York v The King

[2025] NSWCCA 81

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

York v R [2025] NSWCCA 81

Hearing dates:

23 May 2025

Date of orders:

20 June 2025

Decision date:

20 June 2025

Before:

Kirk JA at [1]
Davies J at [2]
Wright J at [94]

Decision:

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed in the District Court on 5 July 2024.

(4) In lieu, sentence the appellant to an aggregate sentence of imprisonment for 6 years 3 months commencing 7 April 2022 and expiring 6 July 2028 with a non-parole period of 4 years expiring 6 April 2026.

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant and co-accused drove a stolen vehicle in a police pursuit whilst in possession of a firearm – where the vehicle was abandoned and set on fire – whether the sentencing judge failed to properly assess the applicant’s role in the offending – where the sentencing judge made no distinction between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant by reason of that person's role – where, as a result, the applicant’s moral culpability was not given consideration – where the sentencing judge rejected the submission that there was a reasonable possibility that the co-offender started the fire – where a finding against the applicant needed to be made beyond reasonable doubt – where there was a reasonable possibility that the co-offender lit the fire – where the submission should not have been rejected to the applicant’s detriment

Legislation Cited:

Crimes Act 1900 (NSW) ss 33B, 51B, 154A, 195

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 21A

Road Transport Act 2013 (NSW) s 54

Road Transport (Vehicle Registration) Regulation 2017 (NSW) s 129

Cases Cited:

Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Elchiekh v R [2016] NSWCCA 225

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Sukkar [2011] NSWCCA 140

R v Todd (1982) 2 NSWLR 517

SS v R; JC v R [2009] NSWCCA 11

TA v R [2008] NSWCCA 179

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Joshua Samuel York (Applicant)
Crown (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
E Wilkins SC (Respondent)

Solicitors:
R Hill (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/339548

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v York [2024] NSWDC 327

Date of Decision:

2 July 2024

Before:

Wilson SC DCJ

File Number(s):

2020/339548

HEADNOTE

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

The applicant, Mr Joshua York, was found guilty after trial of three offences. These offences were use offensive weapon in company with intent to prevent lawful apprehension contrary to s 33B(2) of the Crimes Act 1900 (NSW), police pursuit, not stop and drive in a manner dangerous, contrary to s 51B(1) of the Crimes Act, and intentionally destroy property by fire contrary to s 195(1)(b) of the Crimes Act. There were also three offences on a s 166 certificate, being drive a motor vehicle during disqualification period (second offence) contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW), drive conveyance taken without consent of the owner contrary to s 154A(1)(b) of the Crimes Act, and use a class A vehicle displaying misleading numberplate contrary to s 129(3)(b) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW).

On 5 July 2024 Judge Wilson SC sentenced the applicant to an aggregate sentence of imprisonment for 7 years commencing 7 April 2022 and expiring 6 April 2029 with a non-parole period of 4 years 6 months expiring 6 October 2026.

On the morning of 15 October 2020, the applicant was seen driving a Toyota Land Cruiser that had been stolen from Karera Pty Ltd in Tuggerah. The applicant’s co-offender, Joshua Duke, was in the passenger seat vehicle. That morning employees of Karera Pty Ltd attempted to follow the stolen vehicle. During this pursuit a firearm was pointed at several of the employees from inside the stolen vehicle. The stolen vehicle was then observed by police who commenced a pursuit. The pursuit was eventually abandoned. Later that morning the stolen vehicle was driven to bushland near a rural property north of Wadalba where it was set on fire. The co-offender was shot dead by police while attempting to steal another vehicle. The applicant avoided police in the following days and was eventually arrested on 18 October 2020.

During the trial, the applicant raised the defence of duress, but the sentencing judge held by virtue of the jury’s verdict that the duress defence had been rejected, and it was accepted that the applicant entered into a joint criminal enterprise. During sentencing, his Honour made no distinction between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant based on their role in the offending and rejected the submission that there was a reasonable possibility that the co-offender started the fire which set the car alight.

The applicant sought leave to appeal against his aggregate sentence on the following grounds:

Ground 1:   His Honour failed to properly assess the applicant’s role in the offence (as opposed to the liability for the offences in the context of a joint criminal enterprise).

Ground 2:   His Honour failed to properly assess the effect of delay and the rehabilitation of the applicant.

Ground 3:   His Honour imposed a sentence that was manifestly excessive, and a different sentence is warranted at law.

As Ground 1 was upheld it was not necessary to consider Ground 3.

The Court (per Davies J, Kirk JA and Wright J agreeing) held, upholding the appeal and re-sentencing the applicant:

As to Ground 1:

1. The sentencing judge considered that no distinction in moral culpability could be made between the applicant and the co-offender simply because they were acting in a joint criminal enterprise. That approach ignores what was said in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 and R v Sukkar [2011] NSWCCA 140. By not distinguishing between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant by reason of that person’s role the sentencing judge failed to consider the applicant’s moral culpability for his role in the offending: [49]-[50] (Davies J); [1] (Kirk JA); [94] (Wright J).

   R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49; R v Sukkar [2011] NSWCCA 140, cited.

2. The submission that there was a reasonable possibility that the co-offender started the fire should not have been rejected. A finding against the applicant was one which needed to be made beyond reasonable doubt and given the paucity of evidence about the matter such a finding should not have been made: [51]-[52] (Davies J); [1] (Kirk JA); [94] (Wright J).

As to Ground 2:

1. The Court held that the sentencing judge had regard to all matters relevant to the assessment of rehabilitation and the effect of delay. His Honour took account of the applicant’s custodial history and other matters when assessing rehabilitation. The Court noted that questions of weight are matters for a sentencing judge. The conclusion that the applicant’s prospects of rehabilitation were guarded was clearly open to the sentencing judge: [72]-[75] (Davies J); [1] (Kirk JA); [94] (Wright J).

   Elchiekh v R [2016] NSWCCA 225; R v Todd (1982) 2 NSWLR 51; Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, cited.

Re-sentence:

1. The Court re-sentenced the applicant to an aggregate sentence of imprisonment for 6 years 3 months. The objective seriousness of count 2 was assessed as just above the midrange. The applicant’s moral culpability was reduced in relation to count 1 by reason of the role he played, driving the motor vehicle. A finding of special circumstances was made because of the need to treat the applicant’s drug problem: [84]-[92] (Davies J); [1] (Kirk JA); [94] (Wright J).

   Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27, cited.

JUDGMENT

1. KIRK JA:   I agree with Davies J.

2. DAVIES J:   The applicant was found guilty after trial of three offences as follows:

Count 1: Use offensive weapon in company with intent to prevent lawful apprehension contrary to s 33B(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 15 years’ imprisonment. There is no standard non-parole period.

Count 2: Police pursuit, not stop and drive in a manner dangerous, contrary to s 51B(1) of the Crimes Act. The maximum penalty for this offence is 3 years imprisonment and there is no standard non-parole period.

Count 3: Intentionally destroy property by fire contrary to s 195(1)(b) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment and there is no standard non-parole period.

3. The applicant was sentenced by Judge Wilson SC on 5 July 2024. In addition to the three offences listed above, there were three offences on a s 166 certificate as follows:

Sequence 1: Drive a motor vehicle during disqualification period (second offence) contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW). The maximum penalty is 12 months’ imprisonment and/or a fine of 50 penalty units. There is no standard non-parole period.

Sequence 2: Drive conveyance taken without consent of the owner contrary to s 154A(1)(b) of the Crimes Act. The maximum penalty for this offence within summary jurisdiction is 2 years’ imprisonment and/or a fine of 50 penalty units. There is no standard non-parole period.

Sequence 3: Use a class A vehicle displaying misleading numberplate contrary to s 129(3)(b) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW). The maximum penalty is a fine of 20 penalty units.

4. Judge Wilson SC sentenced the applicant to an aggregate sentence of imprisonment for 7 years commencing 7 April 2022 and expiring 6 April 2029 with a non-parole period of 4 years 6 months expiring 6 October 2026.

5. The indicative sentences were as follows:

Count 1:   Imprisonment for 4 years 6 months.

Count 2:   Imprisonment for 2 years 6 months.

Count 3:   Imprisonment for 3 years.

Sequence 2 on the s 166 certificate:   Imprisonment for 1 year, 6 months.

6. In respect of sequences 1 and 3 on the s 166 certificate there was a conviction with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

7. The applicant now seeks leave to appeal against the aggregate sentence on the following grounds:

1. His Honour failed to properly assess the applicant's role in the offences (as opposed to the liability for the offences in the context of a joint criminal enterprise).

2. His Honour failed to properly assess the effect of delay and the rehabilitation of the applicant.

3. His Honour imposed a sentence that was manifestly excessive, and a different sentence is warranted at law.

The offending

8. Judge Wilson SC found the following facts based partly on some proposed factual findings by the Crown (in an MFI not provided to this Court) and from the evidence his Honour heard at the trial.

9. Between 10 and 12 October 2020, a Toyota Land Cruiser was stolen from the premises of Karera Pty Ltd in Tuggerah by unknown persons. On the morning of 15 October 2020, shortly before 9:00am, the applicant's co-offender, Joshua Duke, was in the passenger seat of the vehicle while the applicant was driving it.

10. At around that time, Adam Jones, the son of the management manager of Karera Pty Ltd, saw the stolen vehicle at the corner of Pacific Highway and Louisiana Road, Wadalba. He followed the vehicle for some distance with the stolen vehicle driving contrary to a number of traffic regulations and at high speed.

11. At some point Mr Jones met up with a Mr McLaughlin, and the two men followed the stolen vehicle onto a dirt track. The vehicle then did a U-turn and came back towards them. Mr McLaughlin saw a firearm being pointed in his general direction as he and Mr Jones passed the vehicle on the driver's side. He said that the gun was pointed in his direction across the face of the driver of the stolen vehicle. He was about one metre away from the vehicle at the time.

12. Mr McLaughlin followed the vehicle out of the bushland area and onto a road. At some point, two further vehicles owned by Karera Pty Ltd with occupants in each of them had begun following the stolen vehicle in addition to Mr McLaughlin and Mr Jones. At one point when the stolen vehicle drove past the vehicles that had been following it, one of the occupants in a vehicle following it observed a passenger holding a firearm with the butt in his lap and the barrel pointed up towards the passenger window with one hand on the barrel. Another person in one of the Karera cars observed that the gun was pointed in his direction, "so it was pointed across the front, like, towards the windscreen of the vehicle and across to the driver’s side, so to the windscreen in the driver’s side, gesturing at myself and Alan [Alan Tisdell] in our vehicle."

13. When the stolen vehicle turned onto Pollock Avenue, Wadalba, it was observed by police who commenced a police pursuit.

14. Senior Constable Callahan was driving the first pursuit vehicle with Senior Constable Bishop and Senior Constable Keane in the vehicle. Senior Constable Callaghan observed the stolen vehicle turn “harshly” into Pollock Avenue and drive quite “erratically”, overtaking cars. The stolen vehicle then headed south at around 100 kmh in a 50 kmh zone. It passed by a school and narrowly avoided a school bus before braking harshly causing the police vehicle to collide with the rear right of the vehicle. The stolen vehicle reversed into the rear left of the police vehicle and then accelerated again in a south-westerly direction.

15. The stolen vehicle continued for about 200 metres before again braking harshly. On this occasion the police vehicle was able to avoid a collision. The stolen vehicle then drove forward into the front left side of the police vehicle before reversing back 100 metres, turning around and heading in a north-easterly direction on Pollock Avenue. At this time, Senior Constable Bishop chased the stolen vehicle on foot with his firearm drawn and directed the occupants to stop the vehicle.

16. The stolen vehicle then passed another police vehicle driven by Senior Constable Harrison with Constable Hand as a passenger. That police vehicle turned around and pursued the stolen vehicle as it turned in an easterly direction onto Jenson Road. It drove very rapidly along that road, at times swerving onto the wrong side of the road, until it swerved harshly into the driveway of 140 Jensen Road, breaking through the gate of that property. It then proceeded across paddocks between Jensen Road and Johns Road, breaking through a number of fences as it went. Senior Constable Harrison abandoned his pursuit at that time.

17. At around 9:21am, the stolen vehicle was captured on CCTV on Goorangai Close, Wadalba. The applicant was still driving the vehicle at this time.

18. At around 9:30am, the vehicle was captured driving through the backyard of 30 Raintree Terrace, Wadalba. The applicant was sitting in the passenger seat and the co-offender was driving. The vehicle broke through two fences to that property and narrowly missed colliding with the resident of the property who was in her garden.

19. At around 9:37am the vehicle entered 109 Minnesota Road, Hamlyn Terrace, a short distance to the north of Wadalba. That property was a rural property. The vehicle was driven past the residence before breaking through a fence, driving through an estate and around behind some bushland where the vehicle was set on fire.

20. The applicant hid in the bushland at the rear of 109 Minnesota Road while the co-offender went back to 109 Minnesota Road to steal another vehicle. He was shot dead by police shortly after 9:55am. The applicant avoided police in the following days and was ultimately arrested on 18 October 2020.

21. On 30 November 2020 he participated in an interview where he denied knowing the co-offender or being present with him on 15 October 2020.

Duress

22. At the trial, the Crown relied on a joint criminal enterprise between the applicant and Mr Duke in respect of counts 1 and 3. During the trial, the applicant raised the defence of duress, asserting that he was acting under duress at the time because he was being threatened by the co-offender. He said he was threatened with the firearm.

23. The sentencing judge held that by virtue of the verdicts of the jury in relation to counts 1 and 3, the jury rejected duress as an exculpatory defence and accepted the applicant entered into a joint criminal enterprise.

24. At the sentence proceedings, it was submitted that the applicant's decision to enter into that joint criminal enterprise was affected by duress. A legal issue arose as to whether non-exculpatory duress can arise in the context of a joint criminal enterprise. His Honour held, relying on TA v R [2008] NSWCCA 179 and SS v R; JC v R [2009] NSWCCA 114, that the acceptance by the jury that the applicant acted pursuant to a joint criminal enterprise did not of itself exclude non-exculpatory duress as a mitigating factor on sentence.

25. His Honour held, however, that he was not persuaded on the applicant's evidence that non-exculpatory duress had been established as a mitigating factor on the balance of probabilities. In coming to that conclusion, his Honour relied on a large number of matters which he set out in his reasons, but which it is not necessary to detail for the purposes of this judgment. It is sufficient to note that his Honour did not consider the applicant to be a reliable or impressive witness based both on his demeanour when he was giving evidence and the lies he told to the police in his ERISP.

26. His Honour said that the finding most consistent with the verdicts of the jury was that the evidence of the applicant was rejected and that they did not accept that the threat was made. His Honour found that at the time of the offending the actions of the applicant were not the consequence of duress by reason of threat.

27. In relation to the offences on the s 166 certificate, the applicant admitted his guilt to sequence 1 but denied his guilt in relation to sequence 2. His Honour noted that the offence in sequence 3 was one of strict liability and his Honour found it proved beyond reasonable doubt.

28. His Honour found that there was both direct and circumstantial evidence supporting a finding beyond reasonable doubt that the applicant was aware that he was driving a vehicle taken without the consent of the owner and that he was, therefore, guilty of sequence 2 on the s 166 certificate.

Grounds of appeal

Ground 1:   His Honour failed to properly assess the applicant's role in the offences (as opposed to the liability for the offences in the context of a joint criminal enterprise)

Submissions

29. The applicant accepted that it was open to the sentencing judge to reject his evidence and find that non-exculpatory duress was not established on the balance of probabilities. However, the applicant submitted that his Honour erroneously dismissed the role of the applicant in the pursuit.

30. The applicant submitted that there was no evidence that the applicant, as opposed to Mr Duke, had possession of the firearm, and no evidence that he was responsible for threatening persons with it nor discharging it. The applicant submitted that that his DNA was not located on the firearm.

31. The applicant submitted in relation to count 3 that there was no evidence other than that of the applicant that Mr Duke had torched the motor vehicle.

32. The applicant submitted that the issue of his role was raised by his counsel in oral and written submissions both when advancing non-exculpatory duress but also more generally as to his criminality in the events. The applicant submitted that it did not follow from the rejection of his argument in relation to non-exculpatory duress that he was equally criminally involved in the events absent evidence as to a crucial aspect of the pursuit being the use of the gun and the identity of the person who torched the car.

29. The applicant submitted that in assessing the objective seriousness of the applicant's offending the sentencing judge failed to consider separately the role of the applicant in the offences whilst accepting that the absence of duress made him liable for Mr Duke’s conduct as a co-offender.

30. The Crown submitted that the applicant conceded at the sentence hearing that if the defence of non-exculpatory duress failed there was not a great deal of difference between the Crown and the defence as to the objective seriousness of the offending. The Crown submitted that the applicant accepts that it was open to the sentencing judge to reject his evidence and to find that non-exculpatory duress was not established on the balance of probabilities.

31. The Crown submitted that it was the role of the sentencing judge to determine objective seriousness and that this Court will be slow to interfere. The Crown again pointed to the approach of the applicant's counsel at the sentencing hearing about the assessment of objective seriousness.

32. In relation to count 1 the Crown submitted that the sentencing judge did consider the specific role of the applicant, noting that he and the co-offender were acting in a joint criminal enterprise, and it was immaterial who was driving and who was brandishing the shotgun.

33. The Crown submitted in relation to count 3 that the sentencing judge’s finding that, even if the co-offender had started the vehicle fire, the applicant would be responsible by reason of the joint criminal enterprise. The Crown submitted that such a finding is properly understood as one that in the circumstances there was little material difference between the culpability of the applicant and the co-offender when assessing the objective seriousness of that offending.

Consideration

38. Counsel for the applicant made clear in her oral submissions that this ground was ultimately concerned with the sentencing judge’s assessment of objective seriousness and the moral culpability of the applicant.

39. In R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 Spigelman CJ (with whom Allsop P agreed) said:

[161]   It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with “precision”, because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, eg, Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, “Sentencing in Complicity Cases – Part 1: Joint Criminal Enterprise”, Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, June 2009.) I do not understand the brief observations in Hoschke to qualify this well established principle.

[162]   A more complete statement of the applicable principles is set out by James J, with whom McClellan CJ at CL and Adams J agreed, in R v Wright [2009] NSWCCA 3, as follows:

“[28] If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90.

[29] However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23).

[30] A case to which the Court was referred on the present appeal was R v Mitchell, R v Gallagher [2007] NSWCCA 296. In Mitchell and Gallagher the two respondents to the Crown appeal against sentence had jointly attacked the victim, punching, kicking and stomping on him. It was found that Mitchell was the primary offender in the attacking of the victim, although Gallagher had also punched the victim to the head and kicked him as he lay on the ground. The Court of Criminal Appeal accepted that Gallagher’s objective criminality was less than Mitchell’s, even if not to a very substantial degree, and that, apart from differences in the subjective circumstances of the two offenders, Gallagher’s lesser objective criminality should be reflected in a lesser sentence.”

40. The other Judges in JW (McClellan CJ at CL, Howie and Johnson JJ) said at [213]:

[213]   With respect, we agree with what the Chief Justice has written about sentencing offences committed by offenders acting under a joint criminal enterprise. But in assigning roles to the specific participants, the sentencing judge should not lose sight of the fact that they were all participants in the crime. Here both crimes were robbery with wounding. …

41. In R v Sukkar [2011] NSWCCA 140, I said (Simpson J and Grove AJ agreeing):

[36]   To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced ( R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]).

42. When discussing objective seriousness and the role of the applicant, the sentencing judge relevantly said:

[118]   With respect to count 1, it was submitted by the Crown that the offending falls at the mid-range. On behalf of the offender, it was submitted that the offending was objectively serious. I accept the submissions and find the objective seriousness falls at the mid-range, having regard to the following factors:

1.   at least five civilians saw the shotgun;

2.   that the weapon was a dangerous weapon, not an offensive weapon, as it was a shotgun, and was therefore more intimidating than the weapon required to make out the offence; and

3.   the role of the offender, in that the offender and co-offender were acting in a joint criminal enterprise, and it is immaterial who was driving and who was brandishing the shotgun;

[119]   With respect to count 2, it was submitted by the Crown that the offending falls at the upper end of the mid-range. It was submitted on behalf of the offender that the objective seriousness falls below the mid-range. I find the objective seriousness falls just above the mid-range, having regard to the following factors identified by the parties:

1.   the length and distance of the police pursuit, commencing shortly after 9am and concluding at or about 9.55am when the co-offender was shot dead by police;

2.   at least part of the driving was in a school zone;

3.   the time of day and the traffic conditions, being mid-morning on a weekday;

4.   the manner of the driving, being erratic and exceeding the speed limit excessively; and

5.   the damage caused by the pursuit, including damage to the police vehicle and private property.

[120]   With respect to count 3, the Crown submitted that the objective seriousness falls at the mid-range. It was submitted on behalf of the offender that the objective seriousness falls at the mid-range. I accept the submissions and find the objective seriousness falls at the mid-range, having regard to the following factors:

1.   the value of the stolen vehicle, being insured for $37,000 in addition to the equipment and tools worth $65,000;

2.   the potential for endangering public safety due to the fire spreading to the surrounding bushland; and

3.   the extent of the damage to the vehicle.

[121]   It was submitted on behalf of the offender that there is a reasonable possibility that the co-offender started the fire. I reject this submission and in any event, even if that were the case, the offender would be responsible for the damage by reason of the joint criminal enterprise.

…

MORAL CULPABILITY

[127]   It was submitted on behalf of the offender that his moral culpability is reduced to some degree as a result of duress. I have already rejected that submission.

(emphasis added)

43. His Honour then went on to consider Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 relating to moral culpability.

44. In written submissions to the sentencing judge, the Crown submitted that the objective seriousness of count 1 was “around the middle of the range”; the objective seriousness of count 2 was towards the upper end of the midrange; and the objective seriousness of count 3 was “around the middle of the range”.

45. In the defence written submissions, it was submitted that count 1 was an objectively serious breach of s 33B(2), that the objective seriousness of count 2 fell below the midrange and that the objective seriousness of count 3 was around the midrange.

46. At the sentence hearing, the matter was further canvassed in this exchange between counsel for the applicant and his Honour:

STEWART: …on objective seriousness, but if your Honour were to be against the defence position, there is not a great deal of difference between the Crown and I in an assessment of objective seriousness.

HIS HONOUR: So for count 1 you say objectively serious. The Crown says mid-range. Do you agree with that?

STEWART: Yes, the Crown, the Crown said around the middle of the, around the middle of the range. I agree with that, in--

HIS HONOUR: Count two, the Crown says upper mid-range, you say below mid-range.

STEWART: Your Honour I’ve considered that. The Crown says in the upper end of the mid-range, so I take that to mean not in the high range but the upper end of the mid-range.

HIS HONOUR: Yeah.

STEWART: So I agree with that because it was a serious pursuit obviously and--

HIS HONOUR: And for count 3, the Crown says upper end of mid-range.

O'CONNOR: Around the middle of the range, actually yes.

STEWART: Around the middle of the range.

HIS HONOUR: Around the middle.

STEWART: Yes, I agree with that your Honour.

HIS HONOUR: And you accept that.

STEWART: Yes.

HIS HONOUR: So mid-range.

47. The final position was, therefore, that there was no disagreement between the parties about where in any notional range the objective seriousness lay for each of counts 1, 2 and 3. His Honour ultimately found objective seriousness for counts 1 and 3 consistently with what counsel had agreed. In relation to count 2 his Honour found that the objective seriousness fell just above the midrange. His Honour was entitled to reach a different view from the assessments made by the parties in relation to count 2.

48. In the circumstances of the agreement of the applicant’s counsel at the sentence hearing concerning the assessment of objective seriousness, no error is demonstrated. To the extent that counsel for the applicant suggested that the applicant’s counsel at the sentence hearing had made a mistake in what he agreed to, that suggestion should be rejected. To adopt the suggestion would be to permit a different argument to be put to this Court from what was argued and agreed, contrary to what was said in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [76]-[81].

49. However, although his Honour made reference to the role of the applicant, his Honour did not go on to consider how that role affected the applicant's moral culpability in relation to the offences charged. Moreover, from the way the sentencing judge expressed himself at sub-paragraph 3 of [118] of his Remarks on Sentence (“ROS”) and at [121], his Honour appeared to consider that no distinction should be made between the applicant and the co-offender simply because they were acting in a joint criminal enterprise. Such an approach takes no account of what was said in JW or in Sukkar although it must be said that his Honour was not provided with a reference to those cases nor to any others that concerned how the role of an offender in a joint criminal enterprise was to be dealt with. The sole focus of the applicant at the sentence hearing in that regard appears to have been in relation to non-exculpatory duress. Nevertheless, the Crown made a submission about the applicant’s role in the terms the sentencing judge adopted at para [118]. This was a submission unrelated to the applicant’s bid for non-exculpatory duress to be found.

50. In my view, the sentencing judge has not approached the issue in accordance with what was said in JW and Sukkar. The sentencing judge said of count 1 that it “was immaterial” who was driving and who was brandishing the gun. In relation to count 3 he said that even if the co-offender lit the fire the applicant would be responsible “by reason of the joint criminal enterprise”. Those statements do not distinguish between being liable for the offence by being a participant in a joint criminal enterprise and the culpability of the participant by reason of that person’s role. The result was that the sentencing judge did not give consideration to the issue of the applicant’s moral culpability for his role in the offending. He was not to be punished as if he held the gun and brandished it at those pursuing the offenders. Although he was appropriately convicted of the offence, he was to be punished for driving the vehicle in which the offender with the gun was a passenger.

51. In relation to count 3 his Honour did not explain why he rejected the submission that there was a reasonable possibility that the co-offender started the fire. There was a paucity of evidence about that matter with the only direct evidence being an assertion by the applicant that the co-offender lit the fire. His Honour may not have believed the applicant, but he did not say so. There was a suggestion that, if the co-offender had lit the fire, it would have taken him much longer to get back to 109 Minnesota Road than it did because of his mobility difficulties. His Honour did not in his ROS identify that as the basis for his rejection of the submission.

52. In any event, a finding against the applicant was one which needed to be made beyond reasonable doubt. The submission that there was a reasonable possibility that the co-offender lit the fire obviously had that principle in mind. In the absence of reasons, the submission should not have been rejected to the detriment of the applicant.

53. No issue arises about the applicant’s role for count 2 because he alone drove the vehicle during the police pursuit.

54. I would uphold this ground of appeal.

Ground 2:   His Honour failed to properly assess the effect of delay and the rehabilitation of the applicant

Submissions

55. The applicant pointed to the delay before his trial eventually took place commencing 18 October 2023, some three years after he was arrested. He remained in custody until released on bail on 26 October 2022 although a portion of that period involved him serving a sentence for two other offences for which he was sentenced on 21 September 2021.

56. The applicant submitted that when released to bail he made significant progress in his rehabilitation as well as adhering to strict bail conditions.

57. The applicant pointed to his evidence and that of his employer, Tony Temelkovski, that after release on bail he had been employed by, and resided with his employer, he had been drug-free and engaged in a prosocial lifestyle, he adhered to his strict bail conditions, he had the support of his adult children and grandchildren, he had expressed the desire to engage in psychological counselling, and he had been of good behaviour.

58. The applicant accepted that his criminal history was such that a finding of “good prospects of rehabilitation” could not be made out (s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). The applicant submitted that those features were deserving of consideration applying common law principles.

59. The applicant submitted that the sentencing judge’s remarks about his rehabilitation gave no consideration to the positive progress he made after being released to bail and did not take into account broken periods where the applicant was in and out of custody pending being sentenced.

60. The Crown submitted that the applicant bore the onus of establishing good prospects of rehabilitation on the balance of probabilities as a statutory mitigating factor.

61. The Crown drew attention to the principles regarding delay as summarised by Price J (Button and Fagan JJ agreeing) in Elchiekh v R [2016] NSWCCA 225 at [56]. The Crown submitted that a consideration of the sentencing judgment as a whole including what his Honour said at [115]-[116] of his ROS demonstrate that his Honour properly took into account and assessed the factors of delay and the applicant's rehabilitation. His Honour did so by referring to the procedural history, by summarising the applicant’s oral evidence in relation to employment, by summarising the evidence of Mr Temelkovski, by referring to what Dr Pusey, psychologist, said when referring to the applicant’s period on bail, and when summarising the sentencing assessment report.

62. The Crown submitted that the sentencing judge's findings about the applicant's prospects of rehabilitation were based on a number of factors including the expert evidence, the applicant’s poor insight into his offending, his lack of remorse, and the fact that he had never received or sought any treatment or counselling for his drug use or mental health issues.

63. The Crown submitted that the sentencing judge's finding of special circumstances on the basis that the applicant would benefit from an extended period of supervision in the community to assist with his mental health, his associations, and his history of illicit drug use, was a further indication that the issue of the applicant's rehabilitation was properly taken into account.

Consideration

64. The applicant was arrested for these offences on 18 October 2020 and went into custody at that time. He remained bail refused. He was sentenced on 15 February 2021 for other offences for which he was on bail at the time of commission of the present offences. The sentence imposed for two of those offences was one of 4 months’ imprisonment but it was backdated by all but two days of that 4 month’ period so that the applicant served only 2 extra days in custody for that offending whilst also being bail refused on the present offences.

65. The applicant was also sentenced on 21 September 2021 for two other offences. He received an aggregate sentence of 16 months expiring 31 March 2022 with a non-parole period of 9 months expiring 30 August 2021. At the end of that sentence he remained in custody bail refused for the present offences. The applicant was then released on bail on 26 October 2022 and remained on bail until the jury's verdict on 31 October 2023 when he was returned to custody.

66. These matters were noted by the sentencing judge in his ROS.

64. Mr Temelkovski gave evidence at the sentence hearing. He gave evidence that having met the applicant whilst he was on bail, the applicant worked for him until the applicant went back into custody at the conclusion of the trial. The sentencing judge made reference to this and other evidence given by Mr Temelkovski.

65. His Honour then said this in relation to the issue of rehabilitation:

PROSPECTS OF REHABILITATION

[114]   It was conceded on behalf of the offender that the offender’s criminal history makes it difficult to find that the offender has good prospects of rehabilitation. I further note that the absence of insight into his offending and his refusal to accept responsibility also speak negatively as to his prospects of rehabilitation. Counsel for the offender submitted that the offender’s compliance with his strict bail conditions and his employment and positive relationship with his employer Tony Tamelkovski [sic] demonstrated that the offender has realistic prospects of rehabilitation.

[115]   My findings as to the offender’s prospects of rehabilitation are guarded as the offender has not engaged in any form of formal counselling or treatment and continues to shift responsibility for the offending to his co-offender. I do not find prospects of rehabilitation as a mitigating factor. Further, in terms of the risk of reoffending, I note the diversion views of the Community Corrections officer and Dr Pusey. It can probably safely be concluded that the risk of reoffending is in the medium range. In those circumstances, it does not give rise to a mitigating factor on sentence.

[116]   Further, given the finding regarding risk of reoffending, this does not arise on the balance of probabilities as a mitigating factor.

69. In his written submissions to the sentencing judge, counsel for the applicant on sentence referred to the fact that whilst the applicant had been on bail from 14 March 2023 until the conclusion of his trial the applicant had been employed in a car workshop building “muscle” cars, and he said that the applicant and the employer developed a good working relationship and that the applicant's work ethic was commendable during that time. Reference was also made to what the applicant had told Dr Pusey, and it was submitted that the applicant had realistic prospects of rehabilitation.

70. In oral submissions, counsel for the applicant said:

Just addressing the evidence that was given today by Mr Tamelkovski [sic], in my submission there is very strong evidence that Mr York has made great strides with his rehabilitation. That was interrupted by him going back into custody, but the evidence before the court is that he has remained drug-free for about two and a half years and it appears that the employment situation that he had there with DTM Resto Haus was very conducive to his rehabilitation because it provided him structure and he was able to use his talents and in particular he was able to relate well to the young children and teenagers that were being mentored .… He may well have reached a turning point at age 50 and is on a path to a drug-free and law-abiding life. So we do rely on that.

71. Despite references at the hearing of this appeal to “broken periods” in custody, the evidence was only that the applicant worked for a period of some seven months before being returned to custody at the conclusion of his trial, and it was suggested that advances had been made in relation to his rehabilitation by that employment.

72. In my opinion, this ground of appeal has no merit for a number of reasons. First, his Honour took account of the applicant's custody history and his employment, noting the submission of counsel about that employment. Secondly, all that was said by the applicant in submissions to the sentencing judge in relation to his employment and custody was that he was employed until his bail was revoked. No submission was made that particular emphasis needed to be placed on the fact that his employment had been brought to an end by his return to custody in terms of his rehabilitation. Thirdly, there were other matters which needed to be taken into account when assessing rehabilitation as the sentencing judge noted. Fourthly, no submission was made in terms of delay in the sense contemplated in R v Todd (1982) 2 NSWLR 517 and Elchiekh v R [2016] NSWCCA 225 at [56]. In those circumstances, what was said by this Court in Zreika again assumes relevance.

73. Finally, counsel for the applicant on the appeal submitted that the sentencing judge’s failure to analyse “the broken periods of custody” meant that that matter was not given significant weight in relation to rehabilitation. This Court has repeatedly said that questions of weight are a matter for a sentencing judge and not this Court.

74. In my opinion, his Honour had regard to all of the matters relevant to the assessment of prospects of rehabilitation. His Honour made express reference to the submissions made about the applicant's behaviour and progress whilst on bail and had regard to what was said in the report of Dr Pusey and in the sentencing assessment report.

75. His Honour's conclusion that the applicant's prospects of rehabilitation were guarded was clearly open to him on the evidence.

76. I would reject ground 2.

Ground 3:   His Honour imposed a sentence that was manifestly excessive, and a different sentence is warranted at law

77. Because this Court has upheld ground one, it is necessary to re-sentence the applicant. In those circumstances it is not necessary to consider this ground of appeal.

Resentence

Submissions

78. No submissions were made on behalf of the applicant addressed to the resentencing exercise. The Crown submitted that on resentence the Court would not form the opinion that a less serious sentence was warranted. Submissions made by the parties in relation to manifest excess have been taken into account on the resentence exercise.

79. The applicant submitted that a sentence of 7 years’ imprisonment was manifestly excessive and pointed to two matters in particular suggesting error. The first was the indicative sentence for count 2 of 2 years 6 months on a maximum sentence of 3 years where the assessment of objective criminality was “just above the midrange”. Secondly, although the sentencing judge acknowledged that the offences had considerable overlap and had all occurred on one day over a period of about an hour, there was a significant level of accumulation despite his Honour suggesting that a moderate degree of concurrency was appropriate.

80. The applicant also submitted that, while there was no doubt that the incident excited considerable fear and potential danger, the only people who were physically injured were Mr Duke (who died) and the applicant, and that the time the members of the public or the police were present and engaged were relatively brief.

81. The Crown submitted that the indicative sentence for count 2 was not disproportionate or excessive when one has regard to the length, duration and circumstances of the driving, including that part of it was in a school zone, that the vehicle narrowly missed hitting a civilian, that the safety of a number of police officers was put at risk as well as that of members of the public, and the fact that it involved damage to a police vehicle and to private properties.

82. The Crown submitted that, as far as the degree of accumulation is concerned, the sentencing judge said, correctly, that a moderate degree of currency was appropriate because the penalty for some of the offences can to a limited extent encapsulate the criminality of others.

83. The Crown submitted that although the sentencing judge found that the need for general deterrence, retribution and denunciation was moderated because of the applicant's mental health issues, that his custodial conditions would be more onerous due to his mental health, and that Bugmy factors mitigated the sentence, his Honour said that deterrence, denunciation, protection of the community and the recognition of the harm caused to victims were still prominent purposes of sentencing that needed to be accommodated.

Consideration

84. I would, like the sentencing judge, assess the objective seriousness of counts 1 and 3 at what the parties ultimately agreed was appropriate, and I would assess the objective seriousness of count 2 to be just above the midrange. I consider, however, that the applicant’s moral culpability for count 1 was reduced by reason of the role he played, namely, driving the motor vehicle. He did not provide or handle the firearm, nor did he use the firearm to threaten any person or to prevent lawful apprehension, notwithstanding that he is liable for the commission of the offence by reason of the joint criminal enterprise.

85. As far as count 3 is concerned, there was such little evidence about who lit the fire, that it cannot be found beyond reasonable doubt that it was the applicant. Where there is no evidence either way about which of them did so, there is no reason to distinguish the moral culpability of the applicant as compared to Mr Duke.

86. I am also of the opinion that the applicant’s prospects of rehabilitation are guarded at best. While much emphasis had been placed on the fact that the applicant had been drug free for some time before sentence, an affidavit relied upon by the Crown on the usual basis shows that on three occasions over three months since the applicant went back into custody after being sentenced he has been found guilty of failing a prescribed drug test. Based on the applicant’s criminal and drug history, I share the sentencing judge’s view that he is at medium risk of reoffending.

87. I do not consider that the applicant is remorseful for his offending, particularly because of his insistence that he acted under duress, a matter found against him both by the jury and also by the sentencing judge on a non-exculpatory basis.

88. I accept that the applicant’s moral culpability is reduced because of Bugmy factors and also by reason of his mental health from what appears in the report of the psychologist, Dr Paul Pusey. While his mental health issues reduce emphasis on general deterrence they only do so to a small extent. His criminal record means that specific deterrence is given some weight.

89. I would make a finding of special circumstances because of the need for a longer period on parole to treat the applicant’s drug problems which, by reason of his prison infringements, do not appear to be in remission as they did at the sentence hearing, and so that his rehabilitation generally can be advanced.

90. In my opinion, I would indicate the following sentences:

Count 1: 4 years 3 months.

Count 2: 2 years.

Count 3: 3 years.

91. I would adopt the sentencing judge’s approach to the sentencing for sequence 2 on the s 166 certificate, by indicating a sentence for that offence of 1 year 6 months and including the sentence for that offence in the aggregate sentence.

92. In my opinion the applicant should be sentenced to an aggregate sentence of imprisonment for 6 years 3 months commencing 7 April 2022 and expiring 6 July 2028 with a non-parole period of 4 years expiring 6 April 2026. The sentences for Sequences 1 and 3 of the s 166 offences should remain unchanged.

Conclusion

93. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed in the District Court on 5 July 2024.

4. In lieu, sentence the appellant to an aggregate sentence of imprisonment for 6 years 3 months commencing 7 April 2022 and expiring 6 July 2028 with a non-parole period of 4 years expiring 6 April 2026.

94. WRIGHT J:   I agree with Davies J.

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Decision last updated: 20 June 2025