TD v R [2026] NSWCCA 139.

The decision in summary.

TD v R [2026] NSWCCA 139 was decided on 11 September 2026. N Adams CJ at CL, Dhanji J and Roberts J sat. The applicant had been sentenced for child sexual offences. His subjective case included a dysfunctional and deprived background. The Court of Criminal Appeal granted leave, allowed the appeal against sentence, and resentenced the applicant to an aggregate term of 7 years with a non-parole period of 4 years. The complainants are not identified, and nothing in this note identifies them.

The case is a reminder that a deprived background is a live sentencing consideration, and that the way a sentencing judge deals with it can be tested on appeal. This note leaves the detail of the offending to the court's published reasons. It uses the decision as a starting point to explain the law that sits behind it: what moral culpability is, how a background of disadvantage reduces it, and how that plays out both at first instance and on a sentence appeal.

The decision is available on JADE at jade.io. The published reasons of the court are the authoritative record of what was decided.

What is moral culpability, and how is it different from the seriousness of the offence?

Objective seriousness measures the offence. It looks at what was done: the harm, the conduct, the circumstances of the offending itself. Moral culpability measures the offender's blameworthiness for that conduct. The two are related but separate.

Two people can commit conduct of the same objective seriousness and carry different moral culpability. A person who acted with full understanding and free choice is more blameworthy than a person whose capacity for judgment was shaped by a childhood of violence, neglect and substance abuse. The High Court in Bugmy v The Queen (2013) 249 CLR 571 treated moral culpability as a distinct part of the sentencing task. A background of deprivation can lower it, even where the objective seriousness of the offence stays the same.

This is why a plea in mitigation is not just about the offence. It is about the person. A sentencing judge who fixes only on what happened, and never asks how the offender came to be the person who did it, has done half the task.

What is the Bugmy principle in sentencing?

The leading authority is Bugmy v The Queen (2013) 249 CLR 571. The case concerned an Aboriginal man from far-west New South Wales who was raised amid alcohol abuse, drug use and serious family violence, with little education. The High Court held that his background was relevant to sentencing, and set out three points that matter in every case of this kind.

First, a background of profound deprivation can reduce moral culpability. Where formative years were marked by violence and abuse, the offender's blameworthiness may be less than that of a person whose upbringing was not.

Second, that effect does not diminish over time, and it does not fade because the person keeps offending. The court rejected the idea that repeated offending drains the mitigating force of a deprived childhood. The background must be given full weight on each sentencing.

Third, the effect on the sentence is not fixed. Deprivation may bear on moral culpability and on the weight to be given to general deterrence, while the need to protect the community may point the other way. The court weighs these together. The principle does not produce a set discount. It requires the judge to engage with the background and give it real, individual consideration.

Does the Bugmy principle only apply to Aboriginal offenders?

No. Bugmy concerned an Aboriginal offender, but the High Court applied a race-neutral rule. The deprived background of an Aboriginal offender may mitigate a sentence, just as the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. What matters is the evidence of the background and its connection to the offending, not the offender's race.

For Aboriginal offenders, the principle sits alongside the guidance in R v Fernando (1992) 76 A Crim R 58 on the effects of endemic community disadvantage. But the mitigating force of a deprived upbringing is available to any person who can prove it.

How do you prove a deprived background at a sentence hearing?

Assertion from the bar table is not enough for a serious matter. The background has to be proved by evidence the court can act on. That usually means a report from a forensic psychologist, together with records from schools, health services and community services, and statements from people who knew the offender as a child.

The evidence should do two things. It should establish the facts of the background: the violence, the neglect, the exposure to substance abuse, the disruption to schooling and care. It should also connect those facts to their effects on the person, so the court can see how the upbringing bears on culpability and on the offending. The Bugmy Bar Book, a research resource maintained for practitioners, gathers the material that links particular forms of childhood disadvantage to their known consequences, which helps present a background in a form the court can use.

A well-prepared subjective case is often the difference between a background that a judge notes and moves past, and one that actually shifts the sentence. The work belongs before the sentence, not after it.

Can a sentence appeal succeed because a deprived background was not given enough weight?

Yes, in the right case. A sentence appeal to the NSW Court of Criminal Appeal is not a rehearing. The applicant must show error. But a failure to treat a proven deprived background as reducing moral culpability, or a failure to give it any real weight, can be an error of principle within the categories set out in House v The King (1936) 55 CLR 499.

Where the applicant establishes error, the court re-exercises the sentencing discretion under section 6 of the Criminal Appeal Act 1912 (NSW), guided by Kentwell v The Queen [2014] HCA 37. It forms its own view of the correct sentence on all the material, which may include fresh evidence about the background received on the appeal. The sentence the court imposes replaces the original, and custody dates run from the original commencement date.

A sentence can also be challenged as manifestly excessive, where the result is so far outside the available range that error must have occurred even if the specific misstep cannot be identified. A background that reduced culpability, left out of account, can be part of showing that the head sentence or the non-parole period sat too high.

What the aggregate term and non-parole period mean.

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 a separate sentence on each count. The aggregate of 7 years in TD v R covers the offences the applicant was sentenced for.

The non-parole period of 4 years is the minimum the applicant must serve before he is eligible for parole. Under section 44 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 7 years is 5 years and 3 months. A 4-year non-parole period is below that, which indicates a finding of special circumstances. In cases where a deprived background points to a longer period of supervised support in the community, special circumstances are commonly found on that basis.

What this means for a person facing sentence.

If your background includes childhood deprivation, violence, neglect or early exposure to substance abuse, that history can matter to your sentence. It is not a defence, and it does not undo the offence. But it can reduce moral culpability and change the weight the court gives to deterrence, and in some cases it supports a finding of special circumstances that lowers the non-parole period.

The way to use it is to prove it, early and properly, before sentence. That means the right expert assessment and the right supporting records, prepared in time for the sentence hearing. Where a sentence has already been imposed without that material being put or weighed, a sentence appeal may be available, but the time limit is short. In NSW an application ordinarily must be lodged within 28 days of sentence, and an extension is a separate hurdle. TD v R shows the Court of Criminal Appeal will act where a sentence does not properly reflect a deprived background. It is better to have the material before the sentencing judge from the start.

Frequently asked.

What is the Bugmy principle in sentencing?

It comes from Bugmy v The Queen (2013) 249 CLR 571. The High Court held that a background of profound childhood deprivation, violence and substance abuse is relevant to sentencing because it can reduce moral culpability. That effect does not fade with time or with repeated offending, so it must be given full weight each time the person is sentenced.

Does a difficult childhood reduce a criminal sentence in NSW?

It can. Deprivation, trauma, violence or neglect in a person's formative years can lower moral culpability where it is connected to the offending. It is not an automatic discount and it does not erase the seriousness of the offence. The court assesses, on the evidence, how the background bears on culpability and on general deterrence.

Does the Bugmy principle only apply to Aboriginal offenders?

No. Bugmy concerned an Aboriginal man, but the rule is race-neutral. A deprived background can mitigate the sentence of any offender, Aboriginal or non-Aboriginal, where the evidence establishes the background and its connection to the offending.

Does a deprived background lose weight if the offender keeps reoffending?

No. The High Court held the effects of a profoundly deprived childhood do not diminish with the number of offences a person commits. The background must be given full weight on each sentencing, even for a person with a long record. What can shift is the balance struck with community protection and supervision.

How do you prove a deprived background at a sentence hearing?

Usually through evidence, not assertion: a forensic psychologist's report, records from schools, health and community services, and statements from people who knew the offender as a child. The Bugmy Bar Book collects research that connects specific forms of disadvantage to their known effects, which helps present the background in a form the court can act on.

Can a sentence appeal succeed because a deprived background was not given enough weight?

Yes, in the right case. If a sentencing judge failed to treat a proven deprived background as reducing moral culpability, or gave it no real weight, that can be an error of principle. On appeal the NSWCCA decides whether error is shown and, if it is, re-exercises the sentencing discretion under section 6 of the Criminal Appeal Act 1912 (NSW).

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 13 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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