Citation: R v XY [2026] NSWCCA 174
Court: Court of Criminal Appeal
Date: 23 October 2026
Judge(s): Payne JA at [1]; Roberts J at [3]; Richardson J at [5]
Background
The respondent was convicted after a third jury trial of aggravated sexual intercourse without consent, contrary to section 61J(1) of the Crimes Act 1900 (NSW). The offence occurred in 2007 when the respondent, then aged 21, had sexual intercourse with a victim aged 12 to 13. The respondent had lived in the same household as the victim and her sister from around the age of 14, having been taken in by the victim's father after witnessing domestic violence against his mother.
The prosecution history was lengthy and complex. Although the victim first raised allegations in 2007, charges were not laid until 2022, over 14 years later. In that intervening period, the respondent had twice contacted police seeking confirmation of whether any charges were pending. He was arrested in June 2022, refused bail, and ultimately faced three jury trials in relation to the section 61J charge before being convicted at the third trial in 2026.
In separate proceedings arising from the same series of events, the respondent had already been sentenced for three counts of aggravated indecent assault against the same victim and one count of sexual intercourse with her sister. Those four offences attracted an aggregate sentence of 3 years imprisonment with a non-parole period of approximately 2 years and 1 month, backdated to account for 763 days of pre-sentence custody. The Crown then appealed the sentence imposed at the third trial, arguing it was manifestly inadequate and that the sentencing judge had misapplied the totality principle.
Legal Issues
- Whether the sentencing judge erred in applying the totality principle when structuring the sentence alongside the earlier sentence imposed by Turner DCJ.
- Whether the resulting sentence, taken together with the earlier sentence, was manifestly inadequate for five sexual offences against two victims.
Decision
Ground 1 (Totality) and Ground 2 (Manifest Inadequacy):
Richardson J dealt with both grounds together, given their substantial overlap (at [51]). The sentencing judge imposed a sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years, backdated to commence 29 October 2024 (at [7]). Combined with the earlier sentence, the effective total period of imprisonment was 5 years, 6 months and 10 days, with an effective non-parole period of 3 years and 9 days across all five offences against two victims (at [53]).
Richardson J accepted that the sentence fell on the lenient side of the spectrum and acknowledged that, by reason of the backdating, the respondent was required to serve less than 5 months of additional custody beyond the non-parole period imposed in the earlier proceedings (at [58]). His Honour also characterised the degree of concurrency between the two sentences as "substantial" (at [59]).
However, Richardson J held that leniency alone does not establish manifest inadequacy. The relevant question is whether the sentence falls outside the broad margin of appreciation afforded to sentencing judges (at [63]). The Crown did not challenge any of the sentencing judge's findings as to the respondent's subjective case, accepted that he had compelling aspects to that case, and made no challenge to the findings of reduced moral culpability or diminished need for general deterrence (at [62]). The Crown also did not dispute the finding of special circumstances arising from the prosecution delay of approximately 15 years, the three trials, and the respondent's broken custody (at [62]).
Richardson J concluded that, having regard to all matters taken into account by the sentencing judge, including the respondent's profound background of deprivation, his diagnosed mental health conditions, his prospects of rehabilitation, and the exceptional procedural history, the sentence remained within the permissible range (at [63]). Payne JA and Roberts J each joined in the orders for the same reasons, with Roberts J specifically noting the unusual features of delay and broken custody as significant to the subjective case (at [4]).
Orders Made
- Appeal dismissed.
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentence falling on the lenient side of the spectrum does not, without more, establish manifest inadequacy; the sentence must fall outside the broad margin of appreciation afforded to sentencing judges (at [58]-[63]).
- Where the Crown accepts findings of reduced moral culpability, diminished need for general deterrence, and a compelling subjective case, those unchallenged findings form part of the factual foundation that appellate courts must respect when assessing whether a sentence is manifestly inadequate (at [62]).
- A background of profound deprivation, significant mental health conditions, and a very young age at the time of offending are each capable of reducing an offender's moral culpability in serious sexual offending matters (at [35]-[37]).
- Prolonged prosecution delay, multiple trials in respect of the same charge, and broken periods of custody were accepted as capable of supporting a finding of special circumstances and as significant features of an offender's subjective case (at [39]-[40]).
- Substantial concurrency between successive sentences may produce an effective non-parole period that the appellate court regards as lenient, yet still fall within the permissible range where the totality of the subjective case justifies that outcome (at [58]-[63]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61C(1), 61J(1), 61M(1)
- Criminal Appeal Act 1912 (NSW), s 5D
Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
- MacBlane v R [2025] NSWCCA 52
- R v White [2025] NSWCCA 111