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Court of Criminal Appeal 5 March 2025

Jones v R

[2025] NSWCCA 28

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences

Citation: Jones v R [2025] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 5 March 2025
Judges: Leeming JA, Dhanji and Yehia JJ

Background

The applicant was sentenced in the District Court on 6 March 2020 to an aggregate term of 13 years imprisonment with a non-parole period of 8 years, backdated to 29 August 2018. The sentence covered a suite of serious offences committed in August 2018, shortly after his release on parole from earlier firearms convictions. The principal offending involved detaining a victim in company while occasioning actual bodily harm, theft of a motorcycle, two counts of demanding property with menaces in company with intent to steal, and a number of related driving and weapons offences.

The offending involved a prolonged and violent encounter in which the victim was assaulted, threatened with what appeared to be a weapon, and coerced into withdrawing $400 from an ATM in the early hours of the morning. The applicant had pleaded guilty in the Local Court and was entitled to a 25% sentencing discount for those pleas under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant sought leave to appeal substantially out of time, raising three proposed grounds: that the sentencing judge misapplied the guilty plea discount, that she failed to have adequate regard to his mental illness, and that fresh evidence of historical childhood sexual abuse should be admitted on appeal and taken into account in resentencing.

  • Whether the sentencing judge correctly applied the 25% guilty plea discount when calculating individual and aggregate sentences
  • Whether the sentencing judge gave sufficient consideration to the applicant's mental illness as a mitigating factor
  • Whether additional evidence of historical childhood sexual abuse, and its impact on the applicant's later life, should be admitted on appeal under the Court of Criminal Appeal's powers
  • If any error was established, what the appropriate resentence should be

Decision

The Court refused leave to appeal on grounds 1 and 2. On the guilty plea discount, the Court was not persuaded that the sentencing judge had made a material error in applying the 25% reduction. On the mental illness ground, the Court found no demonstrated error in the sentencing judge's treatment of that factor.

Ground 3, as amended shortly before the hearing, concerned fresh evidence of the applicant's experience of historical institutional childhood sexual abuse. The Crown did not oppose the admission of this evidence. The Court admitted it and found that it was relevant and significant mitigation that had not been before the sentencing judge. The evidence established that the applicant had suffered serious sexual abuse as a child and that this had materially affected the trajectory of his life, including his later offending.

The Court accepted that the historical abuse, properly understood in light of the principles in Bugmy v R (2013) 249 CLR 571, diminished the applicant's moral culpability to a meaningful degree. This warranted a reduction in the overall sentence, even allowing for the seriousness of the offences and the applicant's prior criminal history.

In resentencing, the Court reduced the aggregate term to 12 years imprisonment with a non-parole period of 7 years and 4 months, both backdated to 29 August 2018. The Court maintained the backdating applied by the sentencing judge, noting that this represented a significant benefit to the applicant given that his earlier parole had been effectively extinguished by the new offending.

Orders Made

  • Time to appeal extended to 14 February 2025
  • Leave to appeal refused on proposed grounds 1 and 2
  • Leave to appeal granted on proposed ground 3 (as amended)
  • Appeal allowed
  • District Court sentence of 13 years imprisonment quashed
  • In its place: aggregate sentence of 12 years imprisonment, commencing 29 August 2018 and expiring 28 August 2030, with a non-parole period of 7 years and 4 months, expiring 28 December 2025
  • Applicant first eligible for parole on 28 December 2025

Key Takeaways

  • Fresh evidence of childhood sexual abuse, admitted on appeal without opposition, constituted a significant mitigating factor that justified resentencing even where other grounds of appeal failed.
  • Under the principle in Bugmy v R, the effects of serious childhood deprivation and abuse do not diminish over time and can reduce an offender's moral culpability even for grave adult offending.
  • No error was established in the sentencing judge's application of the 25% guilty plea discount or in her treatment of the applicant's mental illness, confirming that those grounds required more than mere disagreement with the judge's approach.
  • Admitting additional evidence on sentence appeal did not require any challenge to the original sentencing findings; the Court proceeded on the basis that the new material supplemented the record without disturbing earlier factual findings.
  • Backdating an aggregate sentence to the date of arrest can represent a substantial benefit where an offender's existing parole was effectively lost due to new offending committed during the parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 51B, 86, 99, 154A, 154F, 192E, 547D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44, 53A
- Criminal Procedure Act 1986 (NSW), ss 166, 294
- Road Transport Act 2013 (NSW), s 53
- National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), ss 16, 29, 54

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483
- Shortland v R [2024] NSWCCA 174
- Elali v R [2025] NSWCCA 9
- Bao v R [2016] NSWCCA 16
- JL v R [2014] NSWCCA 130
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- R v AWF (2000) 2 VR 1; [2000] VSCA 172