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Court of Criminal Appeal 10 December 2025

Stuckey v R

[2025] NSWCCA 216

Theft & property
CRIME APPEAL AGAINST SENTENCE MISAPPLICATION OF PRINCIPLE IRRELEVANT CONSIDERATIONS ERROR AT SENTENCE APPEAL AGAINST SENTENCE

Citation: Stuckey v R [2025] NSWCCA 216
Court: Court of Criminal Appeal, New South Wales
Date: 10 December 2025
Judges: Mitchelmore JA, Ierace J, McNaughton J

Background

The applicant, a 31-year-old man, pleaded guilty in the Local Court to three offences: specially aggravated break, enter and commit serious indictable offence (larceny); break, enter and commit serious indictable offence (larceny); and robbery armed with an offensive weapon. Three further offences were referred to the District Court by way of a section 166 Certificate, and three additional offences were listed on two Form 1s.

On 13 December 2024, the sentencing judge in the District Court at Nowra imposed an aggregate sentence of six years and nine months imprisonment, with a non-parole period of four years and two months. The sentence was backdated to 29 September 2023.

The applicant sought leave to appeal on the single ground that the sentencing judge had incorrectly taken his criminal history into account when assessing the objective seriousness of the break and enter offences.

  • Whether the sentencing judge erred by considering the applicant's criminal history as a factor in assessing the objective seriousness of the break and enter offences.
  • Whether, if error was established, the Court of Criminal Appeal should re-exercise the sentencing discretion and impose a lesser aggregate sentence.

Decision

The Court of Criminal Appeal found that the sentencing judge did err. The error arose from unqualified reliance on R v Ponfield (1999) 49 NSWLR 327, which the sentencing judge applied in a way that allowed the applicant's criminal history to bear upon the objective seriousness of the break and enter offences. This is an established principle of sentencing law: criminal history is relevant to factors such as the weight given to prospects of rehabilitation and general deterrence, but it does not increase the objective gravity of an offence itself.

Because error was established, the Court re-exercised the sentencing discretion afresh. On that re-exercise, the Court identified one specific error in the original sentences: the indicative sentence for the Bomaderry break and enter offence was too high. That offence was assessed as below mid-range, yet the sentencing judge had imposed a sentence close to the jurisdictional maximum of 24 months. The Court indicated a corrected sentence of 8 months (after a 25% discount for the early guilty plea).

Despite that correction, the Court found that no lesser aggregate sentence was warranted. The offending spanned one week and involved an armed robbery, two break and enter offences (one specially aggravated), a specially aggravated break and enter in the presence of persons with a dangerous weapon, and two stealing offences. The Court described this as a significant episode of overall criminality requiring meaningful notional accumulation. The applicant's mild cognitive impairment was acknowledged as reducing his moral culpability to some degree, but the overall picture of his subjective case was characterised as largely unremarkable.

The Court also noted that the discount applied to the non-parole period to reflect special circumstances had been relatively generous, and that the applicant's criminal history meant his case attracted little leniency in the overall balance. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court commits error when it takes an offender's criminal history into account in assessing the objective seriousness of an offence. Criminal history is a subjective factor, relevant to matters such as rehabilitation and general deterrence, not a measure of how serious the offence itself was.
  • Unqualified reliance on R v Ponfield as authority for using criminal history to elevate objective seriousness is an error. The Court of Criminal Appeal applied AA v R [2024] NSWCCA 132 and MacBlane v R [2025] NSWCCA 52 in confirming this position.
  • Where error in sentencing is established, the appellate court re-exercises the discretion afresh rather than simply identifying the error and returning the matter to the lower court.
  • In dismissing the appeal despite the identified error, the Court confirmed that a lesser aggregate sentence is not automatically warranted simply because an error occurred. The overall nature and volume of the offending remained the dominant consideration.
  • An indicative sentence that approaches the jurisdictional ceiling for a below mid-range offence will itself constitute error, as demonstrated by the Court's correction of the Bomaderry offence indicative sentence from 15 months to 8 months (after discount).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 166, 168
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 33, 54B

Cases
- AA v R [2024] NSWCCA 132
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Dickinson v R [2016] NSWCCA 301
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Hawat v R [2020] NSWCCA 121
- Kelly v R [2017] NSWCCA 82
- Lovell v R [2006] NSWCCA 222
- MacBlane v R [2025] NSWCCA 52
- McCabe v R [2016] NSWCCA 7
- R v Dawson [2022] NSWSC 1632
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Ponfield (1999) 49 NSWLR 327; [1999] NSWCCA 435