Citation: Whereat v Rex [2026] NSWCCA 73
Court: Court of Criminal Appeal, New South Wales
Date: 5 June 2026
Judges: Free JA; Rigg J; Sirtes J
Background
The appellant pleaded guilty in the District Court at Nowra to two break and enter offences committed on the same night in March 2024 at Bomaderry. The first offence, aggravated break, enter and commit a serious indictable offence (larceny), involved entering the home of a 69-year-old woman while she and her husband were asleep, taking items including a torch and an iPad. The second offence involved breaking a window to enter another premises and stealing property valued in the thousands of dollars.
The sentencing judge imposed an aggregate term of three years' imprisonment with a non-parole period of one year and eight months, commencing November 2024. Both offences were assessed as modest examples of their type, and the applicant received a 25% discount for his guilty pleas. The applicant is of Aboriginal descent and has a background marked by parental drug use and being raised by a grandmother who drank heavily and was verbally abusive when intoxicated.
The applicant sought leave to appeal on three grounds: that the sentencing judge erred by relying on the guideline judgment R v Ponfield; that the judge wrongly required a "causal link" between the applicant's deprived background and his offending before reducing moral culpability under Bugmy v R; and that the sentence was manifestly excessive.
Legal Issues
- Whether reference to the guideline judgment R v Ponfield (1999) in sentencing for break and enter offences gives rise to error, particularly given the subsequent enactment of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether establishing a "causal link" between an offender's deprived background and the commission of the offence is a necessary precondition for the Bugmy principles to reduce moral culpability
- Whether the aggregate sentence of three years' imprisonment was manifestly excessive, including whether statistical comparisons with other sentences for contraventions of s 112 of the Crimes Act supported that conclusion
Decision
Ground 1: Reliance on Ponfield The Court held that the ongoing utility of Ponfield as a guideline judgment is doubtful, given the comprehensive sentencing framework subsequently established by the Crimes (Sentencing Procedure) Act 1999 (NSW). Any reference to Ponfield in submissions or sentencing remarks ought to be accompanied by appropriate qualifications. However, merely referring to Ponfield is not itself an error. Error arises only where reliance on it causes a failure to comply with the CSP Act or leads a judge to treat subjective features as bearing on objective seriousness. The applicant failed to demonstrate that either type of error occurred here.
Ground 2: The Bugmy causal link The Court confirmed that establishing a causal link between an offender's deprived background and the commission of the offence is not an essential precondition for the Bugmy principles to operate. Nevertheless, the existence of such a link remains a relevant consideration, because if it is established, reduced moral culpability will follow. In this case, the sentencing judge made two separate findings: first, that no causal link had been established; and second, that the applicant's background was not such as to reduce his moral culpability. The Court found no error of reasoning in that approach.
Ground 3: Manifest excess The Court rejected the submission that the sentence was manifestly excessive. Statistical comparisons of individual sentences are of limited utility because they shed no light on the subjective and objective characteristics that inform each sentencing exercise. In any event, the statistics relied on by the applicant did not reveal a stark disparity or otherwise demonstrate that the outcome was unreasonable or plainly unjust. The applicant's argument effectively amounted to an invitation for the Court to repeat the intuitive synthesis already performed by the sentencing judge, which the Court declined.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal reiterated that R v Ponfield (1999) has doubtful ongoing utility as a guideline judgment following the enactment of the Crimes (Sentencing Procedure) Act 1999, and that any reliance on it should be accompanied by appropriate qualifications to avoid error.
- Mere reference to Ponfield does not constitute a sentencing error; error arises only if that reliance causes non-compliance with the CSP Act or conflates subjective and objective considerations.
- Under the Bugmy principles, a causal link between an offender's deprived background and the offending is relevant and, if established, will reduce moral culpability, but it is not a threshold requirement that must be satisfied before the background can be considered at all.
- Statistical comparisons between an offender's sentence and other sentences imposed for the same offence type are of limited utility and do not, on their own, establish manifest excess; they provide no insight into the particular subjective and objective factors at play in individual cases.
- No error was established in the sentencing judge's approach to objective seriousness, the Bugmy principles, or the overall sentence, and the Court of Criminal Appeal dismissed all three grounds of appeal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112, 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 37B, 54B
Cases
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- YZ v R [2025] NSWCCA 165
- MacBlane v R [2025] NSWCCA 52
- Stuckey v R [2025] NSWCCA 216
- Mapp v R (2010) 206 A Crim R 497; [2010] NSWCCA 269
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Dickinson v R [2016] NSWCCA 301
- Abdulrahman v R [2016] NSWCCA 192
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Elemes [2000] NSWCCA 235
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Lee v R [2020] NSWCCA 244