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Court of Criminal Appeal 16 September 2026

Vute v R

[2026] NSWCCA 141

Theft & property
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Vute v R [2026] NSWCCA 141
Court: Court of Criminal Appeal
Date: 16 September 2026
Judge(s): Price AJA at [1]; Cavanagh J at [2]; Rigg J at [89]

Background

The applicant pleaded guilty to five offences committed between January and March 2024, involving entering commercial premises in Maroubra, Redfern, and Matraville and stealing cash and property. The offences included entering a chiropractic clinic and taking a handbag worth approximately $1,700 in total, unlocking a cash register at a restaurant using a key the applicant had brought with him, stealing an iPhone from a shop, and entering an eyecare business after hours to steal cash from the register.

The applicant was sentenced in the District Court on 23 January 2026 to an aggregate term of 2 years and 6 months imprisonment with a non-parole period of 18 months. The sentencing judge applied a 25 per cent discount for the guilty plea and made a finding of special circumstances to extend the parole period, citing the serious risk of institutionalisation.

The applicant sought leave to appeal against sentence on four grounds, arguing in essence that the sentencing judge erred in finding that full-time custody was warranted and in declining to impose an intensive correction order (ICO).

Legal Issues

  • Whether the sentencing judge erred in determining that the threshold under section 5 of the Crimes (Sentencing Procedure) Act 1999, requiring consideration of all alternatives to imprisonment, had been crossed.
  • Whether the sentencing judge failed to give adequate weight to the applicant's risk of institutionalisation in fixing the indicative and aggregate sentences.
  • Whether the sentencing judge failed to properly consider whether the sentence should be served by way of an ICO.
  • Whether the aggregate sentence of 2 years and 6 months with an 18-month non-parole period was manifestly excessive.

Decision

Ground 1: Section 5 threshold and consideration of alternatives to imprisonment

The Court rejected the applicant's contention that the sentencing judge failed to properly consider alternatives to imprisonment before crossing the section 5 threshold (at [39]-[42]). Cavanagh J held that a sentencing judge is not obliged to list every possible alternative penalty and explain in the remarks on sentence why each was rejected (at [42]). Critically, the applicant's own legal representative had conceded before the sentencing judge that the section 5 threshold had been crossed (at [43]). For the applicant to resile from that concession on appeal, he would need to establish it was made through incompetence of counsel or had led to a miscarriage of justice, but no such submission was made (at [50]-[51]). Ground 1 failed (at [52]).

Ground 2: Institutionalisation risk

The applicant accepted that the sentencing judge expressly referred to institutionalisation but argued the risk warranted further consideration in setting the indicative and aggregate sentences, not only in the context of special circumstances (at [53]-[54]). The Court was not persuaded. It is not enough to assert that a judge should have given more weight to a particular factor; an appellant must establish a specific error (at [55]-[56]). The sentencing judge described institutionalisation as a "very real risk" and gave it concrete effect by substantially reducing the statutory ratio to afford the applicant a much longer parole period (at [58]). Ground 2 failed (at [63]).

Ground 3: Failure to properly consider an ICO

The applicant submitted the sentencing judge failed to properly consider imposing an ICO, but the Court found the real complaint was simply that his Honour reached the wrong conclusion, not that he applied the wrong process (at [71]-[74]). The sentencing judge had regard to community safety and the considerations in section 3A of the Sentencing Act, and the issue was argued in some detail before him (at [67]-[72]). The Court confirmed that this ground, like the others, required the applicant to establish error in accordance with House v The King; the correctness standard of appellate review did not apply (at [75]). The suggestion that the sentencing judge "retrofitted" the sentence by working backwards from a predetermined outcome was also rejected, with Cavanagh J finding no direct basis in the judgment for that proposition (at [76]-[78]). Ground 3 failed (at [79]).

Ground 4: Manifest excess

The Court reiterated that manifest excess is a conclusion, not dependent on identifying specific error, but that an applicant faces a very heavy practical burden to demonstrate a disproportion so manifest as to indicate substantive legal error (at [81]-[82]). The applicant's submissions on this ground essentially repeated the arguments advanced under grounds 1 and 3. The Court found it could not be said the sentence was plainly unjust simply because a different sentence might have been imposed (at [85]-[86]). Ground 4 failed (at [87]).

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • A sentencing judge is not obliged to itemise all possible alternatives to imprisonment in the remarks on sentence and explain why each was rejected; it is sufficient that the judge considers them (at [41]-[42]).
  • Where an applicant's legal representative concedes before the sentencing judge that the section 5 threshold has been crossed, the applicant must establish on appeal that the concession resulted from counsel's incompetence or caused a miscarriage of justice before that concession can be revisited (at [50]-[51]).
  • Asserting that a sentencing judge should have given greater weight to a particular factor, such as the risk of institutionalisation, does not establish appellate error; the court must be shown that the factor was ignored or misapplied, not merely that different weight was open (at [55]-[56]).
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that challenges to an ICO determination, like all discretionary sentencing decisions, require the applicant to establish error under the House v The King standard; a submission that the judge should simply have reached a different conclusion is insufficient (at [75]).
  • No inference of procedural error, such as "retrofitting" a sentence, will be drawn without a direct evidentiary basis in the sentencing judge's reasons (at [76]-[78]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 3A, 5
- Crimes Act 1900 (NSW) , ss 112, 114, 117
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Hamdan v R [2023] NSWCCA 80
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Khanat v R (Cth) [2024] NSWCCA 41; (2024) 314 A Crim R 244
- Kirby v R [2021] NSWCCA 162
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- R v Elemes [2000] NSWCCA 235
- R v Jurisic (1998) 45 NSWLR 209; (1998) 101 A Crim R 259
- R v White [2025] NSWCCA 111
- TH v R [2025] NSWCCA 121
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46