AM v R [2026] NSWCCA 110

Catchwords: SENTENCE – totality – where sentence accumulated on an existing sentence – where result of accumulation was to impose a non-parole period of 80.2% of total sentence – whether result of accumulation inadvertent – youth not only relevant to objective seriousness of offending – youth and immaturity requires pervasive, specific and thorough consideration in relation to moral culpability and the potential for it to modify specific deterrence, general deterrence and denunciation Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AM v R [2026] NSWCCA 110 Hearing dates: 22 May 2026 Date of orders: 24 July 2026 Decision date: 24 July 2026 Before: Kirk JA at [1]; Lonergan J at [2]; Weinstein J at [107] Decision: (1) Extend the time for filing this appeal to 24 March 2026. (2) Grant leave to appeal. (3) Allow the appeal. (4) Quash the aggregate sentence imposed by McHugh SC DCJ. (5) In lieu thereof the applicant is sentenced to an aggregate sentence of 7 years commencing on 20 June 2027 and expiring on 19 June 2034 with a non-parole period of 3 years and 6 months expiring on 19 December 2030. Catchwords: SENTENCE – totality – where sentence accumulated on an existing sentence – where result of accumulation was to impose a non-parole period of 80.2% of total sentence – whether result of accumulation inadvertent – youth not only relevant to objective seriousness of offending – youth and immaturity requires pervasive, specific and thorough consideration in relation to moral culpability and the potential for it to modify specific deterrence, general deterrence and denunciation Legislation Cited: Child Welfare Act 1939 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: AM v R (2024) 116 NSWLR 81; [2024] NSWCCA 200 BP v R [2010] NSWCCA 159; 201 A Crim R 379 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Calhoun (a pseudonym) v R [2018] NSWCCA 150 Camilleri v R [2023] NSWCCA 106; 308 A Crim R 52 Clarke-Jeffries v R [2019] NSWCCA 56 Clinch v R (1994) 72 A Crim R 301 Danishyar v R; R v Danishyar [2023] NSWCCA 300 Director of Public Prosecutions v Herrmann [2021] VSCA 160; 290 A Crim R 110 DS v R; DM v R [2022] NSWCCA 156 Duncan v R [2026] NSWCCA 19 GP v Regina [2017] NSWCCA 200 Hawat v R [2020] NSWCCA 121 Howard v R [2019] NSWCCA 109 JA v R [2021] NSWCCA 10 JH v R [2017] NSWCCA 22 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lonsdale v R [2020] NSWCCA 267 McKittrick v R [2014] NSWCCA 128; 243 A Crim R 155 Mill v The Queen (1988) 166 CLR 59 ; [1988] HCA 70 MS2 v Regina [2005] NSWCCA 397; 158 A Crim R 93 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v AA [2017] NSWCCA 84 R v Adamson [2002] NSWCCA 349; 132 A Crim R 511 R v Eaton [2023] NSWCCA 125; 308 A Crim R 465 R v GDR (1994) 35 NSWLR 376 R v Knight [2005] NSWCCA 253 ; 155 A Crim R 252 RA v R [2020] NSWCCA 356 Sarhene v R [2022] NSWCCA 79 Syed v R [2026] NSWCCA 47 TM v R [2023] NSWCCA 185 Yildiz v R [2020] NSWCCA 69 Category: Principal judgment Parties: AM (Applicant) Rex (Respondent) Representation: Counsel: T Quilter SC / C O’Neill (Applicant) S Traynor (Respondent) Solicitors: Emerge Legal (Applicant) Office of the Director of Public Prosecutions NSW (Respondent) File Number(s): 2022/00219620 Publication restriction: No publication of the name of the applicant or the victims. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: -- Date of Decision: 01 December 2023 Before: McHugh SC DCJ File Number(s): 2022/00219620 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, AM, pleaded guilty to five sexual offences committed against his younger sister and one against her friend in the mid-1980s when the applicant was 15 to 17 years old. The victims were 2 years younger than him. On 1 December 2023 the applicant was sentenced by McHugh SC DCJ to an aggregate term of 8 years with a non-parole period of 5 years, 3 months and 14 days. At the time that sentence was imposed, the applicant was already serving a sentence of 11 years and 6 months with an 8 year non-parole period for Commonwealth child abuse offences committed in 2021. The applicant’s combined total effective sentence was 13 years, 8 months and 16 days, with a non-parole period of 10 years, 11 months and 30 days. The total non-parole period was 80.2% of the total sentence. The applicant sought leave to appeal on the basis that the sentencing judge had failed to consider the overall relationship between the total effective non-parole period and the total effective sentence. Ground 2 asserted that the sentencing judge had wrongly confined his consideration of youth to the assessment of the objective seriousness of the offences and so had not properly addressed moral culpability, denunciation and general deterrence in the context of the applicant being a young person at the time of the offending. Ground 3 asserted manifest excess. The Court (Lonergan J, Kirk JA and Weinstein J agreeing) held, granting leave to appeal, allowing the appeal and re-sentencing the applicant: As to ground 1: The sentencing judge ’ s remarks on totality and accumulation did not acknowledge the total effective sentence. Despite a finding of special circumstances, this was limited to health needs and rehabilitation with no reference at all to the need to adjust for accumulation of sentences, despite written submissions raising that matter for consideration. The failure to refer to this in the remarks suggests that the sentencing judge did not turn his mind to that issue when structuring the sentence he imposed: at [62] and [63] (Lonergan J, Kirk JA at [1] and Weinstein J at [107] agreeing). Whilst there is no obligation to maintain the previous sentencing judge ’ s ratio of non-parole to parole period, something needs to be said in the remarks to reflect an understanding of the end result : at [65] (Lonergan J, Kirk JA at [1] and Weinstein J at [107] agreeing). Duncan v R [2026] NSWCCA 19 applied ; R v GDR (1994) 35 NSWLR 376, cited. As to ground 2: Nothing was said in the remarks that indicated that youth and immaturity was considered in the redolent and comprehensive fashion required by the authorities: at [83] (Lonergan J, Kirk JA at [1] and Weinstein J at [107] agreeing). R v AA [2017] NSWCCA 84; JH v R [2017] NSWCCA 22; Clarke-Jeffries v R [2019] NSWCCA 56; JA v R [2021] NSWCCA 10; TM v R [2023] NSWCCA 185; Howard v R [2019] NSWCCA 109; Sarhene v R [2022] NSWCCA 79; BP v R [2010] NSWCCA 159; 201 A Crim R 379; Camilleri v R [2023] NSWCCA 106; 308 A Crim R 52; Director of Public Prosecutions v Herrmann [2021] VSCA 160; 290 A Crim R 110; MS2 v Regina [2005] NSWCCA 397; 158 A Crim R 93; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; KT v R [2008] NSWCCA 51; 182 A Crim R 571 , cited. Youth is potentially relevant to objective seriousness only in limited circumstances. The sentencing judge treated that as the main context in which the issue was to be addressed. It was not. Its significance in this case went to moral culpability, with consequential significance for the purposes of sentencing: at [86] (Lonergan J, Kirk JA at [1] and Weinstein J at [107] agreeing). R v AA [2017] NSWCCA 84; DS v R; DM v R [2022] NSWCCA 156, cited. The question of the applicant ’ s moral culpability as a 15 to 17 year old offender was not appropriately considered. This led to a failure to take into account what the applicant as a child offender deserved by way of punishment. Due consideration of the wider potential effect of youth and immaturity on the elements of retribution, denunciation and general deterrence was not made. This affected the sentencing exercise in a way unfavourable to the applicant and caused it to miscarry: at [87] and [89] (Lonergan J, Kirk JA at [1] and Weinstein J at [107] agreeing). BP v R [2010] NSWCCA 159; 201 A Crim R 379 ; TM v R [2023] NSWCCA 185; Yildiz v R [2020] NSWCCA 69, cited. As to re-sentence : The applicant ’ s moral culpability is reduced given his age and immaturity and the impulsive nature of the offending. General deterrence and retribution are also mitigated by the applicant ’ s age and immaturity. Special circumstances include the effect of the accumulation of sentences and the need for a reasonable period of parole supervision to assist the applicant ’ s reintegration into the community: at [98], [100]-[101] (Lonergan J, Kirk JA at [1] and Weinstein J at [107] agreeing). JUDGMENT KIRK J A : I agree with Lonergan J. LONERGAN J: The applicant seeks leave to appeal against an aggregate sentence imposed by McHugh SC DCJ in the District Court at Parramatta on 1 December 2023. The sentence was for six offences relating to sexual conduct towards his younger sister , (MR) , and her friend , (TT) , in the mid-1980s when the applicant was aged 15 to 17 years and his sister and her friend were two years younger than him. Because the applicant and the victims of the offences were children at the time, neither he nor the victims can be identified: s 578A of the Crimes Act 1900 ( NSW ) ; s 15A of the Children (Criminal Proceedings) Act 1987 ( NSW ) . The applicant pleaded guilty to all the offences which are set out in the table below together with his Honour ’ s findings as to objective seriousness, the maximum applicable penalties, and the indicative sentences both before and after the application of the 25% discount to which he was entitled given his guilty pleas : Offence Age of applicant / victim Particulars Objective seriousness Max. Penalty Indicative Sentence and after 25% discount 1 Assault with act of indecency, victim under 16, s 61E(1). 25 Dec 1983 – 31 Jan 1984 App: 15 Vic: 13 (MR) During “Murder in the Dark”, applicant pushed victim against wall and rubbed her breasts through her clothes and rubbed her genitals “skin-to-skin” for 3-4 minutes Slightly below mid-range 6 years 1 year, 4 months, 15 days (1 year 10 months) 3 Assault with act of indecency, victim under 16, s 61E(1). 25 Dec 1983 – 31 Jan 1984 App: 15 Vic: 13 (MR) 1 week after count 1, during “Murder in the Dark”, applicant pushed victim against wall, rubbed her breasts and inserted his finger all the way into her vagina, moving it in and out. Incident lasted 3-4 minutes. At the mid-range 6 years 1 year, 8 months, 7 days (2 years 3 months) 2 Assault with act of indecency, victim under 16, s 61E(1). 1 Dec 1984 – 31 Jan 1985 App: 16 Vic: 14 (MR) In the car, the applicant reached over and placed his hands inside the victim’s pants and rubbed her genitals “skin-to-skin” for 1-2 minutes. Below the mid-range 6 years 1 year, 6 months (2 years) 4 Assault with act of indecency, victim under 16, s 61E(1). 25 Dec 1985 – 31 Jan 1986 App: 17 Vic: 15 (MR) Applicant pushed victim from front door into his bedroom and on to his bed. Applicant sucked and rubbed victim’s breasts and ejaculated on to her stomach. Slightly below mid-range 6 years 1 year, 6 months (2 years) 5 Sexual intercourse without consent with a child under 16, s 61D. 1 Jan 1984 – 10 Dec 1984 App: 15 or 16 Vic: 13 (TT) Applicant grabbed TT and wrestled her to the ground and straddled her. He digitally penetrated her vagina. After 5 minutes she broke away from the applicant and ran home. At mid-range 10 years 3 years, 4 months, 15 days (4 years 6 months) 6 Carnally knowing child aged between 10 and 16, s 71. 1 Sept 1985 – 25 Dec 1985 App: 17 Vic: 15 (MR) Applicant grabbed victim after she had a shower and dragged her to his bedroom. He had unprotected penile-vaginal intercourse with her before ejaculating on her stomach. Above the mid-range 10 years 4 years, 6 months (6 years) His Honour i mposed an aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years 3 months and 14 days, to commence on 20 June 2027. The delayed commencement date was to take into account that at the time the sentence was imposed, the applicant was serving another sentence of imprisonment imposed on 28 October 2 0 22 by her Honour Judge Herbert. That sentence was for Commonwealth child abuse and child abuse material offences committed in 2021, for which the applicant received a term of imprisonment of 11 years and 6 months commencing on 5 October 2021 and ending on 4 April 2033 with a non-parole period of 8 years ending on 4 October 2029. This sentence was reduced on appeal in November 2024 to 10 years and 9 months , with a non-parole period of 7 years and 6 months: AM v R (2024) 116 NSWLR 81; [2024] NSWCCA 200. That reduced sentence ends on 4 July 203 2 , with the non-parole period due to expire on 4 April 2029. There was also a subsequent High Court appeal determined in March 2026 on an issue not relevant to this appeal. The applicant requires an extension of time to appeal given his notice of appeal was not filed until 24 March 2026. In the circumstances outlined above, the Crown does not oppose an extension of time . That extension should be granted , as the reasons for delay are explained by that procedural history . The applicant ’ s total sentence with the imposition by McHugh SC DCJ of the sentence on 1 December 2023 , was 13 years 8 months and 16 days, with a non-parole period of 10 years 11 months and 30 days ( that is, a parole period of 2 years and 8 ½ months on top of an 11 year non-parole period) . This led to the result that the total non-parole period made up 80.2 % of the total sentence. This ratio was the focus of ground 1 of this appeal , on the basis that his Honour did not advert to the fact that the total non-parole period would be more than 75% of the total sentence contrary to GP v Regina [2017] NSWCCA 200 ( “ GP ” ) at [22]-[26] per Hamill J (Macfarlan JA and Button J agreeing), referring to McKittrick v R [2014] NSWCCA 128; 243 A Crim R 155 at [42]-[45] per Simpson J and [154] per Adamson J . I would uphold this ground for the reasons that follow, and so the applicant need s to be resentenced, taking into account th e additional matters raised in his affidavit of 5 May 2026 and the affidavit of his solicitor , Rebecca Francis , of the same date. Also to be taken into account , in the ways I shall explain, is the applicant ’ s youth at the time of the offending. The second ground of appeal argued that his Honour ’ s consideration of youth w as wrongly confined to the assessment of objective seriousness of the offences, rather than the more pervasive role that considerations of youth and immaturity should have had in the sentencing exercise. I would also uphold this ground of appeal. There is , in these circumstances , no need to deal with ground 3, the manifest excess ground nor the application under s 59 of the Crimes ( Sentencing Procedure ) Act 1999 ( NSW ) . Agreed Facts The agreed facts signed by the parties on 1 December 2023 were tendered on sentence and are summarised as follows. The applicant was born on 8 June 1968 . Offences against MR MR was born on 5 August 1970 and is the younger sister of the applicant. She lived with the applicant and other members of their family in Whalan in Sydney, until she left home when she was 16 years old. This offence occurred in the summer holidays after Christmas 1983 but before school resumed in 1984. MR was 13 years old. The applicant was 15 years old. The victim and her friends were at the family home. At one stage, the victim, her friends, and the applicant were playing a game called “ Murder in the Dark ” . The applicant was chosen to be the person to find others in the game. When MR and the applicant were the only two remaining in the hallway, the applicant located MR and pushed her up against the wall. He felt MR ’ s breasts through her clothes before moving his hands down her body into her pants. He placed one of his hands inside MR ’ s pants and started rubbing her genitals, skin to skin. MR screamed, “ Get off me, don ’ t touch me, you ’ re not allowed to ” . The applicant did not stop and continued until the front door opened. This incident lasted three to four minutes. (Count 1). About one week after the incident the subject of Count 1, MR had some friends at her house again. Her mother was not home. MR and her friends again played Murder in the Dark as suggested by the applicant. During the game, the applicant seized MR and pushed her against the wall. He rubbed her breasts with both of his hands, and he placed one of his hands inside MR ’ s pants and underpants and inserted one of his fingers all the way into her vagina, moving it in and out. This incident lasted about three or four minutes. (Count 3). Uncharged acts: Over the remainder of the school holidays, the offender assaulted MR another three to four times in the same manner when they were playing Murder in the Dark. A year later, between 1 December 1984 and 31 January 1985, MR and her family were driving from Sydney to Yamba. MR was 14 years old, and the applicant was 16 years old. The applicant and MR were sitting in the back seat with their younger sister, J, between them. They had a bedspread over them. J was asleep. The applicant reached over J and placed his hands inside MR ’ s pants and underpants. He rubbed MR ’ s genitals, skin to skin. The victim began yelling and said, “ Mum, tell him to stop, tell him to stop ” . This incident lasted for about one to two minutes. (Count 2). A year later, between 25 December 1985 and 31 January 1986, when the applicant was 17 years old and MR was 15 years old, the applicant and MR were home alone. The applicant asked MR to invite friends over to play Murder in the Dark, but MR refused. MR walked to the front door and opened it. The applicant slammed the door shut. He pushed MR from the front door across the hallway into his bedroom, where he pushed MR onto his bed. He removed MR ’ s skirt and underwear and removed his pants. He got on top of MR, undid her blouse, pushed up her bra, and rubbed and sucked on her breasts. MR stared at the ceiling and zoned out. The applicant ejaculated onto MR ’ s stomach. When the applicant got off her, MR ran to her bedroom where she remained all night, crying herself to sleep. (Count 4). On a date between 1 September 1985 and 25 December 1985, when MR was 15 years old and the applicant was 17 years old, MR arrived home from school and had a shower. When she came out, wrapped in a towel, the applicant grabbed her and dragged her into his room on to his bed. The applicant lay on top of MR and inserted his penis into her vagina and had sex with her without a condom. He removed his penis and ejaculated on her stomach. (Count 6). Uncharged acts: Throughout 1985 and 1986, there were further instances where the applicant engaged in penile vaginal intercourse with MR in their home. In 1987, MR complained to her friend and neighbour that she tried to avoid going home because her brother was sexually interfering with her. In later years, MR complained to various family members and friends. In February 2022, MR reported the matter to police. Offence against TT TT was born on 11 December 1970 and was a school friend of MR. On an unknown date in 1984 TT visited the applicant ’ s house to collect MR. TT was 13 years old and the applicant was 15 or 16 years old. The applicant answered the front door and told TT that his sister was in the back yard and would not be long, and invited TT into the house. TT sat down in the lounge room where the applicant was watching pornography on television and breathing heavily. TT felt uncomfortable and said she would wait outside. She walked towards the door. The applicant grabbed her and wrestled her to the ground so that TT was laying on her back. The applicant straddled TT, holding her arms above her head with one of his hands, and placing his other hand down her pants and digitally penetrating her vagina. TT began to hit the applicant in the head with an orange, which had been knocked out of a fruit bowl in the hallway. After about five minutes TT broke away and ran home. TT did not complain to anyone but never returned to the applicant ’ s house. (Count 5). Proceedings on sentence The applicant was 55 years old at the time of sentence. His criminal history included a conditional discharge for an assault in 1987 at the age of 19, the serious Commonwealth child abuse offences dealt with by Judge Herbert, and a conviction for drug possession which was committed on the day of his arrest for the Commonwealth offences. The applicant did not give evidence on sentence. He tendered a report of Dr Thomas Dornan, forensic psychologist, dated 4 October 2022 , a Drug and Alcohol and Mental Health Summary by Justice Health dated 7 October 2021 , and a document from the Noonan Syndrome Awareness Association, relating to that condition which is suffered by his daughter. Dr Dornan ’ s report was prepared for the sentence proceedings for the Commonwealth offences and did not address the offences dealt with by McHugh SC DCJ . There was however a diagnosis of persistent depressive disorder and “ possible Bipolar II Disorder ” as well as an observation that the applicant would benefit from psychological assistance. The Justice Health document from October 2021 confirmed recent methamphetamine use , (smoking “ Ice ” ) , and that the applicant had experienced thoughts in the past week that he “ might be better off dead ” . The applicant ’ s subjective matters were outlined in Dr Dornan ’ s report, although McHugh SC DCJ observed in his sentencing remarks that there was likely a question mark over the weight to be given to the history given by the applicant about “ having a good relationship with his siblings ” and “ maintaining a positive relationship ” with his sister. His Honour accepted matters of general history , includ ing a poor HSC result and a work history of a factory job and then working at a club that his father managed. After leaving that work the applicant said that his mental health declined , and he increasingly used drugs and alcohol . He then had an unsteady work history at various pubs, clubs, and factories. The applicant said that he began using methylamphetamine in 2003 with escalating use to dependence. Dr Dornan said that based on his assessment in 20 22 , the applicant met the criteria for diagnoses of alcohol use disorder, cannabis use disorder, and stimulant use disorder. The applicant began a relationship that resulted in the birth of his daughter in 2012. She has Noonan Syndrome and according to the applicant , spent seven months in neonatal care “ almost dying ” three time s . He separated from the mother of his daughter and they have no contact, nor does she have contact with their child. His daughter was being cared for by his mother at the time of senten ce . The written submissions of the Crown on s entence , to the extent they dealt with totality, were focused on the sentence being a just and appropriate measure of the total criminality involved , observing that the severity of a sentence is not simply the product of a linear relationship, and severity may increase at a greater rate than an increase in the length of a sentence : Clinch v R (1994) 72 A Crim R 301 at 306 per Malcolm CJ . Reference was also made to the need to avoid a “ crushing ” sentence , whilst ensuring in the case of multiple offending , that there was no “ impression created of some kind of a discount for multiple offending ” : R v Knight [2005] NSWCCA 253; 155 A Crim R 252 . Counsel for the applicant appearing on sentence agreed with these submissions as correctly setting out the principles relating to totality and accumulation. Under the heading “ Special Circumstances ” counsel for the applicant listed “ accumulation of sentence s ” as being one of five bases for finding special circumstances. O ral submissions m ade about totality went no further than a discussion of th ose matters. His Honour was not given assistance on the need to advert to the proportionate interrelationship of the overall effective head sentence and the overall effective non-parole period, before he arrived at and impos ed the sentence for the applicant ’ s sexual offending against his sister and TT. His Honour was given some limited assistance on the question of the role of youth and immaturity in sentencing, but the cases relied on by both the Crown and defence counsel were decisions that focused on objective seriousness. He was taken to RA v R [2020] NSWCCA 356, and the comments of McCallum J A . Those comments were made in the context of a manifest excess ground , where the area of focus was on a finding made by the sentencing judge of mitigation of the objective seriousness , and thus moral culpability , “ because he was ‘ a juvenile who was immature ’ ” . The argument made by RA , and accepted in the Court of Criminal Appeal , was that the sentence did not reflect that finding because it was too stern : at [105]-[106] per McCallum J A ( Button and Ierace JJ agreeing ) . The Crown ’ s written submissions addressing youth were based on R v AA [2017] NSWCCA 84 ( “ AA ” ) at [54] per Beech-Jones J (Leeming JA and R A Hulme J agreeing) and JH v R [2017] NSWCCA 22 ( “ JH ” ) , both of which focused on the limitations that should be imposed on the role of youth as a mitigating factor. Those cases are only a selective part of this Court ’ s observations on the role of youth in sentencing published at the time McHugh SC DCJ sentenced the applicant. AA and JH both pre-dated Clarke-Jeffries v R [2019] NSWCCA 56 at [49] per Bellew J ( Simpson AJA and Campbell J agreeing ), JA v R [2021] NSWCCA 10 per Davies J (Basten JA and Johnson J agreeing) , TM v R [2023] NSWCCA 185 ( “ TM ” ) per Yehia J (Payne and Stern JJA agreeing) , the remark s of Fullerton J (with whom MacFarlan JA agreed) in Howard v R [2019] NSWCCA 109 at [ 13] and [14], and the helpful collation of principles and remarks of Hamill J in Sarhene v R [2022] NSWCCA 79 ( “ Sarhene ” ) at [25] and [26] , principles which are “ entrenched and well known ” : “[25] Without meaning to do a disservice to those who have written about this important aspect of sentencing in the past, I will attempt to summarise some of the relevant principles: There is no doubt that the youth of an offender is a relevant factor, or a ‘ most significant factor ’ in assessing what sentence should be imposed : HJ v R [2014] NSWCCA 21 at [56] (Garling J); R v Dalton [2004] NSWSC 446 at [17] (Adams J). Considerations of general deterrence may be less significant when sentencing a juvenile or young offender : KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] (McClellan CJ at CL). Rather, emphasis should be placed on the ‘ the need to provide an opportunity for rehabilitation ’ : KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] (McClellan CJ at CL). While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; ‘ emotional maturity and impulse control develop progressively during adolescence and early adulthood ’ : BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5] (Hodgson JA); Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [55] (Bell P). Where ‘ immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years ’ : R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [25]. An offender ’ s youth and immaturity is also relevant to an assessment of their moral culpability : TM v R [2008] NSWCCA 158 at [33]-[36] (Hall J). In some cases, where the young offender is said to have committed an ‘ adult crime ’ or ‘ conducted him or herself as an adult might ’ , the significance of youth, or the weight to be afforded to it, has been held to be less : KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [25]; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [25]-[28]. However, courts should not ‘ be over-ready to discount the relevance of an offender ’ s youth on the basis that the offender has engaged in adult behaviour or acted as an adult ’ : BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [6] (Hodgson JA); Yildiz v R [2020] NSWCCA 69 at [58] (Rothman J). ” Nor w as McHugh SC DCJ taken to the succinct statement of necessary considerations outlined by Hodgson JA in BP v R [2010] NSWCCA 159; 201 A Crim R 379 ( “ BP ” ) at [3]-[6] , particular ly his Honour ’ s comments about the nature and role of retribution at [4] : “[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a “child offender” of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987 ). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors. ” It is evident from the transcript of the proceedings on sentence that , consistently with the requirements of the busy sentencing workload of the District Court, the sentencing judge delivered his remarks that same morning, ex - tempore, after only a short break. Remarks on sentence His Honour found that Counts 1, 3, 4 and 6 were aggravated because they were committed in the home of the victim . His Honour found that at least the later counts, when the applicant was aged 17 , (counts 4 and 6), were aggravated because they caused significant emotional harm . His Honour did not fin d as an aggravating factor that the offences involved a breach of trust. However, his Honour did take into account that because the applicant was an older brother , “ the victims would have expected a level of trust ” . H is Honour found that the objective seriousness of the offences was mitigated to some degree by the fact that the applicant had less moral culpability because he was a juvenile at the time of the offending, and he necessarily did not have the level of maturity of an adult. His Honour took into account that he was older as time went on in these offences and “ that d egree of lessened moral culpability is itself lessened ” over time. His Honour also took into account the fact the applicant lost the opportunity to have the matter dealt with in the Children ’ s Court , even though that “ was really a matter that lay at his feet ” . His Honour went on to note that if he had been sentenced when he was 17 or 18 , the outcome may well have been different. H is Honour was not satisfied that the applicant ’ s moral culpability was lessened by reason of “ Bugmy factors ” ( Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ) , or because of adverse mental health . H is Honour took into account the applicant ’ s good character for Count 1, but not for the subsequent offences. H is Honour reduced each indicative sentence by 25 % to reflect the guilty plea. H is Honour found an element of contrition arising from the applicant ’ s plea but was not satisfied that the applicant was remorseful. H is Honour was extremely guarded about the applicant ’ s prospects of rehabilitation and likelihood of re- offending. H is Honour was satisfied that the applicant ’ s time in custody would be more onerous because he was in protective custody, the possibility of further COVID lock-ins, his inability to see his daughter, and his physical and mental health difficulties . ( Type 2 diabetes and persistent depressive disorder) . H is Honour did not find that general deterrence was “ particularly mitigated ” and observed the “ need to prevent crime by deterring the offender and other persons from committing similar offences . ” His Honour applied some element of mitigation for both general and specific deterrence “ given [the applicant ’ s] mental health issues ” . H is Honour stated that he had regard to the principle of totality when sentencing for the offences before him as well as the applicant ’ s existing sentence for the Commonwealth offending . There was no overt reference to the way in which accumulation would affect the ratio of overall sentence to overall non-parole period. H is Honour found special circumstances justifying a reduction in the aggregate non-parole period to 66 % of the aggregate sentence having regard to the applicant ’ s need for additional assistance to integrate into the community following the long sentence. In making this finding, he did not outline how he would give effect to that special circumstance finding , taking into account the impact the sentence structure he had in mind would have on the sentence already i mposed by Herbert DCJ. Given the territory of ground 1 of the appeal, it is appropriate to quote in full his Honour ’ s conclusions in the remarks on sentence on totality and accumulation: “I turn now to the principle of totality for multiple offences and for when the sentence will add onto an existing sentence. The Crown written submissions at para 36 noted if an aggregate sentence is imposed, notional sentences ought to be nominated and concurrency considered, and that there is no rule that sentences for offences committed on the same day as part of the same chronology should be served concurrently. I spoke to both parties and received helpful submissions and I propose to structure the sentence with a degree of concurrency. Having regard to the principle of totality, in particular, that an extremely long sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. Such a consideration increases the severity of the sentence to be served and that effect increases the severity of the sentence to be served and also , destroys such prospects as there may be of rehabilitation and reform. It is noted though, of course, in case of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. Nevertheless, I have had regard to the principle of totality both within these offences I am sentencing him for, but more relevantly, for when a sentence will add onto an existing sentence. The task in sentencing is to answer the question posed in Mill v The Queen to the effect that, what would likely have been the effective head sentence imposed if the applicant had been sentenced at the one time for, in that case, the three sets of aggravated sexual assaults against the three victims? And I refer to Haak v The Queen [2022] NSWCCA 28 at [16]. In particular, the Crown written submissions which I have already had regard to and indeed, Mr Robinson ’s helpful submissions on the comparative cases, particularly that of RA v R [ 2020] NSWCCA 356 that I have referred to. Mr Robinson notes that the Crown submissions correctly set out the principles relating to totality and accumulation and that the length of a n on-parole period will be an important consideration in determining the date of the commencement of the present sentence. He submitted that there should be partial accumulation between the present offences and there should be partial accumulation with the sentence he is currently serving. This is necessary to achieve the balance between avoiding a crushing sentence and recognising the harm done to each victim. I have decided that an aggregate sentence is appropriate. Now, I am required to set an effective aggregate sentence in light of the total criminality. In my view, at least part of the sentence for these matters should be served before his current offences finish. I have also b een asked to consider special circumstances which Mr Robinson notes would be because of the need for additional assistance upon release to reintegrate into the community life. Having r egard to the l ong sentence that would inevitably follow the sentence that he is currently serving as well as the additional sentence which I impose, he will need time to reintegrate into society. And there will be some need for ongoing medical care having regard to his age, as well, at the time he is released. And so, I would reduce the non-parole period from what would have otherwise have been - that is right? Yes. ” After an outline of the indicative sentence s , sentence was imposed in these terms : “So the eight year sentence is to commence on 20 June 2027. The non-parole period is five years, three months and 14 days which is 66% of the head sentence. So that would end on 3 October 2032. So the effect of that is an additional - it is an eight year sentence but it is to be partly concurrent. So that will be an extra three years in gaol. And then, you will be on with another two years, three months and 14 days as the parole period.” GROUNDS OF APPEAL Ground 1: The sentencing judge failed to consider the overall relationship between the effective overall non-parole period and the effective sentence. Submissions Mr Quilter SC submitted that in imposing the sentence and explaining its effect to the applicant, h is Honour did not make reference to any of the following critical matters: The total term would be 13 years 8 months and 15 days; The total non-parole period would be just under 11 years; The new overall ratio of non-parole period to sentence would be in the order of 80.2% ; Th e applicant ’ s parole period was consequently reduced by 9 ½ months , as a result of the addition to the existing sentence of the non-parole aspect of the sentence imposed by McHugh SC DCJ . Mr Quilter submitted that this is an example of failure by the sentencing judge to address the broader and more important consideration which is the overall effect of that scenario. As made clear in Duncan v R [2026] NSWCCA 19 ( “ Duncan ” ) and the principles collected at [29] by Hamill J ( with whom Stern JA and Huggett J agree d ) , more is required . This is an example of the 5 th principle set out by Hamill J at [29]: “(5) Where the non-parole period exceeds 75% of the total sentence, or where the result of an accumulated sentence interferes significantly with the proportions of an existing sentence, ‘it is incumbent on a sentencing judge to consider or advert to the effect of accumulated sentences they may impose’: Lonsdale v R [2020] NSWCCA 267 at [65] and Sabongi v R at [85].” The interference with the non-parole period is not a minor matter of a few months, but a notable reduction of 9 ½ months of the parole period , in circumstances where the sentencing judge referred specifically to the need for the applicant to reintegrate into society after the long sentence , and the need for ongoing medical care having regard to his age at the time he will be released. The finding of special circumstances should have included and made adjustments for the effect of accumulation on the ratio between the total sentence and the non-parole period. This was not done. The Crown ’ s primary submission was that there is no rule, by statute or otherwise , that the (accumulated) non-parole period must comprise no more than 75% of the total effective sentence: GP at [21] per Hamill J (Macfarlan JA and Button J agreeing) and Danishyar v R; R v Danishyar [2023] NSWCCA 300. There is no obligation to maintain the statutory ratio imposed by a previous judge in a pre-existing sentence . There is no obligation to give reasons where the non-parole period exceeds 75% of the total sentence: Duncan at [29] per Hamill J (Stern JA and Huggett J agreeing) referring to R v GDR (1994) 35 NSWLR 376 ( “ GDR ” ) at 379. The Crown did however acknowledge that the intention of the sentencing judge in imposing the overall sentencing outcome should be discernible so that there is no impression created of inadvertence or miscalculation: Calhoun (a pseudonym) v R [2018] NSWCCA 150 at [31] per Price J (Bathurst CJ and Basten JA agreeing) ; Lonsdale v R [2020] NSWCCA 267 at [30] per Hoeben CJ at CL . Where the result of the accumulated sentence interferes significantly with the proportion of the existing sentence, it is incumbent on the sentencing judge to consider or advert to the effect of accumulated sentences they may impose: Duncan at [30] per Hamill J (Stern JA and Huggett J agreeing) referencing Mill v T he Queen (1988) 166 CLR 59 at 66-67; [1988] HCA 70 at [16]. In addressing the question of whether the sentencing judge considered and adverted to , or alternatively, misunderstood the effect of the accumulation here, the Crown submitted that his Honour ’ s remarks (reproduced at [ 54 ]) indicate d that he was aware that there was an increase in the total sentence of 3 years and a reduction in the parole period of 9 ½ months. It was submitted that this was sufficient to allow this Court to infer that his Honour did in fact advert to the impact of that on the total effective sentence. The Crown submitted that there was no requirement for his Honour to do a percentage calculation or make any further statement than that which he made . Consideration The Crown ’ s submissions on this ground cannot be accepted. The focus in his Honour ’ s remarks on totality and accumulation was limited to the non-parole period reflecting the total criminality and the harm done to each victim and the need to avoid a crushing sentence. There was no additional stepping back to acknowledge the total effective sentence at all. If anything, his Honour ’ s focus on imposing a 66% non-parole to parole ratio to reflect special circumstances comprising health needs, rehabilitation and reintegration into society , with no reference at all to the need to adjust for “ accumulation of sentences ” , suggests that he did not turn his mind to this issue when structuring the sentence he imposed . Not only did the approach taken by his Honour and the resulting sentence not reflect anything remotely like the 66% - 34% ratio he mentioned , it actually reduced the parole period in place by a significant period of 9 ½ months. Nowhere does his Honour record that he is aware of that important interference being an effect of his sentencing approach. Nor does his Honour refer to the total sentence and the total non-parole period. Perhaps if he had, the less than 20% ratio would have been identified. Whilst Duncan and GDR make it clear that there is no obligation to maintain the p re vious sentencing judge ’ s ratio, there needs to be something said – however brief – to reflect an understanding of the end result , or to record that this was the intended result . A ratio that reduces the existing period on parole to one that is less than 20% of the overall sentence, in circumstances of recent sex offending that will require supervision for safe reintegration into the community, does not appear to have been his Honour ’ s intentio n. It can be safely inferred, reading his Honour ’ s ex-tempore remarks fairly and as a whole, that the sentencing exercise miscarried. I would uphold ground 1. Ground 2: The sentencing judge wrongly confined his consideration of youth to his assessment of the objective seriousness of the offences. Submissions Mr Quilter submitted that whilst youth may be relevant to an assessment of objective seriousness of sexual offending: AA ( per Beech-Jones J , Leeming JA, and R A Hulme J agreeing) , there are obvious limitation s on this, focusing as it must on objective matters . The assessment of moral culpability – a separate but related concept – has a much broader role to play on sentence : Camilleri v R [2023] NSWCCA 106 ; 308 A Crim R 52 at [142] per Hamill J ( Cavanagh J agreeing at [221] ) . The central role the assessment of moral culpability has to play in sentencing is well articulate d in Director of Public Prosecutions v Herrmann [2021] VSCA 160; 290 A Crim R 110 at [ 14 ] - [ 15 ]: “[14] In assessing an offender’s ‘moral culpability,’ the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged — and punished — often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender’s control, the harshness of the moral judgment is likely to be moderated. [15] This focus on the offender reflects no disregard of the impact on the victim(s), nor of the seriousness of the offending. It is, rather, a function of the judge’s obligations to impose punishment which is ‘just in all of the circumstances’ and to deliver ‘individualised justice’.” (footnotes omitted). Mr Quilter submitted that an offender ’ s youth and resultant reduced culpability is a significant factor in sentencing because children d o not have adult value judgments , adult experiences, and adult appreciation of consequences: MS2 v Regina [2005] NSWCCA 397 ; 158 A Crim R 93 at [16] per Adams J . It informs the extent to which an offender deserves to be punished, thereby informing questions of denunciation, retribution and general deterrence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [58] ; KT v R [2008] NSWCCA 51 ; 182 A Crim R 571 at [ 23 ] per McClellan CJ at CL ; BP at [4] per Hodgson JA . Mr Quilter submitted that his Honour ’ s finding on reduced moral culpability was constrained within the assessment of the objective seriousness of the offen ding and was otherwise not addressed: “ In terms of the objective seriousness for all of the offences, they were mitigated to some degree by the fact that the offender had less moral culpability because he was a juvenile at the time of the offending, and he necessarily did not have the level of maturity of an adult. And I refer to R v RA [2020] NSWCCA 356 at para 105. Although, I have also taken into account that he was older as time went on in these offending and that degree of lessened moral culpability is itself lessened as I go through these findings on objective seriousness. ” Mr Quilter submitted that these remarks do not make any explicit findings about how the applicant ’ s you th mitigated the objective seriousness of the offending . There was no express finding that there should be a reduction in the level of punishment relevant to objective seriousness of the offences because of the applicant ’ s youth. His Honour confined his assessment of moral culpability to “ two relevant paths to a reduction in moral culpability ” : Bugmy factors and “ an offender ’ s mental health condition ” . This statement highlights his Honour ’ s clear failure to consider youth and immaturity as part of the applicant ’ s moral culpability. Mr Quilter argued that his Honour ’ s refusal to find that “ general deterrence was not particularly mitigated ” by reason of the applicant ’ s age , is consistent with not taking into account his youth and immaturity as a matter that can have the effect of reduc ing blameworthiness. There was also no reference to reduced emphasis on punishment given the applicant ’ s age at the time of offending. Finally, Mr Quilter submitted that the length of the indicative sentences set out in the table appears to reflect the objective seriousness assessments that would be made for like offences committed impulsively by an adult offender with no mitigation for reduced moral culpability on account of youth and immaturity . The Crown submitted that his Honour did take youth into account on the basis that it reduced moral culpability because the reference to “ objective seriousness ” in th e passage reproduced in [ 70 ] should be read as a reference to reduced moral culpability operating in mitigation. The Crown submitted that because his Honour reference d R v Eaton [2023] NSWCCA 125 ; 308 A Crim R 465 at [60] per Hamill J , (Lonergan and Ierace JJ agreeing) , a case where the distinction between moral culpability and objective seriousness was correctly made and explained , the distinction “ could not have been overlooked ” by his Honour here . The Crown argued that the remarks on sentence in this respect reflect only an “ infelicity in [the] expression ” used by the sentencing judge . A degree of latitude should be afforded to a judgment given ex - tempore: Hawat v R [2020] NSWCCA 121 at [33] per R A Hulme J (Fagan J and Hidden AJ agreeing) . The Crown submitted that reading the remarks as a whole, because his Honour made later reference to the lessening of the reduced moral culpability as the applicant got older, this supports a conclusion that his Honour did reduce the sentence to reflect reduced moral culpability on account of the applicant ’ s age and immaturity at the time of offending. Where h is Honour later in the remarks dealt with reduced moral culpability arguments regarding “ Bugmy factor s ” and mental health, the Crown submitted that this should be read in the context of his Honour addressing the written submissions in the order they appear and in an ex-tempore context, rather than indicating that he had excluded youth and immaturity as reducing moral culpability . The Crown submitted that the further reference in the remarks by his Honour that he had “ taken into account youth in the objective seriousness in the offending ” should be considered to be “ unfortunate expression ” that does not lead to a conclusion that his Honour did not take youth into account in respect of moral culpability. The Crown submitted that his Honour ’ s remark ( in the context of dealing with the lost opportunity for the applicant to have his matters dealt with in the Children ’ s Court ): “ I do not find that general deterrence is particularly mitigated ” , has implicit in it, a recognition of the wider role youth ha s to play in the mitigation of general deterrence. The Crown drew attention to authorities where it was noted that considerations of rehabilitation, general deterrence and retribution may be moderated where the young person has conducted himself in a way that an adult might , or has committed a crime of violence or considerable gravity: R v Adamson [2002] NSWCCA 349 ; 132 A Crim R 511 , although noting the obser vat ions to the contrary of Hodgson JA in BP at [4] . The Crown argued that the Court should reject the submission made by Mr Quilter that the indicative sentences alone suggest no reduced emphasis on punishment on the basis of youth . Hi s Honour was entitled to find that there was not a significant degree of reduction of moral culpability given the violent and serious nature of the offending . It was also submitted t hat h is Honour ’ s finding of guarded prospects of rehabilitation given the recent sexual offending would also have impacted the indicative sentences. Finally, it was submitted that given the instinctive synthesis required in the sentencing exercise, there was no requirement for his Honour to have state d or quantif ied the extent to which youth reduced the punishment appropriate for the offences. Consideration This was not a complaint that insufficient weight was afforded to youth and immaturity in the sentencing exercise. It is that nothing was said in the remarks that indicate d that youth and immaturity was considered in the redolent and comprehensive fashion r equir ed by the authorities referred to at [39], [40], [6 7 ], [6 8 ] and [69 ] above. There is no absolute obligation to reduce a sentence imposed because of youth and immaturity. There is , however , an obligation to show in the remarks on sentence that relevant considerations ( in particular moral culpability) have been evaluated and acted upon in some wa y, specifying how those considerations have been taken into account , and what effect they have had on the sentence to be imposed . The problem with his Honour ’ s remarks is that even reading them generously , taking into account that they were made ex - tempore, and taking into account the limited assistance he was given regarding the role of youth and immaturity as part of the sentencing exercise, subjective matters relevant to an assessment of moral culpability were just not referred to in an appropriately directed way . As the applicant argued, youth is potentially relevant to objective seriousness only in limited circumstances: AA at [54]-[55] per Beech-Jones J (Leeming JA and R A Hulme J agreeing); DS v R; DM v R [2022] NSWCCA 156 at [95]-[96]. Yet his Honour appeared to treat that as the context, or at least the main context, in which the issue was to be addressed. It was not. Its significance in this case went to moral culpability, with consequential significance for the purposes of sentencing. As a result, the question of the applicant ’ s moral culpability as a 15, 16 and 17 year old offender was not appropriately considered , other than to observe that he was more morally culpable the closer he got to age 18 . That proposition is itself questionable given the impulsive nature of th is offending and the remarks of Hodgson JA in BP at [5] , Yehia J (with whom Payne and Stern JJA agreed) in TM at [49 ] , and Rothman J (with whom Simpson AJA and N Adams J agreed) in Yildiz v R [2020] NSWCCA 69 at [58] , to the effect that there is no bright line of adult responsibility just because a young person turns 18. The re-writing of his Honour ’ s remarks in the way argued for by the Crown is not an approach this Court should take. He refers not once, but twice to the fact that he took youth into account on the objective seriousness of the offen ding , although I also accept Mr Quilter ’ s submission that the way in which his Honour did this remain s opaque in the remarks on sentence . Th e limited focus on youth and immaturity taken by his Honour was not correct. The failure to properly and completely consider the question of moral culpability in turn led to the failure to take into account what the applicant as a child offender deserved by way of punishment. Due consideration of the wider potential effect of youth and immaturity on the elements of retribution, denunciation and general deterrence was therefore not made . This affected the sentencing exercise in a way unfavourable to the applicant and caused it to miscarry. His Honour ’ s dealing with the issue of the lost opportunity to have the matter dealt with in the Children ’ s Court included a remark that suggest ed that it wa s the applicant ’ s fault that he was not charged “ at the time complaints were made ” . This seems to be a reference to matters alleged in the sister ’ s victim impact statement. His Honour observed that this was “ really a matter that lay at his [the applicant ’ s] feet ” and that “ if he had addressed ” the complaints made, his charges could have been dealt with in the Children ’ s Court . This seems to me to be a n additional negative finding against the applicant beyond what the evidence would allow and betrays a further failure to appreciate the youth and immaturity present in the applicant at such a time . I would uphold ground 2 of the appeal. In the circumstances, there is no need to deal with the manifest excess ground : Syed v R [2026] NSWCCA 47 at [100] . Resen tence It is necessary to exercise the sentencing discretion afresh, taking into account the objective seriousness of the offence s , the applicant ’ s subjective ca s e and the purposes of sentencing: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [ 42 ] . The parties agreed that their submissions on the manifest excess ground are relevant to the resentencing exercise. The applicant relied upon an affidavit sworn by his solicitor, Rebecca Fra n cis on 5 May 2026. This affidavit annexed relevant documents produced by the Department of Corrective Services addressing his conduct in custody between 2022 and 202 6 . There is also reference to health issues related to his diabetes including the amputation of his right great toe in February 2025 due to a diabetic ulcer , osteomyelitis and septic arthritis according to the annexed clinical notes from Maitland Hospital regarding that surgery . The Corrective Services notes indicate that the applicant has not had any offences in custody, performed work when it was available, was not receiving any visitors , and was housed in the SMAP area. The applicant also relied upon an affidavit he affirmed on 5 May 2026 . In that affidavit he outline d his reclassification in 2024 , that he has not had any positive urine screens for drug use in custody, the circumstances leading to his toe amputation in 2025 , and his concern that there may be similar complications. He also referred to the death of his mother in June 2024 and that he was unable to watch the funeral due to being moved to a different facility on that day. He has worked as an LRC clerk , sweeper and in the U pholstery Unit where he was noted in early 2026 to work well , approaching his duties in a diligent and reliable manner and that he was polite and respectful to inmates and officers. In April 2026 he was noted as having no outstanding concerns for his mental health or wellbeing , and did not wish to participate in any programs at that time. The applicant referred to being elected to the Inmate Delegate Committee in March 2026 and that he enjoys that role . He was also undertaking a Digital Literacy Course. There was no issue taken with the sentencing judge ’ s findings of objective seriousness, but issue was taken by Mr Quilter with the corresponding indicative sentences, given that the applicant was a child at the time with no previous criminal record. Mr Quilter submitted that any sentence should reflect the lost opportunity for the offences to be dealt with in the Children ’ s Court , particularly given the limits on the sentences that could have been imposed by that regime at the relevant time , and the fact that it is only speculative as to whether the offences would have been dealt with according to law under s 86(2) C hild Welfare Act 1939 (NSW) . I accept that what would have occurred is speculative and so find that the lost opportunity to have his matters dealt with in the Children ’ s Court is a matter I take into account as part of the instinctive synthesis, rather than anything more specific in term s of specific limitation s on any sentence (s) of imprisonment that may have been imposed in that Court. Taking into account in particular the applicant ’ s reduced moral culpability given his age and immaturity at the time of the offending, and the impulsive nature of the offending, I would provide the following indicative sentences after applying the 25% discount for the guilty pleas: Count 1: 1 year, C ount 2: 1 year; Count 3: 1 year 6 months ; C ount 4: 1 year 6 months; Count 5: 2 years 6 months and Count 6: 4 years. There has been no expression of remorse for the offending. There is an element of contrition reflected in the guilty plea s . Prospects of rehabilitation are very guarded given that the nature of the offending in 202 1 was sexual and involved vulnerable children. The applicant ’ s time in custody is more onerous because of estrangement from his daughter , his Type 2 Diabetes and its sequelae , including the loss of his right great toe in 2025 , and his diagnosed persistent depressive disorder. General deterrence and retribution are mitigated by the applicant ’ s age and immaturity at the time of the offences. I reject any suggestion that these offences were confined to “ sexual exploration ” (as did the sentencing judge) . T hey were furtive and used the applicant ’ s strength – albeit as a teenager – to overwhelm his sister who was 2 years his junior and on a different occasion, TT, also 2 years his junior. I have taken into account the victim impact statements . Both women eloquently describe the long term effects these assaults have had on their lives. Without in any way diminishing the harm to these two victims, sentencing principles require a focus on subjective matters relevant to the (now adult) applicant in imposing a sentence that reflects those principle s . I have concluded that there are special circumstances. The first is the accumulation of sentences which requires an adjustment to be made . The second is the need for a reasonable period of parole supervision to assist the applicant ’ s reintegration into the community after a length y time in custody . With respect to totality, the offending was of a similar kind, albeit escalating in severity, at distinct times over a period of the order of two years. Some degree of concurrency should be allowed in setting an aggregate sentence. The commencement date adopted by the sentencing judge of 20 June 2027 provides an appropriate starting point for concurrence and accumulation with the sentence currently being served. The sentence I propose is an aggregate sentence of 7 years commencing on 20 June 2027 and expiring on 19 June 203 4 , with a non-parole period of 3 years and 6 months, expiring on 1 9 December 203 0 . This Court must have regard to the overall effective senten ce. T he sentence the applicant is currently serving expires on 4 July 2032 with the non- parole p eriod expiring on 4 April 202 9 . The sentence proposed will have the effect of increasing the overall sentence by 1 year , 11 months and 15 days , and the overall non-parole period by 1 year , 8 months and 15 days . This will provide a total effective sentence for the 2021 offences , together with the applicant ’ s offending as a child , of 1 2 years , 8 months and 15 days comprising an overall period on parole of 3 years and 6 months , after a (non-parole) period of 9 years , 2 months and 15 days . The proportion of total effective non-parole period to total effective sentence is approximately 72.46 % . Orders I propose the following orders: Extend the time for filing this appeal to 24 March 2026. Grant leave to appeal. Allow the appeal. Quash the aggregate sentence imposed by McHugh SC DCJ . In lieu thereof the applicant is sentenced to an aggregate sentence of 7 years commencing on 20 June 2027 and expiring on 19 June 2034 with a non-parole period of 3 years and 6 months expiring on 19 December 2030 . WEINSTEIN J: I agree with Lonergan J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2026