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Court of Criminal Appeal 21 November 2025

Richardson v R

[2025] NSWCCA 197

Sexual offences

Citation: [2025] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 21 November 2025
Judge(s): Kirk JA; Free JA; Rigg J

Background

The applicant pleaded guilty to five counts of sexual intercourse without consent and one count of intentionally recording intimate images without consent, all arising from a single incident in Newcastle in March 2023. The complainant, who had been celebrating her 20th birthday at a local hotel, met the applicant after being evicted due to intoxication. She accompanied him to his house, where she consumed further alcohol and cannabis provided by the applicant, leaving her severely intoxicated and unable to consent to the sexual acts that followed.

The applicant engaged in a range of non-consensual and degrading sexual acts with the complainant over the course of that night, some of which he filmed. Three additional related offences were taken into account on Form 1 attachments. The applicant was entitled to a 25% sentencing discount for his early guilty pleas.

At first instance in the District Court, McGrath DCJ imposed an aggregate sentence of 13 years imprisonment with a non-parole period of 8 years 6 months. The applicant sought leave to appeal to the Court of Criminal Appeal on three grounds.

  • Whether the sentencing judge erred by failing to give sufficient weight to the applicant's disadvantaged background, including a history of childhood violence, sexual abuse, and abandonment.
  • Whether the sentencing judge erred by failing to assess the applicant's risk of reoffending and prospects of rehabilitation.
  • Whether the aggregate sentence of 13 years was manifestly excessive having regard to the totality of the criminality involved.

Decision

Ground 1: Disadvantaged background. The applicant argued that the sentencing judge expressed an erroneous legal principle by treating the applicant's generally clean criminal record as creating a tension with the causal significance of his disadvantaged background under the principles in Bugmy v The Queen (2013) 249 CLR 571. The Court of Criminal Appeal rejected this characterisation. His Honour was not stating any principle of law; he was simply noting, understandably, a factual tension between the asserted causal connection and the applicant's otherwise limited criminal history. The sentencing judge had considered the Bugmy factors, and no legal error was established. Ground 1 was rejected.

Ground 2: Risk of reoffending and rehabilitation. The applicant contended that the sentencing judge failed to assess his prospects of rehabilitation and likelihood of reoffending, even though no submissions on these matters had been put to the sentencing court. The Court held that, where no relevant submissions were advanced and the sentencing judge was not invited to make findings on these matters, the absence of express consideration in the sentencing remarks carries no legal significance. An appellate court will not find error in the failure to address factors that were never placed in issue at first instance. Ground 2 was rejected.

Ground 3: Manifest excess. Both parties accepted that the critical question was whether the aggregate sentence adequately reflected the totality principle. The Court found that, while the offending was undeniably serious, all offences occurred within a single incident, over a relatively short period, and in the same circumstances of the complainant's vulnerability. The applicant had no prior history of similar offending, and there was therefore significant overlap between the individual counts. Comparison with analogous cases confirmed the aggregate sentence was manifestly excessive. Ground 3 was upheld, and the Court resentenced the applicant to an aggregate term of 8 years 6 months imprisonment with a non-parole period of 5 years 6 months.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • The sentence imposed in the District Court on 19 July 2024 was quashed.
  • In its place, an aggregate term of 8 years 6 months imprisonment was imposed, with a non-parole period of 5 years 6 months, commencing 20 April 2023.
  • The applicant becomes eligible for parole on 19 October 2028.

Key Takeaways

  • A sentencing judge's observation that there is tension between an applicant's disadvantaged background and his otherwise limited criminal history does not amount to a misstatement of legal principle, provided the judge has in fact engaged with the relevant Bugmy considerations.
  • Where no submissions are advanced to the sentencing court on a mitigating factor (such as low risk of reoffending or prospects of rehabilitation), the absence of any express finding on that factor in the sentencing remarks does not constitute appellate error.
  • Under the totality principle, multiple serious offences arising from a single incident, in the same circumstances of vulnerability and over a short timeframe, warrant a substantial degree of concurrency in the resulting aggregate sentence.
  • Comparison with analogous sentencing decisions remains a legitimate and important tool in assessing whether an aggregate sentence is manifestly excessive.
  • In resentencing, the Court of Criminal Appeal identified special circumstances justifying non-parole periods shorter than the standard, partly on the basis that the applicant would benefit from extended supervision and support following release.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW), ss 61I, 91P(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- Meoli v R [2021] NSWCCA 213
- Rahman v R [2023] NSWCCA 148
- Taylor v R [2018] NSWCCA 255
- Wan v R; R v Wan [2019] NSWCCA 86
- R v Jackson [2024] NSWCCA 156
- Engert v R (1995) 84 A Crim R 67
- Kim v R [2018] NSWCCA 254
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Baker v R [2022] NSWCCA 195
- Davidson v R [2022] NSWCCA 153
- JM v R [2014] NSWCCA 297
- MJR v R [2025] NSWCCA 51
- Weiss v R [2020] NSWCCA 188