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Court of Criminal Appeal 16 September 2026

Mahoney v R

[2026] NSWCCA 142

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER FINDING “REASONABLY OPEN” MANIFEST EXCESS REFERENCE TO SENTENCING STATISTICS

Citation: Mahoney v R [2026] NSWCCA 142
Court: Court of Criminal Appeal, NSW
Date: 16 September 2026
Judge(s): Price AJA, Sirtes J, Roberts J

Background

The applicant pleaded guilty in the District Court at Grafton to six offences of sexual assault against a child, including multiple counts of aggravated sexual intercourse with a person under 14 contrary to s 66C of the Crimes Act 1900 (NSW). Three further offences were taken into account on a Form 1. The offending comprised nine discrete criminal acts occurring on nine separate occasions over approximately two years, predominantly at the applicant's home, with one offence occurring at the complainant's home.

On 13 March 2025, the sentencing judge imposed an aggregate term of 16 years' imprisonment with a non-parole period of 10 years. A 25% discount was applied to reflect the applicant's early guilty plea. The non-parole period represented 62.5% of the head sentence, the sentencing judge having found special circumstances.

The applicant sought leave to appeal against sentence on two grounds: that the sentencing judge erred in finding one of the counts involved "unprotected sex," and that the aggregate sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge's finding that Count 2 involved "unprotected sex" was reasonably open on the evidence and established beyond reasonable doubt.
  • Whether the aggregate sentence of 16 years' imprisonment with a 10-year non-parole period was manifestly excessive, having regard to the indicative sentences, notional accumulation, comparable cases, and sentencing statistics.

Decision

Ground 1: Finding of "unprotected sex" for Count 2

The agreed statement of facts made no explicit reference to the use or absence of a condom or other contraception. The applicant argued the finding was not available on the sparse agreed facts and could not be established beyond reasonable doubt. The Court noted that a sentencing judge may not use facts adverse to an offender unless those facts are established beyond reasonable doubt, following The Queen v Olbrich (at [65]).

The Court found the finding was reasonably open for three reasons (at [66]-[68]). First, the agreed facts described penile-vaginal intercourse to ejaculation with no mention of any contraceptive measure, and the absence of any reference to protection supported an inference that none was used. Second, the applicant's own written submissions described the intercourse without any qualification as to protection. Third, and critically, when the Crown submitted orally that the intercourse was unprotected, applicant's counsel made no objection and did not dispute the characterisation. The sentencing judge was entitled to treat the matter as not in dispute. No miscarriage of justice was established. Ground 1 was rejected (at [69]).

Ground 2: Manifest excess

The applicant relied on JIRS statistics showing that, of 101 offenders sentenced for the lead offence between 2018 and 2025, only 13 received aggregate sentences of 16 years or more. The Court confirmed that pointing to a statistical range and arguing the sentence falls near the top of it is insufficient to establish manifest excess (at [76]).

The Court considered comparable cases, including MT v R [2026] NSWCCA 25 and R v RJ [2023] NSWCCA 273, noting that the present case involved penile-vaginal, penile-anal and oral intercourse, which distinguished it from cases involving digital penetration and cunnilingus only (at [79]-[80]). The indicative sentences were assessed as moderate rather than excessive, given the legislative guideposts of a 9-year standard non-parole period and a 20-year maximum for the lead offence (at [82]). Significant accumulation was orthodox given nine discrete episodes over two years (at [84]). Although the sentence sat at the higher end of the range, the Court was not persuaded the aggregate sentence was unreasonable or plainly unjust, and Ground 2 was rejected (at [86]-[87]).

Orders Made

  • Time for the applicant to file a notice of intention to apply for leave to appeal extended to 29 April 2025.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's finding of fact adverse to an offender must be established beyond reasonable doubt, but where defence counsel did not dispute a factual characterisation raised by the Crown during the sentencing hearing, the sentencing judge was entitled to treat the matter as undisputed and to proceed on that basis (at [67]-[68]).

  • Where an agreed statement of facts is silent on whether intercourse was protected, a finding of "unprotected sex" may still be reasonably open if the description of the act, combined with the absence of any qualification and the failure of counsel to contest the characterisation, supports that inference beyond reasonable doubt (at [66]-[68]).

  • Pointing to sentencing statistics and arguing that a sentence falls at or near the top of the statistical range does not, without more, establish manifest excess (at [76]).

  • In assessing whether an aggregate sentence is manifestly excessive, the Court considered notional accumulation, comparable cases, the legislative guideposts of the standard non-parole period and maximum penalty, and the specific nature of the physical conduct, rather than treating any single factor as determinative (at [82]-[86]).

  • The Court of Criminal Appeal confirmed that sentencing for child sexual assault offences committed after the introduction of the 9-year standard non-parole period for s 66C(2) offences requires care in selecting comparable cases: earlier decisions decided without that legislative guidepost carry reduced weight (at [78]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW) , s 15A
- Crimes Act 1900 (NSW) , ss 61, 61M (repealed) , 61O (repealed) , 66C, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 3A, 21A, 21B, 25AA, 32, 53A, 54A, 54B
- Criminal Appeal Act 1912 (NSW) , ss 5, 10

Cases
- Ahmad v R [2019] NSWCCA 198
- Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CS v R [2014] NSWCCA 229; 245 A Crim R 249
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DV v R [2017] NSWCCA 276
- Ellingford v R [2026] NSWCCA 24
- Facer (a pseudonym) v R [2019] NSWCCA 180; 279 A Crim R 156
- GAT v R [2007] NSWCCA 208
- GD v R [2026] NSWCCA 95
- GG v R [2023] NSWCCA 102
- Hancock v R [2025] NSWCCA 213
- Harden v R [2024] NSWCCA 184
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lee v R [2020] NSWCCA 244
- MacGill v R [2026] NSWCCA 102
- ME v R [2019] NSWCCA 91
- Merheb v R [2021] NSWCCA 224
- Morris v R [2026] NSWCCA 119
- MT v R [2026] NSWCCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Narayan v R [2026] NSWCCA 94
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Carey [2024] NSWCCA 90
- R v Daley [2010] NSWCCA 223
- R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1
- R v RJ [2023] NSWCCA 273
- R v Storey [1998] 1 VR 359
- Syed v R [2026] NSWCCA 47
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460