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Court of Criminal Appeal 4 June 2025

Jbara v R

[2025] NSWCCA 83

Sexual offences
CRIME APPEALS APPEALS AGAINST SENTENCE ALLEGED STATEMENT OF AGREED FACTS ALL GROUNDS DISMISSED NO POINT OF PRINCIPLE

Citation: Jbara v R [2025] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 4 June 2025
Judges: Ball JA; Fagan J; Yehia J

Background

The applicant pleaded guilty in the District Court to three Commonwealth charges involving child pornography and child abuse material. The offences spanned several years and involved transmitting and soliciting child pornography via WhatsApp group chats, accessing and transmitting child pornography using a carriage service, and possessing a large volume of child abuse material downloaded to his iPhone.

The District Court imposed sentences totalling a head sentence of 4 years and 2 months, with a non-parole period of 2 years and 3 months. The applicant's earliest eligibility for parole was fixed at 24 October 2026. An additional offence was taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth).

The applicant sought leave to appeal against the sentences on three grounds, contending that the sentencing judge had erred in assessing objective seriousness, made a factual error concerning physical harm, and misapplied a provision of the Crimes Act relating to rehabilitation programs.

  • Whether the sentencing judge failed to assess the objective seriousness of count 3 (possession of child abuse material), or failed to give adequate reasons for that assessment
  • Whether the sentencing judge erred in finding that count 3 involved the infliction of physical harm upon children
  • Whether the sentencing judge erred in her approach to s 16A(2AAA) of the Crimes Act 1914 (Cth), which concerns sentences of sufficient duration to permit a rehabilitation program

Decision

Ground 1: Objective seriousness of count 3. The Court found no error in the sentencing judge's treatment of the objective seriousness of the possession offence. While her Honour's structured numerical summary was applied explicitly to count 1, her overall remarks on sentence sufficiently addressed the gravity of all counts, including count 3. The absence of a formalised step-by-step seriousness analysis for each individual count did not constitute error where the reasoning as a whole was adequate.

Ground 2: Physical harm finding. The Court noted that the agreed statement of facts described the 1,000 items of child abuse material as including children "being restrained, being treated sadistically or engaging in sexual acts." The sentencing judge's characterisation that the material depicted the infliction of physical harm by third parties was supported by those agreed facts. There was no suggestion that the applicant himself inflicted harm, and the finding was not relevantly erroneous in context.

Ground 3: Application of s 16A(2AAA). Section 16A(2AAA) of the Crimes Act requires a court to consider whether a sentence should be of sufficient duration to permit completion of a rehabilitation program. The sentencing judge referred to this provision in fixing the non-parole period. The Court observed that there was no evidence before the sentencing judge about the availability or duration of any specific program, and therefore the provision was arguably not engaged on the materials. However, the Court was not satisfied that the sentencing process miscarried by reason of the judge's reference to it. The overall sentencing outcome, including the non-parole period set at approximately 54% of the head sentence, was described as moderate and well within the available discretion. There was no indication that the sentence had been extended to accommodate an assumed program of unspecified length.

Orders Made

  • Leave granted to the applicant to appeal against sentence
  • Appeal dismissed

Key Takeaways

  • In dismissing all three grounds, the Court of Criminal Appeal confirmed that a sentencing judge is not required to apply a formalised numerical seriousness assessment to each individual count, provided the remarks on sentence as a whole adequately address objective gravity.
  • A factual finding about the nature of child abuse material is properly supported where it is consistent with descriptions in the agreed statement of facts, even when those descriptions are framed in categorical rather than item-by-item terms.
  • Under s 16A(2AAA) of the Crimes Act 1914 (Cth), where no evidence or submission was before the court about the availability or duration of a relevant rehabilitation program, the provision was arguably not engaged at all, though a passing reference to it did not in these circumstances cause the sentencing process to miscarry.
  • The Court confirmed that an applicant cannot establish error under s 16A(2AAA) simply by pointing to the judge's reference to rehabilitation, where the sentencing orders themselves are moderate and there is no objective basis for inferring the sentence was artificially extended.
  • No point of principle was established by this decision, and the catchwords expressly record that the appeal raised no issue of general significance beyond the particular facts.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 474.19(1), 474.22A(1), 474.24A(1)
- Crimes Act 1914 (Cth), ss 16A(2AAA), 16BA, 19AB

Cases:
- Baydoun v R [2024] NSWCCA 65
- Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125
- Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150
- DH v R [2022] NSWCCA 200
- Gal v R [2015] NSWCCA 242
- Kochai v R [2023] NSWCCA 116
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Van Ryn [2016] NSWCCA 1
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Twaddell v R [2019] NSWCCA 116