King v R [2026] NSWCCA 153.

The decision in summary.

King v R [2026] NSWCCA 153 was decided on 30 September 2026. Leeming JA, Fagan J and Emmett J sat. The applicant had pleaded guilty in the District Court to a group of offences committed at a home in Blacktown, being aggravated break and enter, two counts of robbery in company and stealing a motor vehicle, and to a separate assault occasioning actual bodily harm committed while he was in custody.

The applicant said the sentence involved two errors. First, the sentencing judge proceeded as if section 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to the in-custody assault. Second, the judge found special circumstances warranting a non-parole period below the usual 75 per cent for every sentence, yet the way the sentences were structured produced an effective non-parole period of 83.75 per cent of the combined term. The Crown advanced no argument to the contrary. The Court granted leave, allowed the appeal and resentenced.

The case is useful for two reasons that reach well beyond its own facts. It sets out who section 56 catches, and it shows how a finding of special circumstances can be lost in the structure of accumulated sentences. Both points come up often in matters where a person is sentenced for more than one offence, or for an offence committed while already in custody.

What is section 56, and who is a "convicted inmate"?

Section 56 sits in Division 2 of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Division that deals with concurrent and consecutive sentences. It is headed "Sentences for offences involving assault by convicted inmate". It applies to a sentence for an offence involving an assault, or any other offence against the person, committed by an offender while a convicted inmate of a correctional centre. It also applies to such an offence against a juvenile justice officer committed while the offender is a person subject to control.

The effect of section 56 is a presumption of accumulation. In the absence of a direction under the section, the sentence for the in-custody assault is served consecutively with the sentence the offender is already serving, or with a further sentence yet to commence. The court may instead direct that the sentence be served concurrently, or partly concurrently and partly consecutively. So section 56 flips the ordinary starting point. Under section 55, whether sentences are concurrent or consecutive is a matter for discretion guided by totality. Under section 56, accumulation is the default, and the court must turn its mind to whether to depart from it.

The policy behind the section is plain. A person who assaults another while serving a sentence should not, as a rule, receive a sentence that is wholly absorbed by the sentence being served. That would leave the further offending with no practical consequence and would weaken public confidence in the administration of justice.

Does section 56 apply to an assault committed on remand?

No. This is the first holding in King, and it turns on the words "convicted inmate". The Court held that the term does not include a person held in custody on remand. A person on remand has not been convicted. The assault in this case was committed while the applicant was on remand, so section 56 did not apply, and the sentencing judge erred by proceeding on the basis that it did. The Court applied R v Jeremiah [2016] NSWCCA 241 on the meaning of "convicted inmate".

The point matters at a practical level. Many people who commit an offence in custody are on remand rather than serving a sentence, because they have been refused bail and are waiting for their matter to be dealt with. For that group, section 56 and its presumption of accumulation do not bite. The sentencing court is back in the ordinary section 55 discretion, deciding concurrency and accumulation by reference to totality. A sentence built on the wrong provision is built on the wrong starting point, and that is an error of the kind that will support an appeal.

Even so, the Court did not treat the policy behind section 56 as irrelevant on re-sentence. Although the section did not apply in terms, the majority held it was still appropriate to take that policy into account, being the concern to maintain public confidence in the administration of justice where concurrent sentences are imposed for serious offending. A provision that does not apply can still express a value the court is entitled to weigh.

How can accumulating sentences undo a finding of special circumstances?

This is the second error, and it is the one with the widest reach. Under section 44 of the Crimes (Sentencing Procedure) Act, a court sets a non-parole period and a balance of term. The balance of term must not exceed one-third of the non-parole period unless the court finds special circumstances. That default ratio produces a non-parole period of about 75 per cent of the head sentence. A finding of special circumstances allows the court to set a longer parole period, and so a non-parole period below 75 per cent.

The sentencing judge found special circumstances for every sentence, and set the non-parole period for each below 75 per cent of its head sentence. The reason was that the applicant was likely to spend much of his time in custody in segregation. On the face of each individual sentence, that finding was carried through.

The problem was in the structure. The sentence for the in-custody assault was set to start at the end of the non-parole period of the earlier sentence. Once the sentences were laid out in that way, the combined effect was a total of six years and eight months with an overall non-parole period of five years and seven months. That is a ratio of 83.75 per cent, well above the ordinary 75 per cent, and the opposite of what a finding of special circumstances should produce. The Court held that a judge who finds special circumstances, and then arrives at an effective non-parole period longer than the usual ratio, must acknowledge that result and give reasons for it. That had not happened. The Court applied Duncan v R [2026] NSWCCA 19.

The lesson for practitioners is to check the effective ratio, not just the ratio on each individual sentence. Special circumstances can be found, applied to each sentence, and then lost the moment the sentences are accumulated. The overall non-parole period is what the offender actually serves before parole eligibility, and it is that figure the court must be able to justify.

What is the totality principle here?

On re-sentence the Court had to weigh totality. The principle from Pearce v The Queen (1998) 194 CLR 610 requires the overall sentence to be just and appropriate to the whole of the offending. Where an offender is also serving sentences for other matters, totality asks whether the combined result across all of the sentences is proportionate.

That produced a tension the Court had to manage. Totality can call for a degree of accumulation, so that fresh offending, and offending while in custody, carries real weight and is not swallowed by an existing sentence. Special circumstances can call for a longer parole period, and so a lower non-parole ratio. The two pull in different directions. The majority resentenced so that the applicant would be eligible for parole after about 65 per cent of the total sentence, a figure that gave effect to the finding of special circumstances while still leaving room for a period of supervised parole. There was a minor divergence within the Court about the precise non-parole period, which is a reminder that there is no single correct sentence, only a range of sentences reasonably open.

Leave, extension of time and re-exercise of the discretion.

The application needed an extension of time. The Court granted it even though the explanation for the delay was not satisfactory. What mattered was that there was no real dispute that errors had occurred, and the Crown did not point to any prejudice from an extension. The Court applied Steele v R [2026] NSWCCA 99. A concession by the Crown that errors are present, and the absence of prejudice, will often carry an application over the line on time.

Once errors are shown, the Court re-exercises the sentencing discretion for itself, in the way described in sentence appeals under Kentwell. The Court forms its own view of the appropriate sentence on the material before it. That includes fresh evidence received on the usual basis. In this case the Court took into account post-sentence evidence going to the applicant's prospects of rehabilitation and to the onerous conditions he had experienced in custody.

There was one further point of practice. The applicant asked the Court to depart from three of the sentencing judge's findings, but did not bring any ground of appeal directed at those findings, and no fresh evidence displaced them. The Court declined to revisit them, holding that the findings were reasonably open and that it was procedurally wrong to challenge them without a ground. The Court applied DL v The Queen (2018) 265 CLR 215. On a re-sentence, the unchallenged findings of the sentencing judge stand, adjusted only so far as fresh evidence properly received alters the position.

Why this matters for current matters.

Three practical points come out of King.

First. Check the custodial status at the date of the offence.

Section 56 and its presumption of accumulation apply only where the offence was committed by a convicted inmate. A person on remand is not caught. The date of the offence and the offender's status on that date decide whether the section is engaged at all, and a sentence built on the wrong provision is open to appeal.

Second. Test the effective non-parole ratio.

A finding of special circumstances can be applied to each sentence and still be lost across the whole once the sentences are accumulated. Work out the overall non-parole period as a percentage of the overall head sentence. If the result sits above the ordinary ratio despite a finding of special circumstances, the sentence needs reasons that explain it.

Third. Bring a ground for every finding you want to disturb.

A re-sentence is not a second run at the facts. If a finding of the sentencing judge is to be challenged, it needs a ground of appeal, or fresh evidence received on the usual basis. Without one, the finding stands, and the re-sentence proceeds on it.

What we do for clients on a sentence appeal.

A sentence appeal starts with the sentencing remarks and the sentence structure. We read the remarks against the way the sentences were built, and we work out the effective non-parole ratio across the whole. Where a court has found special circumstances, we check that the finding survives accumulation. Where a court has relied on a provision like section 56, we check the offender's status on the date of the offence.

The next step is the grounds. Each error is pleaded as a ground, and any finding to be disturbed is met with its own ground or with fresh evidence. Time is watched from the start, because an extension is easier to obtain when the errors are clear and the Crown cannot point to prejudice. King is a useful recent example of how the Court of Criminal Appeal approaches all of these steps, and it sits alongside the Court's reasoning in cases such as TD v R [2026] NSWCCA 139 on the re-exercise of the discretion.

Frequently asked.

What is a non-parole period?

The non-parole period is the minimum time an offender must serve in custody before becoming eligible for release on parole. It is fixed under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The balance of the term is the parole period, served in the community under supervision if parole is granted.

What are special circumstances under section 44?

Section 44 sets a default ratio: the balance of term must not exceed one-third of the non-parole period, which produces a non-parole period of about 75 per cent of the head sentence. A court may depart from that ratio if it finds special circumstances and gives reasons. Common examples include the need for a longer period of supervised parole, hardship in custody, or youth.

Who is a convicted inmate under section 56?

Section 56 deals with a sentence for an assault or other offence against the person committed while a convicted inmate of a correctional centre. In King v R [2026] NSWCCA 153 the Court held that the term does not include a person held in custody on remand, applying R v Jeremiah [2016] NSWCCA 241.

Does section 56 apply to an assault committed while on remand?

No. The presumption of accumulation in section 56 applies only to an offence committed while a convicted inmate. A person on remand has not been convicted, so section 56 does not apply. Where it does not apply, the ordinary discretion in section 55 governs whether the sentence is concurrent or consecutive.

Can you challenge the sentencing judge's factual findings on a sentence appeal?

Not without a ground of appeal directed at those findings. In King v R the Court declined to depart from the sentencing judge's findings on re-sentence because no ground challenged them and no fresh evidence displaced them, applying DL v The Queen (2018) 265 CLR 215. On re-sentence the court works from the unchallenged findings, adjusted only by fresh evidence properly received.

What is the totality principle?

The totality principle, from Pearce v The Queen (1998) 194 CLR 610, requires a court sentencing for multiple offences to ensure the overall sentence is just and appropriate to the whole of the offending. It governs how far sentences are accumulated, and how a fresh sentence relates to sentences the offender is already serving.

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 1 October 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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