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Court of Criminal Appeal 9 September 2026

Jacono v R

[2026] NSWCCA 120

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences

Citation: Jacono v R [2026] NSWCCA 120
Court: Court of Criminal Appeal
Date: 9 September 2026
Judges: Kirk JA, Lonergan J, Weinstein J

Background

The applicant pleaded guilty in the District Court to two counts of sexual intercourse without consent, one count of attempting to dissuade a witness from attending court, and one summary count of contravening an apprehended domestic violence order (ADVO). The offending involved detaining his former partner in her residence over twelve days, during which he physically and sexually assaulted her in breach of the ADVO. After arrest, while in custody, he repeatedly asked his sister to locate the complainant and dissuade her from giving evidence.

In February 2020, the sentencing judge imposed an effective sentence of 16 years imprisonment with a non-parole period of 12 years, backdated to 11 March 2018. The applicant filed a notice of appeal well out of time, requiring leave to appeal.

The applicant sought to rely on further evidence that had not been before the sentencing judge: his own affidavit and two psychological reports disclosing that he had been the victim of child sexual abuse while in juvenile detention in the 1980s. After judgment was reserved, the High Court handed down Farrugia v The King [2026] HCA 28, and the parties were invited to file supplementary submissions on its significance.

  • Whether time to file the notice of appeal should be extended
  • What legal principles govern sentence appeals that rely on further evidence not before the sentencing judge, in light of Farrugia v The King
  • Whether the further evidence of childhood sexual abuse should be admitted
  • Whether, if admitted, that evidence established a vitiating procedural irregularity sufficient to uphold the appeal
  • What sentence was appropriate on resentencing

Decision

Principles governing sentence appeals involving further evidence:

After Farrugia, where a sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW) rests on the argument that the sentencing judge failed to consider facts not in evidence, the operative ground of appeal is whether the sentencing exercise was affected by a procedural irregularity sufficient to vitiate the sentencing decision. The court held it is not necessary to characterise the complaint as a House v The King error, and the ground is not labelled "miscarriage of justice." The key question is whether the offender lacked a reasonable opportunity to put their case in mitigation, such that a practical injustice occurred, and whether that lack of opportunity could realistically have affected the reasoning of the sentencing judge in a not insignificant way.

The court also confirmed that a sentence appeal under the Criminal Appeal Act does not fit neatly into any pre-existing appellate category, such as appeal by way of rehearing, de novo, or stricto sensu. It is, as the court put it, simply its own thing.

Admission of further evidence:

The court reaffirmed that admission of further evidence in a sentence appeal is exceptional. Finality is a critical principle, and a sentencing appeal is not an opportunity to reformulate the case put to the sentencing judge. The key factors are whether a compelling explanation exists for why the evidence was not adduced at sentence, and whether the evidence could realistically have affected the sentencing judge's reasoning in a not insignificant way. Evidence relating to events that occurred purely after sentencing cannot be admitted.

Applying those principles, the court admitted the further evidence. The applicant provided a cogent and compelling explanation for not disclosing the childhood sexual abuse during the sentencing proceedings: the potential for long delays and piecemeal disclosure in relation to child sexual abuse is well recognised. The evidence had potential significance to sentencing, particularly on moral culpability and general deterrence.

Vitiating procedural irregularity:

The court found that the further evidence established a vitiating procedural irregularity. The applicant had not had a reasonable opportunity to put his case in mitigation, specifically on the relevance of his history of child sexual abuse to his moral culpability for the sexual offending and the ADVO breach, and to his suitability as a vehicle for general deterrence. The appeal was upheld.

Resentencing:

On resentencing, the court found that the applicant suffered from complex PTSD linked to the abuse, and that the abuse and PTSD played at least an indirect causal role in the offending. Those findings somewhat reduced his moral culpability for the sexual offences and the ADVO breach, and somewhat reduced his suitability as a vehicle for general deterrence. The further evidence also established better prospects of rehabilitation than had appeared to the sentencing judge.

The court nevertheless emphasised that protection of the community remained of particular importance. Taking into account the seriousness of the offences, the need for general deterrence in respect of the dissuasion count, the absence of evidence of remorse, the purposes of sentencing, and the utilitarian benefit of the guilty pleas (attracting a 10% discount), the court imposed an aggregate sentence of 14 years commencing 11 March 2018, with a non-parole period of 10 years and 6 months.

Orders Made

  • Time to file the notice of appeal extended to 4 February 2026
  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Syme DCJ on 28 February 2020 quashed
  • Applicant resentenced to an aggregate sentence of 14 years commencing 11 March 2018 and expiring 10 March 2032, with a non-parole period of 10 years and 6 months expiring 10 September 2028

Key Takeaways

  • After Farrugia v The King [2026] HCA 28, the operative ground of appeal in a sentence appeal relying on further evidence is whether a procedural irregularity vitiated the sentencing decision, not whether a House v The King error can be identified. The central question is whether the offender lacked a reasonable opportunity to put their case in mitigation, producing a practical injustice that could realistically have affected the sentence.

  • Admission of further evidence on a sentence appeal remains exceptional. Two key factors govern the analysis: whether a compelling explanation exists for why the evidence was not before the sentencing judge, and whether the evidence could realistically have affected the sentencing judge's reasoning in a not insignificant way. Evidence of purely post-sentence events cannot be admitted.

  • Recognised patterns of delayed and piecemeal disclosure of child sexual abuse constitute a compelling explanation for non-disclosure during sentencing proceedings, sufficient to satisfy the first limb of the admissibility test.

  • A sentence appeal under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW) does not fit neatly into any established appellate category. The Court of Criminal Appeal confirmed the same characterisation applies to conviction appeals under ss 5(1)(a) and (b) and 6(1).

  • On resentencing, findings that complex PTSD linked to childhood sexual abuse played at least an indirect causal role in the offending reduced the applicant's moral culpability and suitability as a vehicle for general deterrence, but the court emphasised that protection of the community remained of particular importance in calibrating the final sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L, 325(1)
- Criminal Appeal Act 1912 (NSW) , ss 5(1)(a)-(c), 6(1), 6(3), 12(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) , s 14(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 294
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(5)

Cases
- Agnew v R [2018] NSWCCA 128
- Atlanta Building Pty Ltd v Abela [2026] NSWCA 126
- Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cherry v R [2017] NSWCCA 150
- Dib v Rex [2023] NSWCCA 243; (2023) 381 FLR 440
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
- Eden v R [2023] NSWCCA 31
- Elali v R (2025) 116 NSWLR 442; [2025] NSWCCA 9
- ET v R [2024] NSWCCA 131
- Farrugia v The King [2026] HCA 28
- Fisher v R [2026] NSWCCA 27
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hoser v Department of Sustainability and Environment [2014] VSCA 206; (2013) 203 LGERA 96
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jones v R [2025] NSWCCA 28
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Lawavou v R [2025] NSWCCA 35
- Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Munro v R [2006] NSWCCA 350
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- O’Hanlon v R [2025] NSWCCA 118
- Oliver v R [2025] NSWCCA 227
- Paulley v R [2026] NSWCCA 75
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Puan v R [2009] NSWCCA 194
- Pym v R [2014] NSWCCA 182
- R v Abou-Chabake (2004) 149 A Crim R 417
- R v Bailey (1988) 35 A Crim R 458
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- R v Keir [2004] NSWCCA 106
- R v Many (1990) 51 A Crim R 54
- R v McKenna (NSWCCA, unreported, 16 October 1992)
- R v Munday [1981] 2 NSWLR 177
- R v Sabbah [2025] NSWCCA 203
- R v Vachalec [1981] 1 NSWLR 351
- R v Araya (1992) 63 A Crim R 123
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
- Reg v McIntee (1985) 38 SASR 432
- Regina v Scullion (CCA, unreported, 15 July 1992)
- Richardson v R [2021] NSWCCA 304
- Shortland v R [2024] NSWCCA 174
- Shortland v R [2025] NSWCCA 206
- Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13
- Stubbings v R [2023] NSWCCA 69
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Toller v R [2021] NSWCCA 204
- Tsiakas v R [2015] NSWCCA 187
- Tymbook Pty Ltd v Victoria (2006) 15 VR 65; [2006] VSCA 89
- Williams v The Queen (1978) 140 CLR 591; [1978] HCA 49
- Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460