DPD v The King

Case •

[2025] NSWCCA 77

•

28 May 2025

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: DPD v R [2025] NSWCCA 77
Hearing dates: 28 April 2025
Date of orders: 28 May 2025
Decision date: 28 May 2025
Before: Price AJA at [1];
Cavanagh J at [112];
Yehia J at [121]
Decision:

(1)   Extend the time for leave to appeal against sentence and grant leave to appeal.

(2)   Quash the sentence imposed in the Supreme Court of New South Wales on 5 May 2023.

(3)   In lieu thereof, sentence the applicant to a term of imprisonment of 13 years and 7 months consisting of a non-parole period of 9 years commencing on 23 April 2021 and expiring on 22 April 2030 with a balance of term of 4 years and 7 months commencing on 23 April 2030 and expiring on 22 November 2034.

(4)   The earliest date the applicant will be eligible to be released on parole is 22 April 2030.

Catchwords:

CRIME – appeals – appeal against sentence – application for extension of time – constructive murder – joint criminal enterprise – assault with intent to rob in company while armed with a dangerous weapon – possession of a shortened firearm – agreed facts – whether departure from agreed facts – whether denial of procedural fairness – whether error in assessment of objective gravity of offence – whether failure to find special circumstances – cumulation and concurrence – parity – where difference between starting point of sentences of applicant and co-offender – whether justifiable sense of grievance – marked and unjustified disparity – re-sentence

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(b), 33(1)(f)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 21A(2)(n), 21A(3)(m), 44(2), 54D(3), 97(2)

Crimes Act 1900 (NSW), ss 18(1)(a), 61, 94(a)

Criminal Appeal Act 1912 (NSW), s 10(1)(b)

Firearms Act 1996 (NSW), s 62(1)(b)

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Borg v R [2019] NSWCCA 129

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cameron v R [2017] NSWCCA 229

Chamon v R [2020] NSWCCA 112

Close v R (1992) 31 NSWLR 743; (1992) 65 A Crim R 55

Estephan v R [2015] NSWCCA 100

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hung v R [2023] NSWCCA 172

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lloyd v R [2017] NSWCCA 303

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Mohr v R [2024] NSWCCA 197

Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87

Nguyen v R [2015] NSWCCA 268

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Crowley [2004] NSWCCA 256

R v DPD [2023] NSWSC 477

R v EE [2023] NSWSC 104

R v Shillingsworth [2023] NSWSC 453

Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77

Simpson v R (1992) 61 A Crim R 58

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:Principal judgment
Parties: DPD (Applicant)
Rex (Respondent)
Representation:

Counsel:
S Odgers SC (Applicant)
C Young (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2020/154246
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name or any matter which could identify the applicant and any co-offenders that were a child at the time the offence was committed is prohibited.
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law – Criminal
Citation:

[2023] NSWSC 477

Date of Decision:
05 May 2023
Before:
Wright J
File Number(s):
2020/154246

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal against the sentence imposed on him by the judge on 5 May 2023 in the Supreme Court of New South Wales.

The applicant, DPD, and four other co-offenders (DJD, Shillingsworth, Murdoch and EE) carried out a home invasion in an attempt to rob Kevin Kourtis (“the deceased”) for drugs and money, whilst the applicant was armed with a shortened firearm. During the home invasion, the deceased was physically assaulted and stabbed multiple times and died from a fatal stab wound. The applicant was also involved in an assault on a female present at the deceased’s residence. The applicant was arrested on 24 May 2020 and has been in custody since his arrest.

The applicant was charged with murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and pleaded guilty on the basis that he was liable for constructive murder, for which the foundational offence was assault with intent to rob in company whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act.

The applicant was sentenced by the judge to 15 years and 3 months imprisonment with a non-parole period (“NPP”) of 10 years and 3 months, expiring on 22 July 2031. The sentence was backdated to commence on 23 April 2021, expiring on 22 July 2036. The judge applied a 17.5% discount for the applicant’s plea of guilty and had taken into account the offences on the Form 1 and made a finding of special circumstances.

The applicant’s two co-offenders who pleaded guilty had already been sentenced by the judge, specifically, EE on 17 February 2023 and Shillingsworth on 1 May 2023: R v EE [2023] NSWSC 104; R v Shillingsworth [2023] NSWSC 453.

The applicant sought leave to appeal against the sentence on three grounds:

Ground 1: The sentencing judge erred in determining the objective seriousness of the offence of murder.

Ground 2: The applicant has a legitimate grievance as a result of disparity of sentence.

Ground 3: The sentencing judge erred in failing to take into account as a “special circumstance” that fact that the sentence was partially cumulative on sentences for other offences.

The Court held (Price AJA, Cavanagh and Yehia JJ agreeing), granting an extension of time and leave to appeal, allowing the appeal against sentence, quashing the sentence and re-sentencing the applicant:

As to Ground 1:

  1. The judge was not obliged to sentence the applicant in accordance with the agreed facts. It is clear that his Honour’s findings were in response to and arose from the manner in which both the Crown and applicant’s senior counsel conducted the sentencing proceedings: [53], [65]-[67] (Price AJA), [112], [120] (Cavanagh J), [121] (Yehia J).

Nguyen v R [2015] NSWCCA 268, applied.

R v Crowley [2004] NSWCCA 256; Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87, cited.

As to Ground 3:

  1. The judge’s sentencing discretion in finding special circumstances and considering the questions of cumulation and concurrence did not miscarry. This is not a “clear and rare case” in which his Honour overlooked the issue of accumulation in a finding of special circumstances, such that a miscarriage of justice or serious injustice has resulted for this Court to intervene: [75]-[77] (Price AJA), [112], [120] (Cavanagh J), [121] (Yehia J).

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, considered.

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, cited.

As to Ground 2:

  1. The parity principle requires that there should not be a marked disparity between the sentences imposed on co-offenders, which gives rise to a justifiable sense of grievance to attract appellate intervention: [83]-[84] (Price AJA), [112], [115], [120] (Cavanagh J), [121] (Yehia J).

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied.

Mohr v R [2024] NSWCCA 197, cited.

  1. The difference of six years in the undiscounted starting points of the sentences between the applicant and EE are such as to give rise to a justifiable sense of grievance: [85], [94]-[95] (Price AJA), [112]-[120] (Cavanagh J), [121] (Yehia J).

Cameron v R [2017] NSWCCA 229; Lloyd v R [2017] NSWCCA 303; Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77; Borg v R [2019] NSWCCA 129; Chamon v R [2020] NSWCCA 112; Hung v R [2023] NSWCCA 172, cited.

As to re-sentencing:

  1. In this case, there is need for specific deterrence and retribution when sentencing the applicant for the murder. Further, a finding of special circumstances was found to be cumulative upon the existing sentences: [101], [108]-[109] (Price AJA), [112], [120] (Cavanagh J), [121] (Yehia J).

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, applied.

Simpson v R (1992) 61 A Crim R 58; Close v R (1992) 31 NSWLR 743; (1992) 65 A Crim R 55; Postiglionev The Queen (1997) 189 CLR 295; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited.

  1. The appropriate undiscounted starting point of the applicant’s sentence is 16 years and 6 months. The ratio between the head sentence and NPP has been reduced to 66.2%: [110] (Price AJA), [112], [119]-[120] (Cavanagh J), [121] (Yehia J).

JUDGMENT

  1. PRICE AJA: The applicant, DPD, seeks leave to appeal against the sentence imposed on him by Wright J (“the judge”) in the Supreme Court of New South Wales on 5 May 2023 for the murder of Kevin Kourtis, the deceased, committed on 24 May 2020 contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).

  2. The maximum penalty for the offence of murder is life imprisonment. As the applicant was under the age of 18 years at the time of the offence, the standard non-parole period (“SNPP”) of 20 years imprisonment does not apply: s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”).

  3. The applicant committed the offence in the company of four other co-offenders, each were young males and known as respectively DJD, Shillingsworth, Murdoch and SP (referred to as EE in submissions).

  4. On 3 June 2022, the applicant pleaded guilty to a single count of murder before his trial was listed to commence and prior to arraignment in the NSW Supreme Court. The applicant’s plea of guilty had been entered on the basis of constructive murder, for which the foundational offence was under s 97(2) of the Crimes Act. As the judge observed in his remarks on sentence (ROS [2]):

“In the statement of agreed facts signed by the [applicant] on 1 June 2022, the basis for the [applicant’s] plea was stated in par 2 as follows:

… The [applicant] is entering a plea on the basis that this is a constructive murder matter. The foundational ‘25 year’ offence is pursuant to s.97(2) of the Crimes Act 1900 [(NSW)]: assault with intent to rob in company while armed with a dangerous weapon. The [applicant] in entering a plea of guilty on the basis of constructive murder admits all the elements of the foundational offence of in company assault with intent to rob whilst armed with a dangerous weapon. The shortened firearm used in the offence was a dangerous weapon whether it was loaded or not. The [applicant] did not have to contemplate that one of the co-offenders might possibly stab the deceased with a knife with an intention to inflict grievous bodily harm or to kill to be liable on the basis of constructive murder. The [applicant’s] liability arises from the deceased being killed by an accomplice during the commission of the foundational offence.” (emphasis added)

  1. The applicant asked the judge to take into account on sentence two offences on a Form 1 being:

  1. possession of a shortened firearm without being authorised to do so by a permit, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW) (which carries a maximum penalty of 14 years imprisonment); and

  2. the common assault of Ulaan McKenzie contrary to s 61 of the Crimes Act (which carries a maximum penalty of 2 years imprisonment).

  1. After applying a 17.5% discount for the applicant’s plea of guilty and taking into account the offences on the Form 1 and a finding of special circumstances (in relation to the statutory ratio of the non-parole and parole periods), the judge sentenced the applicant to a term of imprisonment of 15 years and 3 months with a non-parole period (“NPP”) of 10 years and 3 months. The sentence was backdated to commence on 23 April 2021 and expires on 22 July 2036. The NPP expires on 22 July 2031.

Grounds of appeal

  1. The notice of appeal raises the following three grounds:

“Ground 1: The sentencing judge erred in determining the objective seriousness of the offence of murder.

Ground 2: The applicant has a legitimate grievance as a result of disparity of sentence.

Ground 3: The sentencing judge erred in failing to take into account as a “special circumstance” that fact that the sentence was partially cumulative on sentences for other offences.”

  1. The applicant initially filed a Notice of Intention to Appeal on 25 June 2024. However, the Notice of Appeal was not filed until 17 January 2025. Therefore, the applicant requires an extension of time as the appeal was filed out of time: s 10(1)(b) of the Criminal Appeal Act 1912 (NSW); r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicant relies on an affidavit of Danka Durovic, the applicant’s solicitor, affirmed 16 January 2025 in respect of an extension of time. The Crown does not oppose leave to appeal out of time being granted. Leave should be granted.

Circumstances of the offending

  1. The facts upon which the applicant was sentenced were contained in a statement of agreed facts signed by the applicant on 1 June 2022, which the judge relevantly summarised as the following (ROS [17]-[31]):

“[17] From around March through to May 2020, [the deceased] lived in a house in Langton Street, Riverstone, NSW, with Ms McKenzie and her then partner, Mr Sorenson. Throughout April and May 2020, the deceased had a girlfriend, Ms Howlett, who stayed at the residence on a number of occasions. Around this time, the [applicant] attended the residence on several occasions.

[18] In early April 2020, the [applicant] was witnessed arguing with the deceased in the garage of the deceased’s residence about the price of the drug ice. On a subsequent occasion in April 2020, the [applicant] and the deceased had a disagreement after the [applicant] woke the deceased who was sleeping on the lounge at his house. Following this altercation, [the deceased] would not let the [applicant] into his house.

[19] On the evening of 23 May 2020, the [applicant], DJD and [EE] were at DJD’s residence in Quakers Hill. At 12:10 am on 24 May 2020, the [applicant] telephoned Travis Murdoch. The call lasted 70 seconds. Soon after this phone call, Murdoch and Shillingsworth, who had been nearby, drove together to the Quakers Hill residence.

[20] All five men then travelled in Shillingsworth’s car from the Quakers Hill residence to a street near Langton Street. At about 12.31 am, the five men walked down Langton Street and looked towards [the deceased’s] house and gathered in a circle on the roadway outside the house for about 20 seconds before walking together down the driveway towards the front door of the house at about 12:32 am. They all had the lower half of their faces covered. The [applicant] was the first of the five accomplices to reach the front door, and he was carrying a shortened .22 calibre 250 Remington savage model repeating bolt action rifle in his right hand, which had been taken in the vehicle with the five men.

[21] One of the men knocked on the door, identified himself as James and asked to be let in. [The deceased] opened the door a fraction and then tried to shut it again but some of the men pushed against the door pushing the deceased backwards, knocking the deceased’s phone out of his hand in the process, before the men forced their way into the house. Ms Howlett was in the lounge room immediately to the right of the entrance hallway.

[22] The deceased was physically forced by the [applicant] and Shillingsworth, Murdoch and DJD down the entry hallway, past the loungeroom, and into the kitchen which was located at the end of the hallway. The [applicant] was still carrying the rifle, whilst another of the men was carrying a 30 cm knife.

[23] [EE] approached Ms Howlett in the loungeroom and stood over her. The kitchen was not visible from the loungeroom. She pulled a blanket over her head and heard plates and other items smashing in the kitchen area where the deceased was with the [applicant], Murdoch, Shillingsworth and DJD. Ms Howlett pulled the blanket off her head and looked at [EE]. [EE] told her not to call the police and asked her for her phone, which he checked and wiped down with his sleeve before returning it. [EE] then asked for her wallet from her bag and he took approximately $200 from it, once again using his sleeve to wipe down the top of the bag.

[24] Whilst this was occurring in the loungeroom, the deceased was in the kitchen arguing with the [applicant], Murdoch, Shillingsworth and DJD, and one of the four men said, “[w]here’s the stuff?”. The deceased was physically assaulted and various items in the kitchen were broken. As a result of the assault, two of the deceased’s teeth were knocked out. At some stage, [the deceased] was stabbed multiple times by at least one of the four men. The Crown conceded that it could not establish beyond reasonable doubt who stabbed the deceased. (emphasis added)

[25] The [applicant] and another of the four men went upstairs into the bedroom of Ms McKenzie. They were both masked. Ms McKenzie recognised the [applicant]. As the [applicant] entered the room he carried the rifle in both hands and then dropped it down by his right side. Ms McKenzie asked, “what are you doing?”, and the offender replied “[the deceased’s] a dog. [The deceased’s] a dog. [The deceased’s] a dog”.

[26] The other man with the [applicant] then said, “we have to go”, walked past the [applicant] and left the room. At this point, the [applicant’s] face mask was down to his chin, and Ms McKenzie could clearly identify him. She got off the bed and walked towards the [applicant] and said, “what are you going to do? Hit me with it?”. The [applicant] moved towards her and she raised her hands and said “go on, point it at me”. The [applicant] raised the rifle so that the tip of the gun was touching her mouth. Ms McKenzie felt a pain in her right cheek, although she was unsure whether this resulted from being struck with the rifle or being pushed by the [applicant] against the door frame. The [applicant] then left and went downstairs, leaving Ms McKenzie in her bedroom.

[27] Meanwhile downstairs, Shillingsworth approached Ms Howlett in the loungeroom. He asked her, “[w]here’s the shit?”. She said that she did not know what he was talking about, and he responded, “[y]ou better not be lying to me”. At this point, Ms Howlett heard the metal garage roller door opening and Shillingsworth grabbed her phone, threw it on the floor, stamped on it a few times, threw it at the wall, and then kicked the TV. One of the men, not [EE], then yelled, “[w]e gotta go, coppers are coming”. [EE] remained in the loungeroom with Ms Howlett the whole time but did not participate in Shillingsworth’s conduct in that room. As he was leaving, Shillingsworth stepped on the deceased’s telephone which was on the floor leaving a bloody shoe print on the telephone.

[28] Shillingsworth and [EE] went into the garage through an internal access door. At some point, the [applicant] who was now downstairs said to the deceased, “wake up mate, wake up mate. Where’s the keys to the ATV? Where’s the keys to the quad?”. Another of the men, not [EE], yelled, “[The deceased], where are the bike keys?”

[29] At approximately 12:36 am, the other four men ran from the deceased’s residence. The [applicant] remained at the residence.

[30] At approximately 12:37 am, [EE] realised the [applicant] had not yet left, and returned to the deceased’s residence. At approximately 12:39 am, [EE] and the [applicant] left the residence. They both ran out of the garage towards the street in which the car had been parked.

[31] Once Ms Howlett could no longer hear any noises she ran upstairs to check on Ms McKenzie. She was upstairs for a few minutes before she went back downstairs to check on the deceased who was lying on the kitchen floor with a large amount of blood on his mouth and chest, making a gurgling sound. Ms Howlett then returned upstairs and told Ms McKenzie to phone police and they locked themselves in the upstairs bathroom until police arrived.”

  1. Police and ambulance officers arrived shortly after and pronounced the deceased dead at the scene. An autopsy revealed that the deceased had suffered multiple injuries including seven stab wounds and the cause of death was identified as a stab wound to the chest. The applicant was arrested on 24 May 2020.

Findings as to objective seriousness

  1. In his sentencing remarks, the judge accepted that the applicant had entered the deceased’s residence with the four other young males as part of a joint criminal enterprise to assault with intent to rob the deceased in company whilst the applicant was armed with a dangerous weapon. His Honour said that during or immediately after the assault on the deceased in the kitchen by the applicant and three other participants, two of the deceased’s teeth were knocked out and he was fatally stabbed. His Honour said (ROS [44]):

“The [applicant] entered a plea of guilty to murder on the basis set out in par 2 of the agreed facts, which has been quoted already. In the circumstances, he is not to be sentenced on the basis that he had either an intention to kill or an intention to inflict grievous bodily harm. In addition, since it cannot be determined beyond reasonable doubt who inflicted the fatal wound or wounds, the [applicant] cannot be sentenced on the basis that he was the person who fatally stabbed [the deceased].” (emphasis added)

  1. The judge found that the offending involved a targeted and planned assault with intent to rob the deceased with whom the applicant had previous disagreements concerning the price of drugs and other matters. His Honour noted that all five participants travelled together to a street near the deceased’s residence, parked there and walked to the deceased’s house; the applicant had brought with him a shortened firearm; all five wore partial face coverings; and all approached the deceased’s front door together and barged in.

  2. Whilst the judge observed that the offenders engaged in some planning and co-ordination, his Honour noted that the planning was not greater than the planning required for the foundational offence, namely, a joint criminal enterprise to assault the deceased with intent to rob him, in company when armed with a dangerous weapon. His Honour said that the aggravating factor under s 21A(2)(n) of the CSP Act did not apply.

  3. The judge took into account as an aggravating factor the commission of the offence in the deceased’s home. His Honour found that the applicant played a significant role in the commission of the offence. The applicant was the only participant who knew the deceased and Ms McKenzie. He carried the shortened firearm and was the first to reach the front door. The applicant was one of the participants who pushed the deceased down the hallway and was present in the kitchen when the deceased had two teeth knocked out and was fatally stabbed.

  4. The judge further observed that “after [the applicant’s] return to the kitchen after going upstairs and interacting with Ms McKenzie, he attempted to obtain the keys to the quad bike, which was in the garage, from the deceased without any apparent concern for his wellbeing …”: ROS [48].

  5. The judge relevantly said (ROS [49]):

“… Based on all the material before me and in light of the absence of information as to who inflicted the fatal stab wound to the chest, I am not prepared to find positively, on the balance of probabilities, that the [applicant] did not stab [the deceased]. Thus, the [applicant] is to be sentenced on the basis that it is not known who inflicted the fatal stab wound.” (emphasis added)

  1. The judge assessed the “objective seriousness of the offender’s conduct in relation to the constructive murder” to fall “within the middle of the range” and assessed the objective seriousness of the offences on the Form 1 as falling within the “mid-range”: ROS [51]-[52].

Further findings as to aggravating factors

  1. The judge did not accept the Crown’s contention that the offence was aggravated as a result of being part of a planned or organised criminal activity.

  2. The judge found as an aggravating factor the commission of the offence whilst the applicant was on conditional liberty on bail: s 21A(2)(j) of the CSP Act. His Honour noted that the applicant had been discharged from the Cobham Youth Justice Centre on 9 March 2020 on bail awaiting a hearing in respect of the offence for which he was sentenced on 4 August 2020 to a 17 month control order.

Findings as to the applicant’s subjective case

  1. The applicant did not give evidence during the proceedings on sentence. The Crown’s sentence bundle included the applicant’s criminal and custodial history and a Confidential Background Report (“CB Report”) was also tendered.

  2. Five character references were tendered on behalf of the applicant as well as a psychiatric report of Dr Gerald Chew, a forensic psychologist.

  3. The applicant was born in October 2002 in Blacktown and was 17½ years old at the time of the offence. He was 20 years old when sentenced.

  4. The judge referred to the description of the applicant’s family and living circumstances in the CB Report at p 4 (ROS [62]):

“The [applicant] grew up in Riverstone in Western Sydney. He had a difficult childhood, with his father, mother and step-father being in custody for substantial periods from when the [applicant] was quite young and being frequent drug users. He denied any physical or sexual abuse to Dr Chew although some of the material indicated that he witnessed and may have suffered some domestic violence. The [CB Report] described his family and living circumstances in the following terms:

… [the applicant] has lived a very transient lifestyle, with limited parental supervision, due to his parents’ own periods of incarceration throughout his early childhood and adolescent years. As such, [the applicant’s] accommodation has been fairly unstable, and he has lacked appropriate positive role models for the majority of his adolescent years.”

  1. His Honour stated that the only stability in the applicant’s life was provided by his grandmother who died when he was about 11 years old. His Honour quoted from the applicant’s mother’s letter tendered to the court as follows (ROS [63]):

“… After the death of my mother, everyone’s life had changed because the person that held the family together was gone. My sister went into the deepest depression which caused her to relapse and turn to drugs again. Months later her and her partner went to jail, because of this [the applicant] believed he had to support his family and only being 11 years old he was at school and had no job, so he turned to the drug world. A month or two later my sister[‘s] partner was released, a short time after her and [the applicant] got into a disagreement and she told him to leave, for the next few nights [the applicant] found himself sleeping in a bobcat on a construction site until his father found out and took him in. Where he was staying wasn’t fit for any child. One night a fight broke out and [the applicant] witnessed a crime that no child should of seen from that day.

A short time later [the applicant] couldn’t handle the flashbacks from what he had seen. To make it stop he started drinking and using zanies (alprazolam) to make it stop.”

  1. His Honour referred to the summary provided in the CB Report at p 5 stating (ROS [64]):

“[The applicant] has experienced a significantly adverse upbringing, encompassing being exposed to parental substance abuse, parental incarceration, parental mental health, neglect, lack of positive role models, and unstable family and living circumstances. This appears to have had an adverse effect on [the applicant].”

  1. His Honour regarded the last sentence of the passage in the CB Report quoted above “to be a degree of understatement”: ROS [65].

  2. The judge found that the applicant’s education had been “limited largely as a result of his dysfunctional upbringing and lifestyle”. His Honour accepted that the applicant’s circumstances engaged the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), and applied “such that … his moral culpability and his suitability as a vehicle for general deterrence are substantially reduced” which he said should be reflected in the sentence imposed: ROS [67].

  3. The judge referred to the applicant’s drug use which had commenced from about the age of 10 and involved cannabis, alcohol, methamphetamine, benzodiazepines, heroin and illicit buprenorphine. His Honour noted that the applicant had disengaged from drug and alcohol treatment programs and was directed to leave the PALM residential rehabilitation program (“PALM program”) after about 10 days because of flu-like symptoms during the COVID-19 pandemic.

  4. The CB Report recorded that the applicant had engaged in substance abuse following his exit from the PALM program and just prior to offending. His Honour noted it was recorded in the CB Report that the applicant was of the view that his substance abuse was an issue for him but since he had been in adult custody he was not afforded the opportunity to address this issue via a program.

  5. The judge took into account the applicant’s introduction to drug and alcohol use at a very young age by those responsible for his welfare and the applicant’s tendency to self-medicate using those substances for his mental health conditions and his history of trauma and neglect: ROS [69].

  6. In referring to Dr Chew’s report, the judge noted Dr Chew’s primary diagnosis of schizophrenia and the applicant’s development of a Cluster B personality style with a significant substance abuse disorder, which had further complicated Dr Chew’s psychiatric diagnoses. Dr Chew opined that the applicant at the time of the offending, was suffering from those mental health conditions and had not been taking his prescribed medication which the judge said “further contributed to his unstable mental state”: ROS [73].

  7. The judge was satisfied that the applicant’s significant mental health conditions were causally related to the offending for which the applicant was to be sentenced. His Honour found that because of the applicant’s mental health conditions and the role they played in the offending, “[the applicant’s] moral culpability and his appropriateness as a vehicle for general deterrence should be taken to be reduced”: ROS [76]. His Honour further stated that these mental health conditions would make the applicant’s time in custody more onerous.

  8. The judge took into account the protection of the public and found “that the need for specific deterrence is not reduced to the same extent as it might otherwise have been”: ROS [76].

Some further findings

  1. The judge accepted that the applicant had “a degree of genuine remorse which should be given some weight”: ROS [79]. However, his Honour could not conclude that the applicant’s remorse was such as to justify a conclusion that the applicant was unlikely to reoffend.

  2. As to the applicant’s prospects of rehabilitation, his Honour said that the applicant had shown some recognition in regard to the seriousness and consequences of the offending, which together with his youth; his recognition of the need for treatment for his substance abuse disorder, meant the applicant had “some significant prospects of rehabilitation”. However, his Honour said that he could not find that those prospects were “good”: ROS [83].

  3. The judge said that he had taken the applicant’s youth into account when considering the role that his immaturity played in the commission of the offence and his prospects of rehabilitation. His Honour found that the applicant’s youth and immaturity were facts which tended to reduce his moral culpability and made him a “less suitable vehicle for general deterrence”: ROS [85]-[86].

Prior criminal history

  1. The applicant’s prior criminal history included the imposition of good behaviour bonds under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCP Act”) for possession of an unregistered firearm and ammunition at the Parramatta Children’s Court on 25 July 2018; the imposition of a community service order (“CSO”) under s 33(1)(f) of the CCP Act in relation to the offence of an assault occasioning actual bodily harm at the Parramatta Children’s Court on 30 January 2019. At the time the applicant was sentenced he was in custody for the offences set out at [43] below.

  2. The judge accepted the applicant’s acknowledgment that his criminal history did not afford him “any capacity for leniency” was correctly made: ROS [84].

Special circumstances

  1. The judge made a finding of special circumstances under s 44(2) of the CSP Act, to justify a departure from the statutory ratio based “in particular upon” the applicant’s youth and mental health conditions; the need for significant mental health and drug and alcohol treatment including supervision over an extended period once he is released and to mitigate the prospects of institutionalisation by providing a lengthier period on parole: ROS [87].

Parity

  1. The judge referred to the other two co-offenders who had already been sentenced and noted there were differences between the Form 1 offences that one of those who pleaded guilty asked the Court to take into account and the Form 1 offences in the present case.

  2. His Honour said in addition to the differences in the Form 1 offences and the different timing in the pleas of guilty, the most relevant differences included (ROS [92]):

“(1)   the [applicant] carried the shortened rifle, which was a “dangerous weapon”, and which led to the foundational offence being one which carried a maximum penalty of 25 years’ imprisonment;

(2)   the [applicant] being one of those in the kitchen when [the deceased] was fatally stabbed, unlike [EE] who did not enter the kitchen but, during the relevant time, remained in the loungeroom with Ms Howlett and did not use physical force or violence towards her or her possessions;

(3)   the [applicant] being the only one of the males who was said to have any previous knowledge of or involvement with the deceased or Ms McKenzie; and

(4)   the [applicant] being a participant who stayed behind after the others had left and who attempted to obtain the keys to the quad bike from the deceased without any apparent concern for [the deceased’s] wellbeing at a time when he was alive, lying on the kitchen floor in a pool of blood, having been stabbed and assaulted.”

  1. His Honour said that he had also taken into account the differences in the agreed facts relating to the other two co-offenders who pleaded guilty and their different subjective cases.

Time spent in custody

  1. The judge noted that the applicant had spent the following periods in custody since his arrest which were partly attributable to other sentences (ROS [97]):

“(1)   between 24 May 2020 and 20 January 2021 (241 days), which was part of a control order imposed for offences of affray, being armed with intent and aggravated entering a dwelling with intent; and

(2)   between 12 December 2021 to 11 February 2023 (426 days), which was a sentence imposed for an offence of assault occasioning actual bodily harm.”

  1. The judge accepted that the totality of the criminality involved in the offences for which the applicant was to be sentenced and the offences which gave rise to the control order and the sentence for the assault occasioning actual bodily harm required some notional concurrency. His Honour said that a total of 667 days in custody was attributable to the other offending and considered that it was “appropriate in all the circumstances to allow notional concurrency of about half that period”: ROS [99]. His Honour determined that the commencement date of the sentence should be backdated to 23 April 2021.

  2. The judge then imposed the sentence at [6] above.

Ground 1: The sentencing judge erred in determining the objective seriousness of the offence of murder

  1. Although the applicant’s principal argument in this ground of appeal complains that the judge departed from the agreed facts, it is unnecessary to reproduce that document here in full. His Honour’s quotation of par 2 of the agreed facts (see at [4] above) and summary set out at [9] above (see, relevantly, ROS [24]) accurately and sufficiently reflect these passages (to which I have added emphasis) which are of significance to the argument.

The competing arguments of the parties

  1. The applicant submitted that the judge erred at ROS [49] (see at [16] above), in sentencing the applicant upon an erroneous factual basis that it was “not known who inflicted the fatal stab wound”. The applicant contended that his Honour fell into error by not determining the applicant’s sentence in accordance with the agreed facts that clearly recognised he did not fatally stab the deceased. The applicant argued that as a consequence, his Honour failed to determine the objective seriousness of the offence on the basis that he did not cause the death of the deceased. The applicant further submitted that although it was not known who fatally stabbed the deceased, it did not alter the legal position, that his Honour failed to sentence the applicant consistently with the agreed facts.

  2. In oral submissions, Mr Odgers SC, who appeared on behalf of the applicant, submitted that it was an error for the judge to have approached the applicant’s sentence on the basis that “I don’t know who stabbed the deceased” but “it could have been implicitly the applicant”. Mr Odgers contended that this was the clear implication that arises from ROS [49] and was inconsistent with the agreed facts. Further, Mr Odgers argued that this led to an error in the assessment of objective seriousness.

  3. The Crown submitted that a fair reading of the sentencing remarks demonstrates that the judge was not in error and the applicant was sentenced on the basis of criminal liability agreed and understood by the parties. The Crown contended that the liability of the applicant outlined at par 2 of the agreed facts reflected an acceptance that it was unknown which of the four offenders fatally wounded the deceased. The sentence proceedings, the Crown argued, when considered as a whole, did not proceed on the factual basis that the Crown conceded the applicant was not the person who inflicted the fatal stab wound.

  4. The Crown referred to the applicant’s written submissions on sentence, pointing out pars 14 and 15 to which the judge responded to at ROS [49], and contended that the applicant during the proceedings on sentence did not proceed on the basis that it was agreed an accomplice was responsible for the fatal stab wound and the applicant was not.

  5. In oral submissions, the Crown accepted that par 2 of the agreed facts was a hurdle for the Crown to overcome but submitted that when the sentencing proceedings were considered as a whole, the Court “would come to the conclusion that it was run on the basis that it was unknown who had inflicted the wound as opposed to an accomplice and not this offender”. [1]

    1. Tcpt, 28 April 2025, p 8(22-26).

  6. The Crown accepted that there would be a difference in the assessment of objective seriousness, if the applicant had been sentenced on the basis that it was an accomplice who had fatally stabbed the deceased.

Consideration

  1. This Court has long emphasised the care that should be taken with agreed facts and for the necessity that they are understood by counsel and the offender: R v Crowley [2004] NSWCCA 256 at [46] (Smart AJ, Wood CJ at CL and Hidden J agreeing). Agreed facts should clearly and unambiguously state the facts upon which the offender accepts liability for the offence for which the offender is to be sentenced.

  1. In the present case, par 2 of the agreed facts concluded with the sentence:

“[The applicant’s] liability arises from the deceased being killed by an accomplice during the commission of the foundational offence.” (emphasis added)

  1. At first sight, it would appear that the agreement between the Crown and the applicant was that either DJD, Shillingsworth or Murdoch had inflicted the fatal stab wound upon the deceased.

  2. However, the agreed facts stated at par 27 which the judge accurately summarised (ROS [24]):

“At some stage, [the deceased] was stabbed multiple times by at least one of the four men. The Crown conceded that that it could not establish beyond reasonable doubt who stabbed the deceased.” (emphasis added)

  1. Paragraph 27 of the agreed facts is inconsistent with par 2 as the Crown’s inability to establish beyond reasonable doubt who stabbed the deceased is not confined to the applicant’s three accomplices but includes the applicant.

  2. The lack of clarity in the agreed facts was compounded in the written submissions made to the judge by the applicant’s senior counsel in the sentence proceedings which included at pars 14 and 15:

“14.   It is accepted that the offending involved this [applicant] carrying a shortened firearm during the offence.

15.   This would suggest that he was not the person carrying the knife and clearly not the person who was carrying or using the knife that killed the deceased.” (emphasis added)

  1. Paragraph 15 appears to be directed to par 27 of the agreed facts, notwithstanding par 2.

  2. Neither the applicant’s nor the Crown’s written submissions on sentence mentioned the agreement in par 2 of the agreed facts, which specifically stated that the deceased had been killed by an accomplice. The Crown’s written submissions included in par 20:

“[T]he Crown accepts that it cannot established beyond reasonable doubt which of the four stabbed the [d]eceased …” (emphasis added)

  1. During the proceedings on sentence, the judge’s attention was drawn to par 27 of the agreed facts and no mention was made of par 2. The following exchange took place between his Honour and the Crown [2] :

“HIS HONOUR: Yes, and so I can only sentence on the basis of what is accepted by the plea on the basis of which the plea is entered in respect of constructive murder.

[Mr Crown]: Indeed, and that is set out in the first page of the statement of agreed facts.

HIS HONOUR: In DPD I have to sentence on the role of the offender, not the nature of the circumstances overall.

[Mr Crown]: Well it’s a very subtle distinction, and I draw your Honour’s attention to page 3 of my written submissions which is the recent decision [DS v R; DM v R (2022) 109 NSWLR 82] whereby the Court of Criminal Appeal held that the role attributed to the individual concerned in respect of sentence at first instance is that he was essentially sentenced for the work, or the job done by somebody else.

HIS HONOUR: By the co-accused.

[Mr Crown]: Yes. The difficulty where that becomes less poignant in this matter is what is agreed to in the agreed statement of facts set out in particular at paragraph 27, which I draw your Honour’s attention to on page 5.” (emphasis added)

2. Tcpt, 10 February 2023, p 6(7-27).

  1. The applicant’s senior counsel informed the judge that he relied on his written submissions. In further discussion senior counsel said to his Honour [3] :

“[Senior Counsel]: … We’re not saying that just because it’s constructive murder you get less, but we’re saying in this case, because of the nature of the facts that have been agreed upon, that your Honour can, not that your Honour must, but your Honour can mitigate the culpability and the punishment based upon the fact what has been agreed upon. And your Honour has already touched upon the nub of the problems that the agreed facts that nobody knows effectively who did what.” (emphasis added)

3. Tcpt, 10 February 2023, p 7(27-34).

  1. In determining the objective seriousness of the offence, his Honour’s factual findings included:

  1. In the passage from ROS [44] (quoted at [11] above), that since it could not be determined beyond reasonable doubt who inflicted the fatal wound or wounds the applicant could not be sentenced on the basis that he fatally stabbed the deceased; and

  2. In the passage from ROS [49] (quoted at [16] above), his Honour was not prepared to find positively on the balance of probabilities that the applicant did not stab the deceased. Thus, the applicant was to be sentenced on the basis that it was not known who inflicted the stab wound.

  1. The finding at ROS [49], that the applicant was to be sentenced on the basis it was not known who inflicted the fatal stab wound departed from the agreed facts in par 2 of “the deceased being killed by an accomplice”.

  2. His Honour was not obliged to sentence the applicant in accordance with the agreed facts. As I observed in Nguyen v R [2015] NSWCCA 268 at [45]-[46] (Hoeben CJ at CL and Button J agreeing):

“[45] It is well established that a sentencing judge is not bound to accept agreed facts that are presented to him by the Crown and the defence. A judge’s sentencing discretion must be exercised in the public interest. A judge is not obliged to refrain from questioning facts even though they may be agreed: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby P at [606]; R v Uzabeaga [2000] NSWCCA 381 per Bell J at [34].

[46] When a sentencing judge considers that an offender has a higher degree of culpability than detailed in the agreed facts, the judge, as a matter of procedural fairness, must give the parties an opportunity to address the judge’s view: Uzabeaga at [35]-[38].”

  1. More recently, Bell P (as the Chief Justice then was) in Moodie v R [2020] NSWCCA 160; (2020) 284 A Crim R 87, observed at [33] (Davies and N Adams JJ agreeing):

“The law is clear that where a sentencing judge proposes to make a factual finding or findings of an offender’s culpability which departs from that which is contained in the agreed facts (which he or she is entitled to do, not being bound by any statement of agreed facts), the judge must give the parties notice of this matter and the opportunity to address it by both evidence and submissions: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [39] (DL); Purdie v R [2019] NSWCCA 22 at [51]-[52] per Price J, with whom Bathurst CJ and Hoeben CJ at CL agreed; and Nguyen v R [2015] NSWCCA 268 at [45]-[46] per Price J, with whom Hoeben CJ at CL and Button J agreed. Such notice must, moreover, be clear as to the different factual basis by reference to which the sentencing judge is proposing to proceed, and give the parties a meaningful opportunity to address the proposed different factual basis propounded.”

  1. In the present case, the findings by the judge arose from the manner in which the Crown and the applicant’s senior counsel conducted the sentencing proceedings. The written and oral submissions, proceeded on the basis that the Crown could not establish to the criminal standard which of the four co-offenders had fatally stabbed the deceased and the applicant’s senior counsel sought to persuade his Honour it was not the applicant on the basis he was carrying the shortened firearm.

  2. It is clear that the judge’s findings at ROS [49], was in response to the applicant’s written submissions (quoted at [58] above). Before reaching the conclusion that he was not prepared to make a positive finding that the applicant did not stab the deceased, his Honour said (ROS [49]):

“The [applicant] submitted that, because he was carrying the rifle, he was “clearly not the person who was carrying or using the knife that killed the deceased”. I accept that the [applicant] was carrying the rifle when the five men entered the house and when the [applicant] went upstairs into Ms McKenzie’s bedroom. In addition, the deceased’s DNA was found on the rifle in various places, which suggests that the rifle came into contact with the deceased’s body during the attack on him. It can also be accepted that the [applicant] was away from the deceased for some time while he was upstairs with Ms McKenzie. It is not clear, however, whether the [applicant] retained the rifle at all times before it was disposed of on McCulloch St, where it was subsequently found.”

  1. There was no denial of procedural fairness as the findings that his Honour made resulted from the oral and written submissions of the parties and were consistent with par 27 of the agreed facts.

  2. I would dismiss ground 1 of the appeal.

Ground 3: The sentencing judge erred in failing to take into account as a “special circumstance” that fact that the sentence was partially cumulative on sentences for other offences

  1. Ground 3 is to be considered before ground 2 as that ground raises the issue of parity which accepts the sentence is otherwise appropriate: Estephan v R [2015] NSWCCA 100 at [83] (Hoeben CJ at CL, R A Hulme and Wilson JJ agreeing) and the authorities there cited.

Competing arguments of the parties

  1. The applicant argued that the judge had erroneously failed to consider or advert to the effect of accumulation of the other sentences, as being or at least potentially constituting special circumstances. The applicant contended that his Honour overlooked the potential for an accumulation on a pre-existing sentence to be a special circumstance.

  2. The Crown contended that the applicant did not make submissions to the judge during the sentence proceedings, that the partial accumulation on the other sentences should be taken into account in the finding of special circumstances. The Crown referred to the applicant’s submissions before his Honour on this issue being confined to avoiding “a crushing sentence” and providing for a “significant degree of concurrency” which his Honour expressly referred to at ROS [99].

Consideration

  1. No argument was advanced by the applicant’s senior counsel to the judge that his Honour should find as a special circumstance the partial accumulation of the applicant’s sentence on the sentences he was serving for the other offences. The applicant’s senior counsel had submitted the special circumstances that should be found were the applicant’s age; mental illnesses; the significant need for mental health and drug alcohol treatment and to avoid the applicant’s institutionalisation, all of which his Honour found as being special circumstances (see at [39] above). His Honour varied the statutory ratio so that the NPP was 67.2% of the head sentence imposed.

  2. As has often been emphasised, this Court is a court of error: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[82] (Johnson J, McClellan CJ at CL and Rothman J agreeing) (“Zreika”); Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10] (French CJ, Kiefel, Bell, Gageler and Gordon JJ). However, it is recognised that this Court is able to correct a miscarriage of justice or a serious injustice with respect to a sentence in clear and rare cases where the relevant matter was not relied upon at first instance: Zreika at [82].

  3. In the present case, the applicant’s senior counsel submitted to the judge that a significant period of time the applicant had spent in custody had been solely referrable to sentences imposed for other offences. The applicant’s senior counsel further submitted that there should be a significant degree of concurrence between the sentence for which the applicant was being sentenced and the time spent in custody for the other matters.

  4. The judge carefully considered this issue and calculated that a total of 667 days in custody was attributable to the other offending. His Honour backdated the commencement date of the sentence to 23 April 2021: ROS [98]-[100]. Accordingly, the notional total effective sentence imposed on the applicant including the sentences for other matters is a NPP of 11 years and 2 months with a balance of term of 5 years. The total effective statutory ratio is 69%. His Honour’s sentencing discretion in finding special circumstances and considering the questions of cumulation and concurrence did not miscarry. This is not a “clear and rare case” in which his Honour overlooked the issue of accumulation in a finding of special circumstances, such that a miscarriage of justice or serious injustice has resulted for this Court to interfere: Zreika at [79]-[82]. No error has been established.

  5. Accordingly, ground 3 should be dismissed.

Ground 2: The applicant has a legitimate grievance as a result of disparity of sentence

Competing arguments of the parties

  1. The applicant submitted there was a marked disparity in the undiscounted starting points of the applicant’s and EE’s sentences. The applicant’s undiscounted starting point was 18 years and 6 months whereas for EE, the undiscounted starting point was 12 years and 6 months. The difference of 6 years, the applicant argued, engenders a justifiable sense of grievance. The applicant submitted that the subjective cases of the applicant and EE were similar and his liability for the constructive murder should have been considered on the basis as stated in par 2 of the agreed facts.

  2. The Crown submitted that there are differences in the objective and subjective cases of the applicant and EE which provided a rational explanation for the disparity in the sentences. Of significance was that his Honour found EE’s role in the offending to be “significantly less than that of the accomplices who were in the kitchen”: R v EE [2023] NSWSC 104 at [43] (“R v EE”). In contrast, his Honour characterised the applicant as having played a “significant role” in the offence: ROS [47]. Furthermore, his Honour found that EE had good prospects of rehabilitation but was reluctant to make a similar finding in relation to the applicant’s prospects of rehabilitation.

  3. The Crown cited Chamon v R [2020] NSWCCA 112 (“Chamon”) and submitted that this Court should be cautious and not overly willing to intervene as all the co-offenders had been sentenced by the judge. The Crown argued that the undiscounted starting points were open to his Honour in exercising his sentencing discretion.

Consideration

  1. There is no force in the applicant’s argument that on the question of parity he should have been sentenced in accordance with par 2 of the agreed facts. This issue has been dealt with in ground 1 (see at [53]-[70] above). The applicant accepts that given the different factors identified by the judge a longer sentence for the applicant and EE could be justified. The applicant’s complaint is that, when viewed objectively the degree of disparity between the applicant’s and EE’s sentences cannot be justified. Accordingly, the differences in the objective and subjective cases and the starting points of the sentences of the applicant and EE require analysis.

  2. The parity principle of sentencing recognises that equal justice requires there should not be a marked disparity between the sentences imposed on co-offenders which gives rise to a justifiable sense of grievance to attract appellate intervention: Postiglione v The Queen (1997) 189 CLR 295 at 301-302 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J); [1997] HCA 26 (“Postiglione”); see more recently, Mohr v R [2024] NSWCCA 197 at [14]-[24] (Bell CJ, Davies and Wright JJ agreeing).

  3. As the plurality of the High Court said in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] (French CJ, Crennan and Kiefel JJ):

“… The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” (footnotes omitted)

  1. The appropriate test in determining whether there is a justifiable sense of grievance is whether the sentence imposed on a co-offender is reasonably justified in light of the differences between co-offenders, “bearing in mind the qualitative and discretionary judgments required of the sentencing judge”: Hung v R [2023] NSWCCA 172 at [32] (Leeming JA, Rothman and McNaughton JJ agreeing). This Court will be cautious and not overly willing to intervene where, as in the present case, the same judge has sentenced all the co-offenders: Chamon at [35]-[37] (R A Hulme J, Hamill and Wilson JJ agreeing). However, the deference this Court must pay to the position of the sentencing judge does not relieve the Court from determining whether there is a marked and unjustified disparity: Cameron v R [2017] NSWCCA 229 at [86] (Hamill J). In considering the question of parity, the starting point of the respective sentences can be taken into account: Borg v R [2019] NSWCCA 129 at [96] (Bathurst CJ, Hamill and N Adams JJ agreeing) and the authorities there cited.

  2. The applicant’s complaint of marked disparity focussed upon the sentence imposed on EE. Before sentencing the applicant, his Honour sentenced EE on 17 February 2023 and Shillingsworth on 1 May 2023: R v EE; R v Shillingsworth [2023] NSWSC 453. It is evident from his sentencing remarks for each of the three co-offenders that his Honour assiduously considered the parity principle. I have quoted at [41] above, the most relevant differences which his Honour found in the applicant’s case compared to that of EE, other than the differences in the Form 1 offences and the respective subjective cases.

  3. In determining the sentence to be imposed on EE, his Honour found that EE did not inflict any wounds or participate directly in the assault on the deceased. It was common ground that EE was not in the kitchen when the deceased was assaulted and fatally stabbed. Instead, EE who was in the lounge room, did not participate in the conduct of an accomplice who had threatened the deceased’s girlfriend, smashed her telephone and damaged the television. His Honour found that EE did facilitate the assault on the deceased by his accomplices as he had directed the deceased’s girlfriend not to alert the police and checked her telephone when the assault on the deceased was taking place. His Honour stated that EE had stolen approximately $200 from the deceased’s girlfriend’s wallet which constituted the Form 1 offence taken into account on EE’s sentence. His Honour found as regards to EE’s participation that it (R v EE at [43]):

“… was very significantly less than that of the accomplices who were in the kitchen and who actively participated in the assault or stabbing of the deceased or who were present and encouraged or assisted or took no steps to prevent the assault.”

  1. The judge assessed EE’s offending to fall below the mid-range of objective seriousness for the offence of murder, whereas his Honour assessed the objective seriousness of the applicant’s offending to be in the middle of the range: R v EE at [44]; ROS [51].

  2. Another significant matter of difference between the applicant and EE is clear from the offences on the Form 1 which were more serious in the applicant’s case being the possession of the shortened firearm and common assault, whilst the Form 1 offence for EE was for the offence of robbery by taking $200 from the deceased’s girlfriend’s wallet contrary to s 94(a) of the Crimes Act.

  3. There are some similarities in the subjective cases of the applicant and EE. Both offenders were on conditional liberty at the time of the offending. The applicant was 17½ years old whereas EE was 16 years and 9 months. Both offenders had mental health histories, came from deprived and difficult backgrounds and had commenced prohibited drug use at an early age. Nevertheless, there are matters of difference in their subjective cases.

  4. The judge’s findings on remorse and rehabilitation were more favourable to EE than the applicant. The judge found that the applicant had a degree of genuine remorse which was given “some weight” but his Honour could not conclude that the applicant was unlikely to re-offend. His Honour was unable to find that the applicant’s prospects of rehabilitation were “good”. As regards to EE, his Honour found that EE had genuine expressions of remorse, and accepted responsibility for his actions. In contrast to the applicant, his Honour found that EE had good prospects of rehabilitation.

  1. In considering the mental health issues of the applicant and EE, the judge found that the applicant’s significant mental health conditions were causally related to his offending; his moral culpability was lessened, and general deterrence should be reduced. However, having regard to the need to protect the community, his Honour found that specific deterrence was not reduced to the same extent as it might otherwise have been. As regards to EE, his Honour found that EE was suffering from mental health conditions at the time of the offending and his moral culpability was reduced. His Honour determined that the need for general and specific deterrence was reduced to a limited extent.

  2. The discount for the applicant’s plea of guilty was 17.5%, whereas EE’s discount was 25%. EE also received a discount of 25% for assistance to law enforcement authorities pursuant to s 21A(3)(m) of the CSP Act. Before applying the discounts, the starting point of the applicant’s sentence was 18 years and 6 months, and the starting point of EE’s sentence was 12 years and 6 months.

  3. The judge rightly had regard to all the matters of difference in determining the respective sentences of the applicant and EE. Those differences warranted a sentence for the applicant greater than that imposed on EE. However, the difference in the undiscounted starting points of the sentences was six years. Taking into account all those matters of difference and acknowledging the caution that an appellate court needs to exercise as the same judge sentenced the co-offenders, the difference of six years cannot be justified.

  4. In my respectful opinion, the undiscounted starting points are marked and unjustified and is such as to give rise to a justifiable sense of grievance on the part of the applicant. I would uphold ground 3. Accordingly, it will be necessary to re-sentence the applicant.

Affidavits on re-sentence

  1. An affidavit of the applicant affirmed on 9 April 2025 has been admitted on re-sentence. In this affidavit, the applicant refers to his work whilst in custody as a sweeper and in the Furniture Pod. He refers to the respect with which he treats the correctional officers and how he tries to do a good job. The applicant is currently enrolled at TAFE in a warehousing traineeship course as well as participating in a CONNECT program. The applicant has been assaulted whilst in custody by other inmates. He has been charged with assault and failure to take a prescribed drug test.

  2. The applicant states he has started Drug and Alcohol Treatment and referred to the medication that he takes for schizophrenia and PTSD. The applicant speaks to his mother daily and expressed his intention not to return to prison. The applicant indicated that his future plans include starting a family with his partner.

  3. An affidavit of Danka Durovic affirmed 9 April 2025 details relevant entries in the applicant’s case notes from Corrective Services NSW and Justice Health Records.

Re-sentence

  1. As error has been established, the Court’s function is to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ, Gageler J agreeing). The maximum penalty is life imprisonment and there is no standard non-parole period. Since this is not a standard non-parole period offence, it is not necessary to identify where in the scale of objective seriousness of the offence of constructive murder, the offence lies.

  2. In re-sentencing the applicant, I will not depart from the agreed facts which include par 2. The applicant is to be sentenced on the basis that the deceased was fatally stabbed by an accomplice and not by the applicant. This lessens to an extent the objective gravity of the applicant’s offending as found by the judge. Nevertheless, I agree with his Honour’s assessment that the applicant played a significant role in the commission of the offence. The applicant knew the deceased and Ms McKenzie; he was the first to reach the front door; he was one of the co-offenders who pushed the deceased down the hallway and was present in the kitchen when the deceased had two teeth knocked out and was fatally stabbed. Furthermore, the applicant attempted to obtain the keys to a quad bike without any concern for the deceased who was alive, lying in a pool of blood, having been stabbed and assaulted. This is an objectively serious offence of constructive murder.

  3. The Form 1 offences, particularly the possession of the shortened firearm are serious. I take into account the additional need for specific deterrence and retribution when sentencing the applicant for the murder: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42] (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing).

  4. The applicant’s prior criminal history does not entitle him to considerations of leniency.

  5. At the time of the murder, the applicant was on conditional liberty on bail which is an aggravating factor: s 21A(2)(j) of the CSP Act.

  6. There has been no challenge to the judge’s findings on the applicant’s drug abuse; mental health and the engagement of the principles in Bugmy; his youth and remorse. Furthermore, the judge’s findings of notional concurrency and the commencement date of the sentence have not been challenged. I propose to adopt these findings on re-sentence.

  7. The applicant’s sentence is to be discounted by 17.5% for the utilitarian benefit of his guilty plea.

  8. Mr Odgers invited this Court to make a more favourable finding concerning the applicant’s prospects of rehabilitation on re-sentence. The material contained in the affidavits does not persuade me to take a more positive view on the applicant’s prospects of rehabilitation. The progress that he has made in custody while working and the various courses undertaken is diminished by the failure to pass a prescribed drug test and the charge of assault. An assessment of the applicant’s prospects of rehabilitation and the likelihood of re-offending remains uncertain and is dependent upon his ability to overcome prohibited drug use upon release.

  9. The question of parity with EE’s sentence has been considered at [82]-[95] above.

  10. I adopt the judge’s finding of special circumstances but would add as a special circumstance that the present sentence has been made cumulative upon the existing sentences: Simpson v R (1992) 61 A Crim R 58 at 60-61 (Hunt CJ at CL, Grove and Sharpe JJ agreeing); Close v R (1992) 31 NSWLR 743 at 748 (Hunt CJ at CL); (1992) 65 A Crim R 55.

  11. I have taken into account the principle of totality which requires that the sentence must be “just and appropriate”: Mill v The Queen (1988) 166 CLR 59 at 62-63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70; Postiglione at 307-308 (McHugh J).

  12. Taking into account the offences on the Form 1, the appropriate undiscounted starting point of the applicant’s sentence is 16 years and 6 months. The ratio between the head sentence and NPP has been slightly reduced to 66.2%.

Orders

  1. The orders I propose are:

  1. Extend the time for leave to appeal against sentence and grant leave to appeal.

  2. Quash the sentence imposed in the Supreme Court of New South Wales on 5 May 2023.

  3. In lieu thereof, sentence the applicant to a term of imprisonment of 13 years and 7 months consisting of a non-parole period of 9 years commencing on 23 April 2021 and expiring on 22 April 2030 with a balance of term of 4 years and 7 months commencing on 23 April 2030 and expiring on 22 November 2034.

  4. The earliest date the applicant will be eligible to be released on parole is 22 April 2030.

  1. CAVANAGH J: I have had the benefit of reviewing the judgment of Price AJA. I agree with the orders his Honour proposes.

  2. As has often been said, there are obstacles to a parity appeal and this Court should be cautious before intervening (Chamon v R [2020] NSWCCA 112 at [35]-[36] per R A Hulme J).

  3. This is particularly so in circumstances in which the sentencing judge has carefully considered the similarities and differences between co-offenders, having regard to the importance of parity, as in this case (Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173]; Lloyd v R [2017] NSWCCA 303 at [95] per R A Hulme J, Payne JA and Garling J agreeing).

  4. Yet, the careful consideration of the sentencing judge does not relieve this Court of its task, which is to assess on an objective basis whether the differences in sentence leads to an unjustifiable sense of grievance (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 612 (per Mason J), and at 623 (per Dawson J)).

  5. The subjective cases of EE and the applicant were similar. Importantly, both the applicant and EE were of a similar young age and background. Yet, as observed by the sentencing judge, the role of the offenders was different and there were slightly different findings on objective seriousness. The sentencing of each offender is an exercise specific to that offender and differing circumstances will lead to the imposition of different sentences.

  6. The starting point (prior to discount for the plea of guilty and assistance) for EE was 12 years and 6 months. The applicant’s starting point was 18 years and 6 months. EE was ultimately sentenced to a term of 6 years and 3 months with a non-parole period of 4 years and 2 months. The applicant was sentenced to a term of 15 years with a non-parole period of 10 years and 3 months.

  7. Disparity in the starting point provides the primary explanation for the differences in the end sentences. The starting point for the applicant was approaching 50% more than that of EE. The applicant’s sentence is more than double that of EE.

  8. It does not seem to me that, having regard to the importance of parity, such a difference in starting points was open. I thus agree with Price AJA that the applicant suffers an unjustifiable sense of grievance arising from the difference in sentences and, in all the circumstances, I would also accept that ground 2 has been established and the appeal should be allowed.

  9. I agree with the resentence undertaken by Price AJA and the orders his Honour proposes.

  10. YEHIA J: I agree with Price AJA.

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Endnotes

Decision last updated: 28 May 2025

Cases Citing This Decision

0

Cases Cited

32

Statutory Material Cited

6

Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
R v Barrientos [1999] NSWCCA 1
Betts v The Queen [2016] HCA 25