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Court of Criminal Appeal 12 October 2026

Muldoon v R

[2026] NSWCCA 158

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE RECKLESSLY DEAL WITH PROCEEDS OF CRIME PRINCIPLE OF TOTALITY PAROLE PERIOD

Citation: Muldoon v R [2026] NSWCCA 158
Court: Court of Criminal Appeal
Date: 12 October 2026
Judge(s): Stern JA, Fagan J, Dhanji J

Background

The appellant pleaded guilty in the Local Court to three counts of recklessly dealing with proceeds of crime under s 193B(3) of the Crimes Act 1900 (NSW), with four further counts on Form 1s. The offences involved a series of transactions between January and June 2021 in which victims transferred small sums into bank accounts held by the appellant. The total amount across the sentenced counts was $5,800, with an additional $5,850 across the Form 1 matters.

At the time of sentencing in the District Court in August 2025, the appellant was already serving two substantial sentences: a State sentence expiring April 2028 and a federal sentence expiring July 2028, with non-parole periods expiring in mid-2026. Both the Crown and the appellant submitted that the new sentence should be wholly subsumed within the existing non-parole period, effectively having no practical impact on when the appellant could be released to parole.

The District Court imposed an aggregate sentence of 2 years with a non-parole period of 18 months. Although the sentencing judge expressed that the sentence would have "nil effect," the orders as pronounced in fact extended the appellant's total effective non-parole period by seven months.

Legal Issues

  • Whether the sentencing judge erred in applying the principle of totality, specifically by miscalculating the effect of the new sentence on the appellant's overall non-parole period
  • Whether the sentencing judge failed to consider relevant principles or give adequate reasons relating to the subjective case (Grounds 2 and 3, which were not determined)

Decision

Ground 1: Totality and miscalculation of effect

Dhanji J found that the sentencing judge did not intend to extend the appellant's pre-existing non-parole period, and that the orders as pronounced resulted from a miscalculation rather than any misunderstanding of the applicable principles (at [33]-[34]). The judge's remarks at sentencing expressed that the sentence would have "nil effect," and both parties had submitted that the new sentence should be subsumed within the existing non-parole period, with the Crown expressly not objecting to that outcome (at [31]-[32]).

Several features of the sentencing judge's reasons confirmed that the extension of seven months was unintentional. The judge found that the matter, if dealt with at the same time as the earlier offences, "would not have made a significant difference to the penalty to be imposed," yet an extension of the non-parole period from three years to three years and seven months could not be described as insignificant (at [31]). Additionally, the judge provided no reasons for departing from the agreed position of the parties, which would have been expected had an intentional extension been contemplated (at [32]). Fagan J added that the mistake lay either in the commencement date of the sentence or in the length of the non-parole period as pronounced (at [2]).

Grounds 2 and 3: Adequacy of reasons and findings

The Court found it unnecessary to consider Grounds 2 and 3. Given that Ground 1 was established and it was clear the sentencing judge intended to accede to the parties' joint position, the Court considered it both unnecessary and inappropriate to subject the reasons to the level of analysis those grounds required (at [35]).

Resentencing

The Court allowed the appeal and resentenced the appellant so that his non-parole period expired on the day of the hearing, 18 September 2026. The Court noted that while the revised orders still extended the non-parole period beyond what was originally intended, there was no utility in setting an earlier date, and the resulting sentence remained within the available range and reflected the additional criminality involved (at [36]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed in the District Court on 14 August 2025 was quashed and replaced with imprisonment for 2 years commencing 14 August 2025, with a non-parole period of 1 year, 1 month and 5 days expiring 18 September 2026 (the date of the Court of Criminal Appeal hearing), and a total term expiring 13 August 2027
  • The Registrar was directed to notify the State and federal parole authorities of the appellant's eligibility for release to parole

Key Takeaways

  • A sentencing judge's error in applying the totality principle need not arise from a misunderstanding of the law: a miscalculation of the practical effect of cumulation on the total effective non-parole period is itself sufficient to establish error on appeal (at [34]).

  • Where sentencing reasons express an intention that a new sentence will have "nil effect" in light of existing sentences, but the orders as pronounced extend the non-parole period, the Court of Criminal Appeal may find that the orders do not reflect the judge's true intention (at [33]).

  • The absence of any reasons explaining a departure from the parties' agreed position is a relevant indicator that a sentencing judge did not intend to extend a non-parole period beyond the existing term (at [32]).

  • When resentencing after a totality miscalculation, the Court of Criminal Appeal is not required to impose the minimum possible non-parole period; it may impose a period that, though longer than originally intended, falls within the available range and reflects the totality of the offending (at [36]).

  • The principle in R v Todd that sentencing for a "stale crime" calls for "a considerable measure of understanding and flexibility of approach" is applicable where an offender is sentenced years after the relevant conduct, having already been sentenced for other related matters in the interim (at [20]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) , s 5
- Crimes Act 1900 (NSW) , s 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 3, ss 5, 53A

Cases
- 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
- Duncan v R [2026] NSWCCA 19
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Muldoon [2025] NSWDC 509
- R v Todd [1982] 2 NSWLR 517