 2022, when the applicant transmitted graphic images and deeply disturbing text messages to four women unknown to him. A further image discovered on his phone at the time of his arrest on 13 December 2022 formed the basis of the possession charge.
The District Court sentenced the applicant to a fixed term of 12 months imprisonment for the State offence, and 3 years and 9 months imprisonment for the Commonwealth offence, with a non-parole period of 2 years and 4 months. The sentences were partially accumulated. The applicant sought leave to appeal, arguing the sentencing judge had erred in assessing objective seriousness and that the total sentence was manifestly excessive.
The applicant had a troubled background, including a chaotic upbringing with a mother who had schizophrenia, significant drug use from a young age, a serious motorcycle accident in 2017 that led to opiate dependence, and a diagnosis of bipolar affective disorder. Two forensic psychiatric reports from Dr Richard Furst were tendered in support of his appeal.
Legal Issues
- Whether the sentencing judge erred in treating the applicant's motivation for the offending as increasing its objective seriousness
- Whether the sentencing judge erred by failing to consider the causative role of the applicant's mental health in his motivation to offend
- Whether the sentence imposed was manifestly excessive
Decision
Ground 1: Objective seriousness and mental health
The Court of Criminal Appeal found no error in the sentencing judge's approach to objective seriousness. The offending was assessed as moderately serious, involving the transmission of a large volume of genuinely exploitative material, extremely graphic text messages, and harmful intent directed at four separate women. The Court accepted that the applicant's mental illness was considered in mitigation, but rejected the argument that it was ignored in relation to his motivation or that the sentencing judge impermissibly elevated objective seriousness by reference to motivation alone.
Rigg J noted that the sentencing judge had engaged with the psychiatric evidence and the causative role of the applicant's mental state. The mental illness confirmed this was not carefully planned criminality, and the applicant had a reduced understanding of the consequences of his conduct compared to a person acting without such impairment. Nevertheless, the Court found this did not translate into a reviewable error in the objective seriousness assessment.
Ground 2: Manifest excess
The Court acknowledged that the sentence was stern, particularly given the applicant's presenting mental illness at the time of the offending, the extent to which it was out of character, and his expressions of remorse. However, the Court was not persuaded that a 5-year starting point for the Commonwealth offence (before the guilty plea discount) was unreasonable or plainly unjust against a maximum of 15 years imprisonment.
The Court also noted that the applicant had breached three forms of conditional liberty through drug use, with a known history of drug use escalating his mental illness. While sentencing statistics showed most comparable sentences were less severe, the Court observed that such comparisons carry limited weight in the absence of knowledge of the full circumstances of those other cases. General deterrence retained a role in the sentencing exercise, and the total effective sentence was not regarded as manifestly excessive.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge's consideration of an offender's motivation does not automatically constitute an error if that motivation is relevant to the nature and circumstances of the offending; the question is whether objective seriousness was assessed correctly in all the circumstances.
- Where an offender's mental illness is reflected in the objective circumstances of the offending (such as reduced planning and impaired judgment), the sentencing court must engage with psychiatric evidence, but this engagement does not require the sentence to be reduced to a level inconsistent with the gravity of the conduct.
- In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that sentencing statistics, standing alone, are insufficient to establish manifest excess where the circumstances of the comparable cases are not known.
- Partial accumulation of sentences for related Commonwealth and State offences was upheld where the offences, though connected, were treated as legally distinct.
- Breach of multiple forms of conditional liberty through continued drug use, in the context of a known history linking drug use to mental illness deterioration, remained an aggravating feature relevant to the overall sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), s 474.22(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1914 (Cth)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499
- Lazarus v R [2023] NSWCCA 214; 380 FLR 228
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Noonan v R [2020] NSWCCA 346
- R v Hutchinson [2018] NSWCCA 152
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460