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District Court 13 February 2026

R v SSC (No 2)

[2026] NSWDC 60

Assault & violenceDomestic & family violence
CRIME APPEAL AND REVIEW BY PERSON SENTENCED AGAINST SENTENCE ICO NOT STAYED DOMESTIC VIOLENCE APPEAL AGAINST FINAL ADVO

Citation: R v SSC (No 2) [2026] NSWDC 60
Court: District Court of New South Wales
Date: 13 February 2026
Judge(s): D Barrow SC DCJ

Background

This decision concerns the second and third stages of an appeal from the Local Court to the District Court. The appellant, referred to as SSC, had been convicted in the Local Court of assault occasioning actual bodily harm and common assault arising from a domestic violence incident. Both offences occurred during a holiday at Hawks Nest, where SSC assaulted his then-separated spouse in the presence of their three-year-old daughter. The Local Court imposed an aggregate sentence of 18 months' imprisonment to be served by way of an Intensive Correction Order (ICO), with conditions including community service, abstinence from alcohol and drugs, and attendance at a men's behaviour change program. A final Apprehended Domestic Violence Order (ADVO) was also made.

In an earlier judgment (R v SSC (No 1) [2025] NSWDC 568), the District Court dealt with the conviction appeal. The Crown had conceded that the common assault charge was a backup offence that should not have been separately determined once the Magistrate found the more serious charge of assault occasioning actual bodily harm was established. That conviction was quashed. Because the indicative sentence for the common assault (eight months) had contributed to the aggregate term, the original sentence could not stand and the sentencing discretion had to be exercised afresh. SSC also appealed the final ADVO.

The factual background involved SSC returning to the holiday accommodation after drinking at licensed premises, an argument with the victim over his absence during the children's bedtime, and an escalation that included the victim squirting or throwing a barbecue sauce bottle at SSC. In response, SSC struck her with a backhanded slap to the face, then punched her with force in the middle of her face. As the victim fled carrying their daughter, SSC followed and struck her several more times to her arms and torso while she was on the ground with the child beneath her. He then left the premises, leaving his injured ex-spouse to manage the aftermath alone with their children.

  • What is the appropriate sentence for the single offence of assault occasioning actual bodily harm, to be determined de novo on severity appeal?
  • What account should be taken of the time SSC had already served on the ICO, given that the ICO was not stayed pending appeal?
  • Whether the final ADVO should be confirmed, varied, or revoked on appeal, including consideration of its duration and conditions.

Decision

Resentencing

The Court undertook a de novo sentencing exercise, considering all material up to the date of the appeal hearing. Barrow SC DCJ found the offending to be serious, noting the domestic context, the presence of a young child, the multiple strikes, and the fact that the violence continued after the victim had attempted to flee. The Court accepted that the victim's actions with the sauce bottle were provocative but emphasised that the appellant's violent response was "completely unacceptable."

In the appellant's favour, the Court noted that he had no prior convictions (an earlier bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 did not constitute a conviction), strong character references describing the offending as out of character, positive engagement with counselling and a behavioural change program over 19 sessions, negative drug and alcohol hair analysis tests, and his prior military service including active service in Iraq. However, the Court expressed concern about SSC's persistent refusal to take responsibility for his behaviour and his false narrative casting the victim as the aggressor.

The Court rejected certain aspects of the Sentencing Assessment Report, including the author's characterisation of the appellant as having prior convictions and the unsupported opinion that he "resorts to violence when presented with conflict" within intimate relationships. The Court accepted the report author's assessment that SSC was a low risk of reoffending.

On the question of accounting for time already served on the ICO, the Court noted that because the ICO had not been stayed pending the appeal, SSC had been subject to the order (though not its conditions, which had been varied on an earlier occasion). The Court was required to take into account the time already spent on the ICO when fashioning the new sentence. The judgment engages with the statutory framework under ss 63(2) and 63(5) of the Crimes (Appeal and Review) Act 2001 (NSW) and s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in this regard.

ADVO Appeal

The appellant also appealed the final ADVO made by the Local Court. The Court considered the provisions of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), including ss 39(1A), 38(3), 39(2B), and 39(2C). While the full text of the ADVO determination is not included in the truncated judgment, the Court was required to assess whether the order should be confirmed, varied in its terms or duration, or revoked, having regard to the circumstances including the existing Family Court orders that imposed detailed conditions regarding the appellant's contact with the victim and his children.

Orders Made

  • The conviction for common assault was quashed (as determined in the earlier conviction appeal judgment).
  • The aggregate sentence imposed in the Local Court was set aside.
  • A fresh sentence was imposed for the single offence of assault occasioning actual bodily harm, taking into account time already served on the ICO.
  • The Court made orders in relation to the ADVO appeal (the precise terms are not available from the truncated judgment text).

Note: Because the judgment text was truncated, the precise terms of the resentence and ADVO orders are not fully available. Practitioners should consult the full judgment for the specific orders made.

Key Takeaways

  • De novo resentencing on severity appeal: Where a conviction contributing to an aggregate sentence is quashed on appeal, the entire aggregate sentence falls, requiring the District Court to exercise the sentencing discretion afresh and consider all circumstances up to the date of the appeal hearing.

  • Time served on an unstayed ICO must be credited: The District Court held that where an Intensive Correction Order was not stayed pending a severity appeal, the time the appellant spent subject to the order must be taken into account when imposing a new sentence, recognising that the absence of a stay carries direct consequences for resentencing.

  • Character evidence in domestic violence cases carries inherent limitations: Strong character references were acknowledged, but the Court observed that none of the referees had been in a domestic relationship with the appellant, which tempered the weight that could be given to their evidence about his character.

  • A persistent refusal to accept responsibility remained relevant to sentencing: Even where an accused is entitled to maintain a not guilty plea, the District Court found that a sustained denial of responsibility and the advancement of a false counter-narrative weighed against the appellant, particularly in the assessment of future risk.

  • Sentencing Assessment Reports are not accepted uncritically: Factual errors and unsupported opinions contained in the Sentencing Assessment Report were rejected, reinforcing that judicial officers will scrutinise such reports and may decline to adopt their conclusions where inaccuracies are identified.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 63(2), 63(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66 (and s 10, as referenced in relation to the prior bond)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 38(3), 39(1A), 39(2B), 39(2C)

Cases:
- R v SSC (No 1) [2025] NSWDC 568
- Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245
- Parker v DPP (1992) 28 NSWLR 282