AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 6 November 2026

Gatt v R

[2026] NSWCCA 182

Domestic & family violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE ASSERTED DENIAL OF PROCEDURAL FAIRNESS REJECTION OF PSYCHOLOGIST’S OPINION MORAL CULPABILITY

Citation: Gatt v R [2026] NSWCCA 182
Court: Court of Criminal Appeal
Date: 6 November 2026
Judge(s): N Adams CJ at CL, Dhanji J, Roberts J

Background

The appellant pleaded guilty in the Local Court to 20 domestic violence and public justice offences committed against his wife, son, and daughter, with a further six offences taken into account on Form 1. The offences spanned approximately nineteen years, from 2004 to 2023, and involved repeated physical assaults, the use of weapons including a baseball bat and a knife, deliberate humiliation, and attempts from custody to persuade the complainant to withdraw her statement.

In the District Court, the sentencing judge imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years. The appellant challenged that sentence on four grounds, primarily concerning the judge's findings on moral culpability and the treatment of his criminal history and subjective case.

A psychologist retained by the defence, Ms Susan Hawil, opined that the appellant's adverse childhood experiences, including racial bullying at school and harsh physical discipline by his father, had normalised violence and impaired his emotional regulation. The sentencing judge rejected this evidence without prior notice to the parties that he was minded to do so.

Legal Issues

  • Whether the sentencing judge made a finding not open on the evidence by concluding that the appellant held a form of "patriarchal superiority" that elevated his moral culpability (Ground 2)
  • Whether the sentencing judge denied the appellant procedural fairness by making that finding without prior notice, and without it having been advanced by the Crown (Ground 1)
  • Whether the sentencing judge denied the appellant procedural fairness by rejecting unchallenged expert evidence that his childhood experiences normalised violence, without warning the parties of that intention (Ground 3)
  • Whether the sentencing judge erred by failing to treat the absence of a significant prior criminal record as a mitigating factor (Ground 4)
  • Whether an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) may lawfully carry a parole period longer than any individual indicative sentence

Decision

Grounds 1 and 2: Motive finding and procedural fairness

Roberts J, with whom the other judges agreed on the outcome, held that the sentencing judge's finding was not accurately described as one about systemic or societal misogyny. Properly understood in context, the impugned finding was that the appellant believed himself entitled to control and punish his wife for perceived domestic and parenting shortcomings. That conclusion was an inference reasonably available from the agreed facts and from the history the appellant himself gave to both the SAR author and the psychologist (at [100]-[102]). The finding was therefore open on the evidence, and Ground 2 was dismissed (at [103]).

On Ground 1, the Court accepted that the Crown had relied on the SAR's language of "entitlement and superiority" and that exchanges during the hearing had foreshadowed the judge's rejection of the subjective case. The sentencing judge was not obliged to signal in advance the precise terms of a finding well open on the material before him (at [120]). Both particulars of Ground 1 were dismissed (at [121]).

Ground 3: Rejection of psychologist's evidence without notice

The Court upheld this ground. The sentencing judge rejected Ms Hawil's unchallenged opinion that the appellant's harsh physical discipline at home had normalised violence, and found that the evidence had not established that the discipline was "harsh." Neither the Crown nor the judge had signalled any intention to reject that characterisation. Indeed, the judge had during the hearing described the appellant's upbringing involving violence as "typical," suggesting acceptance rather than rejection (at [137]).

The Court found the rejection was difficult to sustain: physical discipline requiring hospital treatment and resulting in a teenager leaving home for three months is not controversially "harsh," and both the appellant's own account and his brother's supporting letter confirmed the experience was treated as normal within their family and social context (at [138]). The rejection removed the foundation for the submission that the appellant's background impaired his emotional regulation, making the breach material in circumstances where the judge had also elevated moral culpability by reference to motive (at [139]-[140]). Ground 3 was upheld (at [141]).

Ground 4: Absence of significant prior convictions

The Court accepted that the sentencing judge's language was ambiguous, noting it would be wrong to treat the in-sentence offending as though it were a de facto record of prior convictions (at [155]). However, Roberts J was satisfied that, read as a whole, the judge's reasoning was that the extended duration of the offending disentitled the appellant to the leniency that would otherwise follow from his absence of prior convictions. That was a finding open in the circumstances, and no error was established (at [156]-[157]).

Aggregate sentence structure

The Court raised with the parties whether section 53A permits an aggregate sentence with a parole period longer than any individual indicative sentence, noting the longest indicative sentence was 3 years yet the aggregate carried a 4-year parole period (at [7]). Both parties submitted no error would arise. Because no issue was joined, the Court found it unnecessary to resolve the question (at [8]). Dhanji J expressed serious reservations about the correctness of the parties' joint position in light of High Court observations in The King v McGregor [2026] HCA 3, but declined to determine the point. His Honour indicated a preference, on resentence, for an aggregate structure that could also have been achieved through individual sentences (at [18]).

Resentencing

Roberts J re-sentenced the appellant to an aggregate term of 11 years with a non-parole period of 7 years, applying a greater degree of notional concurrency and taking a more optimistic view of rehabilitation prospects than the sentencing judge. His Honour did not find the appellant's moral culpability either elevated or meaningfully reduced, and maintained the significance of general and specific deterrence and denunciation (at [162]-[163]). Dhanji J would have imposed 10 years with a non-parole period of 6 years and 6 months (at [20]). The majority sentence of Roberts J (11 years, NPP 7 years) was adopted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence of 12 years (NPP 8 years) imposed in the District Court on 26 September 2024 set aside
  • In lieu, aggregate term of imprisonment of 11 years imposed, commencing 31 May 2023 and expiring 30 May 2034, with a non-parole period of 7 years commencing 31 May 2023 and expiring 30 May 2030

Key Takeaways

  • A sentencing judge who is minded to reject unchallenged expert evidence on a material aspect of an offender's subjective case must give the parties notice of that intention, so they may address it. Where the rejection removes the foundation for a significant mitigating submission and operates alongside a finding that elevates moral culpability, the breach is material and constitutes a practical injustice (at [136]-[140]).

  • A motive finding does not breach procedural fairness merely because the Crown did not deploy the same precise language, provided the finding is an inference reasonably available from material placed before the court by the Crown and from the offender's own account (at [100]-[102], [120]).

  • An extended course of criminal conduct for which an offender is being sentenced is not equivalent to a prior record of convictions, and it would be wrong to treat it as such. However, that same course of conduct may permissibly reduce the weight given to the absence of prior convictions as a mitigating factor (at [155]-[156]).

  • The question of whether section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits an aggregate sentence with a parole period longer than any individual indicative sentence was expressly left unresolved by the Court of Criminal Appeal in this decision, though Dhanji J flagged it as a point of real doubt warranting future consideration in light of The King v McGregor [2026] HCA 3 (at [7]-[18]).

  • In domestic violence sentencing, a belief in entitlement to control and punish a partner for perceived domestic failings may properly support a finding of elevated moral culpability, provided that finding is grounded in the evidence and the agreed facts of the offending (at [101]-[102], [162]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d) , 21A(2)(h) , 21A(3)(e) , 44, 45 , 47 , 53A
- Criminal Appeal Act 1912 (NSW) , ss 5(1)(c ), 6(3)

Cases
- Beale v R [2015] NSWCCA 120
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Chemaissem v R [2021] NSWCCA 66
- Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
- Dent v R [2025] NSWCCA 43
- DG v R [2025] NSWCCA 137
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224; (2017) 269 A Crim R 40
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Edwards v R [2026] NSWCCA 15
- El Samman v R [2026] NSWCCA 60
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Geoghegan v R [2026] NSWCCA 164
- Hancock v R (2025) 119 NSWLR 183; [2025] NSWCCA 213
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lu v The Queen [2008] NSWCCA 261; (2008) 190 A Crim R 109
- Meis v R [2022] NSWCCA 118
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Musa v R [2022] NSWCCA 221
- Nguyen v R [2025] NSWCCA 42
- NK v R [2025] NSWCCA 137
- Paterson v R [2021] NSWCCA 273
- R v Amurao [2005] NSWCCA 32
- R v Billings [2026] NSWSC 1088
- R v Dunn [2004] NSWCCA; (2004) 144 A Crim R 190.
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Sciberras [2006] NSWCCA 268; 165 A Crim R 532
- Regina v Baker [2000] NSWCCA 85
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Smith v R [2024] NSWCCA 59
- The King v McGregor [2026] HCA 3; (2026) 100 ALJR 287
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Vaughan v R [2020] NSWCCA 3
- Warton v R [2025] NSWCCA 5
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Yun v R [2017] NSWCCA 317
- ZA v R [2017] NSWCCA 132; (2017) 267 A Crim R 105