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Court of Criminal Appeal 6 July 2026

Macauley v R

[2026] NSWCCA 101

DrugsFraud & dishonesty
CRIME APPEALS A PPEAL AGAINST SENTENCE FORM 1 OFFENCE PAROLE PERIOD OF 18 MONTHS SENTENCING PRINCIPLES

Citation: Macauley v R [2026] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 6 July 2026
Judge(s): Free JA (with Campbell J and McNaughton J agreeing)

Background

The applicant pleaded guilty in the District Court at Campbelltown to two offences: supplying an indictable quantity of methylamphetamine (136.75 grams) and recklessly dealing with proceeds of crime exceeding $100,000 (namely $297,535 in cash stored at his residence). A further offence of failing to comply with a digital evidence access order was taken into account on a Form 1. The applicant was on parole at the time of all of the offending.

The sentencing judge imposed an aggregate term of 2 years and 3 months imprisonment, with a non-parole period of 18 months. His Honour accepted, applying the principles in Bugmy v The Queen, that the applicant's diagnosed complex PTSD and ADHD reduced his moral culpability and the need for deterrence. His Honour also found special circumstances, reducing the non-parole period to allow for an extended period of post-release supervision.

The applicant sought leave to appeal on three grounds, each centred on how the sentencing judge engaged with the mental health evidence: whether an adverse finding was made without notice, whether the onerousness of custody was properly addressed, and whether the contribution of the mental illness to the offending was adequately considered.

  • Whether the sentencing judge denied the applicant procedural fairness by making an adverse finding, without notice, that there was no nexus between his mental ill-health and the commission of the offences
  • Whether the sentencing judge failed to consider, or failed to provide adequate reasons concerning, the submission that the applicant's mental ill-health would make imprisonment more onerous
  • Whether, in the alternative to the first ground, the sentencing judge failed to take into account or adequately explain the contribution of the applicant's mental ill-health to the offending

Decision

Ground 1 (Procedural Fairness): The Court rejected the claim that an adverse finding was made without notice. Reading the sentencing remarks fairly and as a whole, the sentencing judge accepted that the applicant's PTSD and ADHD contributed to the offending. His Honour's only qualification was a rejection of the opinion that those conditions prevented the applicant from fully appreciating the wrongness of his conduct. No adverse finding beyond that was made without notice to the applicant.

Ground 2 (Onerousness of Custody and Adequacy of Reasons): The Court found that the sentencing judge did engage with the submission that the applicant's mental health conditions would make imprisonment more onerous. Although his Honour did not address the point in express terms, the reference to "mental health issues" in the context of the special circumstances finding was read as reflecting acceptance that a reduced non-parole period was warranted because incarceration would weigh more heavily on the applicant. The Court noted that it is orthodox to address the onerousness of custody arising from mental health impairments as a factor going to special circumstances. No error in reasoning or in the adequacy of reasons was established.

Ground 3 (Contribution of Mental Illness to Offending, in the Alternative): The Court also rejected the third ground. The sentencing judge's rejection of the specific "impulsivity" submission was explained by the absence of evidence permitting any finding as to the applicant's motivation. That rejection did not amount to a failure to take into account the broader contribution of the mental health conditions to the offending. No relevant sentencing consideration was left unaddressed.

The Court granted leave to appeal but dismissed the appeal unanimously.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's rejection of a specific factual submission (here, that the offending was impulsive) does not necessarily constitute an adverse finding on the broader question of whether mental illness contributed to the offending, provided the remarks are read fairly and as a whole.
  • Adequacy of sentencing reasons does not require explicit treatment of every submission: where the sentencing judge's reasoning, read in context, reflects engagement with a submission, the absence of express reference does not establish error.
  • Under the principles in Bugmy v The Queen, accepted diagnoses of PTSD and ADHD can reduce an offender's moral culpability and the weight of general deterrence, but courts are not required to accept every downstream submission flowing from those diagnoses (such as a claim of impulsivity) where the evidence does not support a finding as to motivation.
  • It is orthodox sentencing practice in NSW to address the onerousness of custody arising from an offender's mental health impairments as a factor going to special circumstances, supporting a proportionately reduced non-parole period: Turner v R [2025] NSWCCA 3 and Birkic v R [2026] NSWCCA 53 confirmed.
  • No denial of procedural fairness arises where no adverse finding was in fact made beyond what counsel had the opportunity to address at the sentencing hearing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193BA(a)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 76AO(1)(a)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Turner v R [2025] NSWCCA 3
- Birkic v R [2026] NSWCCA 53
- Snounou v R [2025] NSWCCA 231
- McLaughlin v R [2025] NSWCCA 13
- R v Nguyen [2025] NSWCCA 42
- O'Neill-Shaw v R [2010] NSWCCA 42
- Aslan v R [2014] NSWCCA 114