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Publication restriction: The true identities of Person 1 and Person 2 are not to be published.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCCA 132
Decision Date: 27 August 2025

CaseChat Overview and Summary

In this case, the applicant, referred to as Person 1, appealed against the sentence imposed by the sentencing judge for two offences of shooting with intent to murder. The appeal was heard in the High Court of Australia. The primary issue before the Court was whether the sentencing judge had misapplied the principle of totality in determining the aggregate sentence and, if so, whether this resulted in a manifestly excessive sentence. The Court was also required to consider whether the error in the application of the principle of totality was so significant that it warranted a departure from the general rule that an appellate court should not interfere with the sentencing discretion of a trial judge.

The High Court found that the sentencing judge did misapply the principle of totality by failing to adequately consider the cumulative effect of the sentences on the applicant. The Court concluded that this misapplication resulted in an aggregate sentence that was manifestly excessive. The Court held that the principle of totality requires the court to consider the overall effect of the sentences imposed, ensuring that the total punishment is proportionate to the overall seriousness of the offending. The Court further found that the misapplication of this principle was so significant that it warranted interference with the sentencing discretion of the trial judge. The appeal was allowed, and the applicant was resentenced.

The High Court, in allowing the appeal, resentenced the applicant. The Court determined that the correct application of the principle of totality would have resulted in a lower aggregate sentence. The Court considered the totality of the offending and imposed a sentence that was proportionate to the overall seriousness of the crimes. The Court emphasised the importance of correctly applying the principle of totality in sentencing to ensure that the punishment reflects the true gravity of the offending. The final orders of the Court included the resentencing of the applicant to a term that was deemed appropriate in light of the correct application of the principle of totality.

Orders