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Court of Criminal Appeal 11 April 2025

DS v R

[2025] NSWCCA 53

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE ERROR CONCEDED APPROACH TO BUGMY CONSIDERATIONS APPROACH ON RESENTENCE

Citation: DS v R [2025] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 11 April 2025
Judge(s): Mitchelmore JA, Walton J, N Adams J

Background

The applicant was sentenced in the District Court to an aggregate term of 22 years' imprisonment, with a non-parole period of 16 years and 6 months, for 14 sexual offences against five child victims, each related to him. The offending spanned from 1975 to 2021. Twelve of the 14 charges were on indictment; the remaining two had been committed to the District Court following guilty pleas entered in the Local Court.

In relation to the 12 counts on the indictment, the applicant entered guilty pleas after the trial had commenced and after one victim had already given evidence. At sentencing, both the Crown and defence proceeded on the basis that no statutory numerical discount for guilty pleas was available in those circumstances. The sentencing judge therefore applied no such discount to those 12 counts.

The applicant sought leave to appeal against sentence on three grounds: failure to apply a statutory discount for the guilty pleas; failure to find that personal factors reduced his moral culpability; and manifest excess in the aggregate sentence.

  • Whether the sentencing judge erred by not applying a statutory numerical discount for guilty pleas entered after trial had commenced, under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the applicant's deprived background was causally connected to his offending, or otherwise reduced his moral culpability, consistent with Bugmy v The Queen (2013) 249 CLR 571
  • Whether the aggregate sentence was manifestly excessive
  • On resentence under Kentwell v The Queen (2014) 252 CLR 601, whether any lesser sentence was warranted in law

Decision

The Crown conceded that the sentencing judge had erred in not applying a discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act. The Court of Criminal Appeal accepted that this error had the capacity to influence the aggregate sentence, and granted leave to appeal. This triggered the Court's obligation to resentence the applicant afresh, applying the principles in Kentwell.

On the question of moral culpability, the Court found it unnecessary to determine grounds 2 and 3 as discrete appeal grounds, but considered the Bugmy issue on resentence. The Court held that the absence of a direct causal link between the applicant's deprived upbringing and the commission of the offences did not mean his background was entirely irrelevant to moral culpability. However, the reduction warranted in the circumstances was not significant.

Exercising its independent sentencing discretion afresh, the Court weighed the serious objective criminality of the offending, spanning decades and involving multiple child victims, against the applicant's subjective case. It concluded that no lesser sentence than the original 22-year aggregate was warranted in law, and dismissed the appeal.

N Adams J added an important clarification about the resentencing process. An applicant who successfully establishes a ground of appeal based on the omission of a discount cannot assume the appeal will automatically produce a lower aggregate sentence. When the Court resentences from scratch, it sets aside the original sentence entirely, recalculates indicative sentences, and arrives at a fresh aggregate. That fresh aggregate may be higher or lower than the original, even accounting for factors the original judge overlooked. Where the fresh aggregate is no lower, the appeal is dismissed.

Orders Made

• Appeal dismissed

Key Takeaways

  • A guilty plea entered after a trial commences can still attract a statutory numerical discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999; the sentencing court's failure to apply such a discount constitutes a sentencing error with the capacity to affect the aggregate sentence.
  • Under the Kentwell resentencing process, the Court of Criminal Appeal sets aside the original sentence entirely and exercises an independent discretion afresh; it does not simply adjust the original sentence up or down.
  • In dismissing the appeal despite identifying error, the Court confirmed that a successful ground does not guarantee a reduced sentence: the fresh resentencing exercise may produce the same or a higher aggregate, even where the Court applies a discount the original judge omitted.
  • The absence of a demonstrated causal connection between an offender's deprived background and the commission of offences does not preclude some reduction in moral culpability on Bugmy principles, though the weight given to such a reduction will depend on the facts.
  • Where resentencing produces no lesser aggregate, the practice is to dismiss the appeal, consistent with RO v R [2019] NSWCCA 183.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1) (repealed), 61E(1A) (repealed), 66C(2), 66D, 66DB(a), 66EA(1), 71 (repealed), 76 (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D, 25F(8), 101A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v MJ [2023] NSWCCA 306
- Dungay v R [2020] NSWCCA 209
- WP v R [2024] NSWCCA 77
- RO v R [2019] NSWCCA 183
- R v Tuncbilek [2004] NSWCCA 139
- R v Doyle (2022) 108 NSWLR 1; [2022] NSWCCA 81
- Giacometti v R [2023] NSWCCA 150
- Lloyd v R [2022] NSWCCA 18
- Lupton v R [2024] NSWCCA 29
- Panetta v R [2016] NSWCCA 85
- R v Todd [1982] 2 NSWLR 517