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Court of Criminal Appeal 18 September 2026

Forbes v R

[2026] NSWCCA 147

Assault & violenceTheft & property
SENTENCING APPEAL AGAINST SENTENCE MANIFEST EXCESS USE OF STATISTICS ERROR FOUND AND APPLICANT RE SENTENCED

Citation: Forbes v R [2026] NSWCCA 147
Court: Court of Criminal Appeal
Date: 18 September 2026
Judges: Bell CJ at [1]; Mitchelmore JA at [3]; Muston J at [4]

Background

The applicant was convicted after a jury trial on one count of specially aggravated break and enter and commit a serious indictable offence (armed robbery in company) under s 112(3) of the Crimes Act 1900 (NSW), and six counts of detaining a person for advantage in company under s 86(2)(a). The offences arose from an armed robbery of a regional RSL club in Sussex Inlet on 25 July 2019. The applicant and a co-offender, armed with sledgehammers and a sawn-off shotgun, smashed their way in, stole $62,345 in cash, and locked six staff members in a large safe for approximately 20 minutes before police arrived.

The sentencing judge in the District Court imposed an aggregate sentence of 17 years imprisonment with a non-parole period of 10 years. The applicant sought leave to appeal on a single ground: that the sentence was manifestly excessive.

Legal Issues

  • Whether the aggregate sentence of 17 years was manifestly excessive for offences under s 112(3) and s 86(2)(a) of the Crimes Act 1900 (NSW).
  • What weight, if any, sentencing statistics from the Judicial Information Research System should be given in assessing manifest excess.
  • Whether, on resentencing, the applicant's childhood hardships reduced his moral culpability in the absence of an established causal link to the offending.
  • What aggregate sentence was appropriate having regard to the objective seriousness of the offending, the applicant's subjective case, and hardship experienced in custody.

Decision

Manifest Excess: Statistical Outlier

The Court found that the sentence was the highest recorded in the Judicial Information Research System statistics for s 112(3) offences and therefore warranted careful scrutiny (at [42]-[44]). While bare statistics stripped of their underlying facts are a blunt instrument, the Court confirmed they provide at least a yardstick against which a sentence may be examined (at [43]).

Comparison with Comparable Sentences

The Court compared the applicant's sentence with the next highest recorded sentence, imposed in R v Musa, where the offender received an aggregate of 15 years for an armed robbery in which he stabbed two victims repeatedly, causing life-altering injuries, and was also found to have intentionally inflicted grievous bodily harm (at [47]-[49]). The applicant's offending involved no physical injuries and no established capability of the firearm to discharge. The Court found the applicant's offending was significantly less serious than Mr Musa's, making the 17-year aggregate wholly disproportionate (at [49]-[50]).

Error Identified

The Court identified at least two sources of error: excessive accumulation applied to the indicative sentences, and a failure to properly apply the principles of totality when settling on the aggregate (at [50]). Leave to appeal was granted and the appeal upheld (at [51]).

Resentencing

On resentencing, Muston J placed the s 112(3) offence at the upper end of the mid-range of objective seriousness and each s 86(2)(a) offence some way below mid-range (at [54]). Unlike the sentencing judge, the Court found that the applicant's childhood experiences of sexual abuse, parental neglect, and exposure to violence did reduce his moral culpability, holding that a causative link to the offending is not required for that conclusion (at [57]). The Court also departed from the sentencing judge's assessment of rehabilitation, finding the applicant had good prospects based on his enthusiastic participation in educational programs and positive conduct in custody (at [58]). Significant hardship in custody, including a serious assault in December 2023 that caused lasting vision problems and extensive delays in receiving treatment, was also taken into account (at [59]-[61]). The Court imposed an aggregate sentence of 10 years with a non-parole period of 7 years, adopting the standard non-parole period as appropriate for the s 112(3) offence given its objective seriousness (at [63], [67]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed in the District Court on 5 July 2024 was quashed.
  • In lieu, the applicant was sentenced to an aggregate term of 10 years' imprisonment commencing on 9 May 2022, with a non-parole period of 7 years expiring on 8 May 2029.

Key Takeaways

  • Sentencing statistics from the Judicial Information Research System are not determinative of manifest excess but function as a legitimate yardstick; where a sentence sits at the very top of recorded statistics as an outlier, an appellate court will subject it to careful scrutiny by reference to comparable cases and their underlying facts (at [43]-[44]).
  • A sentence that is wholly disproportionate to the offending relative to other comparable cases, including one involving significantly more serious violence and injury, will be found to constitute manifest excess even where the offending is itself objectively serious (at [49]-[50]).
  • Excessive accumulation of indicative sentences, combined with a failure to properly apply totality principles, constitutes identifiable error warranting appellate intervention (at [50]).
  • The Court of Criminal Appeal confirmed, applying DG v R [2025] NSWCCA 137, that an offender's childhood hardships can reduce moral culpability for sentencing purposes even in the absence of an established causal link between those hardships and the offending (at [57]).
  • Hardship suffered in custody, including a serious assault and significant delay in receiving appropriate medical treatment, is a relevant consideration on resentencing (at [60]-[61]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 86, 97, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 44, 54A
- Criminal Appeal Act 1912 (NSW) s 5

Cases
- De Jong v R; Tuimaulauga v R; Zechel v R; Puru v R [2015] NSWCCA 32; (2015) 249 A Crim R 252
- DG v R [2025] NSWCCA 137
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mansaray v R [2018] NSWCCA 16
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- O’Grady v R [2015] NSWCCA 168
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Leach [2000] NSWCCA 247
- R v Musa [2022] NSWCCA 221
- R v Musa; R v Butros; R v Fangu Fangu (District Court (NSW), Culver DCJ, 1 April 2021, unrep)
- Wooton v R [2014] NSWCCA 86; (2014) 241 A Crim R 256