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Court of Criminal Appeal 15 July 2026

Cowan v R

[2026] NSWCCA 105

Assault & violencePublic order & justice offences

Citation: Cowan v R [2026] NSWCCA 105
Court: Court of Criminal Appeal, NSW
Date: 15 July 2026
Judge(s): McHugh JA; Sweeney J; Emmett J

Background

The appellant was sentenced in the Nowra District Court in March 2025 for attempting to take a person with intent to commit intimidation, in company, with actual bodily harm occasioned to the victim. The offence carried a maximum penalty of 25 years imprisonment. He received a sentence of four years and nine months, with a non-parole period of three years, incorporating a 5% guilty plea discount.

The underlying facts were serious. The appellant and co-offenders subjected the victim, who owed a drug-related debt, to a prolonged and escalating assault across two properties. The attack involved repeated punching, stomping, dragging by the hair, and threats involving an angle grinder, with the apparent aim of placing the victim in the boot of a car and taking him out of town. The victim escaped on multiple occasions and ultimately survived without major physical injury, though the sentencing judge described the offence as a particularly serious example of its type.

On appeal, the appellant raised a single ground: that the sentencing judge erred in his application of the principles from Bugmy v The Queen (2013) 249 CLR 571, the High Court authority governing how background disadvantage must be taken into account in sentencing.

  • Whether the sentencing judge erred by finding that the Bugmy principles were not engaged, on the basis that the appellant's disadvantage did not arise from a deprived home environment in early childhood.
  • Whether the judge's treatment of the appellant's background disadvantage under De La Rosa principles (concerning disadvantage acquired in later years) was sufficient, or whether Bugmy required additional or separate weight to be given to those same factors.

Decision

Ground 1: Application of the Bugmy principles

The Court of Criminal Appeal accepted, consistent with Hoskins v R [2021] NSWCCA 169, that a person's formative years include adolescence. However, it was not persuaded that the sentencing judge had erred by confining his Bugmy analysis to early home environment. The Court found that reference to "home environment" in the sentencing remarks was a direct response to the evidence actually presented, rather than a categorical restriction on the scope of Bugmy.

The Court noted that the sentencing judge had, in any event, taken into account the appellant's background of abuse in his teenage years, his consequent post-traumatic stress disorder, his escalating drug use, homelessness and social disadvantage. Those matters were treated as reducing the appellant's moral culpability, with corresponding reduced weight given to punishment and deterrence. That approach applied the De La Rosa principles, and the Court found that was not an error in the circumstances of this case.

The Court further held that there were no matters in the appellant's background, beyond those already considered under De La Rosa, that required a further reduction in moral culpability under Bugmy. While evidence of deprivation and mental health conditions can cumulatively reduce moral culpability where the evidence so requires, this was not such a case. The sentencing judge was not required to account for the same factors twice under both frameworks. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's finding that Bugmy principles are not engaged can be reasonably open on the evidence, particularly where the psychological and background material presented does not reflect the kind of profound early childhood deprivation described in Bugmy itself.
  • Formative years for the purposes of Bugmy include adolescence, consistent with the earlier decision in Hoskins v R, but the principles are not automatically engaged simply because disadvantage arose during that period.
  • Where background disadvantage has already been given weight in reducing moral culpability under the De La Rosa principles, a sentencing judge is not necessarily required to apply Bugmy separately to the same factors. The two frameworks can address overlapping material without requiring double counting.
  • Evidence of background deprivation and mental health conditions may produce a cumulative reduction in moral culpability under both Bugmy and De La Rosa where the evidence so requires, but no such cumulative reduction was warranted on the facts of this case.
  • In dismissing the appeal, the Court characterised its decision as raising no new issue of principle, applying existing authority to the specific evidential record before the sentencing judge.

Legislation and Cases Referenced

Legislation
- Nil

Cases
- Bugmy v The Queen (2013) 249 CLR 571 ; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 ; [2010] NSWCCA 194
- Hoskins v R [2021] NSWCCA 169
- NK v R [2025] NSWCCA 73