Taylor v R

1. [1]

   N ADAMS CJ at CL: By notice of appeal filed on 13 November 2025, the applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Ellis in the District Court of New South Wales at Newcastle on 22 November 2024. The applicant pleaded guilty in the Local Court to a number of State and Commonwealth sexual offences relating to sexual touching of four separate child victims and the production and possession of child abuse material.

2. [2]

   With respect to the State offences, after applying a discount of 25% for his guilty pleas, the sentencing judge imposed an aggregate sentence of 7 years and 6 months’ imprisonment with a non-parole period of 4 years. The sentence commenced on 9 March 2023. The non-parole period will expire on 8 March 2027, and the head sentence will expire on 8 September 2030.

3. [3]

   With respect to the Commonwealth offences, the sentencing judge ordered that the applicant be released on a recognisance upon the applicant giving security in the sum of $2,000, without surety, and subject to the condition that he be of good behaviour for 3 years: Crimes Act 1914 (Cth), s 20(1)(a).

4. [4]

   The applicant seeks leave to appeal against the aggregate sentence imposed for the State offences on a single ground of appeal, namely that the sentencing judge erred in failing to address whether the applicant’s mental health issues impacted on his moral culpability and affected the role of general deterrence in the sentencing exercise.

The offences

1. [5]

   The offences to which the applicant pleaded guilty are as follows:

   1. (1)

      One offence of attempted sexual touching of a child under the age of 16 contrary to s 66DB(a) Crimes Act 1900 (NSW) (sequence 837/1): Maximum penalty of 10 years’ imprisonment;

   2. (2)

      Four offences of sexual touching of a child under the age of 16 contrary to s 66DB(a) Crimes Act (sequences 837/2, 837/5, 837/12 and 118/1): Maximum penalty of 10 years’ imprisonment;

   3. (3)

      Two offences of using a child under the age of 14 for the production of child abuse material contrary to s 91G(1)(a) Crimes Act (sequences 118/10 and 118/11): Maximum penalty of 14 years’ imprisonment and Standard Non-Parole Period (“SNPP”) of 6 years;

   4. (4)

      One offence of disseminating child abuse material contrary to s 91H(2) Crimes Act (sequence 118/12): Maximum penalty of 10 years’ imprisonment;

   5. (5)

      One offence of possessing child abuse material contrary to s 91H(2) Crimes Act (sequence 837/8): Maximum penalty of 10 years’ imprisonment; and

   6. (6)

      Two offences of using a carriage service to send indecent material to a person under the age of 16 contrary to s 474.27A(1) Criminal Code Act 1995 (Cth) (sequences 837/6 and 837/14): Maximum penalty of 10 years’ imprisonment.

Agreed Facts

1. [6]

   The following summary is based on the Agreed Facts.

2. [7]

   The first group of offences involved the victims CA, CR and JB and occurred between August to September 2022 and the end of December 2022. CA, CR and JB were in Year 10 together at high school and had been friends since kindergarten. As at the date of the offences, the applicant was 20 years old. The three victims were all aged 15.

3. [8]

   The second group of offences involved the victim ZW. He was aged 13 at the time of the offending in February to March 2023.

4. [9]

   At the time of the offences, CA was 15 years old. CA played rugby union for his local team. Around August or September 2022, the applicant joined the coaching staff of that club.

5. [10]

   Not long after the applicant joined the coaching staff, CA began hanging out with him outside of rugby-based activities. The applicant would drive CA and other players from the team around.

6. [11]

   On one occasion in the weeks after first meeting the applicant, CA was sitting in the front passenger seat of the applicant’s car, and the applicant was in the driver’s seat. Suddenly, the applicant tried to put his hand down the front of CA’s shorts. CA was able to stop the applicant by putting his hands over the waistband of his shorts.

7. [12]

   CA told the applicant to stop, but the applicant continued to try and put his hand down CA’s shorts. CA started to wriggle down the seat, moving his body towards and underneath the dashboard of the car to get away from the applicant’s hands.

8. [13]

   The applicant stopped. CA told the applicant to take him home and the applicant dropped him at Hungry Jack’s.

9. [14]

   CA next saw the applicant about a week later. CA told the applicant not to do what he had done the previous week. CA told the applicant that he was not into that kind of stuff and that he just wanted to be mates. The applicant said he was only doing that stuff because he wanted to fit in.

10. [15]

    CA provided a statement to police on 22 February 2023.

11. [16]

    At the time of the offences, CR was 15 years old. In around October or November 2022, CR met the applicant through CA. Shortly after that, CA gave CR the applicant’s Snapchat details and CR started to chat with the applicant on Snapchat.

12. [17]

    At some point after CR and the applicant started communicating on Snapchat, the applicant sent CR a photo of the applicant’s penis via Snapchat.

13. [18]

    A few days later, the applicant picked CR up from CR’s home to go for a drive. They parked next to a creek. CR was in the front passenger seat, and the applicant was in the driver’s seat of his car.

14. [19]

    The applicant asked CR if he wanted to “jerk off” and mark their territory. This was something the applicant had previously mentioned to CR. CR said, “nah”. The applicant continued to try to convince CR to do it by saying, “please, please, c’mon”. CR kept saying, “nah”.

15. [20]

    The applicant then used his phone to bring some pornography up and he placed his phone on the dash of the car near the radio.

16. [21]

    The applicant then removed his penis from his shorts and started to masturbate in front of CR. The applicant’s penis was erect. This made CR uncomfortable. There were people walking past at the time.

17. [22]

    The applicant stopped and asked CR to start masturbating as well. CR put his hand down his pants and pretended to masturbate as he did not know what else to do. The applicant kept masturbating, and asked CR if he was hard.

18. [23]

    The applicant stopped masturbating again and reached over to CR with his left hand. The applicant then put his hand down CR’s shorts and pulled CR’s penis out of them. The applicant had a firm grip on CR’s penis. CR was in shock and did not know what to do.

19. [24]

    CR did not have an erection, and the applicant let go of CR’s penis. The applicant then continued to masturbate and eventually ejaculated into a blue towel.

20. [25]

    Later that same day, the applicant drove CR to local soccer fields and stopped in a car park. They stayed there for about an hour. The applicant was watching sport on his phone, and they were just talking generally.

21. [26]

    While they were parked, the applicant started to masturbate. He asked CR to do it as well. CR said, “no”.

22. [27]

    The applicant went to grab CR’s penis. CR tried to move into the back of the car, by climbing over the centre console. While trying to do so, the applicant reached up CR’s shorts and pulled on CR’s penis.

23. [28]

    The applicant then stopped suddenly and said something like, “this is wrong”. The applicant then dropped CR home.

24. [29]

    CR provided a statement to police on 6 February 2023.

25. [30]

    At the time of the offending, JB was 15 years old.

26. [31]

    JB first met the applicant in or around November 2022, through CA. JB started seeing the applicant more after the first meeting, as the applicant had become friends with some of JB’s friends. The applicant would drive the boys around sometimes.

27. [32]

    About 3 to 4 weeks after JB met the applicant, the applicant, CR and JB were sitting in the applicant’s car parked at the local sports oval. CR was in the front passenger seat, the applicant was in the driver’s seat, and JB was in the rear middle seat.

28. [33]

    The applicant turned around and placed his hand on JB’s leg, right up near JB’s crotch. JB immediately moved his leg away and said something along the lines of, “fuck off!” The applicant laughed it off as if it was nothing.

29. [34]

    At this time, the applicant and JB sometimes exchanged messages on Snapchat.

30. [35]

    On 25 November 2022, JB was at CA’s house hanging out. While he was there, he received a Snapchat image from the applicant, which was a picture of a nipple. JB showed the photo to CA.

31. [36]

    JB then “snapped” a photo back to the applicant, which was “something random” like a picture of the roof. Less than a minute later, the applicant sent JB another photo, which showed the applicant’s buttocks completely naked. There was no comment with the photo.

32. [37]

    JB showed this photo to CA as well. CA took a screenshot of this photo.

33. [38]

    JB did not consent to receiving these photographs from the applicant.

34. [39]

    JB provided a statement to police on 24 February 2023.

35. [40]

    At the relevant time, ZW was 13 years old. On one occasion, ZW was in the electronic “lobby” of an online gaming application “Fortnite” with his friend and the applicant. This was the first time ZW had “met” the applicant. While in the lobby, ZW and the applicant were talking over their headsets about school and hobbies.

36. [41]

    The applicant subsequently added ZW on Snapchat and ZW added him back.

37. [42]

    Within about a week, ZW started talking on Snapchat to a person he believed to be a 15-year-old girl from Sydney (“the female”). ZW had never met the female in real life.

38. [43]

    The female then started using words to ZW like, “hey daddy”. She sent him photos of naked breasts and a naked vagina, which ZW assumed were photos the female had taken of herself. The female asked him if he would send her a nude. ZW sent her a photo of his penis.

39. [44]

    About one week after ZW first met the applicant, the applicant sent ZW a message saying that he had seen the photo of the applicant’s penis “leaked” briefly on the female’s story. The applicant told ZW he could see ZW’s face in the photo. The applicant told ZW that he could help ZW get the photo taken down.

40. [45]

    The applicant subsequently told ZW that he had talked the female into taking down the photo, but that the applicant and ZW had to keep sending her photos and videos otherwise she would leak the photo of ZW’s penis. ZW believed that if he did not do what was being asked of him, the female would send the photo of his penis to everyone she knew.

41. [46]

    The applicant started contacting ZW to participate in Facetime calls with him. He did this by texting ZW through Snapchat.

42. [47]

    The usual course of events was that the applicant communicated to ZW that the female had requested a video of the applicant and ZW masturbating to ejaculation on Facetime. The applicant and ZW started a Facetime call. ZW believed that the applicant screen recorded each call. The applicant and ZW masturbated until ejaculation. The applicant told ZW that he would send the video to the female to stop her from leaking anything.

43. [48]

    The calls occurred at about 10:30 to 11pm. The videos would last about 15 minutes. This continued for nearly two weeks. Every now and then, ZW said that he could not participate in a call that night because his parents were around.

44. [49]

    When the applicant’s phone was forensically examined, there was one video of ZW in his bedroom masturbating.

45. [50]

    On 2 March 2023, the applicant told ZW they had to finish it. The applicant told ZW that the female wanted a video of the applicant and ZW together. If she received that, she would not request any more videos and she would not leak anything they had sent her.

46. [51]

    By arrangement, the applicant picked ZW up before school in his car. The applicant drove ZW to a local sports complex. The applicant used the key to open the metal security gate to the men’s change rooms. The applicant and ZW entered the change room.

47. [52]

    The applicant started a video recording on his mobile phone. The applicant placed the phone on top of the sink where it faced the applicant and ZW. The applicant and ZW started masturbating for the video (sequence 118/10).

48. [53]

    ZW asked the applicant if the applicant would be able to blur ZW’s face out of the video, because he did not want it to be obvious that it was him. The applicant said he could not do it while he was videoing but that he would do it later.

49. [54]

    When they were masturbating, the applicant and ZW were not wearing a shirt or shorts. Midway through the video, the applicant ejaculated into the sink. He continued to masturbate.

50. [55]

    Toward the end of the video, the applicant told ZW they had to touch each other’s penises. ZW was not comfortable with this, but he complied and touched the applicant’s penis for about five seconds. The applicant simultaneously stroked ZW’s penis, pushing the skin back and forth (sequence 118/1).

51. [56]

    ZW told the applicant to stop the video because ZW could not or did not want to ejaculate. The applicant stopped the video.

52. [57]

    The applicant then drove ZW back to school.

53. [58]

    Later that morning, at 8:50am, ZW sent the applicant a message that said, “Cab [sic] you please cut out the bit of us jerjibg [sic] each other off”.

54. [59]

    At 8:51am, ZW sent another message that said, “Can you please cut out the bit of us herkibg [sic] each other off”.

55. [60]

    At 10:23am, ZW sent a message that said:

56. [61]

    ZW had intended to write “jerking” instead of “jerjiba” or “herkiba” and “a paedo act” rather than “a petrol act”.

57. [62]

    ZW did not hear back from the applicant. ZW did not tell anyone about what had happened with the applicant.

58. [63]

    On 2 March 2023, police attended the home of the applicant and arrested him on charges relating to CA, CR and JB. He was brought to Belmont Police Station, where he then participated in an Electronically Recorded Interview with a Suspected Person (“ERISP”). During that ERISP, he denied the allegations made by CA and CR. He also denied the allegations made by JB other than the sending of photos.

59. [64]

    The applicant admitted that he sent two images to JB on Snapchat, one being a picture of his nipple and one of his naked buttocks. He said that he had had a few beers when he sent the photos, and it had been a stupid choice. He was shown the two photos and admitted they were of him and he had taken and sent them.

60. [65]

    On 3 March 2023, the applicant contacted ZW and told him that he had been arrested and that the arrest was a set-up. The applicant requested that ZW delete all messages on his phone that related to the applicant. ZW did so. ZW did not hear from the applicant again.

61. [66]

    Following arrest on 2 March 2023, police seized the applicant’s mobile phone and had it forensically examined by way of a Cellebrite download.

62. [67]

    Upon reviewing the content of the Cellebrite, Senior Constable Swift identified a number of messages between the applicant and ZW and he formed the view that ZW might be another complainant. On 10 March 2023, ZW provided a statement.

63. [68]

    On 11 March 2023, the applicant was arrested and charged in relation to ZW. He declined to participate in a further police interview.

64. [69]

    During a review of the phone, Senior Constable Swift located a video file depicting a child aged between approximately 12 to 14 years engaged in an act of masturbation. The child was dressed in a school uniform and appeared to be located in a toilet cubicle.

65. [70]

    Police subsequently conducted a Premium Cellebrite download of the applicant’s phone. In that download, police located a message exchange on Snapchat between the applicant (using the Snapchat handle “kylet7611”) and a person using the handle “johnnny96”.

66. [71]

    On 2 March 2023, the applicant and johnnny96 exchanged several messages on Snapchat.

67. [72]

    At 9:32am, the applicant sent to johnnny96 a video file depicting the applicant and ZW engaged in an act of masturbating with each other in a public bathroom or change room. This video was made while committing sequence 118/10.

68. [73]

    At 9:37am, the applicant sent to johnnny96 a video file depicting ZW engaged in an act of masturbation in a bedroom. The video was made while committing sequence 118/11.

69. [74]

    As part of that message exchange, johnnny96 sent the applicant the following child abuse material:

    1. (1)

       Two video files of a male aged between 12 and 14 years engaged in an act of masturbation; and

    2. (2)

       A video file of two young males aged between 10 and 12 years engaged in an act of penile-anal intercourse.

Proceedings on sentence

1. [75]

   The proceedings on sentence took place on 22 November 2024. The Crown tendered the Agreed Facts, the applicant’s criminal and custodial history, and the victim impact statement of CR, which was read during the proceedings by a support officer.

2. [76]

   The applicant did not give evidence at his proceedings on sentence. Rather, he relied on the following documents to establish mitigating factors on sentence:

   1. (1)

      The psychological report of Caroline Hare dated 4 October 2024; and

   2. (2)

      The handwritten letter of the applicant to the Court.

3. [77]

   Both the Crown and the applicant relied on written submissions on sentence. A key issue at the proceedings on sentence was the relevance of the expert opinion of Ms Hare that the applicant exhibited neurodevelopmental deficits, including Attention Deficit Hyperactivity Disorder (inattentive presentation) (ADHD) and traits consistent with autism spectrum disorder (ASD), although testing did not support a definite diagnosis.

4. [78]

   In his written submissions, the applicant identified as a central issue for determination “[w]hether there is a reduction in moral culpability” on the basis of the expert evidence of Ms Hare. It was submitted that:

5. [79]

   This submission was based on the opinion of Ms Hare in her report that the applicant presented with ADHD and traits consistent with ASD. As to the link between these neurodevelopmental issues and the applicant’s offending, Ms Hare opined as follows:

6. [80]

   On the relevance of these conditions to general and specific deterrence, the applicant submitted as follows:

7. [81]

   In writing, the Crown made the following submissions on moral culpability:

8. [82]

   On deterrence, the Crown submitted as follows:

9. [83]

   Orally, the Crown repeated these concessions:

Remarks on sentence

1. [84]

   The sentencing judge delivered his remarks ex tempore after the sentencing hearing on 22 November 2024.

2. [85]

   After noting the maximum penalties for each State offence and the SNPP where applicable, the sentencing judge assessed the objective seriousness of the State offences as follows:)

   1. (1)

      Sequence 837/1 was “below the mid-range”;

   2. (2)

      Sequence 837/2 was “mid-range”;

   3. (3)

      Sequence 837/12 was “mid-range”;

   4. (4)

      Sequence 837/5 was “below mid-range”;

   5. (5)

      Sequence 118/1 was “mid-range”;

   6. (6)

      Sequence 118/11 was at the “lower end of mid-range”;

   7. (7)

      Sequence 118/10 was at the “lower end of mid-range”;

   8. (8)

      Sequence 837/8 was “below the mid-range”; and

   9. (9)

      Sequence 118/12 was “in the mid-range”.

3. [86]

   As for the Commonwealth offences, his Honour concluded that both sequences 837/6 and 837/14 were “below the mid-range of offending”.

4. [87]

   The applicant’s plea of guilty was a mitigating factor on sentence, and his Honour found that there were no aggravating factors: Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”), s 21A.

5. [88]

   The sentencing judge noted that the applicant was aged 20 to 21 years at the time of offending and was 22 years old at the time of sentence. He had no prior criminal convictions.

6. [89]

   The sentencing judge noted the content of Ms Hare’s report as follows:

7. [90]

   The sentencing judge observed that “[i]t is clear from the report and his history that he definitely experiences difficulties getting on with other individuals”.

8. [91]

   On the applicant’s neurodevelopmental diagnoses, his Honour noted the following:

9. [92]

   As to the applicant’s educational and vocational history, the sentencing judge noted that the applicant finished Year 10, completing the School Certificate, and then completed Years 11 and 12 at the Hunter Trade College. He has a poor employment record. He had previously been approved for funding under the National Disability Insurance Scheme (NDIS), but he never made use of the support as he was overwhelmed by the prospect of having to arrange the services himself. However, the sentencing judge noted that there is some suggestion that the applicant does intend to engage with NDIS services upon release.

10. [93]

    On remorse, the sentencing judge observed:

11. [94]

    His Honour found that the applicant does have some prospects of rehabilitation, but that they were guarded due to his underlying mental health and personality issues that needed to be addressed. Nonetheless, it was noted that the applicant had shown insight into his offending and indicated “a preparedness to move down the path”.

12. [95]

    The sentencing judge determined that there was no sentence other than a sentence of imprisonment that would be appropriate for the State offences having regard to the total level of criminality: Sentencing Act, s 5.

13. [96]

    His Honour found that there were special circumstances because this was the applicant’s first time in custody and his experience of custody was more onerous than for a normal inmate. A longer period on parole was also needed to assist him in relation to his mental health issues and to comply with Ms Hare’s recommendations concerning ongoing treatment.

14. [97]

    Following a 25% discount for the plea of guilty, the sentencing judge imposed the following indicative sentences for the State offences:

    1. (1)

       Sequence 837/1 – 1 year and 3 months’ imprisonment;

    2. (2)

       Sequence 837/2 – 2 years and 3 months’ imprisonment;

    3. (3)

       Sequence 837/12 – 2 years and 3 months’ imprisonment;

    4. (4)

       Sequence 837/5 – 1 year and 3 months’ imprisonment;

    5. (5)

       Sequence 118/11 – 1 year and 6 months’ imprisonment with a non-parole period of 12 months;

    6. (6)

       Sequence 118/1 – 2 years and 3 months’ imprisonment;

    7. (7)

       Sequence 118/10 – 1 years and 6 months’ imprisonment with a non-parole period of 12 months;

    8. (8)

       Sequence 837/8 – 1 year and 3 months’ imprisonment; and

    9. (9)

       Sequence 118/12 – 1 year and 6 months’ imprisonment.

15. [98]

    As set out above, the sentencing judge imposed an aggregate sentence of 7 years and 6 months’ imprisonment with a non-parole period of 4 years.

The parties’ submissions

1. [99]

   The applicant contended that the sentencing judge erred by failing to address whether the applicant’s moral culpability was reduced or whether general deterrence had a reduced role to play due to the applicant’s mental health issues. It was submitted that these questions were central issues for the sentencing judge’s determination, following the approach set out by this Court in NK v R [2025] NSWCCA 73 at [100]-[103].

2. [100]

   While the Crown conceded at sentence that there was a causal link between the applicant’s mental health issues and his offending, the applicant pointed to the fact that issue was joined between the parties as to the extent of any reduction to moral culpability, such that it was necessary for the sentencing judge to resolve the conflict.

3. [101]

   The applicant submitted that it could not be inferred from the remarks that the sentencing judge made any findings as to moral culpability and general deterrence. While the remarks were delivered ex tempore, this did not diminish the need for adequate reasons: Lee, Matthew v R [2016] NSWCCA 146 at [34].

4. [102]

   The applicant relied on the decision of this Court in Sampson v R [2025] NSWCCA 25 which was said to be similar to the present case. I will consider this decision further below.

5. [103]

   The Crown submitted that reading the remarks on sentence “fairly and as a whole”, it is apparent that the sentencing judge dealt with the issues of moral culpability and general deterrence in substance. The Crown pointed to those portions of the sentencing remarks that dealt with the applicant’s neurodevelopmental disorders and how they contributed to his offending, including his maturity, poor interpersonal skills and naivete. It was submitted that these findings demonstrate that the sentencing judge was satisfied that the applicant was less morally culpable than an offender who was not affected by these disorders.

6. [104]

   Similarly, as the Crown noted, the sentencing judge indicated that he had taken into account the principles of sentencing set out in s 3A of the Sentencing Act, which include general deterrence (s 3A(b)). In these circumstances, it was submitted, no error could be demonstrated by the absence of explicit statements that moral culpability and the role of general deterrence were reduced.

7. [105]

   It was submitted that the effect of the parties’ written and oral submissions was that there was no real issue as to the applicant’s diagnoses, the casual relationship between these diagnoses and his offending, and the consequent reduction in his moral culpability and need for general deterrence. The Crown submitted that the brevity of the ex tempore remarks reflected the significant agreement between the parties on these issues, from which it could be inferred that these matters were taken into account. In this respect, the Crown relied on the decisions in You, Jae Bok v R [2020] NSWCCA 71, Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75 (“Hay”) and DK v Director of Public Prosecutions (2021) 105 NSWLR 66; [2021] NSWCA 134. I will consider the principles derived from these decisions below.

Consideration

1. [106]

   Before turning to consider the competing submissions, it is helpful to restate the principles underlying the alleged error relied upon by the applicant.

2. [107]

   Since the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) in 2011 and the later decision of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) in 2013, it has become a common feature of proceedings on sentence for a submission to be made that an offender’s “moral culpability” for the offending is reduced.

3. [108]

   An offender’s “moral culpability” for an offence refers to the offender’s moral blameworthiness for their offending: Paterson v R [2021] NSWCCA 273 at [29]. It is a separate finding to that of objective seriousness. The most common bases upon which an offender’s “moral culpability” for the offending may be reduced are either by reason of a mental illness or intellectual impairment, based on the decisions in Muldrock and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (“De La Rosa”), or on account of an offender’s profoundly deprived childhood, based on the principles derived from Bugmy.

4. [109]

   A finding that an offender has reduced “moral culpability” for the offending will often, but not always, lead to a finding that general deterrence has a lesser role to play in the sentencing exercise. In Muldrock, the High Court, after observing that the purpose of general deterrence in sentencing is to deter others who might be minded to offend, cited the following passages from an earlier decision of Lush J in the Victorian Court of Appeal decision of R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unrep) at 5, 8 (at [53]):

5. [110]

   The High Court in Muldrock went on to observe the following regarding the sentencing of an offender with an intellectual disability or mental illness (at [54]):

6. [111]

   These principles had earlier been considered in this Court in De La Rosa by McClellan CJ at CL where his Honour observed the following at [177]:

7. [112]

   Thus, it is well established that where the state of a person’s mental health or cognitive impairment contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced and the offender may be an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

8. [113]

   In support of this ground, the applicant relied on the decision of Yehia J (with whom Ball JA and Fagan J agreed) in NK v R. That case concerned the application of Bugmy principles, but it seems to me that the approach stated by Yehia J in that decision at [110]-[113] is apt for cases where De La Rosa principles apply and can be modified as follows:

   1. (1)

      First, a sentencing judge must make an assessment of whether there is evidence which reduces the offender’s moral blameworthiness. Consistent with the principles in De La Rosa, such a finding might be made if there is expert evidence before the court that the state of a person’s mental health or cognitive impairment contributed to the commission of the offence in a material way.

   2. (2)

      Secondly, if the court is satisfied that the offender’s moral culpability is reduced, then a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. For instance, a reduced moral culpability may mean that the sentencing principles of general deterrence and denunciation have less relevance than in a case where the offender does not suffer from a mental impairment or cognitive disability. On the other hand, the reduction in moral culpability may be offset by the weight afforded to factors such as the protection of the community and recognition of the harm to the victim(s).

   3. (3)

      Thirdly, even where the reduction in moral culpability is offset, wholly or in part, by virtue of the weight to be afforded to one or more purposes of sentencing, it may be relevant in other ways including that their time in custody might be more onerous (see De La Rosa at [177]).

9. [114]

   Since the decisions in Muldrock and Bugmy, sentencing courts are required not only to make findings as to the objective seriousness of the offence(s) but also to make separate findings concerning an offender’s moral culpability for the offence(s) in cases where an offender has, for example, a mental illness, an intellectual disability or Bugmy considerations. Where an offender’s moral culpability is found to have been reduced, the court must then consider how that finding bears upon the weight to be attached to various sentencing factors such as general deterrence.

10. [115]

    In some cases, the Crown accepts that the evidence supports the finding urged on behalf of the offender; in some cases (such as in the applicant’s case) the Crown accepts the evidence but joins issue as to the degree of any reduction; and in other cases the Crown disputes that there should be any finding that moral culpability is reduced at all.

11. [116]

    Given that a potential finding of reduced moral culpability is now a feature of many sentencing proceedings, if a submission is made that moral culpability should be reduced then the sentencing judge is required to consider that submission and then make a finding as to how any reduction in moral culpability impacts on the sentence.

12. [117]

    In DG v R [2025] NSWCCA 137, the sentencing judge accepted that the offender’s moral culpability was reduced but found that general deterrence still played an important part in the sentencing process because of the nature of the crime (a violent assault on a baby). In reliance on, inter alia, the decision in NK v R, this Court (myself with whom Bell CJ and Payne JA agreed) held that the sentencing judge erred in failing to turn his mind to whether the applicant would be an appropriate vehicle for general deterrence due to her reduced moral blameworthiness before declining to reduce the weight given to general deterrence in the sentencing exercise. It was observed at [125] that:

13. [118]

    With these principles in mind, I turn to consider the sole ground of appeal.

14. [119]

    The Crown accepted that there was no express finding made by his Honour as to the applicant’s moral culpability and its relevance to the sentencing process but argued that no error was established on three bases, which to some extent overlapped.

15. [120]

    The first argument relied upon by the Crown was that, despite there being no reference to “moral culpability” in the sentencing reasons, it is apparent that the sentencing judge dealt with the issues of moral culpability and general deterrence in substance.

16. [121]

    As the portions from the sentencing reasons extracted at [89]-[91] above reveal, there can be no doubt that the sentencing judge took into account and gave weight to the expert evidence of the psychologist, Ms Hare, regarding the applicant’s diagnoses. The difficulty is that his Honour made no finding as to the extent of any reduction in moral culpability, to the relevance of general deterrence in this sentencing process nor to the concept of moral culpability at all.

17. [122]

    To the extent that the Crown contended such a finding can be inferred, the applicant relied on the decision in Sampson v R. In Sampson v R the sentencing judge had regard to both the applicant’s childhood deprivation and his mental health issues in holding that Bugmy principles applied. This Court was prepared to infer that his Honour regarded the applicant’s moral culpability to have been reduced. This Court was also satisfied that the sentencing judge took these factors into account both in the finding of special circumstances and that the applicant’s time in custody would be more onerous. Despite this, this Court was not satisfied that the sentencing judge engaged with the submission regarding the effect of the applicant’s mental health issues on specific and general deterrence as identified in De La Rosa. Relevantly, Davies J (with whom Dhanji and Huggett JJ agreed) observed this at [96]-[97]:

18. [123]

    Davies J went on to identify general deterrence as a fundamental principle of sentencing and concluded that (at [105]):

19. [124]

    The principles derived from Sampson v R, as well as DG v R, NK v R and Harris v R [2021] NSWCCA 322 answer the Crown’s suggestion that the reference by his Honour to the purposes of sentencing in s 3A of the Sentencing Act, which include general deterrence, was sufficient in the circumstances of this case. The applicant’s complaint is not that there was no express or implied reference to the sentencing principle of general deterrence, but rather, that there was a failure to address how that particular purpose of sentencing applied to the particular circumstances of this applicant.

20. [125]

    The Crown further submitted that the brevity of the ex tempore remarks reflected the significant agreement between the parties on these issues. In such circumstances, it was submitted, recourse can be had to the transcript of the proceedings on sentence to demonstrate that the sentencing judge was relying on the agreement between the parties as to moral culpability in his ex tempore judgment. Having had regard to the principles derived from those decisions relied upon by the Crown, I am not satisfied that they assist the Crown in the circumstances of this case.

21. [126]

    You, Jae Bok v R was a sentence appeal in which the error asserted by the applicant related to an exchange between counsel and the sentencing judge concerning the use of a guideline judgment. Basten JA found that no error could be imputed “by importing something said in the course of an exchange with counsel into the written judgment” (at [19]). His Honour went on to observe the following at [20], which is the passage relied upon by the Crown:

22. [127]

    Similarly, Cavanagh J observed at [78](4):

23. [128]

    The decision of You, Jae Bok v R was cited in Hay. In that appeal, the Court of Appeal (Macfarlan JA, with whom Basten and White JJA agreed) had regard to the transcript of the proceedings on sentence to resolve a contention that the sentencing judge failed to consider whether to impose an Intensive Corrections Order as an alternative to full-time imprisonment. In that context, Macfarlan JA observed this at [29]:

24. [129]

    These decisions do not assist in this case. Although the Crown conceded before the sentencing judge that the applicant’s moral culpability for the offending was reduced based on the expert evidence of Ms Hare, the parties joined issue on the extent to which that moral culpability was reduced. That was the live issue for determination by the sentencing judge. Further, an agreement that moral culpability has been reduced is not the end of the exercise, as cases such as NK v R make clear; the sentencing court is then required to go on and consider what such a finding means for the application of the various purposes of sentencing.

25. [130]

    The Crown also relied upon DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [93] (“DS; DM”) in support of the submission that where a factor clearly operated to reduce an offender’s moral culpability, “it may suffice” if the sentencing judge makes it clear how that factor affected the sentencing considerations without necessarily using the phrase “moral culpability”. In that decision the Court (Beech-Jones CJ at CL, myself and Cavanagh J) considered the interaction between a reduction in moral culpability and other sentencing factors and observed the following at [93]:

26. [131]

    I would make two observations about reliance on this passage. First, the Court in DS; DM emphasised at [93] that a finding of reduced moral culpability bears upon the weight to be attached to, inter alia, general deterrence. That is the argument relied upon by the applicant. Secondly, the statement of principle relied upon by the Crown is derived from the decision of Khan v R [2022] NSWCCA 47, which is a very different case to the present case.

27. [132]

    In Khan v R, there was a dispute as to the extent to which general deterrence should be modified on account of the offender’s mental illness. The sentencing reasons reflected that the sentencing judge allowed some mitigation of the full application of general deterrence on account of the applicant’s mental illness notwithstanding that there was no causal connection between that illness and the offence in that case. In that context, Beech-Jones CJ at CL (with whom Rothman and Wilson JJ agreed) observed the following at [12]:

28. [133]

    In Khan v R, the reasons disclosed that the sentencing judge had reduced the significance of general deterrence based on evidence of the applicant’s mental health issues. The only basis for doing so was following a finding of reduced moral culpability. It was in that context that passage in DS; DM at [93] needs to be read.

29. [134]

    I have considered the fact that the sentencing judge’s reasons were delivered ex tempore and borne in mind the following observations of Johnson J in R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [34]:

30. [135]

    It is to be accepted that sentencing judges may feel a sense of frustration when a sentence appeal brought in this Court does not challenge the length of the sentence but is allowed on the basis of a legal error such as failing to have regard to a particular principle. By way of example, during the proceedings on sentence in the present matter, the sentencing judge observed in passing that sentencing remarks are for the “accused and the victims”.

31. [136]

    Delivering sentencing reasons ex tempore avoids offenders and victims and their families the suspense of waiting to learn of the sentencing result. It is to be encouraged, and this Court will always be less likely to scrutinise ex tempore reasons for error than sentencing reasons which have been reserved. But once it is accepted that sentencing reasons are provided for, inter alia, the accused, then it follows that the accused is entitled to know whether submissions made on his or her behalf were rejected or accepted. The sentencing judge in the present matter delivered prompt sentencing reasons that addressed most of the arguments put, but the applicant now complains that his Honour failed to consider one disputed issue. He is left wondering how his Honour dealt with a central part of his case on sentence. Regrettably, despite his Honour’s otherwise careful reasoning, the complaint must be accepted.

32. [137]

    I would uphold this ground.

Re-sentence

1. [138]

   It was not contended on behalf of the Crown that if error was established it would not be material: see Benn v R [2023] NSWCCA 24; 305 A Crim R 550 at [82]. Accordingly, this Court is required to put the aggregate sentence imposed by the sentencing judge to one side and exercise its sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43] (“Kentwell”).

2. [139]

   In the event of re-sentence, the applicant relied on the affidavits of Danka Durovic, the applicant’s solicitor, affirmed on 16 February 2026 and 5 March 2026, and the affidavit of the applicant affirmed on 13 February 2026.

3. [140]

   The applicant’s affidavit addresses his time in custody. He has not received any punishments since sentence and has been employed in the officer’s mess. He completed the Real Understanding of Self-Help (RUSH) program, a First Aid course, safe food handling practices and a digital literacy course. The applicant is willing to participate in the Moderate Intensity Sex Offender Program (MISOP) but this program will not be available until he has only 12 months left of his sentence. NSW Corrective Services case notes annexed to the affidavit of Ms Durovic of 16 February 2026 describe the applicant as polite and well-mannered. The applicant has reported health issues and difficulties in custody, including being assaulted several times, problems with arthritis in his back, finding blood in his stool and pain suffered from not being able to access proper shoes.

4. [141]

   The applicant relied on the psychological report of Ms Sarah Brann dated 2 February 2026, which was annexed to Ms Durovic’s affidavit of 16 February 2026. This report also set out the applicant’s difficulties in custody (at [28]-[31], [36]), including being physically assaulted on multiple occasions. Ms Brann opined that this demonstrates the applicant’s social problems including difficulty understanding social nuances and self-awareness, which is common amongst people with ASD. The Crown did not object to the admissibility of this evidence of the applicant’s experience in custody.

5. [142]

   The applicant also asked this Court to take into account further protective factors identified by Ms Brann (at [106]), including the applicant’s willingness to engage in sex offender treatment, his presentation as open and forthcoming with information, and the prosocial support of his parents. This was said to be relevant to this Court’s assessment of the applicant’s risk of reoffending. The Crown, however, pointed to Ms Brann’s assessment that the applicant represented a “high risk of sexual reoffending”.

6. [143]

   The parties before this Court joined issue on whether aspects of Ms Brann’s report relating to the applicant’s ASD and ADHD diagnoses and psychometric testing were admissible on re-sentence as “fresh” evidence, given the psychological report of Ms Hare was before the sentencing judge. The applicant referred to the paragraphs in which Ms Brann notes the applicant’s increased maturity and insight into his condition since sentencing. It was submitted that the psychometric testing in relation to ASD was fresh evidence because it reflected the applicant’s current psychological presentation and self-reports.

7. [144]

   The Crown specifically objected to four paragraphs of the report ([101]-[104]) in which Ms Brann discussed the effect of these neurodevelopmental disorders on the applicant’s offending. The Crown submitted that Ms Brann expresses new opinions, including an actual diagnosis of ADHD, that go beyond the evidence before the sentencing court. This includes Ms Brann’s opinion that it is unclear how the applicant planned the manipulative and deceptive offending against ZW given his cognitive abilities, which the Crown submitted is inconsistent with the Agreed Facts and the basis upon which the matter was conducted in the court below.

8. [145]

   When this Court re-sentences an offender following the establishment of error, it is permissible for the applicant to rely on additional evidence addressing matters that have arisen since the proceedings on sentence. Common examples include custodial records which are relevant to sentencing factors such as rehabilitation, remorse and risk of reoffending. What is not permissible is for an applicant to rely on material that was available at the time of sentencing. I have surveyed the relevant authorities in R v Sabbah [2025] NSWCCA 203 at [185]-[193] and it is helpful to set that summary out in full:

9. [146]

   The report of Ms O’Hare opined that the applicant had symptoms of ASD. I would re-sentence the applicant on the same findings as the sentencing judge extracted above at [89] and [91]; namely, that there was a connection between the applicant’s neurodivergence and the offending for the same reasons as his Honour. It was not explained on behalf of the applicant why a different psychologist’s report was tendered at the proceedings on sentence nor why the expert opinion now relied upon could not have been obtained for the purposes of the sentencing proceedings. I am not satisfied that there are exceptional circumstances that would justify the admission of the new report of Ms Brann insofar as it pertains to a diagnosis of the applicant, particularly given that aspects of it are potentially inconsistent with the Agreed Facts. I do propose to rely on those aspects which provide an account of his experiences in custody since he was sentenced.

10. [147]

    I would adopt all of the same findings as the sentencing judge, including that the applicant’s time in custody is more onerous based on the expert evidence. I have set them out above and there is no need to repeat them here. In addition, I would make a finding that the applicant’s moral culpability is reduced based on the expert evidence. As to the extent of any reduction, it is complicated by the fact that the applicant clearly knew that what he was doing was wrong, as is evident from the Agreed Facts.

11. [148]

    I have found the question of how the finding of reduced moral culpability operates on this sentence to be a difficult one. I am satisfied that, consistent with the principles I have set out above, it makes the applicant a less suitable vehicle for general deterrence and retribution. But his risk of reoffending and the fact that his victims were all children means that other factors such as community protection and recognition of harm to the victims have more significance. Overall, I have concluded that the sentence should be ameliorated on the basis of the applicant’s reduced moral culpability.

12. [149]

    As to the appropriate indicative sentences for each offence, exercising my sentencing discretion afresh I have arrived at indicative sentences very similar to that imposed by the sentencing judge except for the last three offences in relation to which I have arrived at slightly higher ones.

13. [150]

    I have found the incidents involving the 13-year-old victim ZW to be particularly troubling. In relation to sequence 118/11 (using a child under 14 for the production of child abuse material), that offence carries a maximum penalty of 14 years’ imprisonment. It involved a degree of planning and deception. Each recording in which the child was tricked into masturbating on film lasted 15 minutes. As for sequences 118/1 and /10, these two offences involved intentionally sexually touching the 13-year-old child and a further charge of producing child abuse material. They also included the deception of the child being tricked into making child abuse material on the pretence that a fictional woman (in fact the applicant) would post a compromising image of him online. Whilst coercing the child to make footage of them both masturbating, the applicant stroked ZW’s penis, pushing the skin back and forth, and had the child do the same to him. These facts are set out in more detail above at [50]-[56].

14. [151]

    These were serious offences involving four separate victims. But for the reduction in the applicant’s moral culpability a higher aggregate sentence would have been imposed. But even having regard to the applicant’s reduced moral culpability for those offences, I have arrived at higher indicative sentences for the last three sequences than those stated by the sentencing judge. Upon then applying the principle of totality, I have arrived at an aggregate sentence that is also slightly higher than that imposed at first instance.

15. [152]

    Although the language of s 6 of the Criminal Appeal Act permits this Court to impose a sentence that is “more or less severe” than that imposed at first instance, it is not the practice of this Court to impose a more severe sentence.

16. [153]

    As French CJ, Hayne, Bell and Keane JJ observed in Kentwell at [43]:

17. [154]

    As stated above, since the decision in Kentwell, when this Court re-sentences an applicant, the original sentence is put to one side, and this Court exercises its sentencing discretion afresh. I observed the following regarding that process in DS v R [2025] NSWCCA 53 at [86]-[87]:

18. [155]

    Given that the sentence I have arrived at is higher than that imposed at first instance, the appropriate order is to dismiss the appeal. The practice in such cases is not to indicate the slightly higher aggregate sentence that I would have imposed: RO v R [2019] NSWCCA 183 at [123].

Orders

1. [156]

   Accordingly, the orders I would propose are as follows:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [157]

   FAGAN J: I agree with the Chief Judge. The sentencing judge expressly stated in his remarks that he took into account the evidence of Ms Hare regarding the applicant’s Attention Deficit Hyperactive Disorder, his symptoms consistent with Autism and his consequent limited understanding of others’ emotions and the impact of his own conduct. The applicant squarely sought a finding that moral culpability was reduced. The Crown supported that position and acknowledged that, accordingly, “general deterrence has a lesser role to play”. It was necessary in those circumstances for his Honour to go beyond acknowledging Ms Hare’s evidence and to state (1) whether he accepted that moral culpability was diminished and (2) if so, how that affected the weight to be given to sentencing objectives, in particular general deterrence. As the Chief Judge points out, it follows from the High Court’s decisions in Muldrock v The Queen and Bugmy v The Queen that a finding on whether moral culpability is reduced must be made when the evidence and submissions on sentence raise that as an issue.

3. [158]

   Taking into account all sentencing factors, particularly the objective gravity of the offending, the aggregate sentence imposed is of a length consistent with effect having been given to the applicant’s submissions on reduced moral culpability and moderation of general deterrence. However, in the absence of express conclusions on those aspects, the Court cannot impute to his Honour unstated findings. I think it highly likely that the only real deficiency of the learned judge’s disposition of the sentencing task lies in an insufficiency of reasons, rather than in substantive oversight, but on the face of the sentencing remarks the Court must accept the applicant’s ground that there has been a failure “to address” whether moral culpability was reduced and whether general deterrence assumed less importance.

4. [159]

   The application for leave has no practical utility because, upon full consideration of all sentencing factors, including events post sentence and up to the hearing of the application, no lesser penalty than that imposed by his Honour is warranted. I agree with the reasons of the Chief Judge for that conclusion. Objectively the whole episode of offending was very serious, causing undoubted significant harm to four separate victims, all of them boys in their vulnerable and impressionable early teens. The gravity of the applicant’s conduct escalated over time. The fourth victim was subjected to calculated and persistent manipulation, blackmailed to take part in sexual conduct of which he wanted no part.

5. [160]

   BOULTEN J: I agree with the orders proposed by N Adams CJ at CL. I have reached the same conclusion as her Honour that the sole ground of appeal has been established and that the applicant should be resentenced and, although I also consider that no lesser sentence should be imposed, I prefer to outline how I have approached the re-sentencing task with some brief reasons of my own.

6. [161]

   As her Honour found, the learned sentencing judge did not explain how he dealt with the evidence that the applicant’s moral culpability was reduced because of his cognitive impairments. This was a material error. Accordingly, this Court needs to re-sentence the applicant afresh.

7. [162]

   I agree that only those aspects of Ms Brann’s report which relate to the applicant’s experiences in custody should be admitted in re-determining the sentence.

8. [163]

   I also am content to adopt the sentencing judge’s findings. In light of the error identified in the learned sentencing judge’s reasoning, I need to outline my own conclusions about the impact of the findings about the applicant’s cognitive impairments on the sentencing exercise.

9. [164]

   During his school years the applicant had trouble developing verbal and non-verbal communication skills and struggled to make meaningful social connections. He was the target of bullying and drifted into associations with younger students. Post-adolescence, he failed to develop mature social functioning. By the time of his offending, he was socially naïve and strongly desired social acceptance from younger males. These issues were linked to his neurodiversity. The psychologist, Ms Hare, explained in her report that "his neurodevelopmental diagnoses" were causally linked to his offending behaviour. [1]

10. [165]

    The applicant used on-line connections as opportunities to engage in sexual discussions, the sharing of sexual images and to view pornography. He used these impersonal sexual outlets as emotional mechanisms because of his blunted social development. I accept Ms Hare's opinion that the offending involving the first three victims reflected the applicant's desire for inclusion, his poor understanding of social and sexual boundaries, his limited understanding of others' emotions, a lack of awareness of and consideration for the impacts of his harmful behaviour on others and his impulsivity. [2]

11. [166]

    In that background, the applicant was significantly less culpable for the offending against those first three victims than would be a person with typical neurodevelopment. His offending against the fourth victim, ZW, involved more serious manipulation and, in my view, the applicant had greater insight into the wrongfulness of his acts. Even so, the applicant's culpability for those offences is still reduced.

12. [167]

    I agree that the risk that the applicant may re-offend in similar ways is increased as a result of his impairments, but the fact that he will have spent a number of years in custody by the time of his return to the community is, in my view, likely to have some positive influence on him in the future. All of that being so, I conclude that the applicant's reduced moral culpability should operate so as to place less emphasis on the need for general deterrence and retribution by a significant degree in relation to the offences relating to the first three victims and by a somewhat lesser measure in the case of the offences concerning the fourth victim, ZW.

13. [168]

    I also give some weight to the difficulties that the applicant has been facing in prison which are likely to continue. His cognitive profile makes him a comparatively vulnerable prisoner. The sentencing judge did recognise the fact that the applicant will have greater difficulties in custody than would others without his profile, but in the light of the evidence I regard that hardship as another aspect of his cognitive disadvantages. I am not counting that issue twice, but it is significantly in the mix.

14. [169]

    Ultimately, I would also pass very similar indicative sentences for the offences involving the first three victims and I agree with her Honour's assessment of the seriousness of the offences involving ZW which were quite serious. They demonstrated manipulative and exploitative conduct towards a 13 year old child that, in my opinion, warranted greater punishment than the three indicative sentences that were originally passed in the District Court. After having regard to the principles of totality and the need to work out appropriate degrees of accumulation between the various indicative sentences, I too would not impose a more lenient sentence than the aggregate sentence that was imposed by the learned sentencing judge.

15. [170]

    That is why I agree with her Honour’s orders as proposed.