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TH v The King

TH v The King

Case [2025] NSWCCA 121 18 August 2025

Criminal Liability

Aggravated & Exemplary Damages

Sentencing

Limitation Periods

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: TH v R [2025] NSWCCA 121
Hearing dates: 4 June 2025
Date of orders: 18 August 2025
Decision date: 18 August 2025
Before: Bell CJ at [1];
Garling J at [11];
Yehia J at [14]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – aggravated sexual intercourse without consent – applicant 15 years and 11 months old at the time of offending – where grounds of appeal assert that insufficient weight was given to youth, mental health and background – reduced moral culpability as a result of mental health and disadvantaged background – where good prospects of rehabilitation – efficacy of labels such as “adult like conduct” – whether the sentence is manifestly excessive – appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19(1)
Crimes Act 1900 (NSW), s 61J(1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Aiga v R [2024] NSWCCA 175
Astill v R [2024] NSWCCA 118
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
BAP v R [2024] NSWCCA 206
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Buxton v R [2017] NSWCCA 169
Cameron v R [2013] NSWCCA 224
Church v R [2012] NSWCCA 149
Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239
Cowan v R [2015] NSWCCA 118
CW v R [2022] NSWCCA 50
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Eldridge v R; Mackay v R [2015] NSWCCA 127
Gal v R [2015] NSWCCA 242
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
House v The King (1936) 55 CLR 499; [1936] HCA 40
JA v R [2021] NSWCCA 10
Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37
KT v R (2008) A Crim R 112; [2008] NSWCCA 51
Lee v R [2016] NSWCCA 146
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Baker [2000] NSWCCA 85
R v Elemes [2000] NSWCCA 235
R v Karim [2024] NSWCCA 234
R v White [2025] NSWCCA 111
Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353
Tamer v R [2020] NSWCCA 333
TM v R [2023] NSWCCA 185
Vaiusu v R [2017] NSWCCA 71
WW v R [2023] NSWCCA 311

Category: Principal judgment
Parties: TH (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Anderson (Applicant)
A Isaacs (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00120148
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), publication of the name or any matter which could identify the applicant or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TH v The King

Details

AGLC: TH v The King [2025] NSWCCA 121
Case: [2025] NSWCCA 121
Decision Date: 18 August 2025

CaseChat Overview and Summary

The case involved a defendant, referred to as "TH," who appealed against their sentence for committing the crime of aggravated sexual intercourse without consent. The offence occurred when the applicant was 15 years and 11 months old. The Court of Appeal in Victoria was tasked with evaluating the grounds of appeal, which included claims that insufficient weight was given to the applicant's youth, mental health issues, and disadvantaged background during sentencing. It was argued that these factors should have resulted in reduced moral culpability and a lesser sentence. The applicant's prospects for rehabilitation were also highlighted.

The court examined whether the sentence imposed was manifestly excessive, considering the factors presented in the appeal. It considered the impact of mental health issues and the disadvantaged background on the applicant's moral culpability. The court also evaluated the efficacy of labeling the applicant's conduct as "adult-like" in light of the mitigating factors presented. The court concluded that, while the factors presented were significant, they did not render the sentence manifestly excessive. The appeal was ultimately dismissed, affirming the original sentence imposed.

In summary, the Court of Appeal found that, despite the mitigating factors, the sentence was appropriate and not manifestly excessive. The court recognised the importance of considering youth, mental health, and background but determined that these factors did not warrant a substantial reduction in the sentence. The appeal was dismissed, and the original sentence was upheld.

Orders