MT v R [2026] NSWCCA 25

Citation: MT v R [2026] NSWCCA 25
Court: Court of Criminal Appeal (NSW)
Date: 20 March 2026
Judge(s): N Adams CJ at CL (principal judgment at [1]); Hamill J (agreeing at [162]); Emmett J (agreeing at [163])

Background

The applicant, referred to as MT, pleaded guilty in the Local Court to four sexual offences committed against his two biological daughters, referred to as SL and JT. Three of the offences were committed against SL — two counts of aggravated sexual intercourse with a child aged between 10 and 14 years (contrary to s 66C(2) of the Crimes Act 1900 (NSW)) and one count of intentionally sexually touching a child aged between 10 and 16 years (contrary to s 66DB(a)). A fourth offence of intentionally sexually touching a child under 10 years (contrary to s 66DA(a)) was committed against JT. Four additional offences against SL were taken into account on Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The offences occurred between approximately 2019 and 2022. At the time, all three of the applicant's children were in his sole primary care, residing together at various addresses in the Kellyville Ridge and Plumpton areas of Sydney. The offending involved digital penetration, cunnilingus, and other sexual touching of SL while she slept or while other children were present, as well as sexual touching of JT while she was asleep. In each instance, the applicant was the victim's biological father and sole carer, placing the offending squarely within the category of serious intra-familial child sexual abuse involving a gross breach of trust.

On 31 May 2024, Kumar DCJ in the District Court sentenced the applicant to an aggregate term of 16 years' imprisonment with a non-parole period of 11 years, commencing on 22 August 2022. The applicant sought leave to appeal against the aggregate sentence on the sole ground that it was manifestly excessive.

Legal Issues

Whether the aggregate sentence of 16 years' imprisonment (with a non-parole period of 11 years) was manifestly excessive.
Whether the individual indicative sentences imposed for each offence were within an appropriate range, having regard to comparable cases, the objective seriousness of the offending, the applicable maximum penalties and standard non-parole periods, the Form 1 matters, and the applicant's subjective case.
Whether the degree of notional accumulation applied by the sentencing judge, when combined with high indicative sentences, resulted in an aggregate sentence that was unreasonable or plainly unjust.
Whether the applicant should be granted leave to file the Notice of Appeal out of time.
If the appeal was allowed, the appropriate resentence.

Decision

Leave to file out of time and extension of time: The Court was satisfied that the delay in filing the Notice of Appeal (filed on 29 August 2025, beyond the timeframe required by r 3.5(2)(a) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)) was adequately explained by delays in obtaining transcripts and exhibits, and counsel's availability. Leave was accordingly granted.

No patent error in the sentencing reasons: N Adams CJ at CL, delivering the principal judgment, found that there were no patent or identifiable errors in the sentencing judge's reasons. Certain minor discrepancies between the Agreed Facts and the Charge Certificate were noted but were found to operate in the applicant's favour. A belated indication of the non-parole periods applicable to the offences carrying a standard non-parole period (SNPP) did not, in itself, disclose sentencing error, following the approach in Ibbotson (a pseudonym) v R [2020] NSWCCA 92 and Wilson v R [2025] NSWCCA 86.

Assessment of indicative sentences: The Court accepted that the indicative sentences for sequences 1 (against SL), 7, and 10 were "high but not manifestly excessive" when considered individually, taking into account the sentencing judge's assessment of objective seriousness, the subjective case, the maximum penalties, and the Form 1 matters. However, the Court noted that the indicative sentence for sequence 1 in relation to JT was "arguably, manifestly excessive." In conducting this analysis, the Court had regard to a range of comparative cases — including DPP (NSW) v TH [2023] NSWCCA 81, R v BH [2023] NSWCCA 278, AJ v R [2023] NSWCCA 158, and Facer (a pseudonym) v R [2019] NSWCCA 180 — but found that the indicative sentences were not obviously outside the range established by those authorities.

The aggregate sentence was manifestly excessive: The crux of the appeal succeeded on the basis that the combination of high indicative sentences together with a significant degree of notional accumulation produced an aggregate sentence that was unreasonable or plainly unjust. Applying the principles from Dinsdale v The Queen (2000) 202 CLR 321, Conte v R [2018] NSWCCA 209, and SB v R [2022] NSWCCA 164, the Court concluded that while no single component of the sentence could be identified as independently erroneous (save possibly the indicative sentence for the offence against JT), the overall result was disproportionate to the totality of the criminality involved. The appeal was accordingly allowed.

Resentencing: The Court proceeded to resentence the applicant. N Adams CJ at CL indicated that the resentencing should proceed on the basis that the applicant had good prospects of rehabilitation. The specific terms of the resentence are not set out in the truncated portion of the judgment available for this summary, but the Court's approach involved moderating both the indicative sentences and the degree of accumulation to arrive at an aggregate sentence that was proportionate and just.

Orders Made

Leave to file the Notice of Appeal out of time was granted.
Leave to appeal against sentence was granted.
The appeal was allowed.
The sentence imposed by Kumar DCJ on 31 May 2024 was set aside.
The applicant was resentenced by the Court of Criminal Appeal (specific terms not available from the truncated text, but on the basis of good prospects of rehabilitation and reduced overall accumulation).

Key Takeaways

The Court of Criminal Appeal reaffirmed that the totality principle remains critical in aggregate sentencing, holding that even where individual indicative sentences fall within an acceptable range, the sentencing judge must ensure the overall aggregate sentence, reflecting the degree of accumulation, is not unreasonable or plainly unjust. This reinforced the necessity of a "last look" at the total effective sentence.
High indicative sentences combined with significant accumulation produced a manifestly excessive overall sentence. The compounding effect of indicative sentences sitting at the higher end of the available range, coupled with a substantial degree of notional accumulation, grounded a successful manifest excess appeal even in the absence of identifiable specific error in individual components.
Comparable sentencing decisions served as a guide rather than a rigid constraint. The Court engaged closely with prior authorities but emphasised that the indicative sentences were not "obviously outside the range" established by those cases, locating the manifest excess in the overall result rather than in individual components.
Minor procedural irregularities did not amount to appealable error. The late indication of non-parole periods for SNPP offences and minor discrepancies between the Agreed Facts and Charge Certificates were found not to constitute error in the circumstances.
In resentencing the applicant, the Court's express finding of good prospects of rehabilitation confirmed the ongoing relevance of subjective factors, including rehabilitation prospects, even in cases involving very serious sexual offending against children.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61M, 66C(2), 66DA(a), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25AA(3), 32, 33, 44(2), 53A(2), 54B(6)
- *Criminal Appeal