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Court of Criminal Appeal 8 July 2026

GD v R

[2026] NSWCCA 95

Assault & violence

Citation: GD v R [2026] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 8 July 2026
Judges: Payne JA; McNaughton J (principal judgment); Muston J

Background

The applicant, referred to as GD, pleaded guilty to wounding with intent to murder her nine-year-old son and doing an act intending to pervert the course of justice. On 13 February 2022, while experiencing acute psychosis, she inflicted 29 knife wounds on her son, then placed him in the shower, dressed him, and drove him and his younger sister into a guard rail on the M4 Western Motorway. A driving in a manner dangerous offence arising from that incident was taken into account on a Form 1.

Approximately six months later, while on remand, GD telephoned her mother and asked her to encourage the son to tell police that GD had not hurt him. This gave rise to the pervert the course of justice charge, which was committed without any psychotic impairment.

In November 2023, the District Court sentenced GD to an aggregate term of 9 years and 6 months' imprisonment with a non-parole period of 6 years and 6 months. GD appealed on the sole ground that the sentence was manifestly excessive. The Notice of Appeal was filed out of time in March 2026, though the delay was not attributed to GD personally.

  • Whether the Court of Criminal Appeal should grant an extension of time to file the application for leave to appeal, given the significant delay
  • Whether the aggregate sentence of 9 years and 6 months, with a non-parole period of 6 years and 6 months, was manifestly excessive in circumstances where the applicant was acutely psychotic at the time of the principal offending

Decision

Extension of time: The Court granted the extension of time to 17 March 2026. The respondent accepted that the delay was not attributable to GD, and the Court was satisfied that the single ground of appeal had sufficient merit to warrant the grant of leave.

Manifest excess: McNaughton J, with Payne JA and Muston J agreeing, found the aggregate sentence manifestly excessive. The sentencing judge had made findings at first instance that GD's acute mental illness reduced her moral culpability, diminished the objective seriousness of the offence, rendered her an unsuitable vehicle for general deterrence, and made custody more onerous. The Court found that the indicative sentence for the wounding with intent offence did not adequately reflect those findings. Comparable cases involving non-drug-induced psychosis, harm to a child, genuine remorse, vulnerability in custody, and limited ongoing risk had attracted substantially more lenient sentences than the one imposed.

Resentencing: The Court accepted that the acute psychosis substantially diminished both the objective seriousness of the offending and GD's moral culpability, while noting the offence retained real objective seriousness. General deterrence was given minimal weight given the circumstances, though personal deterrence remained somewhat relevant. The pervert the course of justice offence was not committed during a psychotic episode and therefore attracted its own distinct weight. The Form 1 offence, though committed while GD was also psychotic, added further criminality. GD's diagnoses of schizophrenia, anxiety disorder, and possible PTSD were relevant across multiple sentencing considerations. Now medicated, she was found to have good prospects of rehabilitation.

Resentence and delay: The Court acknowledged that the extensive delay in bringing the appeal created complexity, as the parole eligibility date had already passed. It also noted the community benefit of a period of supervised parole to assist reintegration. Consistent with the principle in Muldrock v The Queen that a sentence must not be increased beyond what is proportionate to the crime to extend community protection, the Court imposed a significantly reduced sentence.

Orders Made

  • Leave granted to file the application for leave to appeal against sentence, with effect from 17 March 2026
  • Leave to appeal granted
  • Appeal allowed
  • Sentence of the District Court imposed on 17 November 2023 quashed
  • GD resentenced to an aggregate term of 5 years and 6 months' imprisonment, commencing 13 February 2022, with a non-parole period of 3 years (expired 12 February 2025)
  • GD entitled to immediate consideration for release on parole

Key Takeaways

  • Acute non-drug-induced psychosis at the time of offending can substantially reduce both the objective seriousness of an offence and the offender's moral culpability, even where the offence itself is objectively grave.
  • A sentencing judge who makes explicit findings about the mitigating effect of mental illness must ensure those findings are actually reflected in the indicative and aggregate sentences imposed; failing to do so may result in a finding of manifest excess on appeal.
  • Where an offender was not psychotic at the time of a secondary offence, that offence is assessed without the benefit of any mental illness mitigation that applied to the primary offending.
  • The Court of Criminal Appeal confirmed, applying Muldrock v The Queen, that a sentence cannot be increased beyond what is proportionate to the crime in order to extend community protection, even where delay in bringing an appeal means the parole eligibility date has already passed.
  • Procedural delay in filing an appeal will not necessarily defeat the application where the delay is not attributable to the applicant and the ground of appeal has clear merit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 27, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Road Transport Act 2013 (NSW), s 117

Cases
- Astill v R [2024] NSWCCA 118
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Muldrock; Muldrock v R [2012] NSWCCA 108
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Amati [2019] NSWCCA 193
- R v Black [2005] QCA 132
- R v Richards [2002] NSWSC 415
- R v RG [2006] NSWSC 21
- R v Thew (NSW Court of Criminal Appeal, 25 August 1998)
- Shine v The Queen [2016] NSWCCA 149; (2016) 260 A Crim R 534
- Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14