R v AC; AC v R

1. [1]

   BATHURST CJ: On 3 March 2016, AC, the respondent to the Crown appeal in the first matter and the applicant for leave to appeal in the second matter (who for convenience I will refer to throughout this judgment as the applicant), pleaded guilty to two offences. The first offence, accessory before the fact to the murder of Mahmoud Hamzy on 29 October 2013, was charged under s 18 and s 346 of the Crimes Act 1900 (NSW) and carried a maximum penalty of life imprisonment. The second offence, accessory before the fact to the offence of discharging a firearm with intent to cause grievous bodily harm, was charged under s 33A(1)(a) and s 346 of the Crimes Act and carried a maximum penalty of 25 years. In sentencing on the first count, the sentencing judge took into account an offence of participating in a criminal group in contravention of s 93T(1) of the Crimes Act (the Form 1 offence). On the second count, accessory before the fact to discharging a firearm with intent to cause grievous bodily harm, the applicant was sentenced to a non-parole period of 3 years commencing on 20 February 2016 and expiring on 19 February 2019, with a balance of term of one and a half years expiring on 19 August 2020.

2. [2]

   On the first count, accessory before the fact to murder, taking into account the Form 1 offence, the applicant was sentenced to a non-parole period of 5 years commencing on 20 August 2017 and expiring on 19 August 2022, with a balance of term of 3 years expiring on 19 August 2025.

3. [3]

   It follows the earliest date the applicant will be eligible for release on parole is 19 August 2022.

4. [4]

   These sentences were arrived at after a discount of 50% for a late plea of guilty and for past and future assistance to authorities (R v AC (No 7) [2016] NSWSC 404 (Sentencing Judgment) at [15]).

5. [5]

   The applicant has sought leave to appeal against the sentence while the Crown has appealed on the sole ground the sentence was manifestly inadequate.

The sentencing judgment

1. [6]

   In what, with respect, was a careful and comprehensive judgment, the sentencing judge set out the facts surrounding the offence in a manner which was not controversial on the appeal.

2. [7]

   The offences occurred at the time the applicant was participating in a criminal group, the Brothers for Life (BFL). The BFL was formed by Bazzam Hamzy (Hamzy) and his cousins, Ghassan Hamzy and Mohammed “Hamoudie” Hamzy (LC). The applicant met Hamzy some 15 years before she was sentenced and the sentencing judge noted that according to the agreed facts she was “dating him while he was in custody”.

3. [8]

   In early 2013 the applicant was employed by a firm of solicitors engaged by Hamzy and in that role visited him in prison and performed agreed tasks for him. The job was unusual as the solicitor, MC, rang and offered her a job even though she had no legal training. The sentencing judge noted she worked unpaid for a period of 3-6 months and over the course of that job received a phone call from Farhad Qaumi (Qaumi).

4. [9]

   The sentencing judge noted the applicant was involved in passing messages between the Hamzys and Qaumi. He noted the applicant undertook that task even though she must have known she was passing messages between men involved in serious criminal activity, involving drug dealing.

5. [10]

   Qaumi sought the approval of the Hamzys to set up a chapter of the BFL. LC insisted he restrict his activities to the area between Granville and Blacktown. The sentencing judge noted that there was tension between Qaumi and LC and their respective groups, due to the failure of LC to provide guns when Qaumi set up the Blacktown chapter of the BFL.

6. [11]

   The sentencing judge noted it was agreed that by 2013 Qaumi was the leader of BFL Blacktown and that over time a turf war developed between BFL Blacktown and BFL Bankstown (run by the Hamzys). This culminated in a number of offences committed at the direction of Qaumi.

7. [12]

   The sentencing judge noted that in his view the applicant was minimising the extent of her knowledge of the activities of the people with whom she was associated, although he acknowledged that her evidence generally speaking was in accordance with the agreed facts tendered at the sentencing hearing.

8. [13]

   On 28 October 2013, the applicant spoke privately to Qaumi and told him LC was planning “to get him”. The applicant had heard this information from her ex-husband. Qaumi said “I was going to get him anyway but this has given me the excuse”. During the course of meetings over the next few hours the applicant, at Qaumi’s request, repeated what she said she had been told. She also told Qaumi she knew of LC’s bail conditions which required him to be home before midnight.

9. [14]

   A plan was developed to shoot LC at his home. The applicant knew where LC lived and was told by Qaumi to drive the shooters to this house. Qaumi said to her “You’re going to fucken drive cause you’re the one that told me [about LC’s plan to kill Qaumi]”. He also said “This will make sure you don’t tell anyone”. The shooters were told not to take their telephones and an attempt was made to set up a false alibi.

10. [15]

    The applicant drove the shooters to LC’s home. They arrived at midnight and waited to make sure LC was at home. Jamil Qaumi (Qaumi’s brother) directed the applicant to keep the car running and when she heard shots, drive up to them. The three shooters, armed with firearms and wearing balaclavas and gloves, entered the premises and opened fire. LC and another person escaped but Mahmoud Hamzy was killed and another person, Omar Ajaj, suffered gunshot wounds. The three shooters then ran to the car.

11. [16]

    The sentencing judge reminded himself that the applicant was not charged with any offence relating to the wounding of Omar Ajaj and that the events that followed the shooting did not form part of the objective features of Count 1 and were to be disregarded in the assessment of the criminality of that count. However, he noted that they were encompassed by the Form 1 offence and provided evidence of the applicant’s knowledge of the extreme nature of involvement in the group at the time of the Chokolatta Café shooting (Count 2).

12. [17]

    The applicant drove the offenders from the scene. Witness L and Jamil Qaumi boasted they had shot LC. The applicant hid the weapons and returned them to Jamil Qaumi at a later meeting. The hire car used for the shooting was burnt. Later the group reported to Qaumi and told him LC was killed. The applicant drove Qaumi away from the meeting.

13. [18]

    The sentencing judge described the shooting as a callous, carefully planned and well executed crime, representing criminality of the highest order. He described the offender’s role as an important one providing Qaumi with the final excuse to put in place the plan to murder his rival. He said that the role she played after the offence demonstrated the extent of her participation in the criminal group. He stated that even if she was following directions, her role was an active one. She participated knowing the intention was to take a human life in what his Honour described as an execution.

14. [19]

    Count 2 related to the Chokolatta Café shooting. I have dealt with the facts surrounding that shooting in my judgment in R v MM; R v WK [2017] NSWCCA 19 and it is only necessary in those circumstances to refer to the sentencing judge’s findings concerning the applicant’s involvement. His Honour noted that a few days after the Hamzy killing, Qaumi, before he left for Thailand, told the applicant he wanted to get Michael Odisho, Masood Zakaria, Mahmoud Sanoussi, Abdul Abu-Mahmoud (Abs) and LC’s brothers.

15. [20]

    On 6 November 2013 Jamil Qaumi asked the applicant if she had information about the “lebos”. Later that day the applicant met with some members of the BFL Blacktown branch including Mumtaz Qaumi. Mumtaz Qaumi said he had heard that Abs may be able to obtain the home addresses of Qaumi and Mumtaz Qaumi. The applicant told Mumtaz Qaumi that Abs had a friend in real estate and he could easily obtain such information. Mumtaz Qaumi said they were going to get Abs. The applicant then attended the location of the shooting and identified Abs and his car. The sentencing judge noted the agreed facts stated “[o]ne of the Quamis said that the target 'will be shot tonight’”.

16. [21]

    The sentencing judge stated he formed the strong impression that in giving her evidence the applicant attempted to minimise the importance of her role. He noted that the applicant identified the victim and the car to the perpetrators and provided information (the closing time of the café) that facilitated the commission of the crime. He rejected the submission that she only told the members of BFL Blacktown what they already knew and that they only included her to ensure she remain with the group and to ensure her silence.

17. [22]

    His Honour’s assessment was that the applicant’s role was quite important in the planning stages of the crime and the case represented a relatively serious example of an offence of accessory before the fact of discharging a firearm with intent.

18. [23]

    The sentencing judge noted that the Form 1 offence took place over a 6 month period from 1 July 2013 to 8 January 2014. He noted, however, the agreed facts suggested her active participation occurred from late October to mid-November 2013.

19. [24]

    His Honour noted that the Form 1 offence also encompassed a third shooting of a Mr Elkadi, in which the offender’s role was to provide Qaumi with the address of LC’s mother knowing Qaumi was determined to commit a shooting to avenge violence that had been perpetrated against members of the BFL Blacktown chapter. He noted she also drove the shooters to and from the scene. He stated that taking the Form 1 offence into account was a matter of some complexity having regard to the important principle that the applicant must not be punished for an offence for which she has not been charged.

20. [25]

    His Honour stated the offence was a serious example of an offence under s 93T of the Crimes Act.

21. [26]

    The sentencing judge stated that in sentencing for the first count he would give greater weight to personal deterrence and to retribution. Whilst he accepted the applicant had distanced herself from the criminal group, he did not accept that resulted in a limited role for specific deterrence. However, he stated that the length of the sentence to be imposed for the two counts on the indictment will have a salutary effect on the offender. He stated that the Form 1 offence means inevitably the sentence for Count 1 will be longer, but not as long as if the s 93T offence had been separately charged or if the applicant had been charged as an accessory to the Elkadi shooting.

22. [27]

    In dealing with the question of duress, the sentencing judge extensively reviewed the applicant’s relationship with the Qaumis, describing it as complex and contradictory. He stated that allowing for this and with hesitation, he concluded on the balance of probabilities that the applicant took part in the crimes whilst acting under a degree of duress. He accepted threats were made against the applicant and her mother. He accepted Qaumi had turned up at her house and reminded her how easy it was to find her. He accepted Qaumi used intimidation and fear to create a feeling of helplessness in the applicant. He said in relation to the Hamzy killing, events unfolded quickly and from her perspective unexpectedly. In relation to the shooting of Mr Abu-Mahmoud she was fearful as failure to co-operate would get back to Qaumi and that his repeated threats remained a significant factor in her mind.

23. [28]

    The sentencing judge stated the finding the applicant was acting under duress was an important factor in assessing her objective criminality. He stated that the offences remained extremely serious and noted that the applicant allowed herself to remain involved with the BFL and Qaumi in spite of knowing they were involved in serious gangland activity.

24. [29]

    In that context he concluded in the end, even allowing for the finding of duress, the applicant’s criminality was significant. He stated that in each case there was a severe aggravating factor, the murder taking place in the home of the victim and in the case of the Chokolatta Café shooting, without regard to public safety.

25. [30]

    The sentencing judge said that to the extent it was useful he assessed the objective criminality on Count 1 as in the mid-range of objective seriousness and Count 2 below the putative and hypothetical mid-range.

26. [31]

    In dealing with the applicant’s personal circumstances, the sentencing judge pointed out she was born in 1982 and would shortly turn 34.

27. [32]

    The sentencing judge referred to her criminal record taking the view it was not a significant one and thus while she was not entitled to the kind of leniency given to a first offender, she was entitled to a degree of leniency. However, he concluded that he was not satisfied that the applicant was a person of good character in the time leading up to the offence.

28. [33]

    The sentencing judge accepted the evidence of Mr Borenstein, a clinical psychologist and Dr Furst, a consultant psychiatrist, that the applicant had PTSD at the time of the commission of the offence but stated it had little impact on her moral culpability or the objective criminality of the offences. However, he accepted it would make conditions of incarceration more onerous.

29. [34]

    The sentencing judge also concluded that having regard to the fact that her ties to the underworld had been severed, her lack of previous convictions and other aspects of her character, he was satisfied that the applicant was unlikely to reoffend and her prospects of rehabilitation were good.

30. [35]

    However, the sentencing judge stated he was unable to reach a positive finding on remorse.

31. [36]

    The sentencing judge noted that the principle of equal justice required him to consider sentencing outcomes in certain other cases to ensure the sentence imposed did not engender a justifiable sense of grievance in the applicant. He noted sentences imposed on three co-offenders were drawn to his attention. One was related to the Hamzy murder and the other two related to the Chokolatta Café shooting.

32. [37]

    His Honour referred to the sentence imposed by him on NK, one of the shooters at the Hamzy murder, who was charged in respect of that incident with two counts encompassing the infliction of grievous bodily harm with intent on both Mahmoud Hamzy and Omar Ajaj. He noted the maximum penalty was 25 years with a non-parole period of 7 years. He noted that the other counts on which NK was sentenced included specially aggravated breaking and entering, the supply of a large commercial quantity of drugs and murder. His Honour noted that he was not satisfied in that case that duress was a prominent feature of the offender’s involvement in the Hamzy shooting, although it was for the other murder for which he was charged. He stated that his assistance and plea of guilty resulted in a reduction in sentence of 60%. He stated that NK had presented a moving personal case.

33. [38]

    The sentencing judge noted he imposed an aggregate sentence of 21 years with a non-parole period of 15 years and 8 months. In relation to the Hamzy shooting he indicated a starting point of 12 years.

34. [39]

    The sentencing judge also referred to the sentences imposed on MM and WK. They were the subject of a Crown appeal heard concurrently with these appeals. The role of MM and WK in the Chokolatta Café shooting and the other incidents in respect of which they were charged, are set out in my judgment on that appeal. Relevantly for the offence under s 33A(1)(a) of the Crimes Act for which MM was charged, taking into account two similar offences on a Form 1, the indicative sentence for that count before discount for an early plea and assistance was 10 years.

35. [40]

    The sentencing judge noted that WK was charged with three offences of discharging a firearm with intent to cause grievous bodily harm in respect of the Chokolatta Café shootings and the indicative sentence in each case was also 10 years.

36. [41]

    The sentencing judge pointed out that the roles of MM and WK were more substantial than that of the applicant. He also noted that there were differences in their subjective cases.

37. [42]

    He indicated in these circumstances he intended to impose a sentence to ensure the applicant was not left with a justifiable sense of grievance arising out of a comparison between the sentence imposed on her and the sentence imposed on the other offenders.

38. [43]

    The sentencing judge referred to two cases where offenders were sentenced for the offence of accessory before the fact to murder: Kanaan v R [2006] NSWCCA 109 and Aoun v R [2007] NSWCCA 292. He accepted the submission that they involved greater criminality than the present case. He noted that neither involved a finding of duress and each offender pleaded not guilty. Nevertheless he said that the sentences (respectively 22 years with a non-parole period of 16 and a half years and 17 years and 3 months with a non-parole period of 13 years) demonstrated the seriousness with which the offence of accessory before the fact to murder is to be treated.

39. [44]

    The sentencing judge stated there must be a substantial degree of accumulation.

40. [45]

    The sentencing judge noted the sentence should be backdated to take into account the 28 days the applicant spent in custody in the early days of her remand period. He rejected the submission that it was appropriate to further backdate the sentence by taking into account on a proportionate basis the time she had been effectively under house arrest. He noted that up to the time he refused a home detention application on 8 May 2016 (R v AC (No 3) [2016] NSWSC 209), the applicant had been on bail on conditions imposed by Campbell J on 27 November 2014. They included a condition not to leave residential premises for any reasons, except to report to police, attend court, attend legal appointments, attend hospital in case of an emergency or doctor’s surgeries, in each case providing details to a Detective Sergeant Browne or his delegate.

41. [46]

    The sentencing judge noted there were variations to this condition, but the house arrest condition continued in place until he relaxed it on 9 February 2016. From then until she entered her plea, he noted the applicant remained subject to onerous curfew conditions.

42. [47]

    The sentencing judge stated that he accepted the conditions were very onerous, stating he had taken that into account in determining the appropriate sentence. However, he stated that generally speaking, the cases in which there had been specific backdating were those where an offender was required to live in a residential rehabilitation premises, pointing out that in the present case the applicant was able to live in her family home and then another residential property of her choosing. Further he noted, even in the case of a residential rehabilitation programme, there was no requirement the sentence be backdated.

43. [48]

    In those circumstances the sentencing judge declined to backdate the sentence. However, he stated that the onerous nature of the bail conditions and the offender’s strict compliance with them were relevant in a number of ways. First, her life was put on hold for a lengthy period. Second, her opportunity for recreation in the community was severely constrained. Third, her compliance with the onerous conditions spelt eloquently of her prospects of rehabilitation. He said that in the circumstances he had given the matter some weight in determining the appropriate sentence.

44. [49]

    The sentencing judge also found special circumstances including the onerous conditions of her present and future custody and the need for a substantial period on parole to assist her integration into the community. He also stated that he took into account the partial accumulation of the sentence and the fact that the adjustment of the non-parole period would be diminished by the accumulation.

45. [50]

    In the circumstances, the sentencing judge, after allowing the discounts to which I have referred above (at [4]) imposed the sentences the subject of this appeal.

The application for leave to appeal

1. [51]

   It is convenient to deal with the application for leave to appeal against sentence brought by the applicant before dealing with the Crown appeal.

2. [52]

   The applicant relied on the following grounds of appeal:

3. [53]

   The applicant summarised the facts surrounding the offences of MM and WK noting in the case of MM that the indicative sentence for the one count relating to the Chokolatta Café shooting represented a starting point of 10 years. He noted that the further offences taken into account on a Form 1 in sentencing for this offence included two further counts of discharging a firearm with intent to cause grievous bodily harm and two offences of unauthorised possession of a prohibited firearm.

4. [54]

   In relation to WK, the applicant noted he was sentenced to three counts of discharging a firearm with intention to cause grievous bodily harm, each relating to an occupant of the car outside the Chokolatta Café. The sentence indicated a nominal starting point of 10 years.

5. [55]

   The applicant submitted that the differences in the offences for which MM and WK were sentenced was not such as to preclude a comparison of their respective sentences, as the applicant was sentenced as an accessory before the fact to the substantive offence for which MM and WK were sentenced.

6. [56]

   The applicant submitted that her case and those of MM and WK were materially different, both with respect to their roles as well as the further offences relating to the incident. She submitted the difference in the nominal starting point for the sentences arising out of the incidents, namely, 10 years in the case of MM and WK and 9 years in her case was not in due proportion to the totality of the differences between their respective cases.

7. [57]

   In that context she pointed to the fact that the roles of MM and WK were self-evidently more substantial and that their offences were aggravated by being committed whilst on conditional liberty. She also noted that in MM’s case the four offences taken into account on the Form 1 warranted a significant increase in the sentence, whilst in the case of WK the offences were charged separately but an aggregate sentence imposed following application of the totality principle. She submitted due proportionality was required notwithstanding the application of the totality principle.

8. [58]

   The applicant acknowledged there were differences in the subjective cases, pointing out that MM and WK were young and also referring to the mental condition of the offenders.

9. [59]

   The applicant ultimately contended that when all the differences were taken into account the differential between the nominal starting points before discount was inadequate and a substantially lower starting point was required for the sentence imposed in her case.

10. [60]

    Senior counsel for the applicant submitted it was appropriate to compare the sentences imposed on Count 2 with the indicative sentences imposed on MM and WK, stating the purpose of such indicative sentences was to ensure compliance with the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, so that the overall aggregate sentence is appropriate to reflect the totality of the criminality of the multiple offences. He submitted it was made clear in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 that the application of the totality principle in another offender’s case did not preclude the application of the parity principle, whilst acknowledging any comparison involves considering what was taken into account in determining the indicative sentences.

11. [61]

    Senior counsel for the applicant also accepted that the sentencing judge considered the issue and that for the ground to succeed it would be necessary to show manifest error.

12. [62]

    The Crown submitted the sentencing judge gave specific and careful attention to parity. It was submitted that although the roles of MM and WK were self-evidently more substantial, given the applicant’s important role in facilitating and planning the offence she was not far behind them. The Crown also pointed to the differences in their subjective cases, including their age, mental condition and findings of remorse.

Consideration

1. [63]

   The parity principle requires that like offenders be treated in a like manner, while allowing for different sentences to be imposed on different offenders and different sentences to be imposed on like offenders, to reflect different degrees of culpability and/or different circumstances: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] citing Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301.

2. [64]

   The principle does not only apply to persons charged with the same offence arising out of the same criminal conduct. The principle is concerned with substance rather than form. However, the greater the differentiation between offences charged, the greater the potential difficulties in its application. Nevertheless, such difficulties do not exclude the operation of the principle: Green v The Queen; Quinn v The Queen supra at [30]: Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [201]-[203].

3. [65]

   An appellate court will intervene when it considers the disparity is such to give rise to a justifiable sense of grievance assessed by reference to objective criteria. A court will not intervene when disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen supra at [31]; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609.

4. [66]

   A difficulty that arises in the present case was that each of AC and MM and WK were sentenced to terms of imprisonment which were arrived at as a result of convictions for different offences and after taking into account the totality principle. The submissions for AC focused on the indicative sentence for the Chokolatta Café shooting imposed on each of MM and WK compared with the sentence imposed on her for her role in that offence rather than the overall sentences in fact imposed.

5. [67]

   In these circumstances, it seems to me that in considering the application of the parity principle, it is necessary to see if the disparity said to give rise to a legitimate sense of grievance arose after the application of the totality principle: Postiglione supra at 303-4, 343.

6. [68]

   The sentencing judge was aware of and sought to apply the parity principle having regard to the sentences imposed on MM and WK: see [39]-[42] above. The applicant did not suggest any misapplication of principle in his approach and accepted for this ground to succeed manifest error need be shown.

7. [69]

   MM was charged with one count of discharging a firearm with intent to cause grievous bodily harm in respect of his role in the Chokolatta Café shooting whilst two similar offences in respect of that shooting were taken into account on a Form 1. WK was charged with three counts of discharging a firearm with intent to cause grievous bodily harm in respect of his role in the shooting. Indicative sentences of 10 years were imposed on MM and WK for each of those offences prior to a discount for plea and assistance to authorities, whilst AC received a sentence of 9 years prior to a discount for plea and assistance to authorities for the charge of accessory before the fact of discharging a firearm with intent to cause grievous bodily harm in respect of her role in the shooting.

8. [70]

   I have set out the facts surrounding the involvement of MM and WK in the Chokolatta Café shooting and their respective subjective circumstances in my judgment on the Crown appeal against the sentences imposed on them and I do not propose to repeat what I said there. The sentencing judge found that the roles of MM and WK were more substantial than that of the appellant. I agree but the difference was not overly significant, particularly in the case of MM who was the driver of the vehicle used in connection with the shooting rather than a shooter. I have set out the facts surrounding AC’s involvement above and as the sentencing judge stated (Sentencing Judgment at [45]) her role was important in the planning stage of the crime. In particular she identified Abs and his car.

9. [71]

   The subjective case of each offender was different. MM and WK were young offenders from a relatively deprived background. WK was functioning at a low level of intellectual disability. On the other hand they committed the offences whilst on conditional liberty. Each of AC, MM and WK had disassociated themselves from the criminal group and had provided substantial assistance to the authorities. In the case of MM the sentencing judge indicated that he was prepared to accept that he was to an extent remorseful, a finding the sentencing judge was unable to make in the present case. Further, each of AC, MM and WK were found to have acted under a degree of duress. Finally each of MM and AC were found to have insignificant criminal records in contrast to WK.

10. [72]

    Taking all these factors into account it does not seem to me that the sentencing judge erred in his application of the parity principle and in particular imposing a sentence with a starting point of 9 years for the Chokolatta Café shooting. Objectively I do not consider that AC could have a justifiable sense of grievance.

11. [73]

    I do not think this is affected by the fact that WK was charged with three counts of discharging a firearm with intent to cause grievous bodily harm in respect of the incident whilst two similar counts were noted on a Form 1 in respect of the one charged count in MM’s case. Ultimately taking into account the totality principle, an aggregate sentence was imposed in respect of the various offences charged against MM and WK, whilst in the case of AC there was significant concurrence in the sentence for the Chokolatta Café shooting and that for accessory before the fact for murder. I do not think the ultimate sentences imposed gave AC a justifiable sense of grievance.

12. [74]

    No other argument was raised in respect of the application of the principle. It follows that this ground has not been made out.

13. [75]

    It was submitted by the applicant that the judge in finding that she had been subjected to onerous bail conditions following a determination on 27 November 2014, failed to note she had been subject to such conditions in the period 2 April 2014 to 27 October 2014.

14. [76]

    She contended in that context the judge mistook the facts or failed to take into account a material consideration in the exercise of his sentencing discretion.

15. [77]

    The Crown submitted the sentencing judge was well aware of the applicant’s bail history. It was pointed out that in dealing with a detention application on 8 March 2016 the sentencing judge referred to the fact that the applicant had been on bail on various stringent conditions from 2 April 2014 to 27 October 2014: R v AC (No 3) [2016] NSWSC 209 at [19]-[20]. The Crown pointed out that the chronology tendered at the sentencing hearing and the written and oral submissions made on behalf of the applicant referred to that period on bail and the remarks on sentences referred in a footnote to the chronology in R v AC (No 3) supra.

16. [78]

    In those circumstances the Crown submitted that the ground was without merit.

17. [79]

    There are two difficulties with this ground of appeal. First, the conclusion of the sentencing judge was not based on the precise length of the period the applicant had been under effective house arrest but rather he found the nature of the applicant’s detention was not such as to warrant any backdating.

18. [80]

    Second, as the Crown pointed out, the sentencing judge in a judgment delivered some eight days prior to the sentencing judgment, referred to the fact that the appellant had been subjected to stringent bail conditions between 2 April 2014 and 27 October 2014. As the Crown pointed out, that judgment, R v AC (No 3) supra, was referred to in a footnote to the judgment on sentence. It is highly improbable in those circumstances that the judge overlooked the matter. Even if he had, having regard to the approach he took, the error could not be said to be one of a material nature or one which vitiated the sentencing discretion.

19. [81]

    It follows this ground of appeal has not been made out.

The Crown appeal – manifest inadequacy

1. [82]

   The Crown submitted that the overall sentence imposed was lenient to the extent it was unreasonable or plainly unjust. It also submitted that the individual sentences were also manifestly inadequate such as to demonstrate error.

2. [83]

   Although the sole ground of appeal was manifest inadequacy, the Crown relied on three matters to support this contention. First, it submitted, his Honour erred in his assessment of the objective criminality for both counts after taking into account duress; secondly, he erred in his determination of the starting points for Count 1 and Count 2; and third, that the degree of accumulation was inadequate and failed to reflect the totality of the criminality for each offence.

3. [84]

   The Crown acknowledged that the assessment of the objective criminality of the offence is a discretionary process involving a value judgment and only reviewable on the principles stated in House v The Queen (1936) 55 CLR 499; [1936] HCA 40. It was also accepted that duress plays a role in the assessment of the objective seriousness of the offence and once established it is a mitigating factor bearing upon the degree of an offender’s moral culpability. The Crown also accepted that duress may be relevant to the objective gravity of the offence because it would diminish the moral or true culpability of the offender. However, the Crown submitted the ultimate finding of the sentencing judge having factored in duress was erroneous in that it was not reasonably open to equate the offences as ones of mid-range or below mid-range.

4. [85]

   It was also submitted that a starting point of 16 years and 9 years, even allowing for the applicant’s subjective circumstances, was manifestly inadequate in failing to address the multiple purposes of sentencing including personal and general deterrence and denunciation of the criminality involved. The Crown also noted that the success or otherwise of its appeals in the matters of MM and WK would determine the proper comparison of those sentences to the applicant’s sentence.

5. [86]

   The Crown, whilst acknowledging accumulation was a matter for discretionary judgment, submitted that given the nature and gravity of the entirely separate offences, an accumulation of 18 months was neither significant nor sufficient to reflect the additional degree of criminality.

6. [87]

   At the hearing the Crown referred to Aoun v R supra, one of the cases referred to by the sentencing judge, where the offender was convicted of the offence of accessary before the fact to murder. In that case the offender prepared a car for use in an attempt to inflict grievous bodily harm on the victim by breaking into a vehicle, removing the steering column and ignition barrel to move the car out of the garage and then substituting a new steering column and ignition barrel whilst cleaning the car to remove evidence. The victim was, in fact, killed. The offender also advised the shooter it would be better to do it at night. The offender was sentenced to a term of 17 years and three months with a non-parole period of 13 years. The Crown submitted the applicant’s role in the present case was greater. It was submitted she provided the final excuse for the murder and also provided valuable information such as the location and best night to commit the murder and drove the car to the scene.

7. [88]

   In relation to the starting point for the offence, the Crown pointed to the fact that the maximum penalty for murder was life imprisonment and that even if the sentencing judge was correct in assessing the offence as in the mid-range of objective seriousness, the starting point of 16 years for the offence of accessory to murder was erroneous.

8. [89]

   At the hearing the Crown frankly acknowledged that its accumulation argument was not its strongest point, recognising accumulation of 18 months was not insignificant.

9. [90]

   The applicant noted there were no challenges to the factual findings made by the sentencing judge and that the Crown recognised its contention of error in determining the objective seriousness of the offence required it to demonstrate the assessments were not reasonably open in all the circumstances.

10. [91]

    The applicant submitted that it was not apparent that the assessments made by the sentencing judge were not reasonably open in view of the broad range of conduct covered by offences of the nature of those in question.

11. [92]

    Similarly, the applicant submitted that it was not apparent that the nominal starting point for the sentences was inadequate having regard to the applicable maximum penalties and the range of conduct potentially covered by such offences. She noted that the sentencing judge expressly addressed the application of the purposes of the sentencing in the circumstances of her case. She referred to the fact she had severed her ties with the criminal group and had no significant record of prior convictions. In these circumstances she submitted that neither personal deterrence nor protection of the community was a consideration warranting particular weight.

12. [93]

    The applicant also emphasised the extent of accumulation is discretionary and one about which reasonable minds might differ.

13. [94]

    Senior counsel for the applicant submitted that the objective circumstances of the shooting, including the use of dangerous weapons and the use of gloves and balaclavas, was not directly relevant to the participation of the applicant as an accessory, although he acknowledged she participated in the planning of the crime.

14. [95]

    Senior counsel for the applicant submitted that the structure of the judgment was that the characterisation of the Hamzy shooting and the offender’s role being extremely serious, all took place prior to taking into account duress. He submitted that in those circumstances there was no tension in the findings of the sentencing judge.

15. [96]

    Senior counsel for the applicant noted that in Aoun v R supra, the Court (at [27]) found that the sentencing was heavy but not manifestly excessive. He stated that in those circumstances it was difficult to see how the starting point of 16 years for the offence of accessory to murder could be regarded as manifestly inadequate.

Consideration

1. [97]

   In R v MM, R v WK supra I set out (at [159]) the principles on which a court will determine whether a sentence is manifestly inadequate. The Crown in this case in effect particularised this ground by submitting there were three errors in the sentencing process. Whether this is an appropriate course rather than raising such matters as separate grounds of appeal need not be determined. However, it must be borne in mind that the relevant question is whether the sentence imposed is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22].

2. [98]

   However, it is convenient to deal with the particular matters raised by the Crown.

3. [99]

   The first matter relied on was that the sentencing judge erred in his assessment of the objective criminality of the offence. The Crown accepted what was said in Mulato v R [2006] NSWCCA 282 that the assessment of objective seriousness is quintessentially for the sentencing judge and it is not the function of this court to substitute its own view of the matter: Mulato supra at [37], [46]. That does not mean that such a decision is unreviewable. However, it is only reviewable on the principles laid down in House v The Queen (1936) 55 CLR 499; [1936] HCA 40 on the basis that the determination was outside the range properly available to the sentencing judge: Ramos v R [2015] NSWCCA 313 at [37]-[41]; R v KB [2011] NSWCCA 190 at [53].

4. [100]

   I do not think that the ultimate determination by the sentencing judge of the objective seriousness of the offence involved an error in the exercise of the discretion. The sentencing judge correctly, in my opinion, initially determined that the murder for which the applicant was charged as an accessory represented criminality of the highest order and that the applicant’s role was an important one. He described the offence relating to the Chokolatta Café shooting as a relatively serious example of an offence of accessory before the fact of discharging a firearm with intent to cause grievous bodily harm. It was only after he factored in duress that he assessed the objective criminality of the offence of accessory before the fact of murder as in the mid-range of objective seriousness and that relating to the Chokolatta Café shooting as below the hypothetical mid-range.

5. [101]

   I do not think that the ultimate conclusion reached by the sentencing judge after factoring in duress constituted error in the House v The Queen sense. The offences were serious but having regard to the matters referred to by the sentencing judge to which I have referred at [27] it was, in my opinion, open to him to reach that conclusion.

6. [102]

   It should also be noted that his assessment must be considered in the context of his conclusion that notwithstanding the importance of duress the offences remained serious and the applicant’s criminality was significant.

7. [103]

   The second manner in which it was said the sentencing judge erred was in his determination of the starting point for the respective sentences. So far as the offence of accessory before the fact to murder is concerned it is not entirely clear why it is said the starting point of 16 years was manifestly inadequate particularly taking into account that duress was said to be an important factor. The sentencing judge certainly was aware of the principles of sentencing having set them out in detail in his judgment (Sentencing Judgment [104]-[107]) and took those principles into account.

8. [104]

   Further, the only case relied on by the Crown, Aoun v R supra, seemed to me to involve at least equal criminality to that of the applicant in the present case (see [87] above). The sentence in that case of 17 years and three months was described by the Court of Criminal Appeal as being heavy but not manifestly excessive ([2007] NSWCCA 292 at [27]. It does not suggest that the starting point in the present case was manifestly inadequate.

9. [105]

   So far as the starting point for the Chokolatta Café offences is concerned, I do not consider a starting point of nine years was manifestly inadequate taking into account that the applicant acted under duress and her subjective circumstances, particularly the findings by the trial judge that she was unlikely to reoffend and that her prospects of rehabilitation were good. Further, although I have concluded that the sentence imposed on her compared with the indicative sentence imposed on MM and WK in respect of the charges arising out of their role in the shooting did not offend the parity principle, any increase imposed on the applicant would, in my view, give rise to a justifiable sense of grievance and thus offend that principle.

10. [106]

    The third matter relied upon by the Crown was that the degree of accumulation was inadequate. The Crown correctly recognised that this was a matter for the discretionary judgment of the sentencing judge: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64]; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]. As was pointed out in Nguyen supra at [64], less severe individual sentences may call for a greater degree of accumulation. Nevertheless, it does not seem to me in the present case that the degree of accumulation was such to lead to the conclusion that the sentencing judge’s discretion miscarried.

11. [107]

    Ultimately, the question is whether the overall sentence imposed, taking into account the principle of totality, was manifestly inadequate in that it was unreasonable or plainly unjust. Taking all the matters I have referred to into account, I am of the view that the sentence, whilst somewhat lenient, does not fall into this category. It follows that this ground of appeal has not been made out.

12. [108]

    In the matter of R v AC I would order the appeal be dismissed.

13. [109]

    In the matter of AC v R I would make the following orders:

    1. (1)

       Grant the applicant leave to appeal.

    2. (2)

       Appeal dismissed.

14. [110]

    ROTHMAN J: I have read, in draft, the reasons for judgment of the Chief Justice and I agree with those reasons for judgment and the orders proposed.

15. [111]

    It is accepted that a sentencing judge may permissibly take into account onerous terms of bail in calculating a sentence or its commencement date. Similarly, it is permissible for a sentencing judge not to alter a sentence or its commencement date as a consequence of the conditions imposed during liberty on bail.

16. [112]

    Given the history of the matter and the earlier judgments of his Honour below, it is not possible, in my view, for his Honour to have overlooked the issue and I agree that the ground of appeal has not been made out.

17. [113]

    As earlier stated, I agree with the orders proposed and the reasons of the Chief Justice.

18. [114]

    GARLING J: I agree with the orders proposed by the Chief Justice and with his reasons.