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Court of Criminal Appeal 23 September 2026

R v Molnar

[2026] NSWCCA 148

Sexual offences
SENTENCING CROWN APPEAL INTENSIVE CORRECTION ORDER FEDERAL OFFENCE ERROR CONCEDED CONCESSION ACCEPTED

Citation: R v Molnar [2026] NSWCCA 148
Court: Court of Criminal Appeal
Date: 23 September 2026
Judges: Mitchelmore JA; Dhanji J; Emmett J

Background

The respondent pleaded guilty in the District Court to one count of possessing child abuse material obtained using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth). A second offence of accessing child abuse material using a carriage service was taken into account on sentence. The material, found across three devices during a search warrant, comprised over 3,000 images, 100 videos and 120 written stories in the form of illustrations, animations and AI-generated images that did not depict real children but appeared to do so.

The sentencing judge imposed a term of 18 months' imprisonment to be served by way of an Intensive Correction Order (ICO), reasoning that the community would be better protected if the respondent was required, under ICO conditions, to engage in mental health treatment. The Crown appealed on two grounds: that an ICO was not an available sentencing option for the offence, and that the sentence was manifestly inadequate.

Legal Issues

  • Whether an ICO was an available sentencing option for an offence under s 474.22A(1) of the Criminal Code (Cth), having regard to the "corresponding case" requirement in s 20AB(1)(b) of the Crimes Act 1914 (Cth) and the disentitling provisions in s 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether imposing an unlawful sentence was a sufficient basis to allow a Crown appeal without a separate finding of manifest inadequacy
  • Whether the matter should be resentenced by the Court of Criminal Appeal or remitted to the District Court

Decision

Ground 1: Availability of an ICO

Under s 20AB(1)(b) of the Crimes Act 1914 (Cth), a New South Wales court may impose a sentence of a kind available under State law for a federal offender only if that sentence would be available "in corresponding cases" under State law. The Court confirmed that this applies to ICOs (at [22]). Section 67(1)(b) of the Sentencing Procedure Act disentitles a court from imposing an ICO where the offence is a "prescribed sexual offence," which expressly includes offences under s 91H of the Crimes Act 1900 (NSW) (possession or production of child abuse material) (at [28]).

The sentencing judge had noted that s 474.22A(1) did not appear in the list of Commonwealth offences in s 67(2)(e), and treated that omission as suggesting the disentitling provision did not apply. The Court found that omission was likely a product of timing: s 474.22A was inserted into the Criminal Code in 2019, after s 67 was last substantively amended in 2017 (at [26]). In any event, s 67(1)(g) separately captures a federal offence whose commission necessarily includes the commission of any offence listed in s 67(1)(a)-(f). Because committing the respondent's offence under s 474.22A(1) necessarily involved conduct that also constituted an offence under s 91H(2) of the Crimes Act 1900 (NSW), the disentitling provision in s 67(1)(g) applied and precluded imposition of an ICO (at [30]). The respondent conceded this ground, and the Court accepted the concession as properly made.

Ground 2: Sufficiency of Error to Allow the Appeal

Whether establishing legal error alone, without a separate finding of manifest inadequacy, is sufficient to allow a Crown sentence appeal is, in the general case, contentious (at [34]). The Court found it unnecessary to resolve that question in detail. Where the sentence imposed was not available at law, the present case fell into the same exceptional category as one where a mandatory minimum had not been imposed. This was one of those rare cases where intervention was warranted without a separate finding of manifest inadequacy. The respondent accepted as much (at [35]).

Remittal Rather Than Resentencing

Rather than resentencing the respondent itself, the Court remitted the matter to the District Court at Gosford pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) (at [44]-[45]). The Court noted that the power to remit is not constrained by any requirement to identify a particular positive impediment to the Court of Criminal Appeal conducting the resentencing itself, and that s 5D does not have primacy over s 12(2) (at [41]). The Court considered remittal appropriate in the circumstances. Both parties would retain their appeal rights following a full resentencing hearing. A fuller hearing would also allow proper exploration of the respondent's evolving mental health diagnoses, his treatment progress since sentence, and his compliance with supervision conditions (at [44]).

Orders Made

  • Appeal allowed
  • Sentence imposed on 14 April 2026 quashed
  • Matter remitted to the District Court of New South Wales for sentence pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW)
  • Proceedings stood into the General List at Gosford District Court on Thursday 1 October 2026 at 9:30am

Key Takeaways

  • Under s 67(1)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the disentitling provision barring an ICO extends to any federal offence whose commission necessarily includes conduct constituting a prescribed sexual offence under State law, even where the specific federal provision is not listed in s 67(2)(e) (at [27], [30]).

  • The absence of a federal offence from the list in s 67(2)(e) does not, of itself, indicate a legislative intention to exempt that offence from all ICO disentitling provisions; s 67(1)(g) operates as a broader, conduct-based catch-all (at [25]-[27]).

  • Imposing a sentence that is not available as a matter of law is a sufficient basis for a Crown appeal to succeed without a separate finding of manifest inadequacy, placing such cases in the same exceptional category as failures to impose a mandatory minimum (at [35]).

  • The Court of Criminal Appeal's power to remit a matter for resentencing under s 12(2) of the Criminal Appeal Act 1912 (NSW) is not conditioned on identifying a positive impediment to the appellate court conducting the resentencing itself, and s 5D does not hold primacy over s 12(2) (at [41]).

  • Where a respondent has been serving an unlawful ICO in the community and new psychiatric and supervision evidence has emerged since the original sentence, remittal to the sentencing court can be the preferable course to enable a full hearing at which both parties retain their appeal rights (at [44]).

Legislation and Cases Referenced

Legislation
- Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth), Sch 3
- Crimes Act 1900 (NSW) , ss 91H, 91FA, 91FB
- Crimes Act 1914 ( Cth) , ss 16BA, 17A, 20(1), 20AB
- Crimes (Sentencing Procedure) Act 1999 (NSW) , Pt 5 , s 67
- Crimes (Sentencing Procedure) Amendment Act 2022 (NSW), Sch 1
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), Sch 1
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3), 12(2)
- Criminal Code (Cth), ss 474.22 , 474.22A
- Judiciary Act 1903 (Cth) , s 78B

Cases
- CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Farrugia v The King [2026] HCA 28
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lambert v Weichelt (1954) 28 ALJ 282
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- O’Neil-Shaw v R [2010] NSWCCA 42
- R v Delzotto [2022] NSWCCA 117; 298 A Crim R 483
- R v Hernando [2002] NSWCCA 489; 136 A Crim R 451
- R v Jacobs Group (Australia) Pty Ltd [2023] NSWCCA 280
- R v Janceski [2005] NSWCCA 288; 44 MVR 328
- R v Reynolds [2004] NSWCCA 51
- Ravbar v Commonwealth [2025] HCA 25; 99 ALJR 1000
- Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223
- Wurridjal v The Commonwealth of Australia (2009) 237 CLR 309; [2009] HCA 2