By Paul Gregoire and Ugur Nedim
A New South Wales man known as TD, who was sentenced in 2024 over three child sex offences perpetrated against his nieces, has successfully appealed his punishment, as it was found that the trial judge had determined the offender’s “deprived background warranted a finding of reduced moral culpability”, but this was then not reflected in the sentencing principle of general deterrence.
Over the years 2011 through to 2014, TD was living with his parents and his nieces, referred to as KID and KOD, would sometimes slept over at their grandparents’ house, and on these occasions, the children would sleep in the older man’s bed, and he would either share the bed or sleep on the couch. And it was on some of these nights that the older man perpetrated his offending.
In terms of offending against KID, sometime between 27 March 2011 and 26 March 2013, TD is accused of having put his hand in the girl’s underwear and digitally penetrated her, on another occasion the girl woke up with him grinding against her, and a third time saw the man then aged between 18 and 20, force his niece, aged between 8 and 10, to touch his erection.
As for KOD, sometime between 9 June 2012 and 8 June 2014, the girl woke up with her uncle fondling her. On another occasion, he digitally penetrated her, which was considered sexual intercourse. TD, who was then aged between 20 and 22, whilst his niece was aged between 8 and 9, also forced the child to touch his erection.
The girls first told their mother about the sexual assaults in 2017, when in their mid-teens. In 2018, the girls gave police statements, which were cut short due to KID feeling uncomfortable. However, in 2023, when TD acted in an aggressive manner because KOD would not be silent about what happened, the teenage girls then conducted new interviews with the police.
Pleading guilty
TD pleaded guilty to three crimes in the Gosford District Court in 2024. The first involved one count of the now repealed offence of indecent assault on a child under 16 years of age, which was contrary to subsection 61M(2) of the Crimes Act 1900 (NSW). This offence is considered ‘aggravated’ or more serious, because of the child’s young age. The maximum penalty for it is 10 years imprisonment.
NSW parliament overhauled child sexual abuse laws in 2018. So, today, similar offending to indecent assault of a minor is captured by the offence of aggravated sexual touching, contrary section 61KD of the Crimes Act. Yet, subsection 61M(2) of the Act continues to apply to those offenders who committed aggravated indecent assault prior to its revoking on 1 December 2018.
The crime of indecent assault against a child under 16 also carries a standard non-parole period 8 years. An SNPP applies to certain offences to act as a guidepost for sentencing judges, when imposing a non-parole period, or the minimum time that an offender must spend behind bars before being eligible for release on parole.
Sexual intercourse with a child aged between 10 and 14 years of age, under subsection 66C(1) of the Crimes Act, was the second offence that TD accepted guilt in respect of. This crime carries up to 16 years prison time.
The third crime TD pleaded guilty to was one count of sexual intercourse with a child under 10, which is contrary to section 66A of the Crimes Act. And this offence carries up to life imprisonment.
Three additional counts of subsection 61M(2) indecent assault crimes were taken on a Form 1. One extra count linked to the second offence and two linked to his third crime. Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides the Form 1 process, which involves additional charges being considered by the judge when handing down a sentence for the principal offence.
The court heard that TD was 32 at the time of sentencing, and a 13 December 2024 report by psychologist Julie Dombrowski found that TD had a deprived childhood, with his mother’s substance use disorder leading to 17 different foster placements, in which he was sexually abused three times around the age of 8. It was also found that he has an extreme personality pathology.
NSW District Court Judge Tanya Bright asserted that the objective serious of all three crimes was midrange. Her Honour accepted, in line with the 2013 High Court decision Bugmy versus The Queen, that TD had such a deprived childhood that the Bugmy principles had been invoked, which meant that she found his moral culpability in relation to his crimes was reduced.
Her Honour then sentenced TD to 8 years imprisonment on 20 December 2024, with non-parole set at 4 years and 10 months. This sentence further reflected a 25 percent sentencing discount, due to the offender’s early guilty pleas.
The sentence also reflected “special circumstances” being found in relation to TD’s PTSD and personality disorder. Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a parole period must not exceed a third of a head sentence, unless special circumstances are found. So, her Honour considered TD should spend an extended time in the community under supervision.
Grounds of appeal
TD appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 1 May 2026. He did so based on two grounds.
The first ground implied that the judge was wrong in considering that she had to find a casual link between TD’s mental illness and his offending, in order to provide general and specific deterrence with a reduced weight. The second ground comprised of an error having occurred because general deterrence and specific deterrence had not been mitigated despite Bugmy being invoked.
General and specific deterrence are sentencing principles a judge must consider on handing down a sentence to determine the correct weight of punishment. General deterrence means the time an offender is sentenced to in order to deter others from committing the same crime, whilst specific deterrence is supposed to prevent the offender from committing further such crimes.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) lists the sentencing principles or purposes of sentencing that a judicial officer must consider when formulating the correct punishment.
Determination on appeal
NSWCCA Justice Helen Roberts then turned her attention to the second ground, or that the sentencing judge had made an error in not setting out that the principles of specific and general deterrence had been reflected and mitigated in the sentence she was handing down, in line with the finding that the Bugmy principles did apply in this case.
Her Honour added that the defence was asserting that on having found that TD had decreased culpability, the sentence then needed to be reduced to reflect lesser deterrence, while the prosecution’s position was that the sentencing judge did not specifically address these factors when handing down him sentence, yet lesser deterrence was reflected within the overall penalty.
The court noted that deterrence had been raised three times by the judge. The first time was when she confirmed its importance when sentencing in relation to child sex abuse, another was when she rejected the suggestion that mental illness should reduce both forms of deterrence and she also mentioned that she had addressed all the purposes of sentencing listed in section 3A of the CSPA.
“The sentencing reasons do not express whether, and to what extent, the sentencing judge considered the proposition concerning the importance of general deterrence for offences involving the sexual abuse of children to have been ameliorated in the applicant’s particular case,” her Honour stated.
“Bearing that principle in mind, however, in the circumstances of this case, I am unable to accept the respondent’s contention that it may be inferred that the sentencing judge reduced the weight or emphasis to be placed upon general deterrence (or specific deterrence) in the overall sentencing exercise,” she further made clear.
Justice Roberts then set out that she considered that once the sentencing judge had accepted that TD did hold reduced moral culpability in respect of his crimes due to his deprived background, she was then required to address whether general and specific deterrence had been reduced because of this, but instead, she failed to do so.
This ground was, therefore, made out, and as it was, the first ground no longer had to be considered.
The orders of the day
As the appeal was made out, the NSWCCA was required to resentence TD. In doing so, Justice Roberts said she agreed with the sentencing judge’s assessment of the objective seriousness of the crimes, and she further found that his moral culpability was reduced due to his mental illness. The inmate’s troubled childhood was also reconsidered.
Her Honour then outlined that she believed that “the significance of general deterrence and of denunciation in the sentencing exercise should be moderated to a meaningful, but not substantial, degree”. And she added that TD “may be a less suitable vehicle for general deterrence, but he is not a person who is wholly unsuitable as an ‘example’”.
“Taking all matters into account,” she continued, “I do not consider that the evidence establishes that the applicant suffers a mental illness which renders him ‘notably unreceptive to messages of specific deterrence by way of punishment’. I do not accept the submission that the weight to be given to specific deterrence in the sentencing exercise should be moderated on this basis.”
So, on 11 September 2026, NSWCCA Justice Roberts ordered the appeal had been made out, that the original sentence be quashed, and that a new sentence of 7 years be imposed, with non-parole being set at 4 years. And her Honour’s colleagues, NSWCCA Justice Hament Dhanji and NSW Chief Justice at Common Law Natalie Adams, both agreed with the orders.
