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Court of Criminal Appeal 11 September 2026

TD v R

[2026] NSWCCA 139

Sexual offences

Citation: TD v R [2026] NSWCCA 139
Court: Court of Criminal Appeal
Date: 11 September 2026
Judges: N Adams CJ at CL, Dhanji J, Roberts J

Background

The applicant, an uncle, pleaded guilty in the Local Court to one count of indecent assault of a child and two counts of sexual intercourse with a child, committed against his two nieces over several years when both girls were under 14. Three further offences were taken into account on Form 1s. At the time of the offending, the applicant was aged between approximately 18 and 20.

On 20 December 2024, the sentencing judge in the District Court imposed an aggregate term of 8 years' imprisonment with a non-parole period of 4 years and 10 months. The applicant received a 25% discount for his early guilty plea. The sentencing judge found that his deprived background warranted a finding of reduced moral culpability, but separately declined to reduce his moral culpability on the basis of his mental health conditions, holding that no causal link between those conditions and the offending had been established.

The applicant sought leave to appeal against the sentence, arguing the sentencing judge made two related errors in how she handled the interaction between his background, his mental health, and the sentencing purposes of general and specific deterrence.

Legal Issues

  • Whether the sentencing judge erred by requiring a causal link between the applicant's mental health conditions and his offending before giving those conditions reduced weight on the question of general and specific deterrence (Ground 1)
  • Whether the sentencing judge erred by failing to find that the applicant's deprived background moderated the significance of general and specific deterrence in the sentencing exercise (Ground 2)

Decision

Ground 2: The Court of Criminal Appeal upheld the appeal on this ground. Having found that the applicant's deprived background warranted a finding of reduced moral culpability, the sentencing judge was required to make a finding as to whether general or specific deterrence was moderated as a result. She did not do so. Roberts J, with the agreement of N Adams CJ at CL and Dhanji J, held this amounted to error.

The error was not simply that the sentencing judge omitted to explain how the finding of reduced moral culpability was reflected in the purposes of sentencing. Rather, it arose from specific circumstances: the sentencing judge had separately stated, without controversy, that sentences for sexual offending against children require a "very significant element of general deterrence." Given that observation, it was unclear whether her Honour considered general deterrence to be of reduced significance in this case, notwithstanding her Bugmy finding. N Adams CJ at CL emphasised that error will not be established in every case where a sentencing judge fails to spell out how a reduced moral culpability finding affects sentencing purposes; the particular findings made here created the relevant ambiguity.

Ground 1: Because the appeal succeeded on Ground 2, the Court found it unnecessary to determine Ground 1.

Resentencing: On resentencing, the Court found the applicant's moral culpability to be reduced by reason of his disadvantaged background, mental ill health, and his youth at the time of the offences. The Court determined that the significance of general deterrence and denunciation should be moderated to a meaningful, though not substantial, degree, taking into account the serious nature of the offending. The aggregate sentence was reduced to 7 years' imprisonment with a non-parole period of 4 years, commencing 7 November 2023.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court on 20 December 2024 quashed
  • Applicant resentenced to an aggregate term of 7 years' imprisonment, commencing 7 November 2023 and expiring 6 November 2030, with a non-parole period of 4 years, commencing 7 November 2023 and expiring 6 November 2027

Key Takeaways

  • A sentencing court that makes a Bugmy finding of reduced moral culpability due to a deprived background must also address whether that finding moderates the weight given to general and specific deterrence; the failure to do so can constitute error, depending on the circumstances of the individual case.
  • Not every omission to explain how a reduced moral culpability finding is reflected in sentencing purposes will constitute error; the particular findings and statements made by the sentencing judge in context determine whether the omission is material.
  • Where a sentencing judge states, as a general proposition, that offences of a given type demand a very significant element of general deterrence, without then addressing whether that purpose is reduced by a Bugmy finding already made, the resulting ambiguity may be sufficient to establish error.
  • On resentencing for serious child sexual offences, the Court of Criminal Appeal moderated general deterrence and denunciation to a meaningful but not substantial degree, reflecting the balance between the applicant's reduced moral culpability and the objective seriousness of the conduct.
  • The reduction in the aggregate sentence on resentencing (from 8 years to 7 years, with the non-parole period reduced from 4 years 10 months to 4 years) illustrates how a moderate adjustment to deterrence can translate into a tangible difference in the final sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2) , 66A(1) , 66C(1)

Cases
- Abed v R [2025] NSWCCA 223
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Carreno v R [2023] NSWCCA 20
- Courtney v Regina [2007] NSWCCA 195; A Crim R 371
- Craft v R [2021] NSWCCA 131
- DG v R [2025] NSWCCA 137
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Hancock v R [2025] NSWCCA 213
- Harris v R [2021] NSWCCA 322
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Luque v R [2017] NSWCCA 226
- Monardo v R [2025] NSWCCA 199
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- NK v R [2025] NSWCCA 73
- R v Dent (Court of Criminal Appeal (NSW), 14 March 1991, unrep)
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- R v Tsiaras [1996] 1 VR 398
- R v Wright [2013] NSWCCA 82
- Regina v Israil [2002] NSWCCA 255
- Sampson v R [2026] NSWCCA 117
- Sarhene v R [2022] NSWCCA 79
- Taylor v R [2026] NSWCCA 32
- Tukuafu v R [2024] NSWCCA 84
- Wornes v R [2022] NSWCCA 184