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Court of Criminal Appeal 27 October 2025

MAB v R

[2025] NSWCCA 171

Public order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED

Citation: MAB v R [2025] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 27 October 2025
Judges: Stern JA; Garling J; Sweeney J

Background

The applicant, referred to as MAB, pleaded guilty to two offences of attempting to cause a person under 18 to enter into a forced marriage, contrary to the Criminal Code (Cth). The victims were his 17-year-old son and 15-year-old daughter. These are Commonwealth offences, meaning federal sentencing principles applied.

In October 2024, Judge Traill of the District Court sentenced MAB to 2 years and 3 months imprisonment for the offence involving his son, and 2 years and 6 months for the offence involving his daughter. Both sentences incorporated a 25% discount for guilty pleas. The overall effective sentence was 3 years and 4 months, with a non-parole period of 1 year and 11 months.

MAB sought leave to appeal against sentence on five grounds, arguing variously that the sentencing judge mishandled a Victorian County Court decision, misapplied cultural practice considerations, incorrectly assessed moral culpability, and failed to give proper weight to pre-sentence report recommendations that he was suitable for a Community Corrections Order.

  • Whether the sentencing judge erred by adjourning the proceedings to consider a Victorian County Court decision on a related offence type
  • Whether s 16A(2A) of the Crimes Act 1914 (Cth) precluded a reduction in moral culpability based on cultural practice, or alternatively required such a reduction to be made
  • Whether the principle from Muldrock v The Queen (concerning standard non-parole periods) had broader application to the assessment of moral culpability in federal sentencing
  • Whether the NSW Court of Criminal Appeal should follow intermediate appellate decisions from other states on the interpretation of s 16A(2A)
  • Whether the sentencing judge erred in declining to impose a Community Corrections Order despite pre-sentence reports recommending that option

Decision

Ground 1 (adjournment for Victorian decision): The Court found this ground was flatly contradicted by the transcripts. The parties had themselves agreed at the sentence proceedings that the Victorian County Court decision in Commonwealth Director of Public Prosecutions v Jan [2024] VCC 1122 should not serve as a guidepost for sentencing MAB. No error arose from the judge's approach.

Grounds 2, 3 and 4 (cultural practice and moral culpability): The majority (Sweeney J, Stern JA agreeing) found the sentencing judge had in fact accepted that the applicant's moral culpability was reduced somewhat due to the accepted cultural practice of arranged marriages. The submission that the judge had increased his moral culpability had no factual basis. Drawing on the Victorian Court of Appeal's decision in Jan v Director of Public Prosecutions (Cth) [2025] VSCA 43, the majority confirmed that the Muldrock principle, which limits assessment of offence seriousness to the nature of the offending, is referable only to standard non-parole periods and has no broader application. Section 16A(2A) is not confined to objective seriousness; it also extends to the offender's moral culpability.

Garling J reached the same result on these grounds but for a narrower reason. His Honour held that the evidence before the sentencing judge was wholly insufficient to establish any cultural practice falling within s 16A(2A). The applicant gave no sworn evidence on the point. The forensic psychologist's report merely recorded what the applicant told her and she had no expertise in Punjabi or Pakistani cultural practices. A character reference from a childhood friend described the applicant's behaviour toward his children as "strict and cruel" and expressed personal disbelief at the charges, which was inconsistent with the existence of a contemporaneous cultural norm. Because no such factual finding was made, and none was even formally sought at the sentencing hearing, no criticism of the judge's approach was available. Garling J found it unnecessary to express any view on the correctness of the reasoning in Jan.

On the question of following interstate intermediate appellate decisions, the majority affirmed that consistency in sentencing federal offenders across Australia requires this Court to follow decisions of intermediate appellate courts in other states and territories unless there are compelling reasons not to do so. No such compelling reasons were demonstrated here in respect of the Jan decision.

Ground 5 (Community Corrections Order): The sentencing judge had expressly considered s 17A of the Crimes Act 1914 (Cth), which requires a court to be satisfied that no other sentence is appropriate before imposing imprisonment. Her Honour weighed the pre-sentence reports, the maximum penalties, and her assessment that the offending fell in the mid-range of seriousness, before concluding that only a custodial sentence was appropriate. The Court found no error in that conclusion, noting that a Community Corrections Order would have been an inadequate sentence for offending of that character.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Upholding the sentences below, the Court of Criminal Appeal confirmed that a sentencing judge's actual reasoning must be examined against the record: a ground of appeal premised on a misreading of the transcript will not succeed.
  • Under s 16A(2A) of the Crimes Act 1914 (Cth), the factors a court must consider in sentencing a federal offender are not confined to the objective seriousness of the offence; they extend to the offender's moral culpability, including the potential relevance of cultural practice as a mitigating factor.
  • The Muldrock principle, that offence seriousness is assessed by reference only to the nature of the offending, applies only in the context of standard non-parole periods and does not have broader application to federal sentencing generally.
  • A claim that cultural practice reduced moral culpability requires a proper evidentiary foundation. Statements recorded in a psychologist's report, where the psychologist had no expertise in the relevant cultural context and the applicant gave no sworn evidence, were insufficient to establish the factual premise.
  • In achieving consistency in federal sentencing across Australia, the NSW Court of Criminal Appeal will follow decisions of intermediate appellate courts in other states and territories absent compelling reasons to depart, consistent with the High Court's direction in Hili v The Queen and The Queen v Pham, and the language of "compelling reasons" endorsed in Landlease Corporation Ltd v Pallas.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 15YR, 16A, 17A
- Criminal Code (Cth), ss 11.1(1), 270.7B(1), 270.8

Cases
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Landlease Corporation Ltd v Pallas [2025] HCA 19; (2025) 99 ALJR 834
- Commonwealth Director of Public Prosecutions v Jan [2024] VCC 1122
- Jan v Director of Public Prosecutions (Cth) [2025] VSCA 43
- Moriarty v Nye (2024) 114 NSWLR 560; [2024] NSWCCA 116
- Chief Commissioner of State Revenue (NSW) v Uber Australia Pty Ltd [2025] NSWCA 172