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Court of Criminal Appeal 26 May 2025

NK v R

[2025] NSWCCA 73

Sexual offencesDomestic & family violence
CRIME A PPEALS APPEAL AGAINST SENTENCE CHILD SEXUAL OFFENCES DOMESTIC VIOLENCE OFFENCES CHILDHOOD DEPRIVATION

Citation: NK v R [2025] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 26 May 2025
Judges: Ball JA; Fagan J; Yehia J (judgment)

Background

The applicant, a man in his mid-twenties at the time of the offences, pleaded guilty to two distinct sets of serious criminal conduct. The first involved seven counts of aggravated sexual intercourse with a 15-year-old girl who was in his care at a Catholic Care residential home for girls, where he worked as a staff member. The second involved offences against his domestic partner over an 11-month period, including two assaults occasioning actual bodily harm, threatening her with a knife, and sexual intercourse without consent.

The District Court sentenced the applicant to an aggregate term of 15 years' imprisonment, with a non-parole period of 9 years and 9 months. The applicant had experienced significant childhood deprivation, including exposure to physical violence and sexual abuse during his formative years, and had been diagnosed with PTSD.

On appeal, the applicant challenged the sentence on two grounds: that the sentencing judge misapplied the principles from the High Court's decision in Bugmy v The Queen when assessing the relevance of his deprived background, and that the judge failed to treat his own history as a child sexual abuse victim as a separate mitigating factor.

  • Whether the sentencing judge erred by conflating the Bugmy requirement to give "full weight" to an offender's childhood deprivation with the need to afford appropriate weight to general deterrence in domestic violence cases.
  • Whether the sentencing judge erred by failing to assess whether the applicant's background of childhood deprivation reduced his moral culpability and, if so, how that reduction bore upon the various purposes of sentencing.
  • Whether the applicant's own history as a victim of child sexual abuse constituted a separate mitigating factor capable of reducing his moral culpability for the offences.

Decision

Ground 1: Application of Bugmy principles

The Court of Criminal Appeal upheld the first ground of appeal. The sentencing judge had accepted that the applicant's deprived background negatively affected his life trajectory, but then declined to reduce his moral culpability on the basis that general deterrence weighed against it, particularly in the context of domestic violence. The Court found this approach legally flawed.

Yehia J, with whom Ball JA and Fagan J agreed, held that general deterrence does not negate a reduction in moral culpability arising from an offender's deprived background. Rather, it is one of several countervailing factors to be weighed once that reduction has been identified. The correct Bugmy analysis involves three sequential steps: first, assess whether the background of deprivation reduces the offender's moral blameworthiness; second, consider how that reduction bears upon each of the recognised purposes of sentencing (deterrence, retribution, rehabilitation, and protection of the community); and third, ensure the offender's background of disadvantage is given "full weight" even where the reduction in moral culpability is ultimately offset by those other purposes.

Fagan J added that the sentencing judge, having accepted the relevant background facts, should have recognised a reduction in moral culpability, weighed that against all objective and subjective circumstances, and then given effect to the applicable sentencing purposes, balancing them where they pulled in opposing directions. Because the judge did not undertake that analysis, the sentencing discretion had been exercised on an incorrect basis.

Ground 2: Own history as a child sexual abuse victim

The Court dismissed the second ground. The applicant's own experience of childhood sexual abuse contributed to his PTSD diagnosis, but the evidence did not establish, as a standalone mitigating factor, that this history causally contributed to the commission of the offences so as to reduce his moral culpability for them. The Court declined to infer such a connection from the evidence alone.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 8 December 2023 quashed.
  • The applicant re-sentenced to an aggregate term of imprisonment of 13 years, commencing 25 May 2021 and expiring 24 May 2034, with a non-parole period of 8 years and 9 months. The earliest eligible date for release on parole is 24 February 2030.

Key Takeaways

  • The Bugmy framework requires a structured, sequential analysis: a sentencing court must first determine whether an offender's background of deprivation reduces moral culpability before considering how that reduction interacts with the purposes of sentencing. Conflating those two steps constitutes legal error.

  • General deterrence does not defeat or negate a finding of reduced moral culpability arising from childhood deprivation. It is a countervailing consideration to be weighed in the balance, not a reason to decline to recognise the reduction at all.

  • Even where the weight afforded to sentencing purposes such as general deterrence offsets any reduction in moral culpability, a deprived background must still be given "full weight" at every stage of the sentencing exercise, as the High Court confirmed in Bugmy.

  • An offender's own history of childhood sexual abuse does not automatically constitute a standalone mitigating factor. The Court of Criminal Appeal confirmed that the evidence must establish a causal link between that history and the commission of the offences before it can operate to reduce moral culpability independently of other diagnoses or factors.

  • In re-sentencing, the Court reduced the aggregate term from 15 years to 13 years and the non-parole period from 9 years and 9 months to 8 years and 9 months, finding special circumstances warranted a variation of the statutory ratio in light of the applicant's mental health conditions and need for extended community-based treatment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1), 59(1), 61I, 66C(4)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2B)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Kennedy v R [2022] NSWCCA 215
- Jackson v R [2023] NSWCCA 121
- RG v R [2025] NSWCCA 36
- DR v R (2022) 300 A Crim R 116; [2022] NSWCCA 151
- Dungay v R [2023] NSWCCA 209
- Harris v R [2021] NSWCCA 322
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Marrah v The Queen [2014] VSCA 119
- R v AGR (Court of Criminal Appeal, 24 July 1998, unreported)