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Court of Criminal Appeal 17 June 2026

AD v R

[2026] NSWCCA 82

Assault & violenceHomicide

Citation: AD v R [2026] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 17 June 2026
Judges: N Adams CJ at CL (principal judgment); Lonergan J and Dhanji J (agreeing)

Background

In August 2021, a 16-year-old boy was lured to a home in western Sydney under false pretences and beaten to death by a group of largely juvenile co-offenders. The assault was prolonged and frenzied, involving punching, kicking, and stomping. Parts of it were recorded and uploaded to social media. The victim died in hospital two days later.

The applicant, who was 13 years and 11 months old at the time, pleaded guilty to murder in the Supreme Court. In April 2024, he was sentenced to 14 years and 4 months' imprisonment with a non-parole period of 9 years and 3 months, after a 20% discount for his guilty plea. No standard non-parole period applied because he was under 18 at the time of the offence.

The applicant sought leave to appeal against his sentence on two grounds. He argued, first, that the sentencing judge denied him procedural fairness by rejecting his account about discarding a screwdriver during the assault without giving advance notice. Second, he argued the sentence was manifestly excessive. A third ground based on the parity principle was withdrawn before the hearing.

  • Whether the applicant was denied procedural fairness when the sentencing judge rejected a second-hand account (recorded in a Background Report) that he had dropped a screwdriver off a balcony to prevent it being used to stab the deceased, without first giving the applicant an opportunity to make submissions on that point.
  • Whether the sentence of 14 years and 4 months with a non-parole period of 9 years and 3 months was manifestly excessive, including by reference to a co-offender sentenced for manslaughter.
  • Whether an extension of time to file the notice of appeal should be granted.

Decision

Ground 1: Procedural Fairness

The Court rejected the procedural fairness argument. The sentencing judge had not signalled an intention to accept the account, nor had he made a finding contrary to any Crown concession. Neither the Crown nor the applicant's counsel made oral submissions about the screwdriver account, and the applicant called no evidence on the point. The Court noted that, had the account been an agreed fact, it could have been included in the Agreed Facts at any time before sentence.

The Court further held that no practical unfairness was established. The applicant's account appeared only as a second-hand record in the Background Report, the Agreed Facts referred only to a "long object" without identifying it as a screwdriver, and the sentencing judge's rejection of that account was plainly open on the material. The Court observed that it was difficult to imagine the judge arriving at any other conclusion. The earlier decision in O'Neil-Shaw v The Queen [2010] NSWCCA 42 was distinguished on its facts.

Ground 2: Manifest Excess

The Court found the offending was serious and the applicant's involvement was significant. He was recorded administering numerous punches, kicks and stomps, remained in the room until the end of the assault, and was a party to an agreement not only to detain the deceased but to do so for the purpose of assaulting and humiliating him. Aspects of his subjective case were acknowledged as strong, but the applicant intended to continue gang affiliations and exhibited traits consistent with a personality disorder.

The comparison with the co-offender sentenced for manslaughter did not assist the applicant. That co-offender's culpability was lower: the applicant's offending was more serious, and the co-offender had a considerably stronger subjective case. The Court was not persuaded the sentence was unreasonable or plainly unjust.

Orders Made

  • Extension of time to bring the appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Procedural fairness in sentencing does not require a judge to give advance notice of an intention to reject an account that appears only in a background report, where no oral submissions were made, no evidence was adduced, and the disputed matter was not included in the agreed facts.
  • No practical unfairness arises where the rejection of a disputed account was plainly open on the material before the court and the outcome could not reasonably have differed had further submissions been made.
  • A sentence for juvenile murder is not rendered manifestly excessive merely because a co-offender received a lesser sentence for manslaughter, particularly where the two offenders' culpability and subjective circumstances differ materially.
  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), no standard non-parole period applies where the offender was under 18 at the time of the offence, even where the offence is murder.
  • In dismissing both grounds, the Court of Criminal Appeal confirmed that the House v The King standard for manifest excess requires the sentence to be unreasonable or plainly unjust, not merely open to criticism.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54D(3), 21A(2)
- Crimes Act 1900 (NSW), ss 18(1), 86
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(a)

Cases
- House v The King (1936) 55 CLR 499 (manifest excess standard)
- DL v The Queen (2018) 265 CLR 215 (procedural fairness)
- O'Neil-Shaw v The Queen [2010] NSWCCA 42 (distinguished on procedural fairness)
- Weir v Regina [2011] NSWCCA 123
- Nguyen v R [2025] NSWCCA 42
- McLaughlin v R [2025] NSWCCA 13
- Dent v R [2025] NSWCCA 43
- Khanwaiz v R [2012] NSWCCA 168
- ES v R [2019] NSWCCA 262
- R v AD [2024] NSWSC 444 (sentencing decision under appeal)
- R v TB [2024] NSWSC 447 (co-offender sentenced for manslaughter)
- BE v R [2024] NSWCCA 100; R v BE [2023] NSWSC 1007; R v BL [2024] NSWSC 51; R v Sione; R v Dawson [2024] NSWSC 846 (co-offender sentencing decisions)
- Obeid v R (2017) 96 NSWLR 155
- TH v R [2025] NSWCCA 121; Hancock v R [2025] NSWCCA 213