Samate v R

1. [1]

   STERN JA: I agree with Chen J.

2. [2]

   DHANJI J: I agree with the orders proposed by Chen J and with his Honour’s reasons.

3. [3]

   CHEN J: Following his arrest on 13 December 2023, Lata Samate (‘the applicant’) was charged with three offences – one of which was in the alternative – arising out of his involvement in a violent attack upon two people (a shop attendant and a service station owner) in a service station in Campsie, NSW, in the early hours of 3 September 2023 – being:

   1. (1)

      Count 1: that on 3 September 2023, the applicant, being in the company of a co-offender, assaulted the shop attendant with intent to rob him, contrary to s 97(1) of the Crimes Act 1900 (NSW).

   2. (2)

      Count 2: in the alternative to count 1, that on 3 September 2023, the applicant, being in the company of a co-offender, did assault the shop attendant, thereby occasioning to him actual bodily harm, contrary to s 59(2) of the Crimes Act.

   3. (3)

      Count 3: that on 3 September 2023, the applicant, being in the company of a co-offender, did assault the service station owner, thereby occasioning to him actual bodily harm, contrary to s 59(2) of the Crimes Act.

4. [4]

   On 21 August 2024, in the Downing Centre Local Court, the applicant entered a plea of guilty to count 3, but a plea of not guilty in respect of counts 1 and 2. On that date, he was committed to the District Court to stand trial (in respect of counts 1 and 2) and for sentence (in respect of count 3).

5. [5]

   On 22 November 2024, when the matter was in the District Court, the applicant entered a plea of guilty to count 1.

6. [6]

   The applicant was sentenced by his Honour Judge Barrow SC (‘the sentencing judge’) on 16 May 2025. His Honour imposed an aggregate sentence of four years imprisonment with a non-parole period of two years and six months, commencing 13 December 2023 for that offending. The applicant is eligible for parole on 11 June 2026 and the overall term will expire on 11 December 2027.

7. [7]

   By Notice of Appeal filed 12 November 2025, containing a single ground of appeal, the applicant seeks leave to appeal against the sentence imposed upon him, arguing that there is unjustifiable disparity between his sentence and that imposed upon his co-offender.

8. [8]

   In my view, that ground of appeal should be upheld and the applicant resentenced.

Background

1. [9]

   In the early morning of 3 September 2023, two people were working at a service station in Campsie, NSW – the shop attendant and the owner of the business. The service station included a convenience store.

2. [10]

   At this time, the applicant was at the Campsie Hotel, having entered those premises at 3:51am. At 4:26am, Alex Sasulu (‘the co-offender’) attempted to enter those premises but was denied entry by a security guard for being intoxicated. The co-offender remained outside but requested to see the applicant: the security guard entered the premises and called out the applicant’s name. Shortly after, the applicant exited the hotel and met the co-offender outside.

3. [11]

   The applicant and the co-offender left the location on foot, walking in the general direction of the service station.

4. [12]

   At 4:45am, the owner arrived at the service station in his car. He began to unload some stock for the business. Ordinarily, at this time, the entrance doors to the service station would remain closed and locked overnight. However, the shop attendant had unlocked and opened those doors to enable the owner to carry the stock into the store.

5. [13]

   Just after 4:46am, the applicant entered the convenience store followed by the owner, who was carrying stock to put into the storeroom. A few seconds later, the co-offender entered the store. Having entered the store, the applicant then walked through the “staff only” door that gave access to an area behind the store counter.

6. [14]

   The applicant entered that area with the intention to rob the shop attendant whilst the co-offender kept a lookout, crouching behind a shelving rack.

7. [15]

   The applicant “engaged in a fight or a melee” with the shop attendant, and punched him in the face, during which the co-offender “joined in the melee”. At the time the co-offender “intervened”, the shop attendant was in the process of pushing the applicant out of the store – however, the co-offender “halted” the momentum of the shop attendant by moving in between him and the applicant and then made physical contact with the shop attendant. By reason of this “intervention”, the applicant was able to “regain control”, following which the applicant inflicted two further punches to the face of the shop attendant. The melee continued for a period and then both the applicant and the co-offender “left the store together”.

8. [16]

   The shop attendant sustained a 1cm abrasion “to the dorsum of his nose as a result of what happened”.

9. [17]

   At the time the applicant attacked the shop attendant, the owner was in the storeroom. Having heard the commotion within the store, the owner left the storeroom and “tried to intervene by quelling the melee which was taking place” between the applicant and the shop attendant. The co-offender engaged the owner – pushing him into shelving and, as a result, the owner “received a graze to his back”.

10. [18]

    Less than a minute after the applicant and the co-offender entered the store, they departed and jogged away.

11. [19]

    The incident was captured on CCTV from multiple angles.

12. [20]

    The police were called. At 5:25am, police commenced canvassing the area in nearby streets and identified the co-offender as one of the assailants. He was arrested and taken to Campsie Police Station. He was charged with the same three offences as the applicant.

13. [21]

    On 13 December 2023, the applicant was arrested whilst driving in Bexley, NSW. He was charged with the three offences earlier identified: see [3], above.

14. [22]

    The sentencing judge noted that the applicant was to be sentenced for two offences – namely, assault with intent to rob in company (count 1) and assault occasioning actual bodily harm (‘ABH’) in company (count 3). The maximum penalties for these offences were 20 years imprisonment and seven years imprisonment respectively. His Honour also noted that it was common ground that, given the pleas of guilty, the applicant was entitled to a 10% reduction in any sentence for count 1 and a 25% reduction in any sentence for count 3.

15. [23]

    The sentencing judge made findings about the background facts in line with the summary at [9]-[21], above.

16. [24]

    In relation to the objective seriousness of the offending for count 1, the sentencing judge found that the shop attendant “was vulnerable” and, having viewed the CCTV footage, held that it revealed “a high level of violence from [the applicant] towards [the shop attendant] who was just doing his job. It [was] the middle of the night, he was not troubling anybody, he was just trying to work and earn a living, and he [was] set upon in this fashion” and it was a “shocking experience … to suffer this type of assault at work”. His Honour also found that there “was very little planning” involved and that it “was a very poorly executed event”.

17. [25]

    The sentencing judge found that this was “a relatively serious example” of the offence.

18. [26]

    For the assault occasioning ABH offence (count 3), his Honour found that “it [was] less serious”. The following further findings were also made: it was the co-offender’s “conduct [that resulted] in the injury” to the owner’s back because the co-offender “was directly responsible for pushing [the owner] into the shelving” that caused that injury; that it would have been “a frightening experience” for the owner given “it happened in the context of him being exposed to what was occurring” between the applicant and the shop attendant; and that the applicant’s responsibility for this offence was through the application “of the principles of joint criminal enterprise”, given it was the co-offender who pushed the owner into the shelving.

19. [27]

    The sentencing judge next addressed the applicant’s criminal record, which he considered was “relevant to [the current] matters in a very material way”. His Honour noted that in January 2014, when the applicant “was only just 18”, the applicant participated in a “series of offences”, including robbery in company, taking and driving a conveyance, aggravated break and enter in company, assault, larceny and damaging property and goods in custody.

20. [28]

    The robbery in company involved the theft of items from a 7-Eleven service station at around 3:00am. The applicant was locked inside the service station store because a worker pushed the alarm button, following which the applicant elbowed the worker to the head “and smashed his way out”. Ten days later, again at about 3:00am, the applicant returned to the same service station with others: they smashed their way in, the doors having been locked by the same worker involved in the earlier incident, and the applicant took a lighter and ran away, police having been called. Shortly after this, the applicant and two others “terrorised and brutalised a young man who was just walking home, stole his phone, punched him in the face repeatedly, interrogated him, threatened to stab him [and] stole his watch”, which the sentencing judge described as “[r]eally disturbing behaviour”. For this offending, the applicant was sentenced to two and a half years imprisonment, with a non-parole period of one year and three months.

21. [29]

    In April 2015, whilst on parole, the applicant committed further offences of a similar sort – namely, aggravated robbery using corporeal violence and resisting arrest. As the sentencing judge noted, somewhat remarkably, the aggravated robbery offending occurred at 3:15am at the same 7-Eleven service station. On this occasion, the applicant “[p]retended he had a gun in his pocket, demanded money, property, stole an iPhone, some cash, cigarettes [and] punched the staff member three times”. For this offending, the applicant was sentenced to three years imprisonment, with a non-parole period of one year and nine months.

22. [30]

    After his release, the sentencing judge accepted that “things have got much better” albeit that he had been charged and convicted, in 2020, for driving whilst disqualified, resulting in the imposition of an intensive correction order, and, in 2022, for larceny, “where he was effectively put on a bond”.

23. [31]

    Nevertheless, given the applicant’s offending history, the sentencing judge found that the applicant was “not entitled to leniency”; considered that “specific deterrence, that is a punishment that has a factor in it to deter him, has got far greater importance than it did previously because of the repeated nature of such similar offending”; and, further, the applicant was “no longer a very young man as he was when those other matters were dealt with”.

24. [32]

    In relation to the sentencing assessment report, the sentencing judge noted that the report author stated that the applicant “minimised whether he had an alcohol issue”, but nevertheless did understand “the impact of his offending on the people that he had affected, that he was prepared to engage in further intervention and he was regarded as being a medium risk of reoffending”.

25. [33]

    The sentencing judge accepted that the applicant’s childhood disadvantage – detailed in the report of Kris North, a psychologist – brought “into play the sentencing principles set out by the High Court in the decision of Bugmy [v The Queen (2013) 249 CLR 571; [2013] HCA 37]” and “reduce[d] his moral culpability”.

26. [34]

    The sentencing judge noted a letter from the applicant that was in evidence, setting out “how disappointed he [was] with what ha[d] occurred and … his remorse” and also noted that “there [was] no issue taken by the Crown about that”.

27. [35]

    In relation to the applicant’s future prospects, the sentencing judge accepted the Crown’s submission that “because of the repetitious nature of [the] offending … [the applicant’s] prospects are guarded at best and for the same reason, the likelihood of reoffending must be significant”.

28. [36]

    His Honour also noted that there were “no submission[s] that the s 5 threshold [was] not crossed”.

29. [37]

    The sentencing judge rejected the applicant’s submission that the matter could be dealt with by imprisonment to be served by way of an intensive correction order given the amount of time he had spent on remand “because of the seriousness of the offending and the fact that it has now occurred on a number of occasions”.

30. [38]

    In relation to special circumstances, his Honour accepted that there was a basis for that finding “particularly [given] the … risk of institutionalisation, his need for additional support and supervision when he is released”. The finding of special circumstances resulted in an adjustment of the statutory ratio to 62.5%.

31. [39]

    When considering questions of totality, the sentencing judge considered that, because there were “two offences for sentence … [and] two victims, although the matter did arise from the one event”, it would not be open “to run both sentences even in a nominal way concurrently”.

32. [40]

    Given the co-offender had been sentenced by the sentencing judge on 21 March 2025, his Honour addressed issues of parity.

33. [41]

    After noting that the co-offender had been sentenced for two offences under s 59(2) of the Crimes Act, his Honour considered a number of matters that informed the different sentences and why, as his Honour remarked, “a different outcome is warranted” – as follows:

    1. (1)

       First, in relation to the offence against the shop attendant – putting to one side the different offences with which each entered a plea of guilty – the co-offender’s involvement “was by way of joint criminal enterprise, he did not actively do much at all in that respect” but, in relation to the offence against the owner, the co-offender “was directly responsible for pushing [the owner] into the shelving that caused the injury to his back”.

    2. (2)

       Secondly, the applicant pleaded guilty to “the far more serious offence pursuant to s 97(1) where the maximum penalty is much higher, 20 years, as opposed to 7 years for the matters [the co-offender] was sentenced for”.

    3. (3)

       Thirdly, the applicant’s record “is a serious criminal record. It is much more serious than … [the co-offender’s] who had previously been convicted of matters of violence, but he never served a term of imprisonment”.

    4. (4)

       Fourthly, it was “very apparent … that [the applicant] was obviously the principal aggressor and antagonist and [the co-offender’s] part was a very minor one”.

34. [42]

    The sentencing judge indicated, and then discounted for the value of the pleas of guilty, the following sentences: for count 1, four years “reduced by 10% rounded down to three years six months imprisonment”; for count 3, two years “reduced by 25% to 18 months”.

35. [43]

    As earlier noted, an aggregate sentence of four years imprisonment with a non-parole period of two years and six months was imposed, commencing 13 December 2023, with the earliest “release date being 11 June 2026 and the total sentence [to] be served on 11 December 2027”.

36. [44]

    The co-offender was charged with the same three offences as the applicant. On 4 September 2024, whilst the matter was still in the Local Court, the co-offender entered a plea of not guilty to count 1; a plea of guilty to count 2 – but this plea was not accepted by the Crown in full satisfaction; and a plea of guilty to count 3. The co-offender was committed for trial in the District Court on count 1.

37. [45]

    The co-offender stood trial on count 1, commencing 27 November 2024, and, on 5 December 2024, the jury returned a verdict of not guilty.

38. [46]

    The co-offender was sentenced by the sentencing judge on 21 March 2025. His Honour noted that, as the co-offender had pleaded guilty to count 3, and had offered to plead guilty to count 2 whilst the matter was in the Local Court, he was “entitle[d] … to a 25% discount on sentence”.

39. [47]

    The sentencing judge, having noted that the co-offender was acquitted of the more serious offence of assault with intent to rob in company, contrary to s 97(1) of the Crimes Act, outlined the circumstances of the offending in line with the earlier summary: see [9]-[21], above.

40. [48]

    In relation to the offending against the shop attendant, the sentencing judge found that the co-offender’s involvement “only began” as the “conflict” between the applicant and the shop attendant moved into the public area of the store towards the entrance door where the co-offender was standing: the co-offender’s involvement “lasted only a few seconds. His involvement was limited to shoving and pushing” but, by reason of his plea, he was also liable for the subsequent conduct of the applicant towards the shop attendant.

41. [49]

    In relation to the offending against the owner, his Honour noted that the co-offender “engaged with him and violently pushed him into some shelving”.

42. [50]

    The sentencing judge noted that it was “not in dispute” that the co-offender’s conduct “was aggravated by reason of the vulnerability of the victims working on their own at a service station in the early hours of a Sunday morning”. Further, whilst noting it was not relevant to the objective seriousness of the conduct constituting the offences, his Honour found that “it was also an aggravating feature regarding [the co-offender’s] offending that he was on conditional liberty” at the time – having been placed on a community correction order in 2022 for an assault occasioning actual bodily harm. The sentencing judge also considered that “such planning as there was appear[ed] to have been limited to the actions of [the applicant], given his sole involvement in the assault with [the] intent to rob matter. Even planning for that offence was very limited”. His Honour found that the co-offender’s “conduct was spontaneous and unplanned” and the fact that the evidence suggested that he was intoxicated, whilst providing some confirmation of the absence of planning, was “not a mitigating matter”.

43. [51]

    The sentencing judge found that the co-offender “was a ‘follower’ on this night. He entered the store after his friend, possibly aware of what his friend intended to do, but not intending to participate or assist”. The fact he chose to remain made it possible for him “to intervene when he did and assault both staff members. Although his physical participation in both offences for sentence was relatively limited and brief, an aspect of these offences is that the assaults were committed in company”. Further, although the co-offender’s involvement was limited, his participation allowed the applicant “to regain momentum in his violent conflict” with the shop attendant.

44. [52]

    In relation to count 2, the sentencing judge found it to be “a relatively serious example of an offence contrary to s 59(2)”, given the co-offender’s conduct assisted the applicant “who continued to inflict violence” towards the shop attendant whereas, in relation to count 3, the offending “was far more limited in time and consequence to the victim and [was] significantly less serious”. In relation to count 2, the co-offender was “liable by reason of the principles of joint criminal enterprise for” the conduct of the applicant but the applicant’s involvement in the assault against the shop attendant “was far greater than that of [the co-offender]”.

45. [53]

    In addition to the offending being committed when the co-offender was on a community correction order, the sentencing judge noted that the co-offender’s “criminal record … deprives him of leniency” and also, given his record involved previous convictions for offending involving violence, “specific deterrence [was] a significant sentencing factor”.

46. [54]

    The sentencing judge was not satisfied that the co-offender was remorseful but did find that the risk of reoffending was “relatively low” provided he either abstained from alcohol use or learnt how to drink responsibly. His Honour made a positive finding as to his prospects of rehabilitation, considering them, if he could refrain from alcohol abuse, to be “good”.

47. [55]

    Although the applicant had not, at that point, been sentenced, the sentencing judge identified three “main points of difference” between the sentences imposed, or to be imposed, on them – namely: the applicant was to be sentenced for a plea of guilty to count 1, an offence that had a maximum penalty of 20 years imprisonment, which was “more than double the maximum penalty of an offence under s 59(2)”; whilst the applicant was younger, he had “a far worse criminal record that include[d] two earlier terms of imprisonment for robbery related offending”; and that the applicant “was the principal antagonist and aggressor on this particular night”.

48. [56]

    The sentencing judge noted that the co-offender had been accepted into a non-residential treatment program with Odyssey House and had attended on three occasions during February 2025 – which his Honour considered was “encouraging even if a bit late” and that the program “would be good for him and would assist in his ongoing rehabilitation”.

49. [57]

    The sentencing judge considered that the circumstances, together with the fact that the co-offender “was on conditional liberty at the time for an offence of assault occasioning actual bodily harm [led] [him] to conclude that the s 5 threshold has been crossed”.

50. [58]

    The sentencing judge indicated, after discounting the sentences by 25% for the value of the pleas of guilty, the following sentences: for count 2, 15 months; for count 3, nine months. His Honour determined that an aggregate sentence of 18 months would be imposed “applying a nominal partial accumulation because of the fact that there were two victims and bearing in mind the principles of totality”.

51. [59]

    His Honour rejected a submission made by the Crown that only a term of full-time imprisonment was available, concluding that “community safety will be enhanced by the sentence being served by way of intensive correction order in the community”.

The ground of appeal

1. [60]

   The applicant’s sole ground of appeal is:

2. [61]

   The parity principle was explained by Dawson J in Lowe v The Queen (1984) 154 CLR 606, 623; [1984] HCA 46 (‘Lowe’), in these terms:

3. [62]

   The test of unjustifiable disparity is an objective one; that is, assessed by objective criteria: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] (‘Green’).

4. [63]

   The principle “requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (emphasis in original). In this respect, the question is to be resolved as a matter “of substance rather than form” (see Kadwell (a pseudonym) v R [2021] NSWCCA 42 at [13]), requiring consideration of the “different circumstances of the co-offenders in question and their different degrees of criminality”: Postiglione v The Queen (1997) 189 CLR 295, 302; [1997] HCA 26. Thus, an appeal court will not intervene where “disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”: Green at [31], citing Lowe at 609.

5. [64]

   It should be noted that although the applicant’s appeal is brought pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the “exercise of the statutory discretion is informed by the common law norm” of equal justice according to law: Green at [31].

The applicant’s arguments: consideration

1. [65]

   The applicant argued that unjustifiable disparity was evident from a consideration of the indicative sentences for each count and the aggregate sentence imposed: for the indicative sentences, his argument was that the role the applicant and co-offender played in the offending and, to a lesser degree, the subjective cases for each, could not justify the different indicative sentences; for the aggregate sentence, his argument was that the notional accumulation on each of the aggregate sentences revealed an impermissible lack of proportionality.

2. [66]

   In relation to the arguments directed to the indicative sentences for counts 1 and 3, it should be noted that whilst those sentences are themselves not amenable to appeal, an erroneous approach to them may reveal error in the aggregate sentence imposed: that is, “they may be a guide to whether error is established in relation to the aggregate sentence”: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40](11) (‘JM’). And, relevantly here, the indicative sentences assist “when questions of parity of sentencing as between co-offenders arise”: JM at [39](6).

3. [67]

   This count, it is to be recalled, relates to the offending against the owner. The sentencing judge indicated the following undiscounted sentences for this offending: the applicant, two years; the co-offender, twelve months.

4. [68]

   It is important to emphasise, as the applicant did, the findings made by the sentencing judge about the role of each offender in relation to this count. They were: that it was the co-offender’s “conduct [that resulted] in the injury” to the owner’s back because the co-offender “was directly responsible for pushing [the owner] into the shelving that caused that injury” and that the applicant’s responsibility for this offence was through the application “of the principles of joint criminal enterprise”, given it was the co-offender who pushed the owner into the shelving. Yet, despite this, the undiscounted indicative sentence for this count was two years imprisonment for the applicant, but only one year for the co-offender.

5. [69]

   The Crown, whilst accepting there was a degree of disparity between the sentences, argued that there was not marked disparity: the Crown’s essential submission was that the difference was explicable given the wider context of the offending and, further, as a reflection of the sentencing judge attaching greater weight to specific deterrence in the applicant’s indicative sentence due to his previous offending (Crown submissions at [38]). These submissions draw upon some – but not all – of the parity reasons given by the sentencing judge: see [41], above.

6. [70]

   I do not accept that these arguments provide an answer to the applicant’s parity complaint. Whilst – broadly – it is correct to say that the offence was committed “in the context of the unfolding assault[] of [the shop attendant] by the applicant”, the applicant was separately sentenced in relation to that offending and, in any event, the Crown’s submission was not a finding made by the sentencing judge. Further, in relation to the argument about specific deterrence, whilst I accept that that was an important sentencing consideration for the applicant, I am unable to accept that it could, given the findings about the basis of the applicant’s liability for this offending (see [68], above), justify a sentence that was double the one imposed on the co-offender.

7. [71]

   In concluding, as I have, that there is marked disparity between the indicative sentences imposed for this count, I am mindful that the sentencing judge sentenced both offenders. The importance of this fact lies in the recognition that the sentencing of all co-offenders by the same judge is a matter that tends against appellate intervention – the rationale being that the sentencing judge is fully apprised of the circumstances of the offending and each subjective case: Contos v R [2022] NSWCCA 92 at [86] and the authorities there cited. Nevertheless, the existence of that principle does not relieve this Court of the obligation to analyse “the differences in criminality and subjective circumstances to determine whether the proportion between the sentences leaves the applicant with a justifiable sense of grievance”: Mohr v R [2024] NSWCCA 197; (2024) 390 FLR 293 at [24].

8. [72]

   Having undertaken that exercise, I am satisfied that there is unjustifiable disparity between the indicative sentences imposed for count 3, given the roles of each in the offending and the basis for the applicant’s liability for it. I am also satisfied that the indicative sentence for this count not only had the capacity to, but did, affect the aggregate sentence imposed.

9. [73]

   For these reasons, I would uphold the ground of appeal.

10. [74]

    The applicant had three further parity arguments. Given these arguments are, in varying degrees, relevant to the sentence to be imposed, I will briefly address them in what follows.

11. [75]

    This count, it is to be recalled, relates to the offending against the shop attendant. For this offending, the applicant entered a plea of guilty to assaulting the shop attendant with intent to rob him, contrary to s 97(1) of the Crimes Act. The co-offender, however, was found not guilty of this offence, but entered a plea of guilty to the offence of, whilst in the company of the applicant, assaulting the shop attendant, thereby occasioning to him actual bodily harm, contrary to s 59(2) of the Crimes Act. The sentencing judge indicated the following undiscounted sentences for this offending: the applicant, four years; the co-offender, one year and eight months.

12. [76]

    The applicant argued that the differences between indicative sentences for this offending could not be justified simply on the basis that the applicant’s offending carried the higher maximum penalty between the two offences and that the underlying conduct itself did not support the degree of differentiation (applicant’s submissions at [40]). In this last respect, the applicant relied upon three features of the offending that were argued to demonstrate that, as a matter of substance, the indicative sentence contravened the parity principle.

13. [77]

    The matters emphasised by the applicant were that the co-offender kept a lookout and actually joined the melee involving the shop attendant (but had no actual involvement in the assault of the owner); that it was accepted before the sentencing judge that the Crown could not prove beyond reasonable doubt that the applicant made any demand for money or property of the shop attendant; and that the co-offender had made a “rudimentary effort to conceal his identity by partially covering his face, whereas the applicant had not” (applicant’s submissions at [40]).

14. [78]

    Although it has been recognised that the fact a co-offender in the same criminal enterprise has been charged with and sentenced for different offences will not prevent the parity principle applying, it has also been accepted that there are “significant limitations” and “[particular] difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender” who has been charged with a less serious offence than the applicant: Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [203]; Green at [30]. These limitations apply to the broad comparative exercise that the applicant invited this Court to undertake: here, the applicant pleaded guilty to the “far more serious offence” where the maximum penalty was 20 years imprisonment whereas the co-offender pleaded guilty to the lesser offence where the maximum penalty was seven years imprisonment and the applicant was found to be the principal perpetrator in this offending.

15. [79]

    The applicant’s submission sought to circumvent this difficulty, essentially arguing that, given the three features of the offending relied upon, there was a greater degree of proximity between the role and conduct of the applicant and the co-offender and that this should have been reflected in the indicative, and ultimately the aggregate, sentence.

16. [80]

    I do not accept this argument. The different sentence imposed on the applicant for count 1 to that imposed on the co-offender for count 2 was well justified given the findings made by the sentencing judge. Those findings included: that the applicant entered that area with the intention to rob the shop attendant; the applicant’s offending involved “a high level of violence from [the applicant] towards [the shop attendant] who was just doing his job”; that this was “a relatively serious example” of the offence; and that it was “very apparent … that [the applicant] was obviously the principal aggressor and antagonist and [the co-offender’s] part was a very minor one”. In this last respect, when sentencing the co-offender, the sentencing judge found him to be a “‘follower’ on this night” and was “not intending to participate or assist”. In short, there was a sound and principled basis upon which to impose the different sentences.

17. [81]

    It follows, for these reasons, that the matters argued by the applicant do not demonstrate unjustifiable disparity between the applicant’s indicative sentence for this count and the one imposed upon the co-offender – the difference in the sentencing outcome is readily explained by differences in the offences for which each stood to be sentenced, the different roles each had in that offending and the “serious” nature of the applicant’s criminal history: Green at [31]-[32].

18. [82]

    The applicant argued that unjustifiable disparity is apparent from the level of notional accumulation between the respective offences (applicant’s submissions at [39]). Given the conclusion I favour, and that the applicant is to be resentenced, this argument falls away.

19. [83]

    The applicant also argued that he had a materially stronger subjective case than the co-offender, with the consequence that it ought to have had a greater mitigatory force in the applicant’s case than the co-offender’s (applicant’s submissions at [36]-[37]). Relatedly, the applicant argued that the sentencing judge, when addressing the application of the parity principle, made no reference to any of the subjective cases for each offender as bearing upon this question (applicant’s submissions at [37]-[38]).

20. [84]

    In relation to the overall complaint about the argued strength of his subjective case, when compared to the co-offender’s, I disagree with the applicant’s submission: there is nothing in the applicant’s subjective case that mandates a conclusion that his was materially stronger than the co-offender’s, nor do I accept that there is anything in the subjective cases of each offender that is suggestive of, less still demonstrates, unjustifiable disparity. In relation to the complaint that the sentencing judge, when considering issues of parity, did not refer to the subjective cases of each offender, I regard this as neutral. That is because the question for this Court to determine in a parity appeal is whether – objectively – unjustifiable disparity exists. Thus, whilst the presence of reasons may assist the Court approaching that task, the existence of those reasons does not discharge this Court’s function; similarly, the absence of reasons does not justify this Court’s intervention, which would only occur if persuaded that marked disparity existed.

Resentence

1. [85]

   A justifiable sense of grievance having been demonstrated, it falls upon this Court to re-exercise the sentencing discretion and determine the sentence to impose. That discretion is exercised without regard to the sentences imposed by the sentencing judge: Turnbull v R [2019] NSWCCA 97 at [44]-[46]; RO v R [2019] NSWCCA 183 at [81]-[89]; AM v R [2024] NSWCCA 26 at [44]. If, following the re-exercise of the sentencing discretion, the Court is satisfied that a lesser sentence should have been passed, then the appeal should be allowed: s 6(3) of the Criminal Appeal Act; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

2. [86]

   Given no party sought different findings from those made by the sentencing judge, the re-exercise of the sentencing discretion by this Court proceeds on the basis of those findings together with “any relevant evidence of the applicant’s post‑sentence conduct”: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].

3. [87]

   The applicant did not rely upon any further evidence in the event that this Court was required to resentence him. The Crown relied upon an affidavit of Adrian Hizo affirmed 1 December 2025 detailing the offender’s post‑sentence conduct. That affidavit reveals that the applicant has been the subject of findings of misconduct on two occasions whilst in custody. The parties did not make any submissions about this evidence. In my view, this evidence reinforces the findings of the sentencing judge relating to his future prospects, including the likelihood of reoffending: see [35], above.

4. [88]

   The parties’ submissions, to the extent that they dealt with resentencing the applicant, were confined to those that addressed the ground of appeal.

5. [89]

   I have considered, but will not further repeat, the findings made by the sentencing judge in relation to the applicant’s offending, including its objective seriousness (see [9]-[21], [24]-[26], above) and the applicant’s subjective case: see [27]-[38], above.

6. [90]

   I have had regard to, and considered, the maximum penalties for each offence, the purposes of sentencing as expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the CSP Act’) – in particular, specific deterrence and community protection – and, of course, issues of parity.

7. [91]

   The applicant is entitled to a sentencing discount for his early guilty pleas – 10% in relation to count 1 and 25% in relation to count 3: s 25D of the CSP Act. Given this Court’s decision in Sampson v R [2025] NSWCCA 25, it is necessary to discount the notional starting point without any “round[ing] … either up or down”: at [43], [49]. (The application of this decision explains the difference to the discounted sentence indicated by the sentencing judge to count 1).

8. [92]

   The indicative sentences, with the relevant sentencing discount applied to each, are as follows:

   1. (1)

      Count 1: four years, less 10% = three years, seven months and six days.

   2. (2)

      Count 3: one year, less 25% = nine months.

9. [93]

   I propose an aggregate sentence which requires an assessment of totality: Vaughan v R [2020] NSWCCA 3 at [91], [117]; Aryal v R [2021] NSWCCA 2 at [46]; XY (A Pseudonym) v R [2023] NSWCCA 50 at [50]. Applying that principle, whilst it may be said that the offending could, generally, be considered to arise out of a single episode – in the sense that everything happened during the course of the events in the store – nevertheless, the offending involves discrete and distinct acts and the sentence must “reflect the total criminality of the two offences”: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].

10. [94]

    Applying the principle of totality in relation to the discounted individual sentences, I propose an aggregate sentence of 3 years and 9 months, with a non-parole period of 2 years and 4 months. This non-parole period reflects the finding of special circumstances, and the adjustment to the statutory ratio, made by the sentencing judge.

Orders

1. [95]

   For the above reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal allowed.

   3. (3)

      Quash the sentence imposed on Lata Samate on 16 May 2025 and, in lieu thereof, sentence Lata Samate to a term of imprisonment consisting of a non-parole period of 2 years and 4 months commencing from 13 December 2023 and a head sentence of 3 years and 9 months. The offender will become eligible to be released on parole on 12 April 2026.