Jacono v R [2026] NSWCCA 120.

The decision in summary.

Jacono v R [2026] NSWCCA 120 was handed down on 9 September 2026. Kirk JA, Lonergan J, and Weinstein J sat. It was an appeal against sentence. The applicant had been sentenced for more than one offence and had received an aggregate sentence. On appeal, the Court found that the sentencing exercise had been affected by a procedural irregularity, and that the irregularity was one that vitiated the sentence. Leave to appeal was granted, further evidence was received, the appeal was allowed, and the applicant was resentenced to an aggregate 14 years with a non-parole period of 10 years and 6 months.

The offences are set out in the Court's reasons. This note is not about them. The interest for anyone facing a sentence, or thinking about a sentence appeal, is the point of principle. A sentence can be set aside not only because it is too long, but because the process that produced it went wrong. When that happens, the Court of Criminal Appeal does not simply trim the number. It sentences again.

Jacono is the first NSW Court of Criminal Appeal decision to apply the High Court's recent ruling in Farrugia v The King [2026] HCA 28 to a procedural-irregularity ground. It is worth reading for that reason alone.

Can you appeal a sentence in New South Wales?

Yes, with leave. A person sentenced in the District Court or the Supreme Court can seek leave to appeal against the sentence to the Court of Criminal Appeal under section 5(1) of the Criminal Appeal Act 1912 (NSW). This is not a rehearing. It is a review for error.

There are two grounds. The first is specific error: an identifiable mistake by the sentencing judge. The categories were set out by the High Court in House v The King (1936) 55 CLR 499. A judge acts on a wrong principle, mistakes the facts, takes into account an irrelevant matter, fails to take into account a relevant matter, or reaches a result that is plainly unreasonable. The second ground is manifest excess: the sentence is so far outside the range that error can be inferred even where no single mistake can be pointed to.

A procedural irregularity fits within the first ground. If the sentencing hearing was conducted in a way that denied the offender a fair process, the sentence can be attacked whether or not the number itself looks high. That is the path the applicant took in Jacono.

What is a vitiating procedural irregularity at a sentencing?

A sentencing hearing is a hearing. The offender is entitled to a fair one. The judge must give the offender a proper chance to be heard on the matters that will decide the sentence, must not sentence on a factual basis the offender has had no opportunity to answer, and must not act on a serious adverse view without notice. When the process breaks down in one of those ways, the sentence is affected by a procedural irregularity.

Not every irregularity leads anywhere. The word that matters is "vitiating". An irregularity vitiates a sentence when it is of a kind, and a degree, that undermines the sentencing itself. A minor slip that made no difference will not. An irregularity that could have changed the result will. That is the line the Court drew in Jacono, and it drew it using the test the High Court had just set in Farrugia.

How does Farrugia v The King apply?

Farrugia v The King [2026] HCA 28 was decided on 12 August 2026. The appellant there had been sentenced in proceedings where he and a co-offender were represented by the same senior counsel. He argued that the sentence proceedings miscarried because he lacked separate representation. The High Court dismissed the appeal. He had not established a breach of the conflict rule, and he had not established that any irregularity was material.

Farrugia therefore sets a two-part test for a procedural-irregularity ground. First, was there an irregularity or a breach of the relevant rule. Second, was it material, in the sense that it could have affected the outcome. An appellant who cannot show both will fail, as the appellant in Farrugia did.

Jacono is the other side of that coin. It is a case where both limbs were satisfied. The Court found an irregularity, and it found that the irregularity was material enough to vitiate the sentence. Read together, the two cases show how the same test can produce opposite results. The test does not make every complaint succeed. It makes the offender prove that the problem mattered.

When does the Court of Criminal Appeal resentence?

Once error is shown, the Court does not stop there. The approach is set by Kentwell v The Queen [2014] HCA 37. It has two stages. At the first stage the Court asks whether the applicant has established error, either a specific error under House or manifest excess. At the second stage, if error is established, the Court exercises the sentencing discretion again for itself, on the material before it. The Court will impose a different sentence unless, forming its own view, it concludes that no lesser sentence is warranted in law.

This is the point people most often get wrong. When an appeal succeeds, the Court does not take the original sentence and knock a bit off. It starts again. It looks at the objective seriousness of the offending, the subjective case for the offender, the comparable cases, and the statutory framework, and it sets the sentence it thinks should have been imposed. Section 6(3) of the Criminal Appeal Act 1912 (NSW) is the power to do so. That is what produced the aggregate 14 years with a non-parole period of 10 years and 6 months in Jacono.

That non-parole period sits at three-quarters of the head sentence, which is the ratio the statute treats as the starting point under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A finding of special circumstances can move the non-parole period below that ratio. The arithmetic in Jacono reflects the standard ratio rather than a reduction.

Can the Court receive further evidence on a sentence appeal?

It can. Section 12 of the Criminal Appeal Act 1912 (NSW) allows the Court of Criminal Appeal to receive further evidence. On a sentence appeal that power is used in two situations. The first is where there is fresh evidence, meaning material that was not available at the time of the sentence and could not reasonably have been obtained then. The second is where there is evidence of what has happened since the sentence, most often evidence of progress in custody. A person who has done courses, kept a clean record inside, or shown genuine steps toward rehabilitation can put that before the Court.

The Court in Jacono received further evidence before it resentenced. That is common once an appeal against sentence gets home on a threshold error. It means the sentence the Court imposes is set on the fullest and most current picture, not the picture as it stood in the court below.

How long do you have to appeal, and do you need leave?

A notice of intention to appeal should be filed within 28 days of the sentence. A sentence appeal to the Court of Criminal Appeal is by leave, so the Court's permission is needed before the appeal is heard. The Court can extend time where the interests of justice call for it, but time limits are taken seriously and delay has to be explained. The safe course is to get advice on the reasons and on the prospects well inside the 28 days.

The prospects turn on the reasons of the sentencing judge. A sentence appeal is built on the transcript and the remarks on sentence. Where the remarks show a clear error, or show a hearing that was not fair, the appeal has a foundation. Where they are careful and complete, the appeal is much harder. This is why the remarks on sentence are the first document read on any appeal.

Can your sentence go up if you appeal it?

On your own appeal to the Court of Criminal Appeal, the practical answer is no. The Court will not increase a sentence on an offender's appeal without first warning the applicant, so that the appeal can be abandoned before any increase. In practice a sentence is increased through a separate Crown appeal against inadequacy, not on the offender's own appeal.

There is a related warning at the lower level. In an appeal from the Local Court to the District Court, a judge who is minded to increase the penalty must give a Parker warning first, which lets the appellant withdraw. That is a Local Court to District Court feature and does not arise in the Court of Criminal Appeal, but it reflects the same idea. A person who appeals should not be ambushed with a worse result.

What Jacono means if you have already been sentenced.

Three points are worth taking from the case.

First. How you were sentenced can matter as much as the number.

A sentence that looks within range can still be set aside if the hearing that produced it was unfair. If you were sentenced on a factual basis you never got to answer, or on a view the judge never raised, that is a ground worth checking. It is separate from any argument that the sentence was too long.

Second. The complaint has to be material.

Farrugia and Jacono together make the test plain. An irregularity is not enough on its own. It has to be one that could have changed the outcome. A frank assessment of materiality, early, saves a client from running a ground that was never going to get home.

Third. If the appeal succeeds, the Court sentences again on today's evidence.

Because the Court resentences under Kentwell, the work on a successful appeal is not finished when error is found. The rehabilitation evidence, the current subjective case, and the comparable sentences all have to be assembled for the resentence. That is where the outcome is won or lost.

Where to read the decision.

The reasons will be published by the Court. The decision can be found through NSW Caselaw and through JADE. The High Court decision it applies, Farrugia v The King [2026] HCA 28, is on JADE and is covered in our note on joint representation and conflict. For the broader framework, see our explainer on sentence appeals and Kentwell and our note on the totality principle and aggregate sentences.

Frequently asked.

What are the grounds for a sentence appeal in NSW?

There are two. Specific error, meaning an identifiable mistake of fact, law, or principle by the sentencing judge of the kind described in House v The King. Or manifest excess, meaning the sentence is outside the range that was open even on the most favourable view of the judge's findings. A procedural irregularity that affects the sentencing hearing is a form of specific error.

What is an aggregate sentence?

An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is a single sentence of imprisonment imposed for two or more offences, with one non-parole period for the whole. The judge must still set an indicative sentence for each offence. The applicant in Jacono received an aggregate sentence, which means more than one offence was involved.

Can fresh evidence be used on a sentence appeal?

Sometimes. The Court of Criminal Appeal can receive further evidence under section 12 of the Criminal Appeal Act 1912 (NSW). On a sentence appeal the Court may receive evidence that was not available at first instance, and evidence of events since the sentence, such as rehabilitation in custody. In Jacono the Court received further evidence before it resentenced.

How long do you have to appeal a sentence to the Court of Criminal Appeal?

A notice of intention to appeal should be filed within 28 days of the sentence. A sentence appeal to the Court of Criminal Appeal needs the leave of the Court. The Court can extend time where it is in the interests of justice, but do not rely on that. Get advice quickly.

Does Jacono v R lower the sentencing range?

No. Jacono is about how a sentence is arrived at, not about the range for any offence. It confirms that a procedural irregularity can vitiate a sentence and require the Court to sentence again, and it applies the materiality test from Farrugia v The King. It does not set a tariff.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 10 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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