CR v R

Citation: CR v R [2026] NSWCCA 150
Court: Court of Criminal Appeal
Date: 25 September 2026
Judge(s): Stern JA, Fagan J, Chen J

Background

The applicant pleaded guilty in the Local Court to six offences arising from a sustained campaign of domestic violence against his former partner between January 2024 and the time of his arrest. The offences included assault occasioning actual bodily harm (two counts), choking, intimidation, contravening an Apprehended Domestic Violence Order, and perverting the course of justice. The parties had been in an intimate relationship since approximately 2015 and had children together.

The District Court at Coffs Harbour sentenced the applicant to an aggregate term of 7 years imprisonment with a non-parole period of 4 years and 6 months, backdated to 25 June 2024. The applicant had committed these offences only five weeks after his release on parole from an earlier sentence for prior domestic violence offending against the same complainant.

The applicant sought leave to appeal against the sentence on two grounds, both directed at the sentencing judge's treatment of statutory aggravating circumstances under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legal Issues

• Whether the sentencing judge erred by applying the aggravating factor in section 21A(2)(b) (actual or threatened use of violence) to offences for which violence was an inherent element, thereby double-counting that factor.
• Whether the sentencing judge's reasons were adequate to explain the differential application of the various statutory aggravating circumstances to the respective offences.
• Whether, if error was established on either ground, a lesser sentence was warranted in law.

Decision

Ground 1: The Court unanimously upheld this ground. The impugned passage of the sentencing remarks conveyed, on its face, that section 21A(2)(b) had been treated as an aggravating feature of the choking (seq 7) and the two assaults occasioning actual bodily harm (seqs 20 and 22), offences for which violence was an integral element (at [33]). To treat those offences as additionally aggravated by violence amounted to double-counting, which is impermissible. Although the Crown's written submissions had correctly confined section 21A(2)(b) to the pervert the course of justice charge, the sentencing remarks contained no express qualification limiting that factor to the appropriate offence (at [33]).

Ground 2: The judges diverged on this ground. Fagan J held that the reasons were inadequate to dispel the impression of double-counting, effectively making good ground 2 as well (at [34]). Stern JA disagreed, taking the view that it was tolerably clear from the sentencing remarks as a whole that the judge had taken section 21A(2)(b) into account across all offences, meaning the reasons were adequate albeit erroneous, and the error was captured by ground 1 (at [1]). Chen J agreed with Fagan J on ground 1 but declined to uphold ground 2, finding the reasons sufficient even though they disclosed the error identified under ground 1 (at [51]-[52]). Ground 2 was therefore not upheld by a majority.

Whether a lesser sentence was warranted: Despite the identified error, the Court found unanimously that no lesser sentence was warranted. The Court considered the full objective gravity of the offending, including the sustained and escalating violence against the complainant and the perverting of justice by coercing the complainant to implicate an innocent person. The applicant's intercepted gaol calls from remand, in which he expressed ongoing violent intentions toward the complainant and attempted to suborn Bonser into taking responsibility for the offences, demonstrated a continuing lack of remorse (at [35]-[37]). Mitigating factors, including the applicant's profoundly deprived childhood, diagnosed PTSD, personality disorder and traumatic brain injury, had been properly weighed by the sentencing judge and reduced his assessed moral culpability (at [38]-[41]). No cogent argument was advanced to suggest that resentencing with the aggravating factors correctly allocated would produce a lesser result (at [48]).

Orders Made

• Leave to appeal granted.
• Appeal dismissed.

Key Takeaways

• Under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must not treat an aggravating factor as applicable to an offence when that factor is already an inherent element of the offence itself. To do so constitutes impermissible double-counting (at [33]).

• Sentencing remarks delivered collectively across multiple offences, without expressly differentiating which aggravating circumstances apply to which charges, risk disclosing error even where the underlying approach may have been correct. The Court of Criminal Appeal confirmed that such passages will be read on their face in the absence of qualifying words (at [33]-[34]).

• Identifying an error in the treatment of statutory aggravating factors does not automatically lead to a lesser sentence. Where no cogent argument is advanced to show that the sentence would have been lower but for the error, the Court of Criminal Appeal will decline to substitute a lesser term (at [48]-[49]).

• Profound childhood deprivation, including exposure to domestic violence, homelessness, neglect and abuse, can reduce an offender's moral culpability under the principles affirmed in Bugmy v The Queen (2013) 249 CLR 571, even in cases involving serious and repeated violence (at [38]-[41]).

• Post-sentence evidence of ongoing violent intent and attempts to obstruct justice, disclosed through intercepted gaol calls, can be taken into account when a court of criminal appeal is assessing whether a lesser sentence is warranted on resentence, as bearing on remorse and prospects of rehabilitation (at [35]-[37]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW )

Cases
- Holten v R [2005] NSWCCA 408