R v Thompson

[2025] NSWCCA 133

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Thompson [2025] NSWCCA 133

Hearing dates:

08 August 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Before:

Bell CJ at [1];
Huggett J at [56];
Rigg J at [57].

Decision:

Appeal dismissed.

Catchwords:

CRIME — Sentencing — Crown appeal against sentence — Manifest inadequacy — Domestic violence — Where offender convicted of murder — Sentence of imprisonment of 22 years and
6 months, with a non-parole period of 15 years and 6 months following a 10% discount applied for guilty plea — Where offender’s moral culpability diminished by mental health issues and significant deprivation in childhood — Reference to comparable cases — Appeal dismissed

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW) Pt 6 Div 2

Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024 (NSW)

Crimes (Domestic Violence) Amendment Act 1982 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW) s 17

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 25D(2)(b)

Crimes Act 1900 (NSW) s 18(1)(a)

Criminal Appeal Act 1912 (NSW) s 5D(1)

Cases Cited:

BP v R [2010] NSWCCA 303

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

Clarke-Jeffries v R [2019] NSWCCA 56

CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322

Elwood v R [2023] NSWCCA 200

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571

McFarland v R [2021] NSWCCA 79

McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542

Merkel v R [2019] NSWCCA 212

Miller v R [2015] NSWCCA 86

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Pearce v R (1998) 194 CLR 610; [1998] HCA 57

Perkins v R [2018] NSWCCA 62

R v Ahmed (No 2) [2023] NSWSC 105

R v Baleinapuka [2022] NSWSC 485

R v Dempsey [2023] NSWSC 205

R v Devine (Supreme Court of Tasmania, 5 July 1993, unreported)

R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551

R v Hachem [2023] NSWSC 535

R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179

R v He [2024] NSWSC 417

R v Homann [2018] NSWSC 757

R v Hossain [2023] NSWSC 1621

R v Knight [2023] NSWSC 321

R v Latu (No 3) [2019] NSWSC 951

R v Moodie [2020] NSWCCA 160; (2020) 284 A Crim R 87

R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394

R v Tammajanta [2024] NSWSC 1180

R v Tran [2024] NSWSC 116

R v White [2025] NSWCCA 111

R v Zafar [2024] NSWSC 1639

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Yaman v R [2020] NSWCCA 239

Texts Cited:

Campbell, E et al, “Unlocking the Prevention Potential: Accelerating Action to End Domestic, Family and Sexual Violence” (Rapid Review Expert Panel, Report, 23 August 2024)

Griffith, G “Domestic Violence: An Overview of the Legislative Changes in NSW” (NSW Parliamentary Library Research Service, Briefing Paper No 18/95, May 1995)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2024

Category:

Principal judgment

Parties:

The Crown (Appellant)
Tyrone Thompson (Respondent)

Representation:

Counsel:
M Millward (Appellant)
R J Wilson SC (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Appellant)
Kadadi & Co Lawyers (Respondent)

File Number(s):

2022/87304

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law – Criminal

Citation:

[2025] NSWSC 419

Date of Decision:

2 May 2025

Before:

Weinstein J

File Number(s):

2022/87304

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 1 April 2025, Mr Tyrone Thompson pleaded guilty to a murder charge relating to the brutal stabbing of his former domestic partner, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). On 2 May 2025, Weinstein J (the Sentencing Judge) imposed a sentence of imprisonment of 22 years and 6 months, with a non-parole period of 15 years and 6 months after applying a 10% discount due to the guilty plea.

The Sentencing Judge considered various aggravating factors including that the murder was committed using a weapon in the victim’s home, in the presence of her infant child, and while the respondent was on parole for the offence of assaulting and intimidating the victim and destroying her property. Despite the offender’s relative youth, the Sentencing Judge observed that “retribution, denunciation and deterrence, in the circumstances of this particular objectively serious domestic violence offending, cannot give way to the interests of rehabilitation”. The Sentencing Judge held that the offender’s culpability was diminished by his mental health issues and deprivation suffered in his early life.

The Crown appealed against the sentence imposed, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), on the single ground of manifest inadequacy. The Crown did not challenge the Sentencing Judge’s findings as to the offender’s diminished moral culpability or suggest that relevant considerations were not taken into account. Rather, while not raising patent error, the Crown asserted that the importance of general deterrence was not adequately reflected in the sentence imposed. The Crown made extensive reference to sentences imposed in murder cases in New South Wales involving killing of an intimate partner in the context of domestic violence.

The Court (Bell CJ, Huggett and Rigg JJ agreeing) held, dismissing the appeal:

1. The sentence imposed was not “manifestly inadequate” or “plainly unjust”. The sentence imposed sat within the range of recent sentences imposed by judges of this Court for offences committed in broadly similar circumstances, being homicides of domestic partners including frenzied attacks with knifes or other weapons accompanied by an intention to kill or inflict grievous bodily harm. Any marginal difference in length of sentences was at least partially explicable by the offender’s diminished moral culpability, which was lacking in many of the comparable sentences referred to by the Crown: [23], [25]-[32], [39]-[52] (Bell CJ); [56] (Huggett J); [57] (Rigg J).

R v White [2025] NSWCCA 111, applied.

R v Tammajanta [2024] NSWSC 1180; R v Tran [2024] NSWSC 116; R v Hossain [2023] NSWSC 1621; R v Ahmed (No 2) [2023] NSWSC 105; R v Baleinapuka [2022] NSWSC 485; R v Hachem [2023] NSWSC 535; R v Knight [2023] NSWSC 321; R v Dempsey [2023] NSWSC 205; R v Zafar [2024] NSWSC 1639; R v He [2024] NSWSC 417; R v Latu(No 3) [2019] NSWSC 951; R v Homann [2018] NSWSC 757, compared to.

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39; R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394; Pearce v R (1998) 194 CLR 610; [1998] HCA 57; Bugmy v R (2013) 249 CLR 571; [2013] HCA 37; Merkel v R [2019] NSWCCA 212; McFarland v R [2021] NSWCCA 79; McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542; Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; R v Moodie [2020] NSWCCA 160; (2020) 284 A Crim R 87, referred to.

2. The Sentencing Judge did not err by failing to adequately reflect the importance of general deterrence or considering the “dangerousness” of the offender: [16], [34]-[38] (Bell CJ); [56] (Huggett J); [57] (Rigg J).

3. Even if the sentence could be characterised as manifestly inadequate, the Court would have exercised the discretion reposed by s 5D(1) of the CAA against allowing the appeal because there was no need for guidance in this area, nor did the case expose inconsistency in sentencing patterns requiring correction by this Court: [53]-[54] (Bell CJ); [56] (Huggett J); [57] (Rigg J).

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9, considered.

JUDGMENT

1. BELL CJ: Domestic violence is a scourge that afflicts modern Australia. Regrettably, this is not a fresh phenomenon. In a decision given almost 20 years ago, Johnson J, sitting as a member of this Court, surveyed cases over the previous decade highlighting the issue: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [67]-[88]. Thus, for example, in R v Devine (Supreme Court of Tasmania, 5 July 1993, unreported), Underwood J had said:

“Domestic violence is a profound problem and it is the duty of the courts to denounce offences such as these and attempt to deter its recurrence by you and other men. The relationship of husband and wife, albeit estranged, is an aggravating factor for violence of this kind constitutes a breach of trust. It is also an abuse of power and control on one who, in the circumstances, was in a position of vulnerability.”

2. Apprehended Domestic Violence Orders (ADVOs) were first introduced in New South Wales in 1982 as part of the Crimes (Domestic Violence) Amendment Act 1982 (NSW), which was a response to the 1981 Taskforce on Domestic Violence: see G Griffith “Domestic Violence: An Overview of the Legislative Changes in NSW” (NSW Parliamentary Library Research Service, Briefing Paper No 18/95, May 1995).

3. In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]:

“As this Court has confirmed in Glen (unreported, Court of Criminal Appeal, NSW, 19 December 1994), Ross (unreported, Court of Criminal Appeal, NSW, 20 November 1996), Rowe (1996) 89 A Crim R 467; Fahda [1999] NSWCCA 267 and Powell [2000] NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

4. In 2013, the High Court addressed the issue of domestic violence in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[55] in which the plurality observed:

“the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

5. By 2016, the High Court was able to observe that “current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations”: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21].

6. This Court has routinely decried the commission of crimes of domestic violence and advised that it “must be dealt with sternly by the courts, to mark society’s strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner”: Yaman v R [2020] NSWCCA 239 at [131].

7. In R v Tammajanta [2024] NSWSC 1180 (Tammajanta), N Adams J would have imposed a head sentence of 26 years before application of a 10% discount for a guilty plea to what her Honour described as the offender’s “brutal murder of his intimate partner”: at [5]. The relationship involved “some history of violence” with the dominant feature being “the offender’s intense irrational jealousy and his desire to control the deceased’s behaviour”: at [79]. The Crown submitted that the objective seriousness of the offence lay at or above the mid-range of offences of its type. Her Honour found that there were no circumstances which might have reduced the offender’s moral culpability, and was not satisfied that there was any genuine remorse. Her Honour concluded her sentencing judgment by observing at [137] that:

“The sentencing principles in relation to sentencing for domestic violence offences are well established. It cannot be doubted that the community has become increasingly concerned in recent times at the levels of domestic violence being inflicted on women by men who are supposed to love or have loved them. The comparable cases I have referred to only highlight the extent of such offending. It has long been recognised that there is a need for specific and general deterrence as well as a requirement of powerful denunciation by the community of such conduct. Recognition of the harm done to the community as a result of crimes of domestic violence is also important.”

8. Domestic violence remains not only a scourge but has been described, more recently, as a “national emergency – and an ongoing national priority”: E Campbell et al, “Unlocking the Prevention Potential: Accelerating Action to End Domestic, Family and Sexual Violence” (Rapid Review Expert Panel, Report, 23 August 2024) which noted that a total number of 58 women were victims of domestic homicide in 2023, up from
   35 killed in 2022 and 33 killed in 2021, citing Australian Bureau of Statistics (ABS), ‘Table 29 – Victims of family and domestic violence related offences by sex, Australia, 2014–2023’, Recorded Crime – Victims,
   2023 [table], ABS website, 2024: see
   at pp 7, 13, 18 and 31.

9. In the Second Reading Speech to the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024 (NSW), the Attorney General said:

“Domestic and family violence is one of the most troubling social issues that we face in New South Wales, in Australia and around the world. It is a complex, multifaceted problem that is serious and widespread. We have seen all too often that domestic and family violence can have devastating impacts for victim-survivors, who are overwhelmingly women who suffer abuse at the hands of men. The impacts can reverberate throughout the lives of victim-survivors, taking a toll on their social, emotional, economic and physical wellbeing. Of course, this abuse can tragically turn lethal, as we have seen in too many cases in New South Wales. It is important to remember that such deaths are sadly not rare or isolated incidents.

As the most recent report of the Domestic Violence Death Review Team highlighted, almost a third of homicides in New South Wales between 2000 and 2022 were domestic violence related…The recent report included very sobering figures. It is incumbent on all of us to continue to work to combat the blight of domestic and family violence.”

See New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2024 at 16-23.

10. Not always but frequently, domestic violence is inter-generational with perpetrators themselves having either witnessed and grown up in an environment of domestic violence between parents or themselves having been the subject of domestic violence in the family context or both. As Fullerton J remarked in Perkins v R [2018] NSWCCA 62 at [99] (Perkins):

“the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.”

See also, for example, Elwood v R [2023] NSWCCA 200.

11. The facts of the present case present yet another tragic example of domestic violence resulting in the violent death of an innocent young woman. In this case, that death occurred in the presence of the victim’s infant child. Sympathy for the victim’s family and friends is profound, and was appropriately and sensitively expressed by Weinstein J (the Sentencing Judge): R v Thompson [2025] NSWSC 419 (the Sentencing Judgment or SJ). I echo that sympathy.

The Sentencing Judgment

12. The respondent, Tyrone Thompson, was convicted following a late guilty plea, of the offence of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act). The guilty plea entitled the respondent to a 10% discount on his sentence pursuant to s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). The facts, which were agreed, were set out in close and extensive detail by the Sentencing Judge.

13. His Honour imposed a sentence of imprisonment of 22 years and 6 months, with a non-parole period of 15 years and 6 months and indicated that, without the 10% discount, the respondent would have received a sentence of imprisonment of 25 years: SJ [262]. His Honour also convicted the respondent of a related offence, namely that he had knowingly contravened a prohibition/restriction in an ADVO. The facts of this offending were the facts that led up to the murder. As, in the Sentencing Judge’s words, “the murder entirely comprehends the breach of the ADVO, and bearing in mind the principle of totality”, no further penalty was imposed pursuant to s 10A of the CSP Act: SJ [248].

14. The Sentencing Judge noted that the Crown did not submit that a life sentence was called for in the circumstances of this case: SJ [249]. The Crown submitted that the matter was “above the mid-range of objective seriousness”. His Honour was satisfied beyond reasonable doubt that the respondent had an intention to kill the victim at the time of the first stab wounds he inflicted upon her (SJ [192]) although there was no premeditation: SJ [194]. His Honour accepted on the balance of probabilities that “the offending commenced after an argument, in which the deceased hel[d] up a knife, that the offender attempted to disarm the deceased by grabbing the blade of the knife which caused his hand wound, following which the offender stabbed the deceased repeatedly”: SJ [196].

15. A number of aggravating factors were taken into account including that the murder was committed in the victim’s home, in the presence of her infant child, involved the use of a weapon, and occurred while the respondent was on parole for the offence of assaulting and intimidating the victim and destroying her property. The Sentencing Judge was “circumspect” as to the respondent’s expression of remorse: SJ [213].

16. His Honour observed at SJ [236] that:

“The criminal law gives significant weight to general deterrence, denunciation and community protection when sentencing an offender who takes the life of a partner (or former partner) as it does with domestic violence generally: Quinn v R [2018] NSWCCA 297 per Hoeben CJ at CL. Further, the weight given to general deterrence in a case concerning domestic violence is substantial, notwithstanding an offender’s mental health issues: Glynn Kaderavek v R [2028] NSWCCA 92 at [12] per Hamill J.”

17. In respect of the respondent’s relative youth (he was 22 at the time of commission of the murder), while his Honour accepted that the offender’s immaturity contributed to his breach of the law and that, in line with authorities such as KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571, BP v R [2010] NSWCCA 303, Miller v R [2015] NSWCCA 86 and Clarke-Jeffries v R [2019] NSWCCA 56, more emphasis must be put on an opportunity for him to rehabilitate than would be the case with an older, more mature offender, his Honour went on to observe that “retribution, denunciation and deterrence, in the circumstances of this particular objectively serious domestic violence offending, cannot give way to the interests of rehabilitation”: SJ [219].

18. His Honour found that the respondent “is suffering from significant unresolved mental health issues” (SJ [223]) which were “so intertwined with the elements of [childhood] disadvantage” (which included being “a witness to and the victim of domestic violence from a very early age” and extended homelessness: SJ [222]) such that “his mental health issues cannot be sensibly disentangled from the deprivation he suffered in his early life”: SJ [227]. Although his Honour did not find that the respondent’s mental health issues caused him to offend, they did, in combination with his “background of significant deprivation”, lead to “diminished” moral culpability which the Sentencing Judge took into account as a matter “to synthesise on sentence”: SJ [235].

19. The Sentencing Judge accepted the respondent’s evidence in the form of an unchallenged affidavit of 29 April 2025 that he had spent the majority of his period on remand (approximately three years) at the High Risk Management Unit at Goulburn Correctional Centre where he has been classified as A1EHR (extreme high risk) with very spartan cell conditions, little natural light and limited access to telephones. His Honour noted that “[i]t is fair to say that the conditions of his custody are very strict. It is agreed that during the entirety of his time in custody the offender has never had an opportunity to interact with any other inmate”: SJ [175].

20. In this context, the Sentencing Judge said (at SJ [242]):

“I do not doubt that the offender has had to be in a high security environment because of his dangerousness. He has been violent and threatening from time to time. However, it is no doubt also true that the offender has significant mental health issues that have not responded to treatment, and which have caused him to be aggressive and suicidal. Whatever be his ultimate diagnosis, his mental health has been unstable throughout his period in custody, which has made his custody more onerous than that of the average inmate.”

21. At the sentencing hearing, his Honour was provided with a bundle of comparable cases provided by the Crown and a set of statistics by defence counsel. His Honour noted that “[a]s always, the different objective and subjective factors in those cases make any true comparison difficult” and made the same observation about the use of statistics: see at SJ [256].

22. Given the significance which comparable cases assumed on the hearing of the appeal, and noting that they were cited with the usual caveats as to the utility of resort to “comparable” cases, the cases relied upon before the Sentencing Judge by the Crown for the purposes of the sentencing hearing should nevertheless be noted. Each was described in the Crown’s sentencing submissions as involving “a violent and relatively spontaneous attack with a knife, or have an underlying motive of jealousy/anger in relation to the conduct of a partner/former partner.”

23. These cases were as follows (with the pre-discounted head sentence identified and the role of moral culpability noted):

• Tammajanta (26 years - no reduced moral culpability: see [7] above);

• R v Tran [2024] NSWSC 116 (a pre-discounted indicative sentence for murder of 25 years, 4 months in the context of a longer aggregate sentence – no reduction on account of moral culpability);

• R v Hossain [2023] NSWSC 1621 (19 years, 6 months – no significant reduction by reference to moral culpability);

• R v Ahmed (No 2) [2023] NSWSC 105 (24 years – reduction by reason of diminished “moral culpability to some extent”); and

• R v Baleinapuka [2022] NSWSC 485 (26 years, 8 months – no apparent reduction by reason of diminished moral culpability).

The pre-discounted 25 years imposed by the Sentencing Judge in the present case fell within the range established by these cases and the 25 year starting point took into account the respondent’s diminished culpability found by the Sentencing Judge and unchallenged on appeal.

Crown appeal – manifest inadequacy

24. The Crown has brought an appeal against sentence pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) (CAA) on the single ground of manifest inadequacy. The Crown raises no separate grounds of appeal nor any challenge to the Sentencing Judge’s findings as to the respondent’s diminished moral culpability by reason to the combination of his unresolved mental health issues and background of significant deprivation in his childhood.

25. The general principles guiding this Court on the hearing of a sentence appeal were considered at length in my judgment (with which Payne JA and N Adams J agreed) in R v White [2025] NSWCCA 111 at [20]-[22] (White). The particular principles relating to Crown appeals and the existence and exercise of the residual discretion were considered at [33]-[44]. There was also discussion of the principles relevant to manifest inadequacy at [100]-[104]. The discussion and overview of principle in White is equally relevant to the present case and is incorporated by reference into these reasons.

26. It follows from these principles that, even if a case could be made for a lengthier sentence being imposed on the respondent, that would not necessarily mean that the sentence in fact imposed was manifestly inadequate. Indeed, in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (Hili), the High Court said, citing Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] and Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Wong):

“ ..appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’.”

27. Mr Wilson SC, who appeared for the respondent, made reference to Hili and The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 (Pham). He drew particular attention to Hili at [59] which states (omitting footnotes):

“As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that ‘the sentence imposed in these matters is so far outside the range of sentences available that there must have been error’.” (emphasis added)

28. Mr Wilson also specifically referred to Pham (at [28(7)]) where it was stated that:

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”. (emphasis added)

29. In emphasising the expressions “only where”, “must have been” and “is driven to conclude”, Mr Wilson noted the high degree of satisfaction required as to the inadequacy of a given sentence before appellate intervention may occur. That high degree of satisfaction or confidence is also reflected in the language of a sentence being “so disproportionate to the seriousness of the crime as to shock the public conscience”: R v Osenkowski (1982) 30 SASR 212 at 213; (1982) 5 A Crim R 394 at 394, quoted with approval by Gleeson CJ in Wong at [8]. The epithet “manifest” is given real work to do in this context and is an intentional constraint on an appellate court’s ability to interfere in the broad discretion reposed in sentencing judges and in circumstances where it has been stated that there is no single correct sentence for an offender and an offence: Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [46]; Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24]; White at [20].

30. For the reasons that follow, notwithstanding that this was a shocking and confronting crime, marked by frenzied stabbing of the poor victim in the presence of her young son, and sympathy for the victim, her family and friends is profound, the sentence imposed was not, in my assessment, “manifestly inadequate” or “plainly unjust”.

31. The assessment of the adequacy of the sentence imposed must commence with his Honour’s 25 year starting point. To do otherwise would be to ignore the statutory discount which the respondent had obtained as a result of his guilty plea. As shall be seen, the sentence imposed in the present case was not “markedly different from other sentences that have been imposed in other cases”, to employ the language in Hili at [59]. Further, and consistently with the above, to describe a sentence as “lenient” (if 25 years could be so described) “does not render it plainly unjust” or mean that such a sentence is manifestly inadequate: White at [48].

32. For the victim’s family, I strongly suspect that no sentence less than life imprisonment could even begin to accommodate their undoubted grief and anger at what occurred to her. The Crown did not seek such a sentence, however, and the sentence imposed was comparable to those imposed in recent years by judges of this Court: see [7], [23] above and [47] below.

33. It is not suggested that the Sentencing Judge failed to take into account any relevant considerations and there was no challenge by the Crown to his Honour’s finding of diminished moral culpability. The Crown also acknowledged that the Sentencing Judge “appeared to have had regard to all relevant factors in his consideration of the objective seriousness of the offence”. His Honour was under no illusion as to the objective seriousness of the offence, stating in the third paragraph of the Sentencing Judgment that “This sentence concerns the brutal stabbing of the offender’s former partner”, and noted the concession of senior counsel for the respondent that the offence was “extremely serious”.

34. While not raising “patent” error in the Sentencing Judgment, the Crown asserted that the importance of general deterrence was not adequately reflected in the sentence that was ultimately imposed. That submission flies somewhat in the face of the passage from the Sentencing Judgment reproduced at [16] above and his Honour’s subsequent statement that “retribution, denunciation and deterrence, in the circumstances of this particular objectively serious domestic violence offending, cannot give way to the interests of rehabilitation”.

35. The Crown also raised an argument which centred on the respondent’s “dangerousness” to the community, contending that “the continuing dangerousness posed by the respondent both in custody and upon his eventual release into the community, warranted greater weight”. Matters of weight are quintessentially for the sentencing judge (see, for example, White at [30]) and do not sustain discrete grounds of appeal from a discretionary sentencing decision. But two further points can and should be made.

36. First, because the respondent has been sentenced for more than three years, Division 2 of Part 6 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act) applies by virtue of s 134. Pursuant to s 135(1) of that Act, the Parole Authority “must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community.” The Authority must, pursuant to s 135(2), have regard to the following principal matters:

“(a)   the risk to the safety of members of the community of releasing the offender on parole,

(b)    whether the release of the offender on parole is likely to address the risk of the offender re-offending,

(c)    the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole.”

Further guidance is given in s 135(3) as to the matters to which the Authority may have regard in considering the interests of the safety of the community. These include the nature and circumstances of the offence to which the offender’s sentence relates, the offender’s criminal history and the likely effect on any victim of the offender, and on any such victim’s family, of the offender being released on parole.

37. The second point to be made is that the offence in question in the present case was a “serious offence” within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act). That means that, within 9 months of the end of the respondent’s total sentence, it would be open to the State to make an application for a continuing detention order, the criteria for which are set out in s 17 of the Act. Indeed, since 4 March 2022, the Parole Authority must have regard to whether the High Risk Offenders Assessment Committee has recommended, pursuant to the CHRO Act, to apply for an extended supervision order or continuing detention order: CAS Act, s 135(3)(i1).

38. To note these two points is not to intrude into the future work of the Parole Authority or the Supreme Court in the event that an application for a continuing detention order were to be made. It is to address, however, the concern raised by the Crown as to the respondent’s future “dangerousness” to the community. That was plainly a matter to which the Sentencing Judge had regard. As the respondent will not be eligible for parole until 22 March 2038, however, a meaningful assessment of his suitability for release on parole or at the end of his total sentence will not be able to be properly made until much closer to that time. The victim’s family should be aware of these institutional safeguards which exist for the protection of the community.

39. To return to the sentence imposed, as already indicated, it sat within the range of a series of relatively recent sentences imposed by judges of this Court and or the Court of Criminal Appeal for offences committed in broadly similar circumstances, namely homicides of domestic partners including those featuring frenzied attacks on the victim with knifes or other weapons, accompanied by an intention to kill or inflict grievous bodily harm on the victim. Each individual case of course has its own unique features which makes the process of comparison necessarily approximate and difficult for that reason.

40. Although in Wong at [12], Gleeson CJ observed that "inadequacy or excessiveness is often demonstrated by a process of comparison", there are well established caveats to the use of comparative sentences to test the adequacy (or excessiveness) of any given sentence: see, for example, Merkel v R [2019] NSWCCA 212 at [80]; McFarland v R [2021] NSWCCA 79 at [57]-[58]; McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542 at [77]-[81]; Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [130]; Perkins at [60]-[64]. These include that:

• consistency in sentencing is not demonstrated by, and does not require, numerical equivalence;

• the consistency required is consistency in the application of relevant legal principles; and

• the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion, or necessarily disclose the correct range.

41. The classic statement in this area is the judgment of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304], endorsed by the High Court in Hili at [54]:

“A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.

But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. … Of course, it is well established that the maximum sentence is reserved for the most serious cases … the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned: Wong v The Queen (at [59]).”

42. As I endeavoured to point out in R v Moodie [2020] NSWCCA 160; (2020) 284 A Crim R 87 at [82]-[89], the process of comparison is nuanced and requires great care. It remains the fact, however, that “the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, and consistency of sentencing is an important element of both criminal justice and the rule of law more generally”: at [83].

43. The process of comparison will often be difficult, as is implicit in the caveats referred to above and as the Sentencing Judge observed. Further, the “instinctive synthesis” involved in sentencing means that it will frequently not be possible to discern in any quantifiable sense the weight a particular judge has placed on any of the myriad factors that may bear upon the sentencing exercise in any given case. Nor is this required so long as all relevant considerations have been taken into account. The factors to be taken into account, moreover, often point and push in different directions.

44. Furthermore, mere comparison of the numerical length of particular sentences, even after some rudimentary adjustment for apparent differences in the facts and subjective circumstances of the offender, will not always disclose or reflect the particular nature of the punishment involved. Thus, in the present case, Mr Wilson pointed to the fact, referred to at [19] above, that the respondent had effectively been kept in solitary confinement for the first three years of his sentence while on remand, a feature which differentiates his punishment from that of others.

45. Acknowledging these caveats, the Crown in particular, made extensive oral submissions endeavouring to highlight similarities and differences in the sentences which have been imposed in the tragically high number of murder cases in New South Wales involving killing of an intimate partner in the context of domestic violence. The comparable sentences referred to the Sentencing Judge have already been noted at [7] and [23] above.

42. To the extent that the sentence imposed in the present case may have been slightly lower numerically than some but not all other sentences referred to and relied upon by the Crown, it was nonetheless stern and, as Mr Wilson carefully pointed out in oral submissions relatively marginal differences in length of sentences between that imposed in the present case and those imposed in other recent cases were at least partially explicable by the Sentencing Judge’s unchallenged findings as to the respondent’s diminished moral culpability on account of his unresolved mental health issues coupled with and compounded by his troubled upbringing, childhood deprivation and exposure to domestic violence and sexual assault. This was a feature lacking in many of the comparable sentences the Crown referred to in the sentencing proceedings: see [23] above. The Crown acknowledged that aspects of the respondent’s subjective case were mitigatory.

43. Nothing in the detailed submissions that were put by the Crown on appeal and in working through an expanded list of comparative sentences furnished after the hearing of the appeal suggested that the Sentencing Judgment was manifestly inadequate. Thus, to take a number of recent cases from that expanded list:

1. In R v Hachem [2023] NSWSC 535, a sentence of 24 years was imposed after trial in a case where there was a background of domestic violence where there had been numerous attempts by the victim to leave the offender, including moving interstate. The offender repeatedly waited outside victim’s house and took steps to dispose of the victim’s body and remove evidence linking him to crime.

2. In R v Knight [2023] NSWSC 321, the offender was the subject of an ADVO when the murder took place. A pre-discounted sentence of 23 years was imposed in circumstances where the victim was killed by a single stab wound to the back with a kitchen knife. There was a background of significant deprivation and considerable evidence of remorse. On the other hand, there were prior convictions for AOABH and contravene ADVO against the same victim.

3. In R v Dempsey [2023] NSWSC 205, a pre-discounted sentence of 22 years was imposed where the victim was formerly in a de facto relationship with the offender, and the fatal attack occurred in the victim’s home, involving the use of one or two weapons to assault the victim, resulting in extensive injuries sustained to the victim’s head, neck, torso, arms and legs, and the infliction of a severe blow to the victim’s head with a circular shaped object, possibly a hammer, which caused a deep skull fracture behind her right ear. The offender left victim naked in bathtub filled with water.

4. in R v Zafar [2024] NSWSC 1639, a pre-discounted sentence of 23 years and 11 months was imposed on an offender who was 20 years old at the time of his murder of his female intimate partner against a background of domestic violence and while he was subject to an ADVO taken out for protection of the victim’s father. The fatal act was committed in the context of the victim wanting to leave the marriage and while she was pregnant.

5. in R v He [2024] NSWSC 417, the offender was a 24 year old who had been in a 2 year relationship with the victim marked by coercive control and violence with evidence that he wanted to be rid of the victim before her murder. There was intent to kill and the attack involved a hammer, two knives and 75 stab wounds to the face, neck and head. There was only a mild reduction in his sentence on account of moral culpability. He was sentenced on a pre-discounted basis for 26 years and 8 months which was reduced by 25% to 20 years with a 13 year non-parole period on account of an early plea of guilty.

48. To be sure, the Crown also pointed to other cases where a non-discounted sentence of greater than 25 years was imposed (see, for example, R v Latu(No 3) [2019] NSWSC 951 and R v Homann [2018] NSWSC 757 – a case in which there was no reduction to the sentence on account of diminished moral culpability). However, bare mathematical comparisons are of very limited, if any, utility, as has been pointed out earlier in these reasons and in many other cases.

49. The exercise in the present case of considering all the cases referred to by the Crown only confirmed a number of verities in sentencing jurisprudence, namely that there is no one correct sentence, that sentencing judges have a broad discretion and that meaningful comparison of sentences is difficult.

50. While I may and probably would have been inclined to impose a slightly higher sentence on the respondent than that imposed by the Sentencing Judge, authority dictates that that is of no moment provided that the actual sentence imposed was not manifestly inadequate within the well understood meaning of that expression. For the reasons given, the sentence imposed did not warrant that description.

51. Nor could I discern any inconsistency in the application of principle by the Sentencing Judge of a kind that may have resulted in an aberrantly low sentence. The absence of any grounds of patent error being raised in respect of his Honour’s reasons, while not determinative, was nonetheless telling in this regard. Those reasons were careful, consistent in their statement and application of principle and comprehensive.

52. I reject the Crown’s submission that the sentence imposed in the present case was so far below the range of sentences that could justly be imposed that it should be viewed as undermining public confidence in the proper administration of criminal justice.

53. For completeness, I should indicate that, even had I reached the conclusion that the sentence was manifestly inadequate, I would have exercised the discretion reposed by s 5D(1) of the CAA against allowing the appeal. This is because the case does not present the occasion, or need for guidance of the kind described in cases such as Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [42] and CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 nor was it a decision that exposed inconsistency in sentencing patterns that required correction by this Court.

54. This Court and the High Court have regularly provided guidance in relation to sentencing for offending involving domestic violence, and the numerous instances of sentencing for domestic violence murders in this State including those noted above have taken that guidance into account. In the present case, the Sentencing Judge was acutely conscious of that guidance, did not depart from it and cannot be said to have erred in the exercise of his discretion so as to justify the upholding of the Crown’s appeal.

55. For the above reasons, I would dismiss the appeal.

56. HUGGETT J: I agree with Bell CJ.

57. RIGG J: I agree with Bell CJ.

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Decision last updated: 27 August 2025