DS v R

Citation: [2026] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 17 April 2026
Judge(s): Harrison AJA at [1]; Sweeney J at [2]; Muston J at [3]

Background

The applicant, referred to by the pseudonym DS, pleaded guilty in the District Court to two charges of sexually touching a child under the age of 10, contrary to s 66DA of the Crimes Act 1900 (NSW). The victim was DS's granddaughter, who was 9 years and 11 months old at the time of the offending. Each charge was a "rolled-up" charge — meaning that multiple acts of sexual touching were consolidated into a single count rather than being charged as separate offences.

The offending occurred over the course of an evening in late January 2023, when the victim was staying at DS's home. The first sequence of conduct (Sequence 3 in the agreed facts) took place in a residential spa and involved the applicant kissing the victim, touching and rubbing her buttocks and breasts both over and under her clothing, and touching her genital area skin-on-skin. The second sequence (Sequence 2) occurred later that same evening when the applicant entered the victim's bedroom, kissed her, and touched her breasts over her clothing. Subsequently, the applicant made comments to the victim attributing blame to both of them and expressing that the experience in the pool had been "amazing."

On 18 March 2024, the primary Judge sentenced DS to an aggregate term of imprisonment of 5 years with a non-parole period of 2 years and 6 months. DS sought leave to appeal against that sentence on the sole ground that it was manifestly excessive, and also sought leave to bring the appeal out of time, having filed his Notice of Appeal more than seven months after the relevant deadline. The delay was attributed to difficulties in obtaining legal funding and counsel's unavailability due to an unexpectedly prolonged trial.

Legal Issues

• Whether the applicant should be granted leave to file his Notice of Appeal out of time.
• Whether the primary Judge erred in characterising the "rolled-up" nature of the charges as a benefit or source of leniency to the applicant, and whether any such characterisation infected the sentencing exercise.
• Whether the general sentencing trend for comparable offences (including Judicial Commission statistics and comparable cases) demonstrated that the sentence imposed was manifestly excessive.

Decision

Leave to appeal out of time

The Court was satisfied that DS should be permitted to bring his application out of time. While the delay was significant, it was largely explained by the applicant's difficulties securing legal funding (with Legal Aid ultimately granted in August 2025) and counsel's involvement in a prolonged trial. The Court noted that work was done to advance the appeal when funds became available.

The "rolled-up" charges issue

DS argued that the primary Judge erred by treating the rolled-up nature of the charges as beneficial to the applicant, submitting that this characterisation impermissibly inflated the assessment of objective seriousness. The Court, in reasons delivered by Muston J (with Harrison AJA and Sweeney J agreeing), found no error. Applying Khajehtaheri v R [2025] NSWCCA 6, the Court held that a sentencing judge is required to assess the overall offending conduct captured by each charge — not merely the number of charges — in determining objective seriousness. Here, the primary Judge had done exactly that: the references to the rolled-up nature of the charges were observations about the breadth of conduct encompassed by each offence, and the primary Judge appropriately assessed the seriousness of the offences by reference to the entirety of the underlying conduct.

Furthermore, the Court applied Zreika v R [2012] NSWCCA 44, holding that it was not open to the applicant to complain about the characterisation of the rolled-up charges as beneficial. The implication was that this framing had, if anything, operated in the applicant's favour — because the Crown could have charged the individual acts as separate offences — and it was not open to DS to argue that a characterisation favourable to him constituted error.

The sentencing trend issue

DS relied on Judicial Commission statistics and a selection of comparable cases to argue that the sentence imposed fell outside the range of sentences typically imposed for similar offences. The Court found the Judicial Commission statistics to be of limited assistance, consistent with well-established authority. Citing He v Sun (2021) 104 NSWLR 518, Wilson v R (Cth) [2020] NSWCCA 211, and Vandeventer v R [2013] NSWCCA 33, the Court emphasised that selecting a handful of cases said to be comparable does not generally assist in demonstrating manifest excess. Each case turns on its own facts, and the identification of a small number of ostensibly similar cases does not establish a "trend" sufficient to displace the sentencing discretion exercised by the primary Judge. The Court was not persuaded that the sentence was outside the range reasonably open to the primary Judge having regard to the objective seriousness of the offending and the relevant subjective factors.

Overall conclusion on manifest excess

Having rejected both limbs of the applicant's argument, the Court concluded that the sentence of 5 years' imprisonment with a 2-year-and-6-month non-parole period was not manifestly excessive. The primary Judge's remarks on sentence were described as "clear, comprehensive, and carefully reasoned." The aggravating features — including the significant age disparity, the gross abuse of the trust inherent in the grandparent–grandchild relationship, the sexual motivation, and the harm to the victim — plainly supported a sentence of the kind imposed.

Orders Made

• Leave to appeal out of time was granted.
• Leave to appeal against sentence was granted.
• The appeal was dismissed.

Key Takeaways

• Where an offender faces rolled-up charges (multiple acts consolidated into a single count), the sentencing court must assess the totality of the offending conduct captured by each charge, not merely the number of counts. The Court of Criminal Appeal found that a sentencing judge's observation that this approach benefited the offender was not, without more, an error, and that the offender could not complain about a characterisation that operated in their favour.

• Judicial Commission statistics, consistent with a long line of authority, are of limited assistance when arguing manifest excess. The Court of Criminal Appeal confirmed that such statistics provide broad context but cannot, standing alone, establish that a particular sentence falls outside the permissible range.

• Selecting a small number of cases said to be comparable does not generally assist in demonstrating that a sentence is manifestly excessive. The principle from Hili v The Queen, that consistency in sentencing is not achieved by mechanically comparing outcomes, was reaffirmed as central to the analysis.

• Abuse of a position of trust, particularly in the context of a familial relationship such as grandparent and grandchild, attracted significant weight as an aggravating factor in the sentencing for these child sexual offences.

• In granting leave to appeal out of time, the Court of Criminal Appeal accepted that delays caused by funding difficulties and counsel unavailability could explain the lateness of an application, but required supporting evidence (in this case, a solicitor's affidavit) accounting for the delay and demonstrating that steps were taken to advance the appeal when circumstances permitted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66DA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases cited:
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Johnston v R [2017] NSWCCA 53
- Khajehtaheri v R [2025] NSWCCA 6
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 21
- Vandeventer v R [2013] NSWCCA 33
- Wilson v R (Cth) [2020] NSWCCA 211
- Zreika v R [2012] NSWCCA