AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 23 September 2026

Worrell v R

[2026] NSWCCA 149

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS

Citation: Worrell v R [2026] NSWCCA 149
Court: Court of Criminal Appeal, New South Wales
Date: 23 September 2026
Judges: Payne JA, McNaughton J, Emmett J

Background

The applicant was sentenced in December 2025 for two offences arising from a domestic violence context: intentionally choking a former partner to unconsciousness (under s 37(1) of the Crimes Act 1900 (NSW)) and contravening an apprehended domestic violence order by harassing her on multiple occasions (under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). A further ADVO contravention was taken into account on a Form 1. The choking incident in June 2023 was particularly serious, involving the applicant trapping the complainant in his home, straddling her, strangling her until she lost consciousness, and afterwards telling her he could have killed her.

The sentencing judge imposed an aggregate sentence of 4 years 6 months imprisonment with a non-parole period of 2 years and 11 months. A 10% guilty plea discount was applied. The applicant sought leave to appeal on six grounds, contending errors in the treatment of his childhood deprivation, mental illness, remorse, sentencing statistics, guilty plea discount, and post-sentence rehabilitation.

Legal Issues

  • Whether the sentencing judge failed to treat the applicant's childhood-origin substance dependence as a discrete mitigating matter under Bugmy and De La Rosa principles
  • Whether the sentencing judge erred by moderating the mental health reduction in moral culpability by reference to the danger the applicant posed to the community
  • Whether the sentencing judge erred by failing to find that the applicant had demonstrated remorse
  • Whether the sentence was manifestly excessive, having regard to sentencing statistics for s 37(1) offences
  • Whether the applicant was entitled to a 25% guilty plea discount under Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether post-sentence treatment and courses completed in custody warranted any sentencing adjustment on appeal

Decision

Ground 1: Childhood-origin substance dependence under Bugmy principles

The Court of Criminal Appeal found no error. The sentencing judge expressly accepted the evidence of childhood deprivation and took it into account in reducing the applicant's moral culpability (at [52]). Her Honour recognised that the applicant's deprivation, mental health, and substance use were interrelated and did not treat them as separate matters to be given iterative mitigating weight (at [54]). This was consistent with the Court's recent approach in Cowan v R [2026] NSWCCA 105, where a sentencing judge was not required to take the same factors into account twice, once under Bugmy principles and once under De La Rosa principles (at [54]). The sentencing judge also expressly considered the applicant's addiction when assessing his prospects of rehabilitation (at [57]-[58]).

Ground 2: Moderating mental health reduction by reference to community danger

The Court found this ground could not succeed. The sentencing judge's approach was entirely consistent with the principles summarised in De La Rosa, which recognise that a finding of reduced moral culpability may be counterbalanced by a corresponding need for community protection (at [60]-[63]). The applicant also sought to resile from a concession made below, namely that his mental health warranted only a small reduction in moral culpability. The Court held that an applicant is bound by the conduct of counsel on appeal, and that an appeal is not the occasion for revising or reformulating the case presented at first instance (at [67]). Evidence of post-sentence treatment did not assist in demonstrating error, which must ordinarily be shown by reference to the material before the sentencing court; review of a sentence in light of subsequent events is the proper province of the executive, not an appellate court (at [68]).

Ground 4: Failure to find remorse

The sentencing judge did not overlook the psychologist's report that described the applicant as remorseful. Her Honour quoted it in full and engaged with counsel on the topic, but was not minded to accept the psychologist's opinion (at [72]-[75]). It was a matter for the sentencing judge whether to accept that view, and no error was established. The applicant's counsel had appropriately declined to press for a positive finding of remorse at sentence, and the applicant was bound by that approach (at [74]-[76]).

Ground 3: Manifest excess and sentencing statistics

The Court rejected the reliance on statistics showing that over 50% of aggregate or effective sentences for s 37(1) offences were 4 years or less. The statistics were of limited utility, disclosed nothing about the comparability of other cases, and could not establish a range of appropriate sentences (at [78]-[84]). On a closer look, approximately 30% of head sentences exceeded 6 years and 30% of non-parole periods exceeded 42 months, which did not support a conclusion that the applicant's sentence was at or beyond the upper bound (at [83]). The Court emphasised that consistency in sentencing means consistency in the application of legal principles, not numerical or mathematical consistency, and requires an understanding of why previous sentences were imposed (at [84]). Having regard to the middle-range objective seriousness of the choking offence, the poor criminal history, and the importance of specific deterrence, the sentence was within the range of permissible outcomes (at [85]-[88]).

Ground 5: Guilty plea discount

Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act governed the discount for count 3. Under s 25D, a 10% discount applied because the applicant did not plead guilty, or make a recorded written offer to plead guilty in a negotiations document, until 18 August 2025, which was within 14 days of the trial (at [100]-[106]). Section 25E, which provides for higher discounts where an earlier offer is made in a negotiations document, was not engaged because there was no such recorded document (at [104]-[105]). For sequence 6, assessed under s 22(1) rather than Division 1A as a related offence transferred from the Local Court, applicant's counsel had agreed to a 10% discount; the applicant was bound by that position (at [107]-[108]).

Ground 6: Post-sentence treatment

This ground relied solely on treatment and programs completed in custody after sentencing. No error in the exercise of the sentencing discretion had been established, and the applicant had not demonstrated any recognised exception justifying reliance on fresh or new evidence. The ground was rejected for the same reasons as those given in the context of Ground 2 (at [110]-[111]).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to treat childhood-origin substance dependence as a discrete mitigating matter separate from broader Bugmy deprivation findings; where a judge recognises the interrelationship between deprivation, mental health, and addiction, the same factors need not be counted twice (at [52]-[56]).

  • Under the De La Rosa principles, a reduction in moral culpability for mental illness may be counterbalanced by the need to protect the community, particularly where the mental health conditions remain untreated at the time of sentencing (at [60]-[63]).

  • Sentencing statistics showing that more than 50% of sentences for a given offence fell below a certain figure do not establish that a sentence above that figure is manifestly excessive; the Court of Criminal Appeal confirmed that consistency in sentencing requires understanding why previous sentences were imposed, not numerical alignment (at [78]-[84]).

  • A 25% guilty plea discount under s 25E of the Crimes (Sentencing Procedure) Act requires an offer to plead guilty to be recorded in a negotiations document; an unrecorded or unverified earlier offer to plead guilty will not engage the higher discount (at [104]-[105]).

  • Post-sentence treatment and rehabilitation programs completed in custody do not ordinarily assist an applicant on appeal in demonstrating error; review of a sentence in light of subsequent events is the province of the executive government, not an appellate court (at [68], [110]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) , s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 22, 25A, 25B, 25D, 25E
- Crimes Act 1900 (NSW) , s 37(1)
- Criminal Procedure Act 2007 (NSW) , ss 166, 168(3)

Cases
- Aslan v R [2014] NSWCCA 114
- Astill v R [2024] NSWCCA 118
- 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
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cowan v R [2026] NSWCCA 105
- Delleci v R [2020] NSWCCA 4
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Harris v R [2021] NSWCCA 322
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hoang v R [2020] NSWCCA 324
- Iglesias v R [2006] NSWCCA 261
- MLP v R [2014] NSWCCA 183
- Narayan v R [2026] NSWCCA 94
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Periasamy v R [2026] NSWCCA 89
- R v Munday [1981] 2 NSWLR 177
- R v Sabbah [2025] NSWCCA 203
- Skocic v R [2014] NSWCCA 225
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460