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Court of Criminal Appeal 18 September 2026

Crook v R

[2026] NSWCCA 146

Traffic & drivingFirearms & weaponsDomestic & family violencePublic order & justice offences
SENTENCING APPEAL AGAINST SENTENCE ERROR FOUND RESENTENCING APPEAL DISMISSED

Citation: Crook v R [2026] NSWCCA 146
Court: Court of Criminal Appeal
Date: 18 September 2026
Judge(s): N Adams CJ at CL; Dhanji J; Muston J (reasons)

Background

The applicant pleaded guilty to 14 offences arising from three separate episodes of offending between July and August 2023. The offences spanned domestic violence conduct, a high-speed police pursuit through residential streets in regional NSW, and an escape from lawful custody at a regional hospital. On 8 September 2025, he was sentenced to an aggregate term of 6 years and 4 months imprisonment with a non-parole period of 3 years and 2 months.

Two of the 14 counts were offences under section 33B of the Crimes Act 1900 (NSW), each involving the applicant grabbing or producing a firearm against a police officer. The first occurred when the applicant, after being pursued by police, reached into his vehicle and retrieved a loaded shortened .22 calibre rifle. The second occurred hours later at Forbes Hospital, when the applicant lunged at the officer accompanying him and grabbed the officer's holstered firearm.

The applicant sought leave to appeal on a single ground: that the sentencing judge had impermissibly elevated the objective seriousness of the second section 33B offence by reference to the first section 33B offence committed earlier that day, amounting to a form of double punishment.

Legal Issues

  • Whether the sentencing judge erred by treating the earlier section 33B offence as a factor that increased the objective seriousness of the second section 33B offence, where both were the subject of the same sentencing exercise.
  • Whether any such error could realistically have affected the reasoning that led to the ultimate sentence imposed.
  • What sentence was appropriate on a fresh exercise of the sentencing discretion.

Decision

Ground 1: Error in assessing objective seriousness

The sentencing judge's reasons, read literally, indicated that the objective seriousness of the second section 33B offence was increased by the fact that the first section 33B offence had been committed earlier the same day. The Crown, before the Court of Criminal Appeal, did not advance any alternative interpretation of the relevant passage (at [47]). Although the court approached the sentencing reasons generously and without an eye for error, it found the words in question remained unclear and, read literally, disclosed an error. Treating one offence as aggravating the objective seriousness of another offence in the same sentencing exercise constitutes a form of double punishment (at [49]).

Ground 1: Materiality of the error

The applicable test, drawn from Farrugia v The King [2026] HCA 28 and Brawn v The King [2025] HCA 20, asks whether the error could realistically have affected the sentencing judge's reasoning process, not merely whether the sentence would have been different but for the error (at [50]). Because the second section 33B offence was among the most serious offences contributing to the ultimate sentence, the court was satisfied the error in assessing its objective seriousness could realistically have affected the reasoning that produced the aggregate term (at [52]). The single ground of appeal was made out (at [53]).

Resentencing

The court exercised the sentencing discretion afresh (at [54]). On resentencing, the court found that the second section 33B offence lay at the more serious end of the spectrum. The involvement of a firearm and the commission of the offence in a hospital in the presence of vulnerable patients both elevated its objective seriousness, though the fact the firearm remained holstered provided some mitigation (at [61]). The applicant's difficult childhood reduced his moral culpability to some extent (at [62]). The court independently confirmed a 25 percent discount for the early guilty plea across all offences (at [60]), and identified an indicative sentence of 3 years imprisonment for the second section 33B offence (at [62]). Special circumstances warranting an adjusted non-parole period were again established, on the same basis as the sentencing judge had found, given the applicant's level of institutionalisation (at [58]).

Outcome

Applying totality principles and requiring only a modest degree of accumulation across the three groups of offences, the sentence arrived at on resentencing was not lower than the 6 years and 4 months imposed by the sentencing judge (at [63]). Although the ground of appeal was made out, no lesser sentence was warranted in law, and the appeal was dismissed (at [64]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Using one charged offence to elevate the objective seriousness of another charged offence in the same sentencing exercise constitutes a form of double punishment and is an error of principle, even when both offences are closely related in time (at [49]).
  • The materiality threshold for a sentencing error requires the appellate court to ask whether the error could realistically have affected the sentencing judge's reasoning process, not merely whether the sentence would have differed but for the error, as confirmed in Farrugia v The King [2026] HCA 28 (at [50]).
  • An error confined to the indicative sentence for one offence can still meet the materiality threshold where that offence is among the most serious matters contributing to the ultimate aggregate term (at [52]).
  • Where an error is material, the Court of Criminal Appeal must exercise the sentencing discretion entirely afresh; finding no lower sentence to be warranted does not preclude the appeal being dismissed (at [54], [64]).
  • A sentencing court may legitimately regard the hospital setting of an offence, and the presence of vulnerable people in that environment, as factors increasing the objective seriousness of an offence (at [61]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 51B, 60, 60AE, 154C, 19 5
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Criminal Appeal Act 1912 (NSW), s 5
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
- Firearms Act 1996 (NSW), ss 39, 62, 65
- Road Transport Act 2013 (NSW), ss 54, 68

Cases
- Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
- Brawn v The King [2025] HCA 20
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Courtney v R [2022] NSWCCA 223
- DS v R [2025] NSWCCA 53
- Farrugia v The King [2026] HCA 28
- Gommesen v R [2012] NSWCCA 226
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- LN v R [2020] NSWCCA 131
- Mulato v R [2006] NSWCCA 282
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- Warner v R [2013] NSWCCA 10