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Court of Criminal Appeal 9 September 2026

AW v R

[2026] NSWCCA 134

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE THREATENING HYPOGLYCAEMIA WHETHER CERTAIN POST SENTENCE REDUCED

Citation: AW v R [2026] NSWCCA 134
Court: Court of Criminal Appeal
Date: 09 September 2026
Judge(s): Price AJA; Cavanagh J; Rigg J (principal judgment)

Background

The applicant, a Type 1 diabetic mother, pleaded guilty in the District Court to administering insulin to her 16-month-old daughter, who did not medically need it, causing a life-threatening episode of hypoglycaemia. The applicant called emergency services, the child was hospitalised, and she made a full recovery. The cause of the hypoglycaemia was not immediately identified.

Approximately three weeks after the offence, the applicant brought the child to hospital again for coughs and fevers. Upon learning that a treating paediatrician had notified the Department of Communities and Justice, and after blood tests raised suspicions about the earlier insulin administration, the applicant stated she would no longer engage with the treating doctors or the Department. The sentencing judge treated this conduct as aggravating the objective seriousness of the offence.

Psychiatric evidence before the sentencing court established that the applicant had a diagnosis of Factitious Disorder Imposed on Another (previously known as Munchausen syndrome by proxy) and a prior diagnosis of Factitious Disorder Imposed on Self, alongside a history of significant childhood adversity and trauma. She was sentenced to 2 years and 10 months imprisonment with a non-parole period of 1 year and 5 months. She sought leave to appeal on three grounds.

  • Whether the applicant's post-offence conduct (withdrawing from treating doctors and the Department after suspicions arose) was capable of aggravating the objective seriousness of the offence
  • Whether the sentencing judge erred by declining to consider whether the applicant's mental impairment and related subjective factors bore upon the objective seriousness of the offence
  • Whether the sentencing judge failed to properly determine the extent to which the applicant's moral culpability was reduced by the interplay of her psychiatric diagnoses, trauma history, and related factors, and whether irrelevant case comparisons infected that assessment

Decision

Ground 2 (Mental Impairment and Objective Seriousness): Dismissed

The Court found no material error in the sentencing judge's refusal to treat the applicant's Factitious Disorder Imposed on Another, even in combination with her other subjective features, as reducing the objective seriousness of the offence. To have done so would have risked undue double-counting: the applicant's traumatic background, personality vulnerabilities, limited coping skills, and psychiatric diagnoses were already properly considered in assessing her moral culpability. This was not one of the rare cases where such factors legitimately bear on both inquiries.

Ground 1 (Post-Offence Conduct as Aggravation): Allowed

The Court found no evidentiary basis for several inferences the sentencing judge drew from the September 2020 conduct. There was no basis to find that presenting the child with coughs and fevers was itself a further manifestation of Factitious Disorder Imposed on Another, that those symptoms were connected to the insulin administration, or that the applicant believed or should have believed they were connected. The obvious and simple inference was that the applicant did not want her wrongdoing discovered. There was also no evidence that the child's care was compromised by the change of doctor. The post-offence conduct was accordingly not capable of aggravating the objective seriousness of the offending.

Ground 3 (Moral Culpability Assessment): Allowed

The Court found patent error in the sentencing judge's approach to moral culpability. Rather than determining the extent to which the applicant's culpability was reduced by the interplay of her psychiatric diagnoses and personal history, the sentencing judge's reasoning was diverted by reference to three earlier decisions that were of no relevant assistance: R v B (1993), R v Curtis (1987), and R v RMW [2016]. None of those cases contained relevant statements of principle or analysis applicable to this applicant's circumstances. Additionally, the sentencing judge on multiple occasions described moral culpability as something whose "importance" may be reduced by factors such as mental illness, which reflected a misunderstanding: it is the degree of moral culpability itself, not merely its importance, that is the subject of the inquiry. On resentence, the Court found the applicant's moral culpability was significantly reduced, and that the purposes of punishment, denunciation, and general deterrence, while still having meaningful work to do, were substantially reduced.

Resentence

The Court adopted the sentencing judge's findings on objective seriousness, excluding the impermissible post-offence conduct, and accepted updated evidence of particular hardship experienced by the applicant in custody, including serious difficulties obtaining healthcare, placement in a Special Management Area for her own protection, and restricted access to programs or work. The Court imposed a sentence of 1 year and 10 months imprisonment, with a non-parole period of 11 months, which had already expired by the time of the appeal decision.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence set aside
  • Applicant resentenced to 1 year and 10 months imprisonment commencing 19 June 2025 and expiring 18 April 2027, with a non-parole period of 11 months commencing 19 June 2025 and expiring 18 May 2026
  • Applicant released from custody immediately

Key Takeaways

  • Post-offence conduct is only capable of aggravating the objective seriousness of an offence where there is a proper evidentiary basis for that inference; a sentencing court cannot draw unsupported inferences about a defendant's motivations or the connection between that conduct and the original offending.
  • Where psychiatric diagnoses and personal history are already taken into account in reducing an offender's moral culpability, allowing those same factors to also reduce the objective seriousness of the offence risks impermissible double-counting, and this will generally be confined to rare cases.
  • The correct sentencing inquiry in relation to moral culpability is to determine the actual degree to which that culpability is reduced by relevant factors, not to assess the "importance" of moral culpability as a sentencing consideration. Framing the inquiry the latter way reflects a legal error.
  • Comparison cases are only useful in the moral culpability analysis where they contain relevant statements of principle or sufficiently analogous analysis; cases that share surface factual similarities but provide no applicable reasoning offer no legitimate guidance and their use may constitute error.
  • Hardship experienced in custody, including placement in protective custody, restricted access to healthcare, and exclusion from programs, is capable of being taken into account as additional evidence on resentence.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Britton v R [2024] NSWCCA 138
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Camilleri v R [2023] NSWCCA 106; (2023) 308 A Crim R 52
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DG v R [2025] NSWCCA 137
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- GD v R [2026] NSWCCA 95
- Lawrence v R [2023] NSWCCA 110
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- NK v R [2025] NSWCCA 73
- Paterson v R [2021] NSWCCA 273
- R v Anderson [1981] VR 155; (1980) 2 A Crim R 379
- R v B (1993) 68 A Crim R 547
- R v Curtis (NSWCCA, unreported, 13 November 1987)
- R v Eaton [2023] NSWCCA 125; (2023) 308 A Crim R 465
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Henry [2007] NSWCCA 90
- R v Israil [2002] NSWCCA 255
- R v Muldrock; Muldrock v R [2012] NSWCCA 108
- R v RMW [2016] NSWCCA 211
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Stanton v R [2021] NSWCCA 123
- Taylor v R [2026] NSWCCA 32
- Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233
- Veen v The Queen (No. 2) (1987-1988) 164 CLR 465