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29
Court of Criminal Appeal 12 December 2025

Hancock v R

[2025] NSWCCA 213

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE APPEALS

Citation: Hancock v R [2025] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 12 December 2025
Judges: Bell CJ; Ward P; Payne JA; N Adams J; Yehia J

Background

The applicant, a stepfather, was sentenced on 1 November 2024 by McGrath SC DCJ to an aggregate term of 9 years' imprisonment with a non-parole period of 6 years. The sentence was imposed for three offences of sexual intercourse with his 13-year-old stepdaughter, contrary to s 66C(2) of the Crimes Act 1900 (NSW). A fourth count was taken into account on a Form 1 (a procedure allowing related offences to be acknowledged at sentencing without a separate conviction).

The victim was an orphan whose biological parents had both died. She and her siblings lived partly with the applicant and partly with an aunt. The offending occurred in the family home, where the applicant held the only remaining parental role in the victim's life.

The applicant sought leave to appeal against sentence on two grounds: first, that the sentencing judge wrongly found the charged conduct occurred against a background of similar offending over approximately 12 months; and second, that the sentence was manifestly excessive.

  • Whether the long-standing R v O'Donoghue test for appellate review of factual findings in sentence appeals should continue to be applied, or whether it is inconsistent with the House v The King standard.
  • What the correct test is for identifying a "mistake of fact" within the meaning of House v The King in the context of a sentence appeal.
  • Whether the sentencing judge made a factual error in finding that the offences occurred against a background of similar offending.
  • Whether the aggregate sentence of 9 years was manifestly excessive.

Decision

The O'Donoghue test is overruled. The Court identified a fundamental inconsistency between the test from R v O'Donoghue (1988) 34 A Crim R 397 and the governing standard in House v The King (1936) 55 CLR 499. The O'Donoghue test permitted appellate intervention on factual grounds only where there was no evidence to support a finding, the evidence was all one way, or the judge had misdirected himself. The Court held that this is, in substance, an error-of-law standard, and is more stringent than House v The King, which requires intervention wherever a sentencing judge "mistakes the facts."

The correct test going forward is whether the factual finding was "reasonably open." If a finding of primary fact, or an inference drawn from primary fact, was not reasonably open on the evidence, the sentencing judge has mistaken the facts within the meaning of House v The King. The Court emphasised that, for appellate intervention to follow, the error must also be material. Existing principles remain undisturbed, including appellate restraint over demeanour-based credibility findings, the treatment of ex tempore reasons, and the evidentiary weight given to various types of sentencing evidence.

Ground 1 was rejected. The sentencing judge's finding that the offending occurred against a background of similar conduct was reasonably open. His Honour correctly recited the agreed statement of facts and his finding was properly understood as a conclusion that the applicant was not entitled to have the three charges treated as isolated incidents. No mistake of fact within the House v The King meaning was established.

Ground 2 was also rejected. The Court found no misapplication of principle by the sentencing judge. The offending was serious and involved an egregious breach of trust by the only remaining parental figure in the victim's life. The applicant's favourable subjective case, including demonstrated rehabilitation, was taken into account. Indicative sentences of five, six, and six years for the three counts, resulting in an aggregate of nine years with considerable notional concurrency, did not reveal error. The sentence was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal held that R v O'Donoghue should no longer be followed as the test for appellate review of factual findings in sentence appeals, because it imposes a more stringent standard than House v The King requires.
  • The correct test for a "mistake of fact" under House v The King in sentence appeals is now whether the finding was "reasonably open" on the evidence, applied to findings of primary fact and inferences drawn from them.
  • Existing sentencing appeal principles remain intact: appellate courts retain their traditional restraint regarding demeanour-based credibility findings, ex tempore reasons, and the materiality requirement for factual error.
  • No error was established where a sentencing judge, having correctly recited an agreed statement of facts in ex tempore reasons, found that offending was not isolated but occurred against a background of similar conduct.
  • In dismissing the manifest excess ground, the Court affirmed that an aggregate sentence of 9 years for three counts of penile-vaginal sexual intercourse with a 13-year-old stepdaughter was within the range, even accounting for significant subjective mitigation including demonstrated rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Appeal Act 1912 (NSW), ss 5F, 6
- Evidence Act 1995 (NSW), s 4
- Supreme Court Act 1970 (NSW), s 75A

Key Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v O'Donoghue (1988) 34 A Crim R 397
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hughes v R [2018] NSWCCA 2
- Button v R [2025] NSWCCA 191
- Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
- Commonwealth of Australia v Sanofi [2024] HCA 47