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Court of Criminal Appeal 30 September 2026

King v R

[2026] NSWCCA 153

Assault & violenceTheft & propertyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE MISAPPLICATION OF PRINCIPLE SENTENCE EXTENSION OF TIME IN WHICH TO APPEAL

Citation: [2026] NSWCCA 153
Court: Court of Criminal Appeal
Date: 30 September 2026
Judge(s): Leeming JA, Fagan J, Emmett J

Background

The applicant pleaded guilty in the District Court to a series of serious offences arising from two distinct episodes. The first involved a home invasion in Blacktown in April 2022, carried out with three co-offenders who were armed with a miniature scythe, knives, and later an axe. Three occupants were terrorised in their bedrooms, property was stolen, and one complainant was wounded. The second episode occurred in June 2023 at Parklea Correctional Centre, where the applicant threw a bag of scalding water into a neighbouring inmate's face, causing deep dermal burns.

Judge Colefax SC sentenced the applicant in the District Court on 16 May 2025. The applicant received an aggregate sentence for the Blacktown offences and a further sentence for the Parklea offence, each discounted by 25% for early guilty pleas. The sentencing judge found special circumstances warranting non-parole periods below 75% of the respective head sentences, but the combined effect of the sentence structure produced an overall effective non-parole period of approximately 83.75% of the total head sentence.

The applicant sought leave to appeal out of time, contending two specific errors in the sentencing. The Crown did not oppose either ground.

Legal Issues

  • Whether the sentencing judge wrongly applied section 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which applies only to "convicted inmates," when the applicant was in fact on remand at the time of the Parklea offence
  • Whether, having found special circumstances warranting reduced non-parole periods for each individual sentence, the sentencing judge erred by producing a combined effective non-parole period of 83.75% of the total head sentence
  • Whether an extension of time to appeal should be granted despite an unsatisfactory explanation for delay
  • How the court should approach re-sentencing, including whether it could depart from the sentencing judge's unchallenged factual findings, and what weight to give fresh post-sentence evidence

Decision

Ground 1: Misapplication of section 56

Section 56 of the Crimes (Sentencing Procedure) Act requires that a sentence for an offence committed by a "convicted inmate" be served consecutively to the sentence then being served, unless a court otherwise orders. The definition of "convicted inmate" does not include a person held on remand. At the time of the Parklea offence on 6 June 2023, the applicant had not yet been sentenced for any matter that overlapped with that date; he was on remand for the Blacktown offences. The court held that section 56 did not apply, and the sentencing judge erred in proceeding on that basis (at [61]-[63]). The Crown candidly acknowledged that its own written submissions below had contributed to the error (at [61]).

Ground 2: Effective non-parole period exceeding 75% despite finding of special circumstances

Although the sentencing judge found special circumstances for all offences, the structure of the sentences meant the Parklea sentence commenced at the expiry of the non-parole period for the Blacktown sentence. This produced an overall effective non-parole period of 83.75% of the combined head sentence, substantially exceeding 75%. The court confirmed that where a non-parole period exceeds 75% of the total sentence, the sentencing judge is generally expected to acknowledge that outcome and explain the reasons for it (at [64]-[65]). No such explanation existed here, and the error was established (at [66]).

Extension of time

The court granted an extension of time despite finding the applicant's explanation for delay unsatisfactory. The decisive considerations were that the errors were not genuinely in dispute and the Crown identified no specific prejudice arising from the extension (at [68]).

Re-sentencing: approach to factual findings and fresh evidence

The court declined to depart from the sentencing judge's unchallenged findings on objective gravity, moral culpability, and subjective circumstances, as those findings were reasonably open and no separate grounds of appeal were brought in relation to them (at [72]). Fresh post-sentence evidence was received on the usual basis and taken into account. That evidence showed some improvement in the applicant's engagement with employment and family support in custody, but also seven custodial infringements including two fights, one of which involved the applicant and four others kicking and punching a single inmate on the ground (at [85]-[86]). The court found that the applicant's prospects of rehabilitation had improved somewhat but remained appropriately described as guarded (at [87]). The court further found special circumstances based on onerous custodial conditions and the prospects of rehabilitation, warranting a non-parole period appreciably less than 75% of the combined sentence (at [91]). Although section 56 did not strictly apply, the court accepted that the policy underlying that provision, namely maintaining public confidence by ensuring offending in custody is not absorbed without effective additional punishment, remained relevant to setting commencement dates (at [90]).

The sentences were restructured so that the Parklea sentence commences on 10 May 2023 (three months after the prior sentences began, providing some accumulation), with the Blacktown aggregate sentence commencing on 10 April 2024. The overall head sentence expires on 9 October 2029, unchanged from the sentencing judge's order. The court divided on the precise non-parole period by two months, with Leeming JA preferring Emmett J's proposal as better reflecting the special circumstances finding and more closely matching the ratio the sentencing judge intended (at [3]).

Orders Made

  • Time to bring the application extended to 14 September 2026 pursuant to section 10(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Leave to appeal granted and the appeal allowed
  • Sentence imposed by the District Court on 16 May 2025 quashed and the applicant resentenced as follows:
  • For the Parklea offence: 3 years' imprisonment commencing 10 May 2023 and expiring 9 May 2026, with a non-parole period of 1 year and 11 months expiring 9 April 2025
  • For the Blacktown offences: aggregate sentence of 5 years and 6 months' imprisonment commencing 10 April 2024 and expiring 9 October 2029, with a non-parole period of 3 years and 3 months expiring 9 July 2027
  • Earliest parole eligibility date: 9 July 2027

Key Takeaways

  • Section 56 of the Crimes (Sentencing Procedure) Act 1999 applies only to "convicted inmates" as defined, and does not extend to persons held on remand at the time of the offence in question. Applying the provision to a remand prisoner constitutes a legal error (at [61]-[63]).

  • Where a sentencing court finds special circumstances warranting individual non-parole periods below 75% of each head sentence, it must attend to the combined structural effect of the sentences. Producing an overall effective non-parole ratio of 83.75% without explanation is inconsistent with a finding of special circumstances, and generally a court is expected to acknowledge and explain any outcome exceeding 75% (at [64]-[65]).

  • An applicant seeking to challenge factual findings of the sentencing judge on re-sentence must raise a specific ground of appeal directed to those findings. Absent such a ground, the Court of Criminal Appeal proceeds on the basis that the unchallenged findings were reasonably open (at [72]).

  • Although section 56 did not technically apply in this case, the Court of Criminal Appeal confirmed that the public policy underlying that provision, namely ensuring that offending committed in custody attracts effective additional punishment, remains a legitimate consideration when structuring commencement dates on re-sentence (at [90]).

  • Custodial infringements after sentence are not automatically immaterial to rehabilitation prospects on re-sentence. Where such conduct occurred during the current period of incarceration and the facts are serious, the sentencing court may give them some weight in assessing rehabilitation, while still acknowledging the inherently difficult custodial environment (at [85]-[86]).

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 56
- Crimes Act 1900 (NSW) , ss 59. 97(1), 112, 154F
- Criminal Appeal Act 1912 (NSW) , ss 5(1)(c), 10(1)(b)

Cases
- Al Maouie v R [2022] NSWCCA 30
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Duncan v R [2026] NSWCCA 19
- Hancock v R [2025] NSWCCA 213
- Harris v R [2021] NSWCCA 322
- Hraichie v R [2022] NSWCCA 155
- Quinlan v R [2021] NSWCCA 21
- R v Fyffe [2002] NSWSC 751
- R v Jeremiah [2016] NSWCCA 241
- R v Millwood [2012] NSWCCA 2
- Steele v R [2026] NSWCCA 99
- Turnbull v R [2019] NSWCCA 97