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Court of Criminal Appeal 7 November 2025

Breen v R

[2025] NSWCCA 182

Homicide

Citation: Breen v R [2025] NSWCCA 182
Court: Court of Criminal Appeal
Date: 7 November 2025
Judge(s): Stern JA (with N Adams J and Chen J agreeing)

Background

The applicant pleaded guilty in 2015 to two counts of murder arising from events on 29 March 2013. The victims were his father and his father's partner. The applicant was 26 years old at the time of the offending.

At first instance, the sentencing judge imposed 37 years (non-parole period of 28 years) for count one and 34 years (non-parole period of 26 years) for count two, with the sentences partially accumulated to produce a total effective sentence of 42 years and a non-parole period of 33 years. No discount was given for the guilty plea. In sentencing for count two, the judge also took into account nine further offences on a Form 1, all committed on the same day.

Nearly a decade later, the applicant sought an extension of time and leave to appeal against those sentences. The Crown did not oppose either the extension or leave, and ultimately conceded that three of the four grounds of appeal were made out and that resentencing was appropriate.

  • Whether the sentencing judge erred in treating multiple victims and a series of criminal acts as an aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that the judge had already sentenced for two counts of murder
  • Whether further sentencing errors arose on grounds two to four (as conceded by the Crown), sufficient to vitiate the original exercise of the sentencing discretion
  • On resentence: the appropriate weight to give the nine Form 1 offences, the applicability of statutory aggravating factors, whether any guilty plea discount should be applied, and the correct non-parole period ratio

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, accepted the Crown's concessions on grounds two to four, and proceeded to resentence the applicant afresh in accordance with the High Court's approach in Kentwell v The Queen (2014) 252 CLR 601. Because the conceded errors were sufficient to require resentencing, the Court did not need to examine the first ground of appeal.

On resentence, the Court accepted the original sentencing judge's findings of fact and her assessment of objective seriousness. Two statutory aggravating factors applied: the offences were committed in the victims' home and in the presence of children under 18. The Court found there was an element of planning and a trajectory leading to the offending, though the offences were not the product of a plan hatched well in advance.

The nine Form 1 offences, carrying combined maximum penalties of 147 years' imprisonment, required materially greater weight to be given to the principles of general deterrence and retribution when fixing the sentence for count two. The Court adopted the original findings on remorse and rehabilitation prospects, but noted that the applicant's continued in-custody behaviour, including outbursts and thoughts of harming others, did not support a conclusion that rehabilitation prospects had improved since sentencing.

Consistent with the approach in Thomson and Milat, the Court declined to apply any guilty plea discount. The offending was characterised as so heinous that the community interest in retribution, punishment, protection, and deterrence could only be met by imposing the full sentence. The Court applied the standard statutory non-parole period ratio of 75%. In its instinctive synthesis, the Court considered a slightly higher head sentence would have been warranted, but following the Court's usual practice, declined to exceed the original head sentence. The resulting aggregate sentence of 42 years was unchanged, but the non-parole period was reduced from 33 years to 31 years and 6 months.

Orders Made

  • Extension of time and leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Mathews AJ on 25 November 2015 quashed
  • Applicant resentenced to an aggregate term of imprisonment of 42 years, commencing 29 March 2013 and expiring 28 March 2055, with a non-parole period of 31 years and 6 months commencing 29 March 2013 and expiring 28 September 2044

Key Takeaways

  • The Court of Criminal Appeal confirmed that where the Crown concedes sentencing errors had the capacity to affect the exercise of the sentencing discretion, the Court will proceed to resentence afresh, following the High Court's direction in Kentwell v The Queen.
  • A guilty plea discount may be withheld under s 22(1A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the offending is of such heinousness that the community interest in retribution, punishment, protection, and deterrence can only be met by imposing the full penalty, consistent with R v Thomson; R v Houlton and Milat v R; Klein v R.
  • Form 1 offences carrying combined maximum penalties of 147 years' imprisonment required materially greater weight to be given to general deterrence and retribution in fixing the head sentence for the principal offence to which they were attached.
  • The Court applied the standard statutory non-parole period ratio of 75% and found no basis to depart from it, producing a reduction in the non-parole period even where the head sentence remained the same.
  • In-custody behaviour after the original sentencing, including continued outbursts and thoughts of harming others, was relevant on resentence and weighed against a finding of improved rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(2)(ea), 21A(2)(eb), 21A(2)(m), 22, 22(1A), 32, 44(2), 53A, 61(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Milat v R; Klein v R [2014] NSWCCA 29
- Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen [2013] NSWCCA 115; 231 A Crim R 413
- RO v R [2019] NSWCCA 183
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- Turnbull v R [2019] NSWCCA 97
- LN v R [2020] NSWCCA 131
- Ghalbouni v R [2020] NSWCCA 21
- Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295