R v Molnar [2026] NSWCCA 148.

The decision in summary.

R v Molnar [2026] NSWCCA 148 was handed down on 23 September 2026. Mitchelmore JA, Dhanji J, and Emmett J sat. It was a Crown appeal against sentence. The respondent had been sentenced in the District Court for a Commonwealth child abuse material offence and the sentence was directed to be served by way of an intensive correction order.

The problem was that an ICO was not available for that offence. The error was conceded. The Court accepted the concession, allowed the appeal, quashed the ICO, and remitted the matter to the District Court for resentencing under section 12(2) of the Criminal Appeal Act 1912 (NSW). The person will be sentenced again. Nothing in this note deals with what that sentence should be, which is a matter for the District Court.

The case is worth reading for the framework, not the individual. It sets out when an ICO cannot be made, how the exclusions in section 67 work, and how those exclusions reach a person sentenced in a NSW court for a Commonwealth offence. That last point is the part practitioners get wrong.

What is an intensive correction order, and when is it not available?

An intensive correction order is a sentence of imprisonment served in the community under supervision. Section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) lets a court that has sentenced an offender to imprisonment direct that the sentence be served by way of intensive correction. If the court makes an ICO, it does not set a non-parole period: section 7(2).

An ICO is not a soft option dressed up as jail. It is a form of full-time imprisonment that the court has decided can be served in the community. The High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 confirmed the three steps. First, the court must be satisfied that no penalty other than imprisonment is appropriate. Second, it fixes the length of the term without thinking about how it will be served. Third, it asks whether that term can be served as an ICO. For a State offence, community safety is the paramount consideration at that third step: section 66.

There are hard limits on the power to make an ICO. An ICO cannot be made for a single offence where the term exceeds 2 years, or for an aggregate sentence exceeding 3 years: section 68. It cannot be made for an offender under 18: section 7(3). It is restricted for domestic violence offences unless the court is satisfied the victim will be adequately protected: section 4B. And it cannot be made at all for the offences listed in section 67. Our general guide to intensive correction orders in NSW sets out the conditions and how they run.

What offences are excluded from an intensive correction order?

Section 67(1) says an ICO must not be made for a sentence of imprisonment for:

• murder or manslaughter;
• a prescribed sexual offence;
• a terrorism offence under the Crimes Act 1914 (Cth) or section 310J of the Crimes Act 1900 (NSW);
• contravening a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016;
• contravening a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002;
• an offence involving the discharge of a firearm;
• an offence that includes the commission of, or an intention to commit, any of the above; and
• an attempt, or a conspiracy or incitement, to commit any of the above.

The phrase "prescribed sexual offence" is defined in section 67(2). It is a long definition. It takes in a range of sexual offences, including child abuse material offences and offences against children under the Crimes Act 1900 (NSW). Our page on child abuse material offences in NSW covers the State charges. An ICO also cannot be made for an aggregate sentence where any one of the offences is a section 67(1) offence: section 67(3).

The last two paragraphs of the list, subsections (g) and (h), are the catch-all. They reach offences that are not named in the list but that involve doing, or intending to do, one of the listed things. That is the part that decided Molnar.

Can you get an intensive correction order for a federal offence?

Federal offenders are sentenced in State courts, using State sentencing options where the Commonwealth Parliament allows it. Section 20AB of the Crimes Act 1914 (Cth) is the gateway. It lets a State court impose a sentencing option such as an ICO on a federal offender, but only where the court could impose that option on a State offender in the same circumstances.

That is the trap. Section 20AB does not list excluded offences itself. It borrows the State rules. So if the equivalent State offence would be caught by section 67, the ICO is not available to the federal offender. The federal label does not get around the State exclusion.

In Molnar, the Commonwealth offence was not itself named in the section 67(2) definition. The Court held that did not matter. The catch-all in section 67(1)(g) applied because committing the federal offence necessarily involved committing a prescribed sexual offence under State law, of the kind covered by section 91H of the Crimes Act 1900 (NSW). Once that link was made, the ICO was excluded and the sentence was not open to the court. The Judicial Commission's sentencing bench book makes the same point in general terms: section 67(1) excludes a number of Commonwealth offences from an ICO.

What happens when a court imposes a sentence that was not available at law?

A sentence that the court had no power to impose is an error of law. It can be corrected on appeal. Where the prosecution is the party seeking to correct it, the vehicle is a Crown appeal against sentence under section 5D of the Criminal Appeal Act 1912 (NSW).

Crown appeals are treated with restraint. The Court of Criminal Appeal keeps a residual discretion to decline to intervene, and considerations of double jeopardy weigh on the offender's side. But those brakes have less work to do where the sentence was simply not one the court could pass. In Molnar, the error was conceded, and the Court treated it as one of the rare cases where intervention was warranted without a separate finding that the sentence was manifestly inadequate.

Having allowed the appeal, the Court had a choice. It could resentence itself, or send the matter back. It chose to remit the matter to the District Court for resentencing under section 12(2) of the Criminal Appeal Act 1912 (NSW). Remittal keeps the sentencing exercise in the court that heard the evidence and preserves the parties' positions. Our note on sentence appeals in NSW explains how the appellate court approaches error and re-exercise.

Why this matters, and the reform now under way.

Two practical points come out of the case.

First. Check availability before you argue for an ICO.

The availability of an ICO is a threshold question, not a matter of discretion. If the offence is caught by section 67, an ICO cannot be imposed no matter how strong the subjective case is. For a federal offence, the check has an extra step: work out the corresponding State offence and ask whether section 67, including the catch-all in subsection (g), would bite. A sentence built on an option that was never available will not survive a Crown appeal.

Second. The exclusions are under review.

On 21 September 2026, the NSW Attorney General asked the NSW Sentencing Council to review the offences that are ineligible for an intensive correction order, or subject to limitation. The Council lists the reference as a current project. So the list in section 67, and the way it works for federal offenders, may change. For now the law is as Molnar states it, and a court has no power to make an ICO for an excluded offence.

If you have been charged and imprisonment is on the table, the sentencing options open to the court are the first thing to map. An ICO, a community correction order, or full-time custody each carry different consequences, and the availability of each turns on the offence and the length of the term. That analysis should be done at the start, not after a sentence is passed.

Frequently asked.

Is an intensive correction order a form of imprisonment?

Yes. An ICO is a sentence of imprisonment that the court directs be served by intensive correction in the community: section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court first fixes the term of imprisonment, then decides whether it can be served as an ICO. No non-parole period is set.

What is the maximum length of an intensive correction order in NSW?

An ICO cannot be made for a single offence where the term of imprisonment exceeds 2 years. For an aggregate sentence across two or more offences, the term must not exceed 3 years: section 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Can a federal offender get an intensive correction order in NSW?

Sometimes. Under section 20AB of the Crimes Act 1914 (Cth), a NSW court can impose an ICO on a federal offender only where it could do so in the corresponding State case. If the equivalent State offence is one for which an ICO is excluded under section 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the ICO is not available to the federal offender either.

What is a Crown appeal against sentence?

It is an appeal by the prosecution against a sentence, brought under section 5D of the Criminal Appeal Act 1912 (NSW). The Crown must show error. Where the sentence imposed was not open to the court at law, that error can be enough on its own for the Court of Criminal Appeal to intervene.

What did R v Molnar decide?

The NSW Court of Criminal Appeal held that an intensive correction order was not an available sentencing option and quashed it. The matter was remitted to the District Court for resentencing. The decision confirms that the section 67 exclusions can apply to a federal offender through the catch-all in section 67(1)(g).

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 25 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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