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Court of Criminal Appeal 3 November 2025

Lawlis v R

[2025] NSWCCA 183

Theft & property
CRIME APPEALS APPEAL AGAINST SENTENCE APPEAL ALLOWED RESENTENCE

Citation: [2025] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 3 November 2025
Judge(s): Kirk JA, Sweeney J, Coleman J

Background

The appellant was sentenced in the District Court on 12 September 2024 for two aggravated break, enter and steal offences committed at residential properties in November 2020 and January 2021. Each involved entering homes where occupants were present, and the stolen property included motorcycles and a Volkswagen Golf. The appellant also faced four related vehicle theft offences, which the sentencing judge described as the fruits of the break and enters.

Judge Abadee imposed an aggregate sentence of 3 years and 4 months imprisonment with a non-parole period of 1 year and 8 months. A 5% guilty plea discount applied, reflecting pleas entered 10 days before trial. The appellant was 21 at the time of the offences and 25 at sentence.

The appellant is an Indigenous man with a difficult background. His father was incarcerated for much of his childhood, and he was sexually abused by a juvenile detention officer at around age 14 or 15. He developed substance dependence, including on crystal methamphetamine, largely as a response to that trauma, and committed the offences to fund his drug use. Psychiatric evidence diagnosed him with substance use disorder, complex trauma symptoms, post-traumatic stress disorder and an intellectual disability.

  • Whether the sentencing judge erred by finding that general deterrence weighed heavily on the sentence, given the appellant's age, background and reduced moral culpability
  • Whether the sentencing judge erred by treating community protection as a factor that weighed against the appellant
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal allowed the appeal, finding error in the sentencing judge's approach to general deterrence. The sentencing judge had, in the same remarks, correctly acknowledged that youth ordinarily diminishes the weight of general deterrence and elevates rehabilitation, and then found that general deterrence nonetheless weighed heavily. The Court found those positions were irreconcilable on the facts as found. The applicable principles, drawn from cases including De La Rosa and Bugmy, required a material reduction in the weight given to general deterrence where, as here, the offending was linked to addiction rooted in a traumatic background and the offender's culpability was thereby reduced.

Given that error was established on Ground 1, the Court also found the sentence was manifestly excessive, which made it unnecessary to separately resolve Ground 2 concerning community protection. The Court proceeded to resentence the appellant.

On resentencing, the Court assessed the two principal offences as below mid-range in objective seriousness, noting moderate but unsophisticated planning, offending in company, and the absence of any aggravating finding that the appellant personally entered the second dwelling. The Court applied the principles from Bugmy and De La Rosa to give meaningful weight to the appellant's reduced moral culpability, his youth at the time of offending, and his genuine prospects for rehabilitation, including that he had been drug-free since his earlier release from custody and was motivated by the birth of his daughter.

The Court arrived at an aggregate sentence of 28 months and 3 weeks. It considered that an Intensive Corrections Order (ICO) was more appropriate than full-time custody, being more likely to address reoffending risk and advance community safety. After deducting the 13 months and 3 weeks the appellant had already served since his District Court sentence, the Court imposed a sentence of 15 months imprisonment to be served by ICO, commencing on 3 November 2025.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 12 September 2024 quashed
  • Appellant sentenced to 15 months imprisonment, commencing 3 November 2025 and expiring 2 February 2027, to be served by way of an Intensive Corrections Order under s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Standard ICO conditions imposed: no further offences; submission to supervision by a Community Corrections Officer
  • Additional conditions: participation in programs and treatment for trauma and substance abuse issues as directed by treating doctors; no illicit drugs or unprescribed drugs for the term of the order
  • Appellant to report to the nearest Community Corrections Office within 48 hours of release from custody

Key Takeaways

  • Where a sentencing court correctly identifies that youth reduces the weight of general deterrence and elevates rehabilitation, it cannot then find that general deterrence weighs heavily without producing an irreconcilable contradiction in its reasoning.
  • The principles in Bugmy v The Queen (2013) 249 CLR 571 require that an offender's deprived and traumatic background be taken into account in assessing moral culpability, and that consideration is not diminished by the seriousness of the offending.
  • Under the framework in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, where drug addiction is found to be a product of circumstances beyond the offender's control rather than free choice, general deterrence is further reduced as a sentencing consideration.
  • An ICO is available and may be preferred over full-time custody where the court finds it better serves both rehabilitation and community safety, even for offences carrying significant maximum penalties.
  • In calculating an ICO term to credit time already served, the Court followed Mandranis v R [2021] NSWCCA 97 and Chan v R [2023] NSWCCA 206, deducting the period spent in custody from the aggregate sentence to produce the ICO term commencing on the resentencing date.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 7(1), 66, 71
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mandranis v R [2021] NSWCCA 97
- Chan v R [2023] NSWCCA 206
- Abdulrahman v R [2016] NSWCCA 192
- Ahmad v R [2021] NSWCCA 30
- Miller v R [2015] NSWCCA 86
- Parente v R [2017] NSWCCA 284
- Potts v R [2017] NSWCCA
- R v Maher [2004] NSWCCA 177
- Robertson v R [2017] NSWCCA 205
- Totaan v R [2022] NSWCCA 75