Person 1 (a pseudonym) v The King

[2025] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Person 1 (a pseudonym) v R [2025] NSWCCA 132

Hearing dates:

18 July 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Before:

Ball JA at [1];
Fagan J at [2];
Sweeney J at [5]

Decision:

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Set aside the aggregate sentence imposed in the District Court on 14 June 2024 and in lieu sentence Person 1 to an aggregate sentence of 15 years imprisonment, with an aggregate non-parole period of 10 years and 6 months imprisonment, both to date from 29 June 2022.

(4) The pseudonym, suppression and access orders made by the Court on 18 July 2025 are varied by inserting the following paragraphs:

9. A reference in these orders to “Confidential Schedule A” is a reference to Confidential Schedule A to the affidavit of Mr David Driver sworn on 16 July 2025.

10. Nothing in these orders prevents publication of the judgment handed down by the Court on 27 August 2025.

Catchwords:

CRIME – appeals – appeal against sentence – offences of shoot with intent to murder – whether the sentencing judge misapplied the principle of totality in fixing the aggregate sentence – whether the aggregate sentence was manifestly excessive as a result of the asserted error – leave to appeal granted – appeal allowed – applicant resentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Crimes Act 1900 (NSW), s 29

Cases Cited:

AGF v R [2016] NSWCCA 236

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

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

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

MJR v R [2025] NSWCCA 51

Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221

Postiglione v The Queen [1997] HCA 26; (1997) 94 A Crim R 397

R v Cartwright (1989) 17 NSWLR 243

R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132

York v The Queen [2005] HCA 60; (2005) 225 CLR 466

Category:

Principal judgment

Parties:

Person 1 (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Chhabra / W Bruffey / S Tasneem (Applicant)
E Wilkins (Respondent)
L M R Chapman (Commissioner of Police)

Solicitors:
William O’Brien & Ross Hudson Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/00357349

Publication restriction:

The true identities of Person 1 and Person 2 are not to be published. This order operates throughout the Commonwealth for 60 years.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 June 2024

Before:

McGuire SC DCJ

File Number(s):

2021/00357349

HEADNOTE

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

Person 1, the applicant, pleaded guilty in the Local Court to four offences of shoot with intent to murder, contrary to s 29 of the Crimes Act 1900 (NSW).

The offences arose out of the applicant being recruited by a person named Ibrahem Hamze to kill members of a rival Alameddine “crime network” for payment. The applicant and his co-offenders attended the World Gym carpark on the morning of 29 November 2021. When four members of the Alameddine network arrived, the applicant and his co-offenders fired a total of 18 rounds of ammunition, injuring one of the four in the leg. Some of the bullets entered a nearby crèche where there were three very young children and two childcare workers, who were narrowly missed by the ammunition that went into the crèche. The applicant and his co-offenders fled the scene. The applicant was on parole at the time the offences occurred.

The applicant was 23 at the time of the offences. He was assessed by Dr Furst, a psychiatrist, as of “below average intelligence”. The applicant said he experienced physical violence at the hands of his father when he was growing up. He spent most of his time between the ages of 18 and 22 years in gaol. The applicant had expressed his remorse for his offences and for committing them close to the childcare centre.

On 14 June 2024, the sentencing judge, his Honour Judge McGuire SC, indicated indicative sentences of 14 years imprisonment with a non-parole period of 9 years and 9 months for the offence in which one of the gang members was injured (Sequence 1) and 13 years and 6 months imprisonment with a non-parole period of 9 years and 5 months for each of the other three offences (Sequences 2, 3 and 4). His Honour applied a discount of 50% to those indicative sentences, 25% for the applicant having pleaded guilty and 25% for his offer to give evidence against his co-accused. Those discounts were not challenged on appeal. His Honour then imposed an aggregate sentence of 23 years imprisonment, with a non-parole period of 16 years, commencing on 29 June 2022.

The applicant sought leave to appeal against the aggregate sentence imposed on him on two grounds:

“Ground 1: The sentencing judge erred by failing to correctly apply the principle of totality to the sentence imposed; and

Ground 2: The sentence was manifestly excessive.”

The Court (Sweeney J, Ball JA and Fagan J agreeing) held, granting leave to appeal, allowing the appeal and resentencing the applicant:

As to Ground 1:

1. The degree of accumulation reached by the sentencing judge was close to the total sentence which would have been reached (after applying a 50% discount) if all of the indicative sentences had been added together. That degree of accumulation was excessive in view of the close connection between the offences and had the effect of eroding the benefit of the discounts applied to the indicative sentences: [1] (Ball JA); [2] (Fagan J); [58] (Sweeney J).

As to Ground 2:

2. The sentencing judge’s excessive notional accumulation led to an aggregate sentence that was manifestly excessive having regard to the totality of the offending and the uncontested 50% discount: [1] (Ball JA); [2] – [4] (Fagan J); [53] – [58] (Sweeney J).

Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221; JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528; Postiglione v The Queen [1997] HCA 26; (1997) 94 A Crim R 397; MJR v R [2025] NSWCCA 51 considered and applied.

As to re-sentence:

3. Having regard to the applicant’s having experienced violence in his childhood, his youth at the time of the subject offences, assessed intelligence, lack of family guidance, and time spent in custody, the applicant’s moral culpability was slightly reduced. However, this was counterbalanced by the need to deter people from involving themselves in serious violence because of perceived gang loyalties. Accordingly, the Court substantially agreed with the indicative sentences of the sentencing judge: [1] (Ball JA); [4] (Fagan J); [60] – [65] (Sweeney J).

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

4. The indicative sentences imposed (after allowing for discounts) were, therefore, 7 years imprisonment with a non-parole period of 5 years imprisonment (Sequence 1) and 6 years and 9 months imprisonment with a non-parole period each of 4 years and 6 months (Sequence 2, 3, 4): [1] (Ball JA); [3] (Fagan J); [67] (Sweeney J).

5. The aggregate sentence imposed was 15 years imprisonment, with a non-parole period of 10 years and 6 months, to date from 29 June 2022: [1] (Ball JA); [3] – [4] (Fagan J); [69] (Sweeney J).

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

JUDGMENT

1. BALL JA: I agree with the reasons and the orders proposed by Sweeney J.

2. FAGAN J: I agree with Sweeney J. The Crown accepts that the applicant was entitled to a 50% discount on sentence in consideration for his early pleas of guilty and his assistance to law enforcement authorities. The benefit of that discount, which the learned judge allowed in his indicative sentences, was substantially eroded by the degree to which his Honour notionally accumulated the indicative sentences. The result is a manifestly excessive aggregate sentence, particularly having regard to the totality of the offending and the discount.

3. Appropriately, the applicant accepted that the learned judge’s indicative sentences were within the range of his discretion. However, as the aggregate sentence is now to be set aside as manifestly excessive, this Court must carry out afresh the whole sentencing exercise. I agree with Sweeney J’s proposed nomination of indicative sentences that are slightly different from those nominated by the judge at first instance. I agree with the orders proposed by her Honour.

4. The extent of leniency that has been accorded for the applicant’s plea and assistance to authorities is obviously very significant. As an approximation, without the 50% discounting of the indicative sentences, this Court would likely have imposed an aggregate term of imprisonment in the order of 30 years with a non-parole period of 21 years.

5. SWEENEY J: Person 1, the applicant, seeks leave to appeal against the aggregate sentence imposed on him by his Honour Judge McGuire SC in the District Court on 14 June 2024, for four offences of shooting with intent to murder, contrary to s 29 of the Crimes Act 1900 (NSW). Each of those offences has a maximum penalty of 25 years imprisonment, with a standard non-parole period of 10 years.

6. With discounts of 50% for pleas of guilty and other appropriate matters applied to the indicative sentences, his Honour imposed an aggregate sentence of 23 years imprisonment, with a non-parole period of 16 years, dating from 29 June 2022. The indicative sentences were, for the first offence, 7 years imprisonment with a non-parole period of 4 years and 10 months, and for each of the other offences, 6 years and 9 months imprisonment with a non-parole period of 4 years and 8 months.

7. The applicant does not challenge the indicative sentences or any of the sentencing judge’s findings and assessments. He seeks to rely on two grounds of appeal:

“Ground 1: The sentencing judge erred by failing to correctly apply the principle of totality to the sentence imposed.

Ground 2: The sentence was manifestly excessive.”

8. The essence of the applicant’s appeal is that Judge McGuire SC misapplied the principle of totality in the process of aggregation, such that the aggregate sentence is manifestly excessive.

9. The Crown’s position was that neither ground of appeal had been made out.

10. The offences arose out of the applicant being recruited by a person named Ibrahem Hamze to kill members of a rival Alameddine “crime network”.

11. The applicant became friendly with Ibrahem Hamze in early 2021. Ibrahem Hamze supplied the applicant with drugs on credit, as a result of which the applicant became indebted to Mr Hamze for approximately $30,000. Mr Hamze had also supplied the applicant with a loaded Smith & Wesson revolver and ammunition and an encrypted mobile phone.

12. In November 2021 Mr Hamze asked the applicant and his co-offender Person 2 to kill members of the Alameddine network. He nominated four people whom he wanted murdered, offering them $2 million for killing one of them and $800,000 for any other member of the Alameddine network, the money to be split between whomever successfully killed any of the Alameddine network members. Mr Hamze provided the applicant and Person 2 with details of locations frequented by members of the Alameddine network, including the World Gym at Prospect.

13. The applicant agreed to kill members of the Alameddine network in exchange for payments offered by Mr Hamze, which the applicant intended would pay off his drug debt owed to Mr Hamze. Later, around mid-November 2021, Ibrahem Hamze and Haissam Hamzy provided to the applicant and Person 2 an SKS style assault rifle and magazines and a 9mm pistol and ammunition, and demonstrated how to operate them. They also instructed the applicant and Person 2 to wear multiple sets of latex gloves to avoid leaving fingerprints or DNA on the firearms, and how to clean fingerprints and DNA evidence from firearms and ammunition, and gave them gloves and cleaning supplies.

14. A few days later the applicant and Person 2 asked Sione Ika to assist them in their planned killing of members of the Alameddine network, and he agreed. Ibrahem Hamze supplied the applicant and his two co-offenders with a stolen car to use in their planned killings. Mr Hamze indicated to the applicant and his co-offenders that they would receive $1 million for killing a specified person and large sums of money for killing any other member of the Alameddine network. Mr Hamze showed them photographs of Alameddine network members. Sione Ika drove the stolen car and parked it ready for use in the planned murders.

15. In the next few days the applicant asked Mr Hamze for a third firearm for Mr Ika. Mr Hamze arranged that, and the applicant and his two co-offenders collected an M16 style assault rifle and ammunition and magazines for it from another person.

16. Between 26 and 29 November 2021 the applicant and Person 2 were in regular contact to plan the shooting at the World Gym at Prospect. They discussed the need for another stolen car from Mr Hamze, which they collected on 28 November. They also bought clothing, gloves and facemasks.

17. On the morning of 29 November 2021 Person 2 and the applicant collected the first stolen car from where it was parked and collected Mr Ika. He drove the car, with the applicant as the front passenger and Person 2 as the rear passenger, to the World Gym at Prospect. On the way the three agreed that the applicant would use the SKS assault rifle, Person 2 the M16 assault rifle, and Ika the 9mm pistol.

18. They arrived at the World Gym at Prospect at about 10:53AM. They checked for vehicles or people associated with the Alameddine network and for police presence, then parked the car in a car park of the gym and waited. They discussed how they would kill their intended victims. The firearms were all loaded and ready to use.

19. At about 11:37AM two cars arrived in the gym car park, containing John Baysarri, Murat Gulasi, Patrick Khoury and Mohammad Salim Noorzai. As those men left their parked cars and began walking towards the gym entrance Mr Ika began driving towards them. When the car was about 20m from the victims Mr Ika opened his driver’s side door, aimed the 9mm pistol at the victims and began shooting. At about the same time, the applicant got out of the car with the SKS assault rifle and Person 2 got out of the rear passenger seat with the M16 assault rifle. All three men fired at the victims, who ran into the gym.

20. In total 18 rounds of ammunition were fired at the victims. One of them, Murat Gulasi, received a bullet wound to his right leg near his ankle, fracturing his tibia and fibula. Multiple rounds of ammunition penetrated the walls of a crèche attached to the gym. Very close to where the bullets entered the crèche were three very young children and two childcare workers, who were narrowly missed by the ammunition that went into the crèche.

21. Murat Gulasi was unable to walk because of the bullet wound to his right leg and was dragged into the gymnasium.

22. The M16 assault rifle that Person 2 was using did not fire any ammunition because the safety switch had remained on.

23. The applicant, Person 2 and Mr Ika left the scene in the stolen vehicle. They drove to Blacktown, set the car alight and drove away in the other stolen car, which they also subsequently set alight.

24. The three of them discussed their unsuccessful attempt, whether they would be paid for it, and planned to attempt to kill further members of the Alameddine network. On the evening of 30 November 2021 the applicant, Person 2, Mr Hamzy and Mr Hamze met and discussed the shooting and a future attempt. The applicant asked Mr Hamze for some money for the unsuccessful attempt. Mr Hamze agreed and later gave the applicant $30,000 in cash, which the applicant, Person 2 and Mr Ika agreed would be split evenly between them.

25. The applicant was arrested on 16 December 2021.

26. The applicant was on parole at the time of the shooting offences. In April 2016 he had been involved in a confrontation between rival gangs, as a result of which he was charged with throwing a flaming Molotov cocktail, with intent to burn a person. He was sentenced for that offence in February 2017 in the District Court. His sentence was reduced by the New South Wales Court of Criminal Appeal on 7 June 2019, to 6 years and 9 months imprisonment, commencing on 12 April 2016 and concluding on 11 January 2023, with a non-parole period of 4 years, which concluded on 11 April 2020. As a result of the shooting offences the applicant’s parole was revoked from 29 November 2021.

27. The applicant was also the subject of a Community Corrections Order at the time of the shooting offences, for offences of assault and destroying property. He had also served a term of imprisonment of 2 months and 20 days from 27 February 2021 until 16 May 2021 for offences of assault and intimidating a police officer.

28. Dr Richard Furst, psychiatrist, described the applicant as of “below average intelligence” and diagnosed him with Substance Use Disorder. The applicant had expressed remorse for the shootings to Dr Furst. Dr Furst considered that the applicant’s risk of reoffending largely correlated with his abuse of drugs, and would be reduced if he remained abstinent from drugs and received treatment for his addictive disorder, and did not associate with “criminal peers”.

29. The applicant’s subjective circumstances were drawn from Dr Furst’s report. He was born in New Zealand to parents of Samoan heritage. He said he experienced physical violence at the hands of his father when he was growing up. He finished school in year 10. He said he began smoking cannabis from the age of 14 years, and began using ice, cocaine and MDMA from the age of 16 or 17. He began associating with drug users and suppliers and developed a drug habit such that he stole to fund his addiction. As a result of his drug use he was forced to leave home and joined a street gang at the age of 17. He is in a relationship and has a child with his partner.

30. He spent most of his time between the ages of 18 and 22 years in gaol. In custody he completed some EQUIPS programs. At the time of his release into the community in 2020 he became addicted to opiate drugs, using buprenorphine in the community. He said illicit drugs helped to calm his high levels of anxiety.

31. In a letter of apology the applicant expressed remorse and responsibility for his offences and sorrow, disgust and shame that they occurred in the location where they occurred.

32. The applicant’s partner said that the applicant had parented her children from a previous relationship, and said that their child, then aged two years, has been diagnosed with Autism Spectrum Disorder and requires much of her time caring for his needs. The applicant had expressed his remorse for his offences and for committing them close to the childcare centre, to his partner, and also expressed regret and remorse to his mother.

33. The applicant’s custody records showed he had been held in protective custody, had been employed in custody and intended to enrol in educational courses.

34. The sentencing judge noted that the applicant’s conduct in committing the offences displayed an “absolute disregard for life and public safety and a willingness to engage in a most extreme form of violence for financial reward”, and placed the safety of innocent members of the community, including very young children and their carers inside the childcare centre, in great danger, such that the sentence needed to carry a very strong element of general deterrence, and the punishment must denounce gang violence.

35. In assessing the objective seriousness of the offences his Honour took into account that the applicant agreed to carry out multiple killings for financial reward; engaged in planning for the killings, including discussing the provision of firearms and stolen vehicles and participating in demonstrations of the operation of the firearms and how to remove fingerprints and DNA from the firearms and ammunition; he armed himself with a loaded SKS assault rifle semiautomatic weapon, which he used to fire multiple rounds at the victims; he was aware the shootings were happening in a public place and in the vicinity of innocent bystanders; he was aware that the victims were unarmed, unaware of the imminent attack and unable to properly protect themselves; he was aware of the capabilities of the SKS assault rifle to fire multiple rounds per minute; and after the shooting he was involved in attempting to destroy evidence, including by transferring the guns used, removing clothing and setting fire to the two stolen cars. He was involved in discussions about the financial reward.

8. His Honour concluded that the applicant’s participation in each of the offences, as a “paid hitman rather than the instigator” was substantial and significant, involved a significant degree of planning and sophistication, and the applicant involved himself for financial gain.

9. His Honour found that the offences caused a direct threat to the lives of the victims, and because of the location of the shootings and the time of day, placed innocent bystanders, including very young children, in the line of fire.

10. His Honour assessed the objective seriousness of the offences as above the mid-range of objective seriousness, the offence of shooting Murat Gulasi more serious than the other three offences because he was struck by a bullet and sustained fractures to his tibia and fibula near his right ankle. The other offences were less serious because the victims were not injured.

11. His Honour took into account as aggravating factors that the offences were committed in company, that his primary motivation for the offences was receiving a substantial financial reward, that the offences were committed without regard for public safety, and were committed while the applicant was on parole and subject to a Community Corrections Order. His Honour treated the applicant’s prior criminal record not as an aggravating factor but as disentitling him to leniency.

12. His Honour was unable to find that the applicant was unlikely to reoffend or had good prospects of rehabilitation; he accepted Dr Furst’s opinion that he would be of moderate to high risk of reoffending. He accepted the applicant was remorseful.

13. His Honour said that general deterrence was significant for offences of “organised gangland violence” and specific deterrence was also significant in light of the applicant’s criminal history and his breaches of conditional liberty in committing the offences.

14. His Honour found that the effects of COVID-19, including lockdowns, and that the applicant was, and would continue to be, held in protective custody made his experience of custody more onerous. His Honour found special circumstances in the applicant’s assessed intelligence, onerous conditions of custody and the risk of institutionalisation, arising from his having been in custody between the ages of 18 and 22. His Honour said the reduction in the non-parole period from the statutory ratio would be “relatively minor”.

15. The applicant had been serving the balance of parole from 16 December 2021. His Honour commenced the sentence he imposed on 29 June 2022.

16. Addressing the issues of totality and accumulation, His Honour said:

• “I consider that a degree of accumulation is necessary in the present case because the circumstances of each of the principal offences represents separate criminal conduct with separate elements.”

• “In aggregating the sentence, the principle of totality applies and there must be some accumulation of the sentences.”

• “It is… necessary for the present sentences to be partly accumulated so that this total sentence does not fail to reflect the total criminality of the four offences. However, some degree of accumulation is appropriate to reflect the fact that each of the shootings occurred as a single course of conduct. Applying those principles, the aggregate sentence I am about to impose will be partly but not wholly concurrent.”

45. Although his Honour did not refer to the applicant’s age in the Remarks on Sentence he was 23 at the time of the offences. He is now 27.

The applicant’s submissions

46. Counsel for the applicant submitted that while the totality principle should not be applied so that it gives the impression of “some kind of discount for multiple offending”: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18], the total sentence must be just and appropriate to reflect the total criminality. He submitted that the aggregate sentence was manifestly excessive such that it demonstrated a misapplication of principle in the process of aggregation.

47. He relied on all four offences occurring at the same time and involving a single act of shooting at a group of people, not multiple shootings at different locations, involving multiple victims at different times. He submitted that the substantial commonality and overlap between the offences was such that the criminality in the first offence (shooting the man who was injured) encompassed the criminality of the other offences. Therefore, there should have been a substantial degree of concurrence between the sentences for each offence. He submitted that while the sentences should have been somewhat accumulated to reflect the harm to each individual victim, the applicant should not have been punished four times for the one element of shooting that was common to all four offences.

48. He submitted that although his Honour said “some degree of accumulation [was] appropriate” and the aggregate sentence would be “partly but not wholly concurrent”, the aggregate notional undiscounted head sentence was substantially, almost wholly, accumulated, failed to appropriately reflect the total criminality of the offending conduct, and led to a crushing sentence, especially in light of the applicant’s youth, onerous conditions of custody and his prior adult years spent in custody.

The Crown’s submissions

49. The Crown submitted that the aggregate sentence properly reflected the criminality and could not be unreasonably disproportionate to the offending. The Crown submitted the inferred notional starting point of the aggregate sentence was not manifestly excessive, and was critical of the mathematical approach adopted by the applicant’s counsel.

50. The Crown submitted that in each offence the applicant shot at a different victim, with the intention to murder that victim; there was not only one intended victim. The Crown submitted the sentencing judge specifically considered totality principles, and there was no error in his statement or application of them.

51. The Crown submitted there was a need for the degree of partial accumulation his Honour applied because there were 18 rounds of bullets fired, there was an intent to kill four victims and all four victims were fired upon, and one was badly injured in his lower leg. As well as the intention to commit multiple murders in company, the offending was conducted in a public place, with flagrant disregard for public safety; the offences were committed for financial reward, when the applicant was on parole for earlier gang violence, so there was a clear need for general deterrence in the sentence, to protect the community and to punish the applicant.

52. The Crown submitted the sentence imposed was not unreasonable or plainly unjust.

Principles

53. The principles to be considered in an appeal on the basis of manifest excess are well known. They were summarised by R A Hulme J in Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], including:

“Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.”

54. In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 R A Hulme J summarised the principles applicable to a ground of appeal contending that an aggregate sentence is manifestly excessive at [40], including:

“A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved.”

55. “The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”: Postiglione v The Queen [1997] HCA 26; (1997) 94 A Crim R 397 per McHugh J.

56. One argument by counsel for the applicant involved grossing up the aggregate sentence imposed, by adding the discount to reach a notional starting aggregate sentence. This Court has said in a number of cases, but recently in MJR v R [2025] NSWCCA 51, that such an approach produces only a rough estimate or approximation of what the aggregate sentence would have been absent the discount, and whether an aggregate sentence was manifestly excessive cannot be determined upon a simple mathematical basis.

Consideration

57. Counsel for the applicant placed emphasis on the singular episode of offending. However, it is fair to observe that the applicant shot at four people, with the required intent, not just at one person and the others happened to be present or happened into harm’s way. Therefore, it is appropriate that there should be some concurrence and some accumulation of the indicative sentences in the aggregate sentence.

58. The degree of accumulation by Judge McGuire SC is very close to the total sentence which would have been reached if all of the indicative sentences had been added together. Accepting all the serious aspects of the offending to which Judge McGuire SC appropriately referred, that degree of accumulation in the aggregate sentence was a misapplication of his Honour’s sentencing discretion. That degree of accumulation of the indicative sentences also had the effect of eroding the discounts applied to the indicative sentences. The applicant has established that Judge McGuire SC failed to correctly apply the principle of totality in fixing the aggregate sentence, and reached a sentence which was manifestly excessive in the circumstances of the offending and the applicant’s personal circumstances. Therefore, it is necessary to re-sentence the applicant: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

Resentencing

59. Although counsel for the applicant did not challenge any of Judge McGuire SC’s findings, he submitted the Court should take into account a number of matters in resentencing the applicant.

60. He submitted that the applicant’s report to Dr Furst of his experiencing violence from his father during his childhood and his father evicting him from the family home in his teenage years because of his drug use, corroborated by the applicant’s mother in her letter to the Court, enlivened the principles in the High Court’s decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), although that was not submitted to Judge McGuire SC.

61. Although Bugmy was not referred to in the proceedings before Judge McGuire SC and his Honour did not refer to it, his Honour referred to those aspects of the applicant’s childhood and teenage years, although he did not specifically say how he took them into account. The applicant was very young to be involved in such serious violence. He told Dr Furst that when he joined a street gang at the age of 17 they were a substitute family, his own father having forced him into homelessness. His youth, his assessed intelligence and his lack of family guidance in his teenage years, which preceded his four years in custody between the ages of 18 and 22, likely affected his judgement when he was approached by Mr Hamze and accepted his proposal. I consider therefore that his moral culpability for this offending is slightly reduced, but that is counterbalanced by the need to protect the community and the need to deter people, including young, immature men of below average intelligence, from involving themselves in acts of serious violence because of perceived gang loyalties.

62. The applicant relied on the affidavit of his solicitor, Umar Ikram, and counsel submitted that a more favourable finding about the applicant’s prospects of rehabilitation may be available than Judge McGuire SC found. I note from Mr Ikram’s affidavit and the annexed Corrective Services and Justice Health records that the applicant has been employed for almost all his time in custody. He has told his case management officer that he wants to focus on his education and participate in programs. He was able to identify factors which led to his offences, including using drugs, which affect his choices and associating with friends who use drugs and drink too much. He is reported to be fully compliant with opioid dependence treatment, receiving buprenorphine injections, and reporting that he has not used illicit substances since he began that program. Since those factors were factors identified by Dr Furst as relevant to the applicant’s risk of reoffending, it appears that he has taken positive steps towards his rehabilitation. I take that into account.

63. Counsel submitted that the hardship to the applicant’s partner from his being in custody is exceptional. She has moved away from her family to avoid retribution from the people targeted in the applicant’s offending and has the care of her young child with Autism Spectrum Disorder and high needs, without family support or the support of the applicant. That is a high degree of hardship and I take it into account in resentencing the applicant.

64. Counsel submitted that in resentencing this Court may make a greater reduction in the non-parole period than Judge McGuire SC did, finding special circumstances in the applicant’s relative youth, his onerous conditions of custody and his risk of institutionalisation. Because the new aggregate sentence will be lower, the aggregate non-parole period will be accordingly lower, even at the same ratio as Judge McGuire SC chose, of approximately 70%. To fix a lower non-parole period would risk losing sight of the serious offending conduct. Young men using guns in public places and injuring a person must be punished and deterred.

65. In resentencing the applicant I have had regard to statistics and sentences imposed on others for the same offence, appreciating there are factual and subjective differences. The applicant did not challenge the sentences indicated for the individual offences by Judge McGuire SC. The statistics and other sentencing cases show the starting sentences were in about the middle of the range of sentences for such offences. I would not impose higher or lower indicative sentences.

66. The new indicative sentences incorporate the 50% discount applied by Judge McGuire SC, to which there was no challenge. That discount included 25% to recognise Person 1’s early pleas of guilty. The other 25% was because he offered to give evidence against his co-accused. Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for such a discount. The discount is given to encourage and reward people to give evidence about crimes committed by themselves and others and to recognise the risk of danger and the onerous conditions in custody experienced by people who give evidence against co-accused. It is in the public interest that offenders assist to bring other offenders to justice. Often it results in co-offenders pleading guilty: R v Cartwright (1989) 17 NSWLR 243; York v The Queen [2005] HCA 60; (2005) 225 CLR 466; AGF v R [2016] NSWCCA 236; R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132.

67. The discounted indicative sentences will be:

• For Sequence 1: 7 years imprisonment with a non-parole period of 5 years imprisonment; and

• For Sequences 2, 3 and 4: 6 years and 9 months imprisonment with a non-parole period each of 4 years and 6 months.

68. The aggregate sentence will be 15 years imprisonment, the non-parole period 10 years and 6 months imprisonment. They will both date from 29 June 2022. The non-parole period will expire on 28 December 2032. The sentence will expire on 28 June 2037.

Orders

69. I would propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the aggregate sentence imposed in the District Court on 14 June 2024 and in lieu sentence Person 1 to an aggregate sentence of 15 years imprisonment, with an aggregate non-parole period of 10 years and 6 months imprisonment, both to date from 29 June 2022.

**********

Amendments

28 August 2025 - Amendment to Representation on coversheet.

Decision last updated: 28 August 2025