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Court of Criminal Appeal 24 April 2026

PS v R

[2026] NSWCCA 50

Sexual offences

Citation: [2026] NSWCCA 50
Court: Court of Criminal Appeal (NSW)
Date: 24 April 2026
Judge(s): Stern JA at [1]; Dhanji J at [60]; R A Hulme AJ at [61]

Background

The applicant pleaded guilty to multiple child sexual offences committed in 2019 and 2020, when the victim was aged 8 to 9 and the applicant was in a relationship with the victim's mother. He was sentenced in September 2023 to 6 years and 8 months' imprisonment with a non-parole period of 4 years and 8 months. Three additional offences were taken into account on a Form 1.

While awaiting sentencing on those charges, the applicant absconded, moved to the Central Coast under a false name, and committed further offending: grooming a different child victim (aged 13 or 14) and using a carriage service to menace or cause offence to a 14-year-old. He was sentenced for these offences by a second judge in March 2025.

The applicant sought leave to appeal against all three sentences. He also sought leave to file his notice of appeal out of time in respect of the first sentence. The appeal against the second and third sentences was framed as purely consequential on the success of the challenge to the first sentence.

  • Whether the sentencing judge erred by characterising the charges as "representative charges," thereby impermissibly treating uncharged acts as a circumstance of aggravation.
  • Whether the first sentence (6 years 8 months) was manifestly excessive.
  • Whether the commencement dates for the second and third sentences should be reconsidered in light of any successful appeal against the first sentence.

Decision

On the first ground, Stern JA (with Dhanji J and Hulme AJ agreeing) held that the sentencing judge did not treat the uncharged acts as aggravating the objective seriousness of the offending. Her Honour had correctly cited and applied the principles in Wright v R [2019] NSWCCA 134 at [33], which permit a sentencing judge to have regard to uncharged acts to understand the context and nature of the offending, without treating them as circumstances of aggravation. The use of the phrase "representative charges" had to be read in the context of the remarks as a whole, and, when so read, did not support the inference that the judge had fallen into error.

On the manifest excess ground, the Court found that the sentence was within the range reasonably available to the sentencing judge. The offending was objectively serious, involved discrete incidents committed against a young child in a domestic setting, and the applicant demonstrated neither insight nor remorse. The Court noted that the objective seriousness of conduct under s 66DC(a) of the Crimes Act turns on all the circumstances, not on whether the act is characterised as performed "with" or "towards" the victim. There was also no error in relying on the victim impact statement to find long-term harm, even though part of that statement referred to the victim's perception of his mother's intoxication. The overarching cause of the victim's distress was the applicant's conduct.

Because the challenge to the first sentence failed, the consequential ground relating to the second and third sentences also fell away. Leave to file out of time and leave to appeal were both refused.

Orders Made

  • Leave to file a notice of appeal out of time against the first sentence: refused.
  • Leave to appeal against the first sentence: refused.
  • Leave to appeal against the second and third sentences: refused.

Key Takeaways

  • A sentencing judge's use of language such as "representative charges" will not, by itself, establish error; the remarks must be read as a whole, including any statement of applicable principles, and context is decisive, as isolating a single phrase will rarely succeed as a ground of appeal.

  • The principle in Wright v R [2019] NSWCCA 134 was reaffirmed: a sentencing judge may refer to uncharged acts to understand the relationship and pattern of offending, provided they are not treated as standalone aggravating factors. The distinction between permissible contextual use and impermissible aggravation remained significant.

  • Applying DPP (NSW) v Presnell (2022) 108 NSWLR 407, the Court of Criminal Appeal confirmed that the seriousness of a sexual act "towards" a child under s 66DC(a) turns on all the circumstances rather than on a rigid categorisation of the act's direction.

  • Where a victim impact statement identifies multiple sources of distress, a sentencing judge may still attribute long-term harm to the offender's conduct, provided that conduct is the overarching cause.

  • Framing secondary grounds of appeal as purely dependent on the success of a primary ground means those secondary grounds offer no independent path to relief if the primary ground fails.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66DA(a), 66DC(a), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 25AA(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), Sch 1, s 474.17
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(2)(b), 3.5(5)

Cases:
- AK v R [2016] NSWCA 238
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146
- Kelly v R [2018] NSWCCA 44
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v JCW [2000] NSWCCA 209
- Wright v R [2019] NSWCCA 134