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Court of Criminal Appeal 20 July 2026

Colak v R

[2026] NSWCCA 108

Sexual offences

Citation: Colak v R [2026] NSWCCA 108
Court: Court of Criminal Appeal
Date: 20 July 2026
Judge(s): Stern JA; N Adams CJ at CL; Rigg J

Background

The applicant pleaded guilty in the Local Court to eight federal offences involving the use of a carriage service to transmit child abuse material and to cause offence, under ss 474.22(1) and 474.17(1) of the Criminal Code (Cth). He was committed to the District Court for sentencing. Five further offences of the same type were to be taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth), a Commonwealth provision allowing a sentencing court to note additional offences without separately convicting and punishing the offender for them.

A series of procedural errors infected the sentencing proceedings. The s 16BA schedule was not signed by a delegate of the Director of Public Prosecutions as required by the statute. Additionally, the Crown sentence summary, Agreed Facts, and parties' submissions all failed to distinguish between the eight principal offences and the five schedule offences, creating the false impression that 13 principal offences were before the court.

On 27 June 2025, the District Court imposed an aggregate sentence of five years and six months' imprisonment with a non-parole period of three years and nine months. The applicant appealed against both conviction and sentence. The Crown conceded the first ground of appeal was made out.

  • Whether the absence of a DPP delegate's signature on the s 16BA schedule vitiated the sentence.
  • Whether the sentencing judge erred by convicting the applicant of the schedule offences and imposing separate punishments for them, contrary to ss 16BA(10) and 16BA(5) of the Crimes Act 1914 (Cth).
  • Whether the sentencing judge double-counted the schedule offences by also taking them into account when fixing indicative sentences for the principal offences.
  • Whether the appropriate remedy was resentencing by the Court of Criminal Appeal or remittal to the District Court.

Decision

Ground 1(a): Missing DPP delegate signature

Section 16BA(1)(c) requires the schedule document to be signed by the Director of Public Prosecutions or an authorised delegate. The Court held that the omission of that signature was a clear breach of s 16BA(1)(c) and would, by itself, have vitiated the entire sentencing proceedings. The requirement is a statutory precondition, not a mere formality.

Ground 1(b): Conviction and separate punishment for schedule offences

Section 16BA(10) prohibits a court from convicting an offender of schedule offences. Despite this, the applicant was arraigned, entered pleas of guilty, and was formally convicted of the five schedule offences. Section 16BA(5) further provides that no separate punishment may be imposed for such offences. The sentencing judge nonetheless indicated terms of imprisonment for two of the schedule offences and imposed recognizance release orders for the remaining three, each of which constituted a separate punishment in breach of the provision.

Ground 1(c): Double-counting

Beyond imposing separate punishments, the sentencing judge also took the five schedule offences into account a second time when setting the indicative sentences for the principal offences. The Court held this amounted to impermissible double-counting of the schedule offences.

Remedy: Remittal rather than resentencing

The Court accepted the Crown's submission that remittal to the District Court under s 12(2) of the Criminal Appeal Act 1912 (NSW) was the appropriate remedy. The procedural irregularities pervaded the entire sentencing proceeding. Remittal would allow the sentencing judge correctly to consider the schedule offences and their proper weight, preserve both parties' appeal rights, and could be achieved without significant delay. The Court noted that the High Court is currently reserved on a related question about the Court of Criminal Appeal's power to remit, but the parties agreed it was unnecessary to address that question in this case.

Orders Made

  • Leave granted to amend the Notice of Appeal to appeal against conviction for the five schedule offences (sequences 24, 29, 30, 31, and 32).
  • Leave to appeal against sentence granted.
  • Appeal against conviction and sentence allowed.
  • Convictions for sequences 24, 29, 30, 31, and 32 quashed.
  • Sentence imposed by the District Court on 27 June 2025 set aside.
  • Proceedings remitted to the District Court pursuant to s 12 of the Criminal Appeal Act 1912 (NSW).
  • Matter listed for mention in the District Court on 17 July 2026.

Key Takeaways

  • Under s 16BA(1)(c) of the Crimes Act 1914 (Cth), a schedule listing offences to be taken into account must bear the signature of the Director of Public Prosecutions or an authorised delegate. Failure to obtain that signature is not a technical irregularity; the Court of Criminal Appeal confirmed it is a statutory precondition whose absence vitiates the sentence entirely.
  • Section 16BA(10) prohibits conviction of an offender for schedule offences, and s 16BA(5) prohibits the imposition of any separate punishment for them. Arraigning an offender on, and formally convicting them of, schedule offences is contrary to the scheme of the provision.
  • A sentencing court that both imposes separate punishment for schedule offences and then additionally weighs those same offences in fixing indicative sentences for principal offences engages in impermissible double-counting.
  • Where procedural irregularities permeate the whole of a sentencing proceeding, remittal to the sentencing court under s 12(2) of the Criminal Appeal Act 1912 (NSW) may be the appropriate remedy rather than resentencing by the Court of Criminal Appeal, particularly where delay would be minimal and the parties' appeal rights would be preserved.
  • Agreed Facts and sentencing documents that fail to distinguish between principal offences and schedule offences risk conveying a materially inaccurate picture of the case to the sentencing court, with potentially significant consequences for the validity of the resulting sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 35(4)
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), ss 6(3), 12
- Criminal Code (Cth), ss 474.17(1), 474.22(1)

Cases
- Abbas, Bodiotis , Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413
- Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Azari v R; Al-Talebi v R [2021] NSWCCA 199
- Betts v the Queen (2016) 258 CLR 420; [2016] HCA 25
- Decision Restricted v R [2025] NSWCCA 49
- Holt v R (Cth ) [2021] NSWCCA 14
- Kabir v R [2020] NSWCCA 139
- Koosmen v R [2025] NSWCCA 122
- Le v R [2017] NSWCCA 26
- LS v R [2020] NSWCCA 27
- Nguyen v R [2019] NSWCCA 209
- O’Neil-Shaw v R [2010] NSWCCA 42
- Purves v R [2019] NSWCCA 227
- R v Felton [2002] NSWCCA 443; 135 A Crim R 328
- R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280
- R v Lamella [2014] NSWCCA 122
- Todd v Rex [2024] NSWCCA 161