AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 15 July 2026

Smith v R

[2026] NSWCCA 106

Sexual offences
EXERCISE SENTENCING DISCRETION

Citation: Smith v R [2026] NSWCCA 106
Court: Court of Criminal Appeal
Date: 15 July 2026
Judge(s): Stern JA at [1]; Huggett J at [86]; Sirtes J at [87]

Background

The applicant pleaded guilty to five offences: possessing child abuse material, failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), intentionally procuring a child for unlawful sexual activity, and two counts of sexual intercourse with a child aged 14. The victim had autism, ADHD, and depression. The offending occurred over four days in late August 2023.

At the time of the offending, the applicant was on parole for earlier child abuse material offences. His parole was revoked upon his arrest on 28 August 2023, and the balance of his prior sentence concluded on 1 February 2024. The sentencing judge in the District Court imposed an aggregate sentence of 8 years with a non-parole period of 6 years, and backdated the commencement date to 15 December 2023, with a 25% discount applied for the early guilty pleas.

The applicant sought leave to appeal on three grounds: that the sentencing judge had impermissibly treated an aggravating circumstance as though the applicant were being sentenced for a more serious offence, that the judge had made a factual error regarding the duration of a Telegram username's use, and that the backdating calculation did not accurately reflect the judge's stated intention.

  • Whether the sentencing judge committed a De Simoni error by taking into account a circumstance of aggravation under s 66C(5)(g) of the Crimes Act 1900 (NSW) so as to effectively sentence the applicant for the more serious aggravated offence under s 66C(4)
  • Whether the sentencing judge mistook the facts by conflating the duration of the applicant's mobile phone use with the duration of his use of the Telegram username, thereby treating the reporting offence as more extensive than it was
  • Whether the sentencing judge erred in calculating the backdated commencement date of the sentence, given his stated intention to allow approximately two and a half months of the revoked parole period as served

Decision

Ground 1 (De Simoni error): The Court rejected this ground. Reading the remarks on sentence as a whole, the sentencing judge was not sentencing the applicant for the more serious offence under s 66C(4). On the facts as found, the applicant could not have been convicted of that more serious offence. No De Simoni error was established.

Ground 2 (Factual error about Telegram username): The sentencing judge did erroneously refer to the applicant having used the Telegram username from 3 May to 28 August 2023, when in fact that longer period corresponded to the applicant's use of a mobile phone number. The charge and the agreed facts confined the reporting offence to 24 to 28 August 2023. However, the Court found this error had no capacity to influence the sentence. The judge plainly understood the charged period and nothing in the remarks suggested the error caused the offending to be treated as more objectively serious.

Ground 3 (Backdating error): This ground succeeded. The sentencing judge stated an intention to allow approximately two and a half months of the revoked parole period, yet the commencement date selected (15 December 2023) was approximately three and a half months after the arrest on 28 August 2023. The Court found this was an arithmetical error in implementing the judge's discretionary judgment, not an error that vitiated the exercise of the sentencing discretion itself. Consistent with the approach in Kentwell v The Queen, Lehn v R, and Periasamy v R, the Court corrected the calculation rather than re-exercising the sentencing discretion afresh. The correct commencement date, reflecting approximately two and a half months after arrest, was 15 November 2023.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Sutherland SC DCJ on 27 June 2025 quashed and, in lieu thereof, the applicant sentenced to an aggregate term of imprisonment of 8 years, commencing 15 November 2023 and expiring 14 November 2031, with a non-parole period of 6 years expiring 14 November 2029

Key Takeaways

  • A De Simoni error requires that the sentencing judge actually treated an offender as though convicted of a more serious offence. Where the remarks on sentence, read as a whole, do not disclose that treatment, and the facts as found could not support a conviction for the more serious offence, no such error arises.
  • A factual error in remarks on sentence does not constitute a ground of appeal unless it had the capacity to influence the sentence imposed. An error that the sentencing judge plainly did not act upon, and that produced no difference in the assessment of objective seriousness, will not warrant intervention.
  • Where a sentencing judge's stated intention is clear but the commencement date recorded in the orders reflects an arithmetical miscalculation, the error goes to the mechanics of implementing the discretion rather than to the exercise of the discretion itself. In such cases, the Court of Criminal Appeal may correct the date without re-exercising the sentencing discretion afresh.
  • The decisions in Kentwell v The Queen (2014) 252 CLR 601, Lehn v R (2016) 93 NSWLR 205, and Periasamy v R [2026] NSWCCA 89 confirm that arithmetic errors in calculating sentence dates are a recognised category of error that can be corrected on appeal without full resentencing.
  • Agreed facts tendered on sentence bind the sentencing exercise to the period of offending as charged. Remarks that inadvertently stray beyond that period will not result in appellate intervention unless the departure demonstrably affected the sentence.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 11, 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A
- Crimes Act 1900 (NSW), ss 38, 66C, 66EB, 91H
- Criminal Appeal Act 1912 (NSW) , ss 5(1)(c), 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10

Cases
- Bakewell v R (Court of Criminal Appeal (NSW), 27 June 1996, unrep)
- Bourke v R [2010] NSWCCA 22
- Callaghan v R [2006] NSWCCA 58
- CTM v R [2007] NSWCCA 131; 171 A Crim R 371
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Davies v R [2019] NSWCCA 45
- Hamzeh v R [2022] NSWCCA 232
- Hancock v R [2025] NSWCCA 213
- Periasamy v R [2026] NSWCCA 89
- R v Lawless (Court of Criminal Appeal (NSW), 24 June 1994, NSWCCA, unrep)
- R v Smith [2025] NSWDC 374
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Wakeling v R [2016] NSWCCA 33