MA v R [2026] NSWCCA 92.

The decision in summary.

MA v R [2026] NSWCCA 92 was decided on 26 June 2026. Mitchelmore JA, Dhanji J, and McNaughton J sat. The applicant was a young person who had been sentenced for child sexual offences. At sentencing, no evidence of intellectual disability was put before the judge. On appeal, fresh psychological evidence established that the applicant had an intellectual disability. The court accepted that evidence. It found that the sentencing judge had proceeded without knowing a significant mitigating fact about the offender. That gave rise to a miscarriage of justice. The court re-exercised the sentencing discretion and resentenced the applicant to an aggregate 12 years with a non-parole period of 7 years.

The case sits at the intersection of two well-developed areas of NSW sentencing law: the treatment of intellectual disability as a mitigating factor, and the rules governing the receipt of fresh evidence on a sentence appeal. This article explains both, and what the decision means for practitioners and for any person whose intellectual disability was not identified before they were sentenced.

The decision is available on JADE at jade.io.

How does intellectual disability affect sentencing in NSW?

Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) lists an offender's cognitive impairment or intellectual disability as an explicit mitigating factor. But the statutory list only tells part of the story. The cases explain what disability actually does to the sentencing calculation.

First, moral culpability may be reduced. If the disability contributed to the offending, the offender's blameworthiness is less than that of a person without the disability who did the same thing. This is not an excuse. It is a recognition that culpability is not assessed in the abstract.

Second, general deterrence carries less weight. General deterrence works on the assumption that potential offenders will be deterred by the prospect of punishment. An offender whose disability impairs rational calculation of consequences is not the same as the hypothetical person whom a custodial sentence is meant to deter. The High Court in Bugmy v The Queen (2013) 249 CLR 571 confirmed that cognitive disadvantage flowing from deprivation is a permanently relevant mitigating fact. The reasoning carries across to intellectual disability generally.

Third, the conditions of custody are often harder for a person with an intellectual disability. They may be more vulnerable to harm in a custodial environment. They may struggle with the routine and the demands of institutional life in ways that other prisoners do not. Courts take this into account as a matter of proportionality.

Fourth, rehabilitation may require specific programmes and a longer period of supported supervision in the community. This affects the appropriate ratio between the head sentence and the non-parole period, and is often the basis for a finding of special circumstances under section 44 of the Act.

What is fresh evidence in a sentence appeal?

A sentence appeal to the NSWCCA is not a rehearing in the full sense. The court can only intervene if error is established. But the court also has power under section 17 of the Crimes (Appeal and Review) Act 2001 (NSW) to receive new evidence on a sentence appeal.

Evidence is fresh if it was not available to the applicant at the time of sentencing and could not have been obtained with reasonable diligence. Where a disability was undiagnosed and genuinely unknown to the applicant and their legal representatives before sentencing, evidence of it will ordinarily be fresh. The disability existed at the time. The evidence about it simply did not exist in a usable form.

Courts have accepted disability evidence as fresh in a number of NSW cases. In Khoury v R, the court received psychological evidence of low intellectual functioning where counsel at sentence had not appreciated its existence and had not sought an assessment. The rationale is practical: a lawyer who does not know their client has an intellectual disability cannot be criticised for not obtaining an expert report about it.

The freshness question is decided case by case. A court will not receive evidence that was available but overlooked through carelessness. The applicant must show that the evidence was genuinely not available, or not reasonably discoverable, at the time of the original sentencing.

When does fresh evidence give rise to a miscarriage of justice?

Not every piece of new evidence gives rise to a miscarriage. The NSWCCA asks whether the evidence, if it had been before the sentencing judge, would likely have produced a materially different result.

A sentencing judge who imposes a sentence for a serious offence, without knowing that the offender has an intellectual disability, has sentenced on an incomplete picture of the person they are sentencing. If the disability was relevant to moral culpability, deterrence, and the conditions of custody, the sentencing task cannot be properly performed without it. Proceeding without that material, in circumstances where it was genuinely unavailable, is a miscarriage of justice.

The NSWCCA in MA v R found the disability evidence satisfied both tests: it was fresh, and it was material. The sentencing judge's reasons did not engage with any disability because no disability had been disclosed. The court accepted that engagement would have been required, and that the absence of it produced an outcome that could not stand.

How does youth affect sentencing for a sexual offence in NSW?

The sentencing of a young offender proceeds on different principles from the sentencing of an adult. Rehabilitation takes priority. The court looks to the young person's prospects of growth, the availability of treatment, and the impact of a long custodial term on a person who is still developing.

For sexual offending, youth does not erase the objective seriousness of the conduct. Child sexual offences attract significant sentences across the range of objective seriousness. But the court still assesses the individual offender's moral culpability, their response to programmes, and the weight to be given to rehabilitation against punishment and denunciation.

Where an intellectual disability is added to youth, the two mitigating factors operate together. Youth reduces the weight of general deterrence. Disability does the same. Youth suggests the offender can change. Disability requires the court to assess whether the right programmes are available and what supervision structure will support rehabilitation. The combination produces a different sentencing picture from either factor alone.

Sentencing reasons must engage with each factor. Where a sentencing judge does not know about one of them, the reasons will not engage with it, and the sentence may be vulnerable on appeal.

What is an aggregate sentence and a non-parole period?

Under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court sentencing for multiple offences can impose one aggregate custodial term rather than separate sentences on each count. The aggregate of 12 years in MA v R covers all the offences the applicant was sentenced for.

The non-parole period of 7 years is the minimum time the applicant must serve before becoming eligible for parole. Under section 44(2) of the Act, the non-parole period must be at least three-quarters of the head sentence unless the court finds special circumstances. Three-quarters of 12 years is 9 years. A 7-year non-parole period on a 12-year head sentence is approximately 58 per cent, well below the standard minimum. The NSWCCA found special circumstances to justify setting the non-parole period below three-quarters.

In cases involving intellectual disability, special circumstances are commonly found on two grounds: the offender will need a longer period in the community under parole supervision to access treatment and support programmes, and the severity of a long period in custody without the prospect of supervised community re-entry may be disproportionate.

What happens when the NSWCCA allows a sentence appeal?

When the NSWCCA identifies error, it does not simply reduce the existing sentence by a set amount. Under section 6 of the Criminal Appeal Act 1912 (NSW), the court re-exercises the sentencing discretion. It forms its own view of the appropriate sentence on all the material available to it. This includes the original sentencing material and any fresh evidence admitted on the appeal.

The court applies the same principles a sentencing judge would apply, including the relevant standard non-parole periods, the comparable cases, and the objective and subjective factors. The sentence the NSWCCA imposes replaces the original sentence entirely. Custody dates are recalculated from the original commencement date.

The court is guided by the principles set out by the High Court in Kentwell v The Queen [2014] HCA 37: the court exercises the full discretion, it is not constrained by the original sentence other than as a check on proportionality, and it must reach its own independent view of what the offending and the offender require.

What this means for persons whose disability was not raised at sentencing.

Where an intellectual disability was not identified before sentencing, the viability of a sentence appeal turns on two things: whether the disability evidence is fresh, and whether it would have made a material difference.

The first question requires a forensic psychologist to assess the person now and provide an opinion that the disability existed at the time of the offending and at the time of sentencing. If the condition is longstanding and was simply not diagnosed, the expert will say so. That is the foundation for the freshness argument.

The second question requires legal analysis of the original sentencing reasons. If the judge sentenced without engaging with any disability, and the disability would have reduced culpability or affected the non-parole period, the error case is clear. A sentence imposed without material that ought to have been before the court can be shown to be unjust by that absence.

Time limits on sentence appeals are tight. In NSW, the applicant ordinarily has 28 days from the date of sentencing to lodge an appeal. Extension is possible, and an extension will be granted where the grounds are meritorious and the delay is explained. But the sooner the assessment is sought, the better.

The best approach is always to obtain a disability assessment before sentence. The appeal pathway is available, but it is slower and less predictable than having the evidence before the judge from the outset. If you suspect a client has an intellectual disability and sentencing is coming, get the assessment done early. MA v R shows what happens when it is not done, and that the NSWCCA will correct the resulting injustice. But the correction takes longer and involves greater uncertainty than proper preparation at first instance.

Frequently asked.

Can a sentence be appealed because of new evidence that was not available at the time of sentencing?

Yes. The NSWCCA can receive fresh evidence under section 17 of the Crimes (Appeal and Review) Act 2001 (NSW). The evidence must not have been reasonably available at the time of sentencing, and it must be material to the outcome. If an intellectual disability was undiagnosed and unknown at first instance, evidence of that disability will ordinarily qualify as fresh.

Does intellectual disability always reduce a sentence in NSW?

No. The court considers whether the disability contributed to the offending, and how it affects the relevant sentencing purposes. Moral culpability and general deterrence are the main factors. Where a disability reduced the offender's capacity to understand or control their conduct, the mitigating effect is strong. Where the disability had no real connection to the offending, the effect is limited.

What is an aggregate sentence?

A single custodial term imposed to cover multiple offences, under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court does not impose a separate term for each count. The aggregate represents the total period the offender must serve, before considering the non-parole period.

What is special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

A finding that justifies setting the non-parole period below three-quarters of the head sentence. Common examples include the need for an extended period on supervised parole, an intellectual disability requiring ongoing community support, the length of an aggregate sentence producing a disproportionate minimum term, and the particular vulnerability of a young offender.

What happens to an offender's sentence after a successful appeal?

The original sentence is set aside and replaced by the NSWCCA's re-exercised term. The court acts under section 6 of the Criminal Appeal Act 1912 (NSW). It forms its own view of the correct sentence on all available material and imposes that sentence afresh. Custody dates are recalculated from the original commencement date.

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 Good Legal Lawyers, as at 28 June 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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