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Court of Criminal Appeal 27 July 2026

Armstrong v R

[2026] NSWCCA 112

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE SEXUAL OFFENCES MORAL CULPABILITY RESENTENCE

Citation: Armstrong v R [2026] NSWCCA 112
Court: Court of Criminal Appeal
Date: 27 July 2026
Judge(s): N Adams CJ at CL, Dhanji J, Roberts J

Background

The applicant was convicted following a jury trial of three counts of sexual touching of a child aged between 10 and 16 years, and two counts of aggravated sexual act towards a child in the same age range. The offences occurred on a single occasion in January 2020 and involved a 14-year-old complainant who was a neighbour. The applicant was 64 years old at the time.

The District Court at Lismore sentenced the applicant to an aggregate term of 6 years and 6 months imprisonment, with a non-parole period of 3 years and 10 months. The sentencing judge found there was no causative link between the applicant's background of extreme disadvantage and the offending. Consistent with how the parties had approached the matter at first instance (based on then-current authority), the judge made no finding as to whether that background reduced the applicant's moral culpability.

The applicant sought leave to appeal on the sole ground that the sentencing judge's failure to properly assess the relevance of his disadvantaged background to moral culpability amounted to a miscarriage of justice.

  • Whether proof of a causal connection between a disadvantaged background and the subject offending is required before that background may be taken into account in assessing an offender's moral culpability.
  • Whether the sentencing judge's approach to that question constituted an error of principle.
  • What sentence was appropriate on resentence, having regard to the applicant's background of extreme disadvantage.

Decision

Ground 1: Causal link and moral culpability

The Court confirmed that proof of a causal connection between a disadvantaged background and the specific offending is not required before that background can be taken into account when assessing moral culpability. This principle is well established in the case law, including in YZ v R, R v MJ, Nasrallah v R, DS v R, and DG v R. The sentencing judge's approach, which was consistent with how both parties had framed the issue at the time, nonetheless resulted in no finding being made about whether the applicant's background reduced his moral culpability.

Error of principle

The Court found that an error of principle was established. Because the sentencing judge had not assessed the relevance of the applicant's history of disadvantage to his moral culpability, the appeal was allowed and the Court proceeded to resentence.

Resentence

The Court adopted the sentencing judge's findings on objective seriousness. On subjective matters, the Court found that the applicant's moral culpability was substantially reduced by the extreme nature of his background of disadvantage. That finding warranted reduced weight being given to general deterrence and to the degree of punishment required to hold the applicant accountable.

The Court also gave some weight to rehabilitation, notwithstanding the applicant's age and criminal record. It found that a substantial degree of notional concurrence between the indicative sentences was appropriate given the close relationship between the offences, and adopted the finding of special circumstances made at first instance. An aggregate sentence of 6 years imprisonment was imposed, with a non-parole period of 3 years and 6 months.

Orders Made

  • Time to appeal extended
  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • In lieu, aggregate sentence of 6 years imprisonment imposed, commencing 10 November 2022 and expiring 9 November 2028, with a non-parole period of 3 years and 6 months expiring 9 May 2026

Key Takeaways

  • A causal connection between an offender's background of disadvantage and the specific offending does not need to be established before that background may be considered in assessing the offender's moral culpability at sentence.
  • The Court of Criminal Appeal confirmed that the approach requiring such a causal link was an error of principle, resulting in the sentencing court failing to make any finding on a directly relevant mitigating consideration.
  • Where a sentencing court omits to assess whether a background of extreme disadvantage reduces moral culpability, that omission can ground a successful appeal and resentence.
  • On resentence, a finding of substantially reduced moral culpability arising from extreme disadvantage is capable of moderating the weight attributed to general deterrence and the punishment required to hold an offender accountable.
  • The aggregate sentence was reduced from 6 years and 6 months (non-parole period 3 years and 10 months) to 6 years (non-parole period 3 years and 6 months), reflecting the proper weight given to the applicant's background of disadvantage as a subjective mitigating factor.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
- Crimes Act 1900 (NSW) , ss 61E (repealed), 66DB, 66DE, 91J
- Criminal Appeal Act 1912 (NSW) , s 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DG v R [2025] NSWCCA 137
- DR v R [2022] NSWCCA 151; 300 A Crim R 116
- DS v R [2025] NSWCCA 53
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Dungay v R [2020] NSWCCA 209
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kliendienst v R [2020] NSWCCA 98
- Luque v R [2017] NSWCCA 226
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- R v MJ [2023] NSWCCA 306
- RG v R [2025] NSWCCA 36
- YZ v R [2025] NSWCCA 165 ; (2025) 398 FLR 424