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Court of Criminal Appeal 19 December 2025

Oliver v R

[2025] NSWCCA 227

Assault & violenceHomicideTheft & property

Citation: Oliver v R [2025] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 19 December 2025
Judges: Kirk JA; McHugh JA; N Adams J

Background

The appellant pleaded guilty in the Supreme Court to the manslaughter of an acquaintance and to damaging property by means of fire in company. The offences arose from events on 26 July 2021 in the Newcastle region, when the appellant (aged 21 at the time) and a 17-year-old co-perpetrator travelled to the deceased's unit. The agreed facts established that the pair had agreed the co-perpetrator would assault the deceased, and that the appellant became aware en route that the co-perpetrator was armed with a knife. The appellant realised the assault carried an appreciable risk of serious injury but did not foresee that the co-perpetrator would intend to kill or cause grievous bodily harm. A fire was subsequently lit in the deceased's unit.

The sentencing judge in the Supreme Court sentenced the appellant to an aggregate term of 11 years' imprisonment with a non-parole period of 7 years, commencing 5 October 2022. The appellant sought leave to appeal on four grounds, challenging aspects of how the sentencing judge assessed objective seriousness, treated mental health evidence, and considered the appellant's status on conditional liberty at the time of the offences.

  • Whether the sentencing judge erred by taking into account the appellant's status on conditional liberty when assessing the objective seriousness of the offending (rather than treating it only as a separate aggravating factor personal to the offender).
  • Whether the sentencing judge was required to characterise objective seriousness by placing the manslaughter on a notional range or by description, and whether failing to distinguish between the appellant's and co-perpetrator's roles constituted inadequate reasoning.
  • Whether the sentencing judge applied inconsistent or erroneous approaches to causation when considering the appellant's mental health and psychosocial maturity as subjective factors in sentencing.
  • Whether the sentencing judge adequately explained the weight given to the appellant's reduced suitability as a vehicle for general deterrence.
  • Whether the original sentence was manifestly excessive.

Decision

Ground 4 (conditional liberty and objective seriousness): Appeal allowed. The Court confirmed the well-established principle that matters personal to an offender, including being on conditional liberty at the time of offending, cannot be taken into account when assessing the objective seriousness of an offence. While conditional liberty is a legitimate aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), it must be considered separately from objective seriousness. The sentencing judge had twice referred to the appellant's conditional liberty status under headings addressing objective seriousness. The Crown conceded this constituted error, and the Court agreed. Because resentencing was required on this ground, the Court did not formally determine the manifest excess ground, though the outcome on resentencing indicated it would not have succeeded independently.

Ground 1 (objective seriousness and adequacy of reasons): Not made out. There is no requirement for a sentencing judge to assess objective seriousness by reference to a notional range, and in manslaughter cases such an exercise is unlikely to be of much utility. It was sufficient for the sentencing judge to identify the relevant aggravating factors. On the adequacy of reasons, the Court held the sentencing judge was not required to explicitly compare the appellant's role with the uncharged co-perpetrator's role; his Honour sentenced the appellant on agreed facts that clearly set out each party's conduct, and was not sentencing both offenders together.

Ground 2 (mental health and subjective considerations): Not made out. The sentencing judge applied different causal frameworks to mental health concerns (requiring a demonstrated nexus with offending before reducing moral culpability) and psychosocial maturity (where a lesser causal connection suffices). The Court held this was not an error: the different approaches reflected the separate legal principles applicable to each factor. The sentencing judge was also not required to articulate a notional degree of weight assigned to the appellant's reduced suitability for general deterrence.

Resentencing. The Court noted one material change in circumstances since the original sentence: the appellant had completed a drug program in custody, remained drug-free for two years, and had not incurred any custodial charges since June 2024. These matters warranted a somewhat greater, if still guarded, assessment of rehabilitation prospects. The Court resentenced the appellant to an aggregate term of 10 years and 6 months' imprisonment with a non-parole period of 6 years and 6 months, commencing 5 October 2022.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentence imposed in the Supreme Court on 6 December 2024 quashed.
  • In lieu of the quashed sentence, the appellant sentenced to an aggregate term of imprisonment of 10 years and 6 months commencing 5 October 2022 and expiring 4 April 2033, with a non-parole period of 6 years and 6 months expiring 4 April 2029.
  • The appellant's legal representatives directed to advise him of the Crimes (High Risk Offenders) Act 2006 (NSW) and its application to the manslaughter offence, in compliance with s 25C of that Act.

Key Takeaways

  • Conditional liberty is a recognised aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but it is a matter personal to the offender and must be considered separately from the assessment of objective seriousness. Folding it into the objective seriousness analysis constitutes error.
  • In manslaughter sentencing, there is no requirement to place the offending on a notional range of seriousness or to describe it by reference to such a range. Identifying the relevant aggravating factors is a sufficient approach.
  • Where only one co-offender is before the court for sentencing, the sentencing judge is not required to explicitly distinguish that offender's role from that of an uncharged co-perpetrator, provided the sentence is imposed on an agreed factual basis that clearly records each party's conduct.
  • Different causal frameworks apply to mental health and to psychosocial disadvantage as subjective sentencing factors. A nexus between mental health conditions and offending behaviour is required before those conditions can reduce moral culpability, whereas the principles applicable to psychosocial disadvantage (following Bugmy v The Queen) do not demand the same level of causal connection.
  • Positive rehabilitation progress made after sentencing, including sustained participation in programs and an absence of further custodial charges, can constitute a material change in circumstances supporting a reduction in the sentence on resentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 25D(2)(b)(i)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes Act 1900 (NSW), ss 18(1)(b), 195(1A)(b)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DH v R [2022] NSWCCA 200
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Paterson v R [2021] NSWCCA 273
- Kelly v R [2021] NSWCCA 205
- Elhassan v R [2018] NSWCCA 118
- JL v R [2024] NSWCCA 246
- DG v R [2025] NSWCCA 137
- Evatt (A pseudonym) v R [2025] NSWCCA 130
- R v MJ [2023] NSWCCA 306
- *R