AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 8 April 2026

Wasarua v R

[2026] NSWCCA 33

Sexual offences

Citation: Wasarua v R [2026] NSWCCA 33
Court: Court of Criminal Appeal (NSW)
Date: 8 April 2026
Judge(s): Stern JA at [1]; Huggett J at [43]; Boulten J at [44]

Background

The applicant was convicted by a jury in the District Court on 23 August 2024 of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Both offences occurred on 6 November 2022 and involved the same victim. The offending took place in the victim's home and involved the use of physical force by a person who was physically larger and stronger than the victim.

On 15 November 2024, the sentencing judge (Bourke SC DCJ) imposed an aggregate sentence of 5 years and 6 months' imprisonment, with a non-parole period of 3 years and 8 months. The sentencing judge found special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), based on the applicant's first period of custody and the need for a significant period of supervised parole. The indicative sentence for count one was 4 years and 2 months (non-parole period of 2 years and 9 months) and for count two was 5 years and 3 months (non-parole period of 3 years and 6 months). The maximum penalty for each offence was 14 years' imprisonment, with a standard non-parole period of 7 years.

The applicant, representing himself, sought leave to appeal against his sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). His central contention was that the aggregate sentence was manifestly excessive, having regard to several mitigating factors including the objective seriousness of the offending, his previous good character, his compliance with bail conditions, and particular hardships he said made his incarceration especially onerous.

  • Whether the aggregate sentence of 5 years and 6 months' imprisonment was manifestly excessive.
  • Whether the sentencing judge's findings on objective seriousness were reasonably open.
  • Whether post-sentence events and circumstances could be relied upon to support a manifest excess ground.
  • Whether the sentencing judge adequately took into account mitigating factors, including the applicant's good character, hardship in custody, and impact on his family.
  • Whether the application went beyond the "merely arguable" threshold necessary for the grant of leave to appeal.

Decision

The Court of Criminal Appeal (Stern JA, with Huggett J and Boulten J agreeing) refused leave to appeal.

Post-sentence matters could not be relied upon. To the extent the applicant raised matters that occurred after 15 November 2024 (the date of sentencing) — including expressions of awareness of wrongdoing and apologies made in oral submissions before the Court of Criminal Appeal — these could not be taken into account in assessing whether the sentence was manifestly excessive. The Court applied the principle from Mehajer v R [2026] NSWCCA 14, which confirmed that it is not the function of an appellate court to review a sentence in light of events subsequent to sentencing. Notably, the Court also observed that the applicant's statements fell short of an acceptance of his own guilt and that he continued to maintain in oral submissions that the sexual intercourse was consensual — a contention fundamentally inconsistent with his conviction.

The sentencing judge's findings on objective seriousness were reasonably open. The Court found that both offences were serious, involving the use of physical force by a person who was physically larger and stronger than the victim, in the victim's own home. The sentencing judge's finding that the applicant had actual knowledge that the victim did not consent was also reasonably open. The Court rejected the applicant's characterisation of the offending as being at the lower end of the scale of objective seriousness.

The sentencing judge's adverse findings on insight and remorse were supported. The sentencing judge had found that the applicant lacked insight into his offending and showed no remorse, and that there remained a material risk of reoffending, with prospects assessed as guarded. The Court held these findings were reasonably open, particularly given the applicant's continued denial of the offending.

All mitigating factors had been accounted for. The Court was satisfied that the sentencing judge had taken into account the matters the applicant relied upon, including his prior good character, his employment history, community support, compliance with bail conditions, the impact of incarceration on his family, his inability to attend his mother's funeral, and his mental health diagnoses. None of these matters suggested the sentencing judge's findings or the sentence imposed were not reasonably open. The sentence fell "comfortably within the range that was reasonably open," and the application did not go beyond the merely arguable nor raise any issue of principle warranting the grant of leave.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • Post-sentence events remain irrelevant to manifest excess claims. Consistent with established authority (including Mehajer v R [2026] NSWCCA 14), the Court of Criminal Appeal confirmed that an appellate court will not reassess a sentence by reference to developments occurring after the date of sentencing. This principle applied equally to expressions of remorse or changed circumstances that emerged only at the appeal stage.

  • Where an applicant continues to deny guilt after a jury conviction, that denial is a relevant sentencing consideration. The Court held that maintaining innocence on a sentence appeal, particularly following a jury verdict, did not provide a basis for disturbing findings on insight, remorse, or risk of reoffending. A distinction was recognised between exercising the right not to plead guilty and actively denying guilt post-conviction, the latter being important context for assessing prospects of rehabilitation.

  • Self-represented applicants receive appropriate procedural latitude but are held to the same substantive legal standards. The Court of Criminal Appeal read the applicant's letter as constituting submissions, but applied the substantive threshold for leave to appeal (that the application must go beyond the "merely arguable") without relaxation.

  • Sentences well within the available range are difficult to disturb on appeal. With indicative sentences of 4 years 2 months and 5 years 3 months against a maximum penalty of 14 years and a standard non-parole period of 7 years per count, and an aggregate sentence reflecting significant adjustment for special circumstances (first time in custody), the Court found the sentence sat comfortably within the permissible range.

  • In refusing leave, the Court held that hardship in custody must be raised and considered at first instance to have meaningful effect on appeal. Where the sentencing judge had already taken onerous custody conditions, family hardship, and mental health considerations into account, re-agitating those matters did not succeed absent a demonstration that they were given insufficient weight to a degree rendering the sentence unreasonable.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Fisher v R [2026] NSWCCA 27
- Hancock v R [2025] NSWCCA 213
- Mehajer v R [2026] NSWCCA 14