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Court of Criminal Appeal 24 July 2026

AM v R

[2026] NSWCCA 110

Sexual offences
SENTENCE TOTALITY

Citation: AM v R [2026] NSWCCA 110
Court: Court of Criminal Appeal
Date: 24 July 2026
Judge(s): Kirk JA at [1]; Lonergan J at [2]; Weinstein J at [107]

Background

The applicant pleaded guilty to six historical sexual offences committed in the mid-1980s against his younger sister and her friend. The offending occurred when he was between 15 and 17 years old and his victims were approximately two years younger. Because both the applicant and the victims were children at the time, they cannot be identified.

In December 2023, the District Court sentenced the applicant to an aggregate term of 8 years with a non-parole period of 5 years, 3 months and 14 days. That sentence was ordered to commence in June 2027, to be accumulated upon an existing sentence of 10 years and 9 months (with a 7 year and 6 month non-parole period) imposed for separate Commonwealth child abuse offences committed in 2021. The combined effect produced a total effective non-parole period that was 80.2% of the total effective sentence.

The applicant sought leave to appeal on three grounds: that the sentencing judge failed to address the overall relationship between the total effective non-parole period and the total effective sentence; that the judge wrongly confined his consideration of youth to the assessment of objective seriousness rather than addressing it more broadly; and that the sentence was manifestly excessive.

  • Whether the sentencing judge properly addressed the principle of totality when accumulating the new sentence upon the existing sentence, given that no express acknowledgment of the total effective sentence appeared in the remarks
  • Whether the sentencing judge erred by treating the applicant's youth and immaturity as relevant primarily to objective seriousness, rather than also considering its effect on moral culpability, retribution, denunciation, and general deterrence
  • Whether the resulting sentence was manifestly excessive

Decision

Ground 1 (Totality): The Court found that the sentencing judge's remarks on totality and accumulation made no reference to the total effective sentence that would result from combining the new sentence with the existing one. Although a finding of special circumstances was made, it was expressed only by reference to health needs and rehabilitation, with no mention of the need to adjust for the accumulation of sentences, despite written submissions having raised that matter. The absence of any such reference indicated that the sentencing judge did not turn his mind to it when structuring the sentence. The Court confirmed that while there is no obligation to maintain the ratio of non-parole to parole period established by the earlier sentence, the remarks must demonstrate an understanding of the end result of accumulation.

Ground 2 (Youth and immaturity): The Court held that nothing in the sentencing remarks reflected the "pervasive, specific and thorough" consideration of youth and immaturity that the authorities require. Youth is relevant to objective seriousness only in limited circumstances. The sentencing judge treated it as primarily relevant in that narrow context, which was an error. The Court found that the applicant's moral culpability as a 15 to 17 year old offender was not adequately addressed, nor was the consequential effect of his youth and immaturity on the sentencing purposes of retribution, denunciation, and general deterrence. This caused the sentencing exercise to miscarry in a manner unfavourable to the applicant.

Ground 3 (Manifest excess): Given the Court's findings on grounds 1 and 2, it proceeded to re-sentence. The manifest excess ground was not separately determined.

Re-sentence: On re-sentencing, the Court reduced the aggregate term to 7 years, commencing 20 June 2027, with a non-parole period of 3 years and 6 months. The Court identified special circumstances arising from both the accumulation of sentences and the need for a reasonable period of parole supervision to support the applicant's reintegration after a lengthy period in custody. Applying totality principles, the overall proportion of non-parole period to total effective sentence became approximately 72.46%, with a total effective non-parole period of 9 years, 2 months and 15 days and a total effective sentence of 12 years, 8 months and 15 days.

Orders Made

  • Time for filing the appeal extended to 24 March 2026
  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence imposed by McHugh SC DCJ quashed
  • In lieu thereof, the applicant sentenced to an aggregate term of 7 years commencing 20 June 2027 and expiring 19 June 2034, with a non-parole period of 3 years and 6 months expiring 19 December 2030

Key Takeaways

  • When a new sentence is accumulated upon an existing sentence, the sentencing remarks must expressly address the overall total effective sentence and non-parole period that results. Silence on that question, even where special circumstances are found, suggests the issue was not considered and will ground appellate error.
  • Youth and immaturity is not primarily a factor going to the objective seriousness of offending. The Court of Criminal Appeal confirmed it requires "pervasive, specific and thorough" consideration in relation to moral culpability, and its potential to modify the weight given to retribution, denunciation, and general deterrence.
  • Confining the analysis of an offender's youth to objective seriousness, while neglecting its broader sentencing significance, constitutes a legal error capable of causing the sentencing exercise to miscarry.
  • A finding of special circumstances based solely on health or rehabilitation needs does not address the separate need to adjust for accumulation of sentences. The two considerations are distinct and each must be expressly engaged.
  • Where accumulated sentences produce a total non-parole period substantially disproportionate to the total term (here, 80.2%), the sentencing court must demonstrate it has turned its mind to that outcome and made a deliberate structural choice.

Legislation and Cases Referenced

Legislation
- Child Welfare Act 1939 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- AM v R (2024) 116 NSWLR 81; [2024] NSWCCA 200
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- Camilleri v R [2023] NSWCCA 106; 308 A Crim R 52
- Clarke-Jeffries v R [2019] NSWCCA 56
- Clinch v R (1994) 72 A Crim R 301
- Danishyar v R; R v Danishyar [2023] NSWCCA 300
- Director of Public Prosecutions v Herrmann [2021] VSCA 160; 290 A Crim R 110
- DS v R; DM v R [2022] NSWCCA 156
- Duncan v R [2026] NSWCCA 19
- GP v Regina [2017] NSWCCA 200
- Hawat v R [2020] NSWCCA 121
- Howard v R [2019] NSWCCA 109
- JA v R [2021] NSWCCA 10
- JH v R [2017] NSWCCA 22
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Lonsdale v R [2020] NSWCCA 267
- McKittrick v R [2014] NSWCCA 128; 243 A Crim R 155
- Mill v The Queen (1988) 166 CLR 59 ; [1988] HCA 70
- MS2 v Regina [2005] NSWCCA 397; 158 A Crim R 93
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v AA [2017] NSWCCA 84
- R v Adamson [2002] NSWCCA 349; 132 A Crim R 511
- R v Eaton [2023] NSWCCA 125; 308 A Crim R 465
- R v GDR (1994) 35 NSWLR 376
- R v Knight [2005] NSWCCA 253 ; 155 A Crim R 252
- RA v R [2020] NSWCCA 356
- Sarhene v R [2022] NSWCCA 79
- Syed v R [2026] NSWCCA 47
- TM v R [2023] NSWCCA 185
- Yildiz v R [2020] NSWCCA 69