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Court of Criminal Appeal 26 November 2025

R v Sabbah

[2025] NSWCCA 203

Sexual offencesAssault & violenceDomestic & family violence
SENTENCED

Citation: R v Sabbah [2025] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 26 November 2025
Judges: Free JA, N Adams J (principal judgment), Sweeney J

Background

A jury convicted the respondent in December 2024 on ten counts of serious domestic violence offences committed against his then-wife over a nine-month period from April 2022 to January 2023. The offences arose from nine separate incidents and comprised four counts of sexual intercourse without consent, four counts of intentional choking without consent (contrary to s 37(1A) of the Crimes Act 1900 (NSW)), and two counts of assault occasioning actual bodily harm.

In April 2025, the sentencing judge in the District Court imposed an aggregate term of 5 years and 3 months' imprisonment with a non-parole period of 3 years and 3 months for seven of the counts. The remaining counts and two related offences on a s 166 Certificate were dealt with by Community Corrections Orders (CCOs) of 12 and 9 months. Those CCOs were structured so that they would expire before the non-parole period ended.

The Crown appealed to the Court of Criminal Appeal on four grounds: that the aggregate sentence and the CCOs were manifestly inadequate, and that the sentencing judge made patent errors in assessing the objective seriousness of the choking offences and in finding the respondent had good prospects of rehabilitation.

  • Whether the sentencing judge erred in assessing the objective seriousness of the four choking offences contrary to s 37(1A) of the Crimes Act 1900 (NSW)
  • Whether the sentencing judge erred in finding that the respondent had good prospects of rehabilitation despite maintaining his innocence and showing no remorse
  • Whether the aggregate custodial sentence was manifestly inadequate
  • Whether the imposition of CCOs for three domestic violence offences was manifestly inadequate, and whether the sentencing judge failed to provide reasons or consider the victim's safety as required by ss 4A, 4B and 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether new evidence tendered on appeal was admissible on the question of the residual discretion and re-sentencing
  • Whether the residual discretion against intervention should be exercised despite the respondent's difficult time in custody and poor health

Decision

Objective seriousness of the choking offences (Ground 3): The Court held that the sentencing judge had erroneously taken into account the respondent's subsequent apology to reduce the objective seriousness of one choking count. More broadly, the sentencing judge made no reference to the respondent's motivation to scare, coerce, or control the victim, nor to the domestic context of the offending. Those factors were directly relevant to objective seriousness. It was not open to find the choking offences fell in the "low range" or "below the mid-range" of objective seriousness. On re-sentence, the Court assessed those offences as falling in the mid-range and slightly above the mid-range.

Rehabilitation prospects (Ground 4): The Court confirmed that a finding of good rehabilitation prospects remains available to a sentencing judge even where an offender maintains innocence, but such a finding requires clear evidentiary support when remorse is entirely absent. Here, the sentencing judge made the finding without addressing the respondent's lack of insight, without identifying the relevant risk factors, and without explaining how those risks could be addressed. The finding was not open on the available evidence.

Manifest inadequacy of the aggregate sentence (Ground 1): The indicative sentences for the four sexual assault counts were manifestly inadequate. The sentencing judge also allowed excessive notional concurrency within the aggregate sentence, which was not justified given the multiple episodes of serious sexual and violent offending across nine separate incidents.

The Community Corrections Orders (Ground 2): The sentencing judge failed to give reasons for imposing CCOs rather than full-time detention or a supervised order, did not consider the safety of the victim as required by ss 4A and 4B of the Crimes (Sentencing Procedure) Act 1999 (NSW), and made no finding as to why the s 5 threshold (requiring full-time imprisonment unless another sentence is more appropriate) was not crossed. In practical effect, the CCOs imposed no punishment at all for three domestic violence offences. The Court also observed that sentencing judges should exercise caution before mitigating a domestic violence offence on the basis of lack of planning, particularly where the offending is ongoing, as the absence of premeditation is typical of this class of offending and is of negligible significance.

Residual discretion and re-sentence: The Court admitted new evidence relevant to the respondent's health and custodial circumstances, finding it would cause unfairness to exclude it. While accepting that the respondent had experienced a difficult period in custody and suffered from poor mental and physical health, the Court declined to exercise the residual discretion against intervening. The inadequacy of the original sentence was so marked as to amount to an affront to the administration of justice. The Court re-sentenced the respondent, mitigating the sentence to a limited degree on account of the particularly onerous conditions of his custody given his mental and physical state.

Orders Made

  • The Crown appeal was allowed.
  • The aggregate sentence of imprisonment imposed by David DCJ on 28 April 2025 was quashed.
  • All five Community Corrections Orders were quashed.
  • In lieu of the above, the respondent was sentenced to an aggregate term of 9 years' imprisonment, comprising a non-parole period of 6 years commencing 29 November 2024 and expiring 28 November 2030, with a balance of term of 3 years expiring 28 November 2033.
  • The earliest date of eligibility for parole is 28 November 2030.

Key Takeaways

  • A sentencing judge cannot reduce the objective seriousness of a choking offence by reference to a subsequent apology; objective seriousness is assessed at the time of the offence, and the respondent's motivation to coerce and control the victim in a domestic context is a directly relevant factor.
  • Good prospects of rehabilitation can be found even where an offender maintains innocence, but where remorse is entirely absent the finding requires clear evidential support, including consideration of the offender's insight and the identification of specific risk factors and pathways to address them.
  • Under ss 4A, 4B and 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge imposing a non-custodial order for domestic violence offences must give reasons for that choice, address the victim's safety, and make findings as to why the full-time imprisonment threshold is not crossed.
  • In dismissing the residual discretion argument, the Court of Criminal Appeal confirmed that where the inadequacy of a sentence is so marked as to affront the administration of justice, the fact that an offender has endured a difficult period in custody and suffers poor health will not ordinarily be sufficient to prevent intervention.
  • Lack of planning carries negligible mitigating weight in ongoing domestic violence offending, as the absence of premeditation is characteristic of that class of offence rather than a factor that meaningfully distinguishes any individual instance of it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37(1A), 37(1), 59(1), 61, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 4B, 5(1), 21A(2), (3)
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3), 12
- Criminal Procedure Act 1986 (NSW), s 166

Key Cases:
- GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Alseedi v R