YA v R

1. [1]

   N ADAMS CJ at CL: On 20 December 2024, Hamill J sentenced five co-offenders for their involvement in a violent altercation between two groups of young men in Blacktown on 1 September 2021: R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650. A 17-year-old youth was killed and two 15-year-old youths were wounded during the altercation.

2. [2]

   By notice of appeal filed 10 September 2025, the applicant, who is one of the five co-offenders, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by Hamill J for the following three offences, each of which carries a maximum penalty of 25 years’ imprisonment:

3. [3]

   The applicant was sentenced to an aggregate sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 3 months. The sentence was backdated to commence on 17 October 2023. The non-parole period will expire on 16 January 2028 and the head sentence will expire on 16 July 2030. The indicative sentence for each offence was:

4. [4]

   The applicant was sentenced for each offence on the basis of his participation in a joint criminal enterprise with his co-offenders. At the time of the commission of the offences, he was 17 years and 3 months old. His four co-offenders were AG, AD, Ibrahima Diallo and Panashe Karise.

Grounds of appeal

1. [5]

   In his notice of appeal filed on 10 September 2025, the applicant relied on the following five grounds of appeal:

2. [6]

   Ground 2 was ultimately not pressed by the applicant.

Procedural history

1. [7]

   The applicant and his four co-offenders were listed to stand trial in the Supreme Court on 1 July 2024 on a joint indictment. This indictment charged each offender with the following offences allegedly committed on 1 September 2021 at Blacktown:

2. [8]

   On 29 July 2024, following pre-trial legal argument, the sentencing judge directed that the applicant be tried separately: R v Diallo & Ors (No 6) [2024] NSWSC 917. The applicant’s case was adjourned to be heard after the joint trial of the four co-offenders, which commenced on 31 July 2024.

3. [9]

   The matters in dispute in the joint trial included:

   1. (1)

      The existence and scope of any joint criminal enterprise between the co-offenders;

   2. (2)

      Whether any joint criminal enterprise had been abandoned by the time any of the stabbings took place;

   3. (3)

      Whether the fatal wounding of Darcy Moore by AD was a voluntary or intentional act or whether Darcy Moore had fallen onto the knife held by AD; and

   4. (4)

      Self-defence.

4. [10]

   On 23 September 2024, at the conclusion of the joint trial, the jury returned the following verdicts for the four co-offenders:

5. [11]

   On 1 November 2024, the applicant was arraigned on a fresh indictment containing the three counts at [2] above and entered a plea of guilty to each count.

The facts

1. [12]

   No agreed facts were tendered on sentence. Instead, in reaching the agreement as to the applicant’s plea, the parties agreed that the trial transcript and exhibits would be tendered as part of the evidence on the applicant’s sentence and the trial judge would find the facts on sentence for all five offenders based on that evidence. As the sentencing judge observed, the issues surrounding the facts of the offences were the same as between the co-offenders.

2. [13]

   All of the trial transcript and significant exhibits for the co-offenders were included in the appeal book. Given that the applicant did not challenge any of the factual findings made by the sentencing judge, it was the position of both the applicant and the Crown that there was no need for this Court to have regard to the trial transcripts.

3. [14]

   The following summary is drawn from the sentencing judge’s findings of fact.

4. [15]

   The applicant and his co-offenders were members of a group calling itself “MOB”, an acronym for Money Over Bitches. The victims were affiliated with a rival group known as “QSB” (Queen Street Boys), “RFA” (Ready for Anything), and “Murda” or “Murda60”. The animosity between the two groups appears to have arisen over competitiveness around an art form known as drill rap music. The offenders were not sentenced on the basis that the offending involved “gangland activity” or that this was a conflict between “gangs”.

5. [16]

   There were communications between the groups demonstrating animosity in the weeks and months before the offending. Members of MOB taunted and mocked the music of Darcy Moore and QSB.

6. [17]

   On 31 August 2021, AD, YA and Mr Karise attended William Street, Blacktown in the area of Darcy Moore’s home. There were social media posts afterwards bragging about what had occurred and CCTV footage taken from a house down the road showed part of the incident. There were also short video clips on AD’s telephone showing that he was armed with a knife.

7. [18]

   Darcy Moore made a Snapchat recording of his account of what happened that night, which was accepted by the sentencing judge as a generally accurate description of the events. He said:

8. [19]

   One of Darcy Moore’s friends, Mr Okot, received a “small cut or graze” from being cut with a knife.

9. [20]

   The applicant, AD and Mr Karise later bragged on social media about what had occurred. The applicant made a recording boasting that he had stabbed “that fat cunt AK”. While the sentencing judge did not sentence the applicant on the basis that he stabbed anyone on 31 August 2021, his Honour found that the recording was “potent evidence of [the applicant]’s state of mind”, which continued until the following evening.

10. [21]

    At 10:41pm on 31 August 2021, AD sent a message to the applicant, AG and Mr Diallo saying, “Round 2 tmr”. His Honour found that the planning for the offending commenced from around the time of that message.

11. [22]

    Just after 9:30pm on 1 September 2021, the applicant and the four co-offenders attended the street outside 51 William Street, Blacktown in Mr Karise’s car. They were wearing masks and gloves and at least some of them were armed with knives. From the car, an offender yelled “come out”. They were then caught on CCTV moving around in the vicinity of the residence. EO, EC and Darcy and his father Peter Moore came outside and remained in the front yard. Mr Moore gave evidence that he told the group to “fuck off” and “piss off”.

12. [23]

    The five co-offenders then left and drove to a spot near the canal on William Street. They were there from about 9:50 until 10:00pm. During that time, AG engaged in communications with Darcy Moore, via video chat, text message and audio message. AG was goading Darcy Moore to exit the house. Darcy told AG, “go fucking enjoy your ride home you little pussy”.

13. [24]

    At 10pm, Mr Karise’s car was driven to a different location on William Street. The five offenders then approached 51 William Street on foot and stood just outside the fence to that property. They were wearing balaclavas or other face coverings and “all or most of them” were brandishing kitchen knives. The sentencing judge found based on the forensic evidence that there were at least six knives available to the offenders when they attended William Street. The sentencing judge found that this group did not cross the threshold of the curtilage of 51 William Street.

14. [25]

    Darcy Moore said to those inside the house to “get the guys outside”. These men and boys were also armed with various weapons, including golf clubs that were distributed to the group by Darcy Moore’s father, a large “zombie” knife held by Darcy and a large machete held by another man. The sentencing judge found that the group which emerged from the William Street house intended to use their weapons to inflict harm on the five co-offenders.

15. [26]

    The occupants of the house attacked the five co-offenders. The latter retreated up William Street towards Suffolk Street, and the rival group followed them. The pursuit continued into Suffolk Street and around the corner to Norfolk Street. The sentencing judge found that the five co-offenders “did not simply run away and keep running” and there was physical engagement between the groups in William Street, Suffolk Street and Norfolk Street.

16. [27]

    The five co-offenders stopped on Suffolk Street, “probably to re-engage in the fracas”, but were outnumbered. They were surrounded on three sides when Darcy Moore ran around behind them and then came at AD carrying the large zombie knife. He started to fall or stumble forward while AD held his knife out in front of him or thrusted it in Darcy’s direction. The knife penetrated his chest, perforating part of the sternum and surrounding soft tissue. It entered his diaphragm and the right ventricle of his heart.

17. [28]

    This was the single stab wound that caused Darcy Moore’s death. Darcy staggered back to William Street and collapsed on the street.

18. [29]

    The sentencing judge was unable to make a positive finding as to precisely where in Suffolk Street the stabbing occurred. However, his Honour found that the precise location of the stabbing would neither diminish nor increase the gravity of the manslaughter offence. His Honour found that the joint criminal enterprise subsisted at the time Darcy Moore was stabbed and for some minutes thereafter, including when EO and EC were stabbed outside 21 Norfolk Street.

19. [30]

    After Darcy Moore was stabbed, the groups continued down Norfolk Street. EO chased after the person he thought had stabbed Darcy Moore. A recording made by EO at the time shows he was behaving “aggressively and in a very provocative way”.

20. [31]

    The sentencing judge found that it was around this time that the applicant became afraid and went somewhere to hide. His Honour was satisfied that the applicant was scared. However, by his plea of guilty, the applicant was found to have accepted that the joint criminal enterprise continued and that he had not withdrawn from it.

21. [32]

    At 10:05pm, the four remaining co-offenders ran towards 21 Norfolk Street. The group from 51 William Street ran after them. AD ran to the front door of 21 Norfolk Street and was banging on the door and crying for help. He was confronted by several men, including EC, EO, Joshua Okot and Monzir Komei, and threw a pot plant from the front porch at his assailants. The sentencing judge was satisfied that by that point in the incident AD was in significant peril. Mr Okot swung a golf club at AD with sufficient force to snap the club. EC punched and kicked AD while he was cowering and wedged between some garbage bins. AD was screaming for help.

22. [33]

    Mr Karise leapt into the front yard of 21 Norfolk Street to defend AD. He stabbed EO. His Honour found that Mr Karise did what he believed was necessary in the defence of AD, but that his conduct exceeded that which was objectively reasonable in the circumstances as Mr Karise perceived them. His Honour also accepted that his conduct went well beyond the scope of the joint criminal enterprise.

23. [34]

    EO was stabbed ten times. He received wounds to his abdomen, the left part of his chest wall, on his back over the scapula and to his shoulder and clavicle. He was stabbed twice at the back of the neck where the shoulder and arm meet, twice on the back of the neck, above the clavicle, twice on the left upper arm and on the base of the left thumb. He was critically unwell. He had no brachial pulse, very low oxygen saturations, and needed multiple blood transfusions. On arrival at Blacktown Hospital, he had no radial pulse indicating low blood pressure and one of his lungs was functioning poorly, requiring decompression by placing a needle in the left side of his chest. The most life-threatening injury was the stab wound to the chest wall, which resulted in a total blood loss of 2.4 litres. That injury required immediate surgical intervention to repair damage to the pulmonary vein, which is responsible for supplying blood to the heart. Without treatment, EO would have died.

24. [35]

    Shortly after Mr Karise stabbed EO, somebody stabbed EC. The identity of that person is unknown, but he was a participant in the joint criminal enterprise.

25. [36]

    EC suffered three stab wounds and was assessed by the paramedics as requiring less urgent assistance than EO. He had a 3-4cm long wound to the left upper thorax which pierced his lung, a 7cm long wound to his right flank with contained bleeding in the liver, and a 10cm long wound to his left triceps which penetrated to the humerus but caused no arterial bleeding. The sentencing judge found that “[t]hese were serious stab wounds”.

26. [37]

    Police and ambulance officers were on the scene promptly after being contacted by several local residents.

27. [38]

    The applicant was found by police hiding in the carport of 6 Suffolk Street and placed under arrest.

28. [39]

    CCTV footage showed AG, AD and Mr Karise attempting to flee from the scene. The sentencing judge found that, “[b]y that time, AG was carrying a knife and AD was carrying a broken golf club”. All three offenders were apprehended by police at different locations and arrested.

29. [40]

    On arrest, three offenders had injuries:

    1. (1)

       AG suffered a deep 5cm laceration to his left thumb, exposing the tendon, which required surgical intervention to repair the tendon.

    2. (2)

       AD suffered a puncture wound to his right forearm that was washed and dressed. The wound was 0.5cm to 1cm in diameter and its depth could not be assessed.

    3. (3)

       Mr Karise had a deep laceration to his left triceps and a superficial laceration to his right bicep. He also had a small incomplete fracture to his left arm due to the stab injury.

30. [41]

    Mr Diallo was not located by police on the night of the offending. He caught public transport from the scene, and his movements were recorded by CCTV cameras.

31. [42]

    When the applicant, AG and AD were arrested and charged with murder on 22 February 2022, they were placed in a police truck together. AG threatened to “smoke” the applicant if he spoke to the police.

Proceedings on sentence

1. [43]

   The sentence proceedings for the four co-offenders took place on 29 November 2024. The separate sentence proceedings for the applicant took place on 11 December 2024. There was a further short joint sentence hearing on 19 December 2024.

2. [44]

   The applicant did not give evidence at his proceedings on sentence. Rather, he relied on the following documents to establish mitigating factors on sentence:

   1. (1)

      A Juvenile Justice Background Report dated 4 December 2024;

   2. (2)

      An affidavit of the applicant dated 2 December 2024;

   3. (3)

      An affidavit of the applicant’s father dated 2 December 2024;

   4. (4)

      Psychological report of Dr Paul Pusey dated 30 November 2024;

   5. (5)

      Youth Justice Incident Report concerning an incident on 22 May 2022 at Cobham Juvenile Justice Centre;

   6. (6)

      Youth Justice Reclassification Review Form as at 11 April 2023; and

   7. (7)

      Affidavit of the applicant’s mother dated 3 December 2024.

3. [45]

   On sentence, the Crown submitted that the sentencing judge would find that the applicant was armed with a knife on the evening of 1 September 2021, that he and his four co-offenders were participating in a joint criminal enterprise to inflict grievous bodily harm upon the occupants of 51 William Street, and that they were each guilty of manslaughter on the basis of excessive self-defence.

4. [46]

   Although it was submitted in writing on behalf of the applicant at the proceedings on sentence that “the liability for and objective seriousness of this offence [of manslaughter] are to be submitted to the Court orally”, no such submissions were made on behalf of the applicant as to the basis of his liability for manslaughter.

5. [47]

   It was submitted that the applicant’s liability for the two wounding offences was grounded in a joint criminal enterprise to commit serious assault and that each stabbing was an act of excessive self-defence.

Remarks on sentence

1. [48]

   The sentencing judge reserved his decision overnight and delivered his remarks on sentence for all five co-offenders in joint sentencing reasons the following day, 20 December 2024.

2. [49]

   The sentencing judge accepted submissions made on behalf of other co-offenders that the evidence does not exclude beyond reasonable doubt the possibility that the offenders’ common design was to intimidate and if the occasion arose assault the “opps” while being armed with knives. His Honour observed:

3. [50]

   His Honour concluded that the offenders were to be sentenced on the basis that they committed manslaughter by unlawful and dangerous act and did not form the intention to kill or inflict grievous bodily harm.

4. [51]

   As for the issue of self-defence, his Honour found:

5. [52]

   For counts 2 and 3, the applicant was sentenced on the basis that he was a participant in an extended joint criminal enterprise. His Honour observed (ROS [107]):

6. [53]

   For count 2, his Honour found that Mr Karise and the others present believed in the extremely urgent circumstances that prevailed that both they and AD were in grave danger, but that Mr Karise’s infliction of multiple stab wounds “exceeded by a large margin” a reasonable response to the circumstances (ROS [110]).

7. [54]

   For count 3, his Honour accepted that the offenders believed that they needed to act in self-defence but that the degree to which the conduct was unreasonably disproportionate to the threat was “substantial” (ROS [111]).

8. [55]

   The sentencing judge considered the following factors: (ROS [114])

   1. (1)

      The victim was still a child and had a “long and promising future in front of him”.

   2. (2)

      The offence did not involve an intention to kill or to inflict grievous bodily harm, but it was an offence of violence, involved the use of weapons and was committed in company in a public suburban street.

   3. (3)

      There was an element of subjective self-defence but thrusting or presenting the knife in the chest area was objectively disproportionate to the threat.

   4. (4)

      The occasion for self-defence only occurred because the offenders attempted to intimidate and assault the occupants of 51 William Street for reasons which remained “unfathomable”.

   5. (5)

      There was planning involved, with knives purchased and face coverings worn.

   6. (6)

      When the initial opportunity to withdraw arose, the offenders instead regrouped and then proceeded to the scene as a group.

9. [56]

   His Honour found AD’s objective criminality for the manslaughter to be more significant than his co-offenders because he wielded the knife and there was more evidence of his personal animosity toward the victim. AG’s conduct in goading Darcy to come out also placed his conduct at a “significant level of seriousness” (ROS [115]).

10. [57]

    His Honour concluded that the offence, while a very serious criminal offence, was “in the lower part of the spectrum” of the “very wide range of offences of unlawful killings” (ROS [116]).

11. [58]

    The sentencing judge noted that the offence to which the applicant pleaded guilty was “less serious” than the offence to which the other offenders were found guilty. While the maximum penalty is the same, his Honour observed that “an intention to kill is a more serious mental element than an intention to inflict really serious injury”. While the applicant acknowledged by his plea that he remained a part of the joint criminal enterprise, his Honour also noted that the applicant was not in the immediate vicinity when EO was stabbed (ROS [117]).

12. [59]

    Mr Karise’s role was found to be the “most significant” because there was no evidence that anybody else inflicted any of the stab wounds that almost killed EO. The stabbing was described as repeated and vicious and appeared to have been inflicted in a frenzy. While Mr Karise believed that his actions were necessary, his response was “utterly disproportionate to the circumstances” (ROS [118]). There was planning in the lead up to the fracas and “the whole escapade exhibited a wanton lawlessness” (ROS [119]). While EO’s injuries were life threatening, he appears to have made a good recovery.

13. [60]

    The sentencing judge found that Mr Karise’s criminality falls in the “lower part of a supposed mid-range of objective seriousness relative to all offences of wounding with intent to murder” (ROS [120]). AG, AD and Mr Diallo’s criminality was found to be less serious than that of Mr Karise (ROS [121]).

14. [61]

    The sentencing judge found that the applicant’s objective criminality is less than that of his co-offenders for the stabbing of EO. However, his Honour observed (ROS [122]):

15. [62]

    His Honour found that this offence is objectively “much less serious” than the manslaughter of Darcy Moore or the wounding of EO. The injuries were far less severe and the degree to which the conduct departed from what was a reasonable defensive response in the circumstances was not as great. However, the offending was part of the planned activity of the night and played out in a public street with the use of weapons (ROS [123]).

16. [63]

    His Honour concluded that the offence fell towards the “lower end” of objective seriousness for offences of its kind (ROS [125]). There was little to distinguish the criminality of each of the offenders.

17. [64]

    While YA was probably hiding at that stage, his Honour found that that was because he was scared and he remained “responsible for what happened as an extension of the joint criminal enterprise he willingly joined” (ROS [124]).

18. [65]

    At the time of offending, the applicant was aged 17 years and 3 months. He was 20 years and 6 months old at the time of sentence.

19. [66]

    The applicant was born in Blacktown. His parents are both professional people from Iraq; his mother is a specialist doctor and his father was an engineer. The applicant has excellent family support and good relationships with his family, reporting that he “felt safe, supported, valued and nurtured” in his household. He had difficulties at school and struggled to make and retain friendships, especially because his family relocated to different areas of Sydney several times. He was suspended from school for disruptive behaviour and for “being the class clown”. He worked at KFC from November 2021 to February 2022 (ROS [185]).

20. [67]

    YA met AG and AD when he was in Year 12 and they became close friends. YA enjoyed being part of the “popular group” which improved his social status. When asked why he did not leave the group when he became aware of the gang-related nature of their relationships, YA explained that he thought he could maintain these friendships without becoming involved in violent activities. The sentencing judge found that it was difficult to reconcile that assertion with his possession of a knife and boastful Snapchat video following the event of 31 August 2021 (ROS [186]).

21. [68]

    Dr Pusey diagnosed YA with an “adjustment disorder” at the time of the offending. The main stressor was a conflict between the applicant’s personal values and his desire to maintain friendships with his co-accused. Dr Pusey opined that this “at least partially explains his engagement in his offending behaviour”. Since his offending, the applicant has also developed a Dysthymic (Pervasive Depressive) Disorder due to the duration of his period of house arrest and his involvement in the offences.

22. [69]

    The Background Report indicated that the applicant generally behaved well in a custodial setting and actively engaged in all available programs, education and counselling. Although citing two misbehaviour reports for fighting and an unauthorised telephone call, YA was “accepting of the consequences and promptly adjusted his behaviour”. While in custody YA completed most of the required units for a Certificate III in Business and a Certificate II in Agriculture and has participated in numerous other subjects and programs. YA has reportedly gained some understanding of the influence and consequences of anti-social peer relationships and is said to have demonstrated “some insight and understanding on the impact that his offending has had on his family”.

23. [70]

    The applicant “did not justify or minimise his offending and described feelings of remorse and regret”. The sentencing judge found that he displayed significant empathy for the victims and their families and friends and described feelings of shame and sadness for his conduct (ROS [189]).

24. [71]

    His Honour found the affidavits of the applicant’s parents to be “very impressive”, describing their life in Iraq under Saddam Hussein and their professional qualifications. His Honour accepted the applicant’s mother’s opinion that he is truly remorseful and that he has made significant changes in his life and attitude since the offending. His Honour described it as significant that the applicant enjoys the support of a “close-knit and loving family” (ROS [190]).

25. [72]

    The applicant had only one other matter on his criminal record relating to an offence of affray on 12 June 2021. At the time of sentencing, this matter remained before the Children’s Court, and he was treated as a person with no prior convictions: s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) (ROS [181]).

26. [73]

    The sentencing judge found that the applicant’s compliance with strict bail conditions was “compelling evidence” of his progress towards rehabilitation (ROS [191]). His Honour was satisfied that the applicant had very good prospects of rehabilitation and that he was unlikely to offend in a similar way again (ROS [192]).

27. [74]

    When considering proportionality and the objects of punishment, the sentencing judge compared YA’s subjective case to that of AG, observing that “[e]ach of those young men are to be sentenced for extremely serious offences but each has presented a compelling subjective case that demands close and careful attention” (ROS [198]).

28. [75]

    AG was aged around 17 and a half years at the time of offences and was 20 years old at the time of sentencing. He had a limited criminal history.

29. [76]

    The sentencing judge found that AG presented a “compelling and complex subjective case”. Hamill J described his Youth Justice report as “probably the most positive I have seen in decades of working in the criminal law” (ROS [149]). This report described his conduct in custody as “exemplary” and stated that he took advantage of all of the opportunities available to him (ROS [152]-[153]).

30. [77]

    AG was born in Sierra Leone and came to Australia when he was two years old. His mother died in childbirth. AG was physically abused by his father and stepmother and lack of maternal nurturing and care impacted on him (ROS [157]). There was also some evidence of other traumatic events AG suffered as a child (over which his Honour made a non-publication order) which the sentencing judge accepted had a psychological impact on AG (ROS [158]). He was a very talented football player and was pursuing a career in professional football. However, an ACL injury ended his career.

31. [78]

    AG struggled with depression and feelings of abandonment and social isolation and began self-medicating his pain with cannabis, oxycodone, Xanax and alcohol. He began spending time with anti-social peer groups who endorsed his drug use. AG made several suicide attempts. He was diagnosed with Persistent Depressive Disorder and post-traumatic stress disorder, which were said to be “primary contributors” to his offending (ROS [161]).

32. [79]

    AG found it emotionally challenging to reflect on the enormity of the consequences of his actions and alleged that he had a limited recollection of some aspects of the offending, experiencing distressing flashbacks. The psychologist’s report observed that AG’s:

33. [80]

    His Honour found that AG’s moral culpability was reduced “substantially” and this had a “large impact on the sentence to be imposed on him” (ROS [166], [217]). His Honour was satisfied that AG was truly remorseful and that he had excellent prospects of rehabilitation and was unlikely to offend in a similar way in the future (ROS [166]). However, his Honour did not accept the argument of counsel for AG that his objective criminality was reduced as a result of his personal circumstances (ROS [217]).

34. [81]

    The sentencing judge observed at [205]:

35. [82]

    However, his Honour found that a degree of notional accumulation was required to ensure that the individual dignity of each of the three victims was vindicated (ROS [206]).

36. [83]

    YA received a discount of 25% for offering to plead guilty to manslaughter in the Local Court. He received 5% discounts for pleading guilty to the two wounding offences within two weeks of the commencement of his trial.

37. [84]

    His Honour found that there were special circumstances under s 44(2B) of the Sentencing Act because of the applicant’s “progress towards rehabilitation, the possibility his time in custody will be more onerous and the desirability that he has assistance on re-entering the community” (ROS [250]). His Honour adjusted the statutory ratio so that the non-parole period was only 62.96% of the head sentence imposed.

38. [85]

    In the cases of the applicant, AD and AG, orders were made under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) that each was to serve their sentence in juvenile detention until they turned 21 years of age. In the applicant’s case, the order was made as a consequence of a statement he had made to his lawyers on 18 April 2023 that contained certain admissions while also implicating his co-offenders (ROS [225]).

39. [86]

    As set out above, the sentencing judge indicated the following sentences for YA following the application of the discounts:

40. [87]

    The aggregate sentence imposed was 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 3 months.

41. [88]

    As the applicant’s parity ground is confined to the sentencing of AG, it is only necessary to set out the sentence imposed upon AG, for whom his Honour indicated the following sentences:

42. [89]

    An aggregate sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years was imposed on AG. His Honour noted that his intention was “to impose the most lenient sentence that I could” (ROS [248]).

GROUNDS OF APPEAL

1. [90]

   As set out above at [5], the first ground of appeal complains of a breach of the “parity” principle in relation to only one of the four co-offenders. There is authority in this Court suggesting that when disparity is advanced as a ground of appeal, together with other grounds, that it should be considered last: Ritchie v R [2023] NSWCCA 153 at [2]-[13]. There is also authority suggesting that the order in which the grounds of appeal are to be considered by this Court depends on the relative strength of each ground, the number and subject of the grounds and their relative complexity: Wang v R [2023] NSWCCA 208 at [2]-[3].

2. [91]

   For reasons that will become apparent, I am not satisfied that there is any significance to the order in which the grounds are considered on the facts of this case. I propose to consider the ground regarding parity last.

Ground 1

1. [92]

   Ground 1 complained of a breach of the parity principle. I have considered it below at [175].

Ground 2

1. [93]

   Ground 2 was abandoned.

Ground 3

1. [94]

   Ground 3 asserts that the sentencing judge erred in his approach to pre-sentence custody. Three errors are relied upon:

   1. (1)

      Not providing reasons for how the applicant’s bail conditions were taken into account;

   2. (2)

      Not backdating the sentence to account for pre-sentence “quasi-custody”; and/or

   3. (3)

      Not taking into account the fact that the applicant by reason of the timing of his entry into detention would spend a greater proportion of his imprisonment in adult detention, thus making his time in custody more onerous.

2. [95]

   As set out above, the applicant applied for and was granted bail whilst his murder trial was pending. He was the only one of the five co-accused to do so. A summary of his bail conditions is as follows:

   1. (1)

      $500,000 to be forfeited by an acceptable person.

   2. (2)

      To report at the Riverwood police station each day between 8:00am and 10:00pm. The reporting condition was suspended on any day where the applicant was required to attend court for his trial.

   3. (3)

      To appear at court when required.

   4. (4)

      To not drink alcohol or enter any premises in which alcohol is sold other than a licensed restaurant.

   5. (5)

      To not take any illegal or prescription drugs other than a drug prescribed for the applicant by a medical practitioner.

   6. (6)

      To submit to random urine and other analysis by police.

   7. (7)

      To not use or be in possession of more than one mobile telephone service and SIM card and to not use or be in possession of any mobile telephone which is a smart telephone or is otherwise an internet capable mobile device.

   8. (8)

      To not use the internet whatsoever.

   9. (9)

      To not use or possess any encrypted device or any means of communicating via encrypted applications.

   10. (10)

       To not enter the suburb of Blacktown.

   11. (11)

       Home detention: to not leave the premises at which he is required to live except when in company of one of his parents.

3. [96]

   The Background Report from Juvenile Justice tendered on sentence included the following:

4. [97]

   It was submitted to the sentencing judge that the applicant’s bail conditions amounted to “quasi-custody” such that a backdate of the commencement date of his sentence should be allowed. Reliance was placed on the decision of Price J, with whom Hamill and Ierace JJ agreed, in R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253 (“Quinlin”) at [87]-[88].

5. [98]

   The sentencing judge considered that decision and made the following findings in relation to this submission at [191] and [192]:

6. [99]

   It was contended that the sentencing judge erred by not giving allowance by way of a backdate for the period that the applicant was subject to his bail conditions.

7. [100]

   Reliance was again placed on the decision in Quinlin, which I will discuss further below.

8. [101]

   The applicant submitted that the bail conditions were “incredibly strict and onerous” and that the sentencing judge failed to quantify any time in relation to that. It was further submitted that the applicant’s time on bail “appears to have had no impact” on the applicant’s sentence which “rendered the finding hollow and amounts to error”.

9. [102]

   Finally, it was submitted that the sentencing judge’s failure to reduce his time in custody to reflect the quasi-custody meant that the applicant ultimately spent a greater percentage of his sentence in adult detention than he would have otherwise.

10. [103]

    First, the Crown submitted that his Honour did provide reasons for how the applicant’s bail conditions were taken into account, including that the applicant’s compliance with “very strict bail conditions” demonstrated “compelling evidence of YA’s progress towards rehabilitation”.

11. [104]

    Secondly, the Crown submitted that it was open to the sentencing judge to decline to find that the applicant’s bail conditions amounted to “quasi-custody”. It was submitted that common restrictions such as conditions limiting an individual’s place of residence, imposing a curfew or restricting travel to identified locations do not ordinarily constitute quasi-custody. The Crown pointed to the fact that the applicant was entitled to have visitors at his home, he was permitted to leave his home at any time with his mother or father, and he was not isolated from family or friends. Further, the Crown submitted that it was a matter within the sentencing judge’s discretion to account for the pre-sentence bail as part of the instinctive synthesis rather than backdating the sentence.

12. [105]

    Thirdly, the Crown submitted that the sentencing judge did take into account in the applicant’s favour the fact that he had spent a period of time before sentence at liberty. In justifying an order under s 19 of the Children (Criminal Proceedings) Act that the applicant’s sentence be served as a juvenile offender until the age of 21 years, the sentencing judge found that there would be an unacceptable risk that the applicant would suffer from “physical or psychological harm” in an adult facility. The Crown submitted that this generous finding demonstrated that his Honour was aware of the time the applicant would serve in an adult facility and took into account on sentence these risks of detention in an adult prison.

Ground 3 – consideration

1. [106]

   The principle that “harsh or restrictive” bail conditions may amount to “quasi-custody” is derived from a long line of authority in this Court that an offender’s sentence can be reduced or backdated to take account of participation in onerous pre-sentence residential rehabilitation programs: R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ; R v Eastway (Court of Criminal Appeal (NSW), 19 May 1992, unrep) per Hunt CJ at CL, Gleeson CJ and Mathews J agreeing. The rationale for ameliorating a sentence on this basis is that the offender complied with strict rules, restrictions and discipline in a facility away from his or her home: Regina v Campbell [1999] NSWCCA 76 at [24]. The applicable principles are derived from some of the following decisions.

2. [107]

   In Regina v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342, this Court upheld a ground of appeal that the sentencing judge had erred in failing to make allowance for quasi-custody for an applicant who had spent several periods at the strict rehabilitation program run by the Salvation Army at the William Booth Institute in Surry Hills interspersed with leaving the program. The sentencing judge noted that the applicant had not finished the program and took the view that he was only participating in it to create a favourable impression at the sentencing hearing. James J (with whom Santow JA and Barr J agreed) observed the following at [23]-[24]:

3. [108]

   In Bonett v R [2013] NSWCCA 234, the applicant had spent time at the rehabilitation programs at both Odyssey House and Gorman House but had not put that material before the sentencing judge. She contended on appeal that her sentence ought to have been backdated accordingly. Adamson J (as her Honour then was) (with whom Gleeson JA and R A Hulme J agreed) dismissed the ground of appeal on the basis that there was insufficient evidence before the sentencing judge for such a finding to be made. But, in that context, her Honour observed the following at [50]:

4. [109]

   In R v Gardiner [2018] NSWCCA 27, the applicant had relied on evidence at his sentencing proceedings that he had spent time in full-time residential rehabilitation but failed to specifically submit that a backdate should be applied. Simpson JA, with whom Fullerton and McCallum JJ agreed, did not consider that fact to detract from the fact that the applicant was entitled to the backdate as the evidence of the applicant’s participation in a residential rehabilitation program was “extensive and detailed”: at [34].

5. [110]

   In Kelly v R [2018] NSWCCA 44, Garling J observed the following at [8]:

6. [111]

   Garling J went on at [11] to [13] to list the sorts of matters a sentencing judge might have regard to in assessing whether a particular residential rehabilitation centre did amount to quasi-custody.

7. [112]

   Although the concept of “quasi-custody” being relevant on sentence originally arose in the context of an offender being bailed to reside in a residential rehabilitation facility, in Quinlin, the principle was also held to apply if bail conditions are “so harsh or restrictive” as to warrant such a finding.

8. [113]

   Quinlin was a Crown appeal. Mr Quinlin was an Indigenous offender who suffered from schizophrenia and was bailed to live away from his friends and family. He spent most of his time on bail alone experiencing feelings of isolation as he was not allowed to go into his home town nor see or spend time with friends and family. He had found the long time waiting to be sentenced to be difficult. He had been living with his sister who did not really want him there but as he had no choice, he had stayed. The sentencing judge considered that the bail conditions amounted to quasi-custody and backdated the sentence. The Crown alleged in this Court that it was an error to do so. In that context, Price J observed the following at [87]-[88]

9. [114]

   As to the factual finding in that case, Price J went on to observe the following at [95]-[98]:

10. [115]

    The decision in Quinlin was discussed and distinguished by Hamill J in the subsequent decision of Testici v R [2025] NSWCCA 88 when his Honour observed the following at [2]:

11. [116]

    The other decision relied upon by the applicant was the decision in R v Butler [2024] NSWCCA 133 (“Butler”). It was held (Campbell J with whom Ward P and Button J agreed) that it was not open to the sentencing judge to conclude that strict conditions of bail amounted to quasi-custody justifying a backdate. His Honour observed the following at [44]:

12. [117]

    His Honour then went to observe the following at [45] as to the relevant test:

13. [118]

    Campbell J went on in Butler to observe at [47] that “[t]he factual outcomes in other considered decisions do not constitute binding authority nor do they establish categories of case in which an allowance for quasi-custody while on bail will or will not be allowed in future cases”.

14. [119]

    The following principles can be derived from these decisions:

    1. (1)

       The decision as to whether an offender’s bail conditions are so “harsh or restrictive” that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody is reviewable only on a House v The King (1936) 55 CLR 499; [1936] HCA 40 basis: Quinlin at [89].

    2. (2)

       Whether bail conditions amount to “quasi-custody” is a question of fact: Bonett v R at [50]. The test is whether the finding was “reasonably open”: Hancock v R [2025] NSWCCA 213 at [73].

    3. (3)

       Even if the sentencing judge is satisfied that the bail conditions amount to quasi-custody, there is no mandatory requirement for a sentencing judge to reflect that finding by way of backdating: Testici v R at [121]-[123].

    4. (4)

       Factual findings in other decisions do not constitute binding authority: Butler at [47].

15. [120]

    The three complaints made by the applicant under this ground fall to be considered with these principles in mind.

16. [121]

    The first complaint was that the sentencing judge failed to provide reasons for “how the applicant’s bail conditions were taken into account”. I have extracted the applicable reasons above at [98]. His Honour clearly addressed the applicant’s submission. His Honour accepted that the applicant had complied with “very strict bail conditions” but found that they did not amount to a form of “quasi custody” warranting a backdate. By way of explaining that finding, his Honour noted that the circumstances in Quinlin should be compared with the circumstances in Butler. His Honour went on to explain how he would take into account the applicant’s compliance with his bail conditions. His Honour stated that they would have a “more profound” impact on the sentence “and the penalty imposed”; namely as “compelling” evidence of his progress towards rehabilitation. His Honour went on to make the finding that the applicant had “very good” prospects of rehabilitation based on the compliance with his bail conditions.

17. [122]

    The complaint that the sentencing judge failed to provide reasons for “how the applicant’s bail conditions were taken into account” is without merit.

18. [123]

    The second complaint was that the sentencing judge erred in not backdating the sentence to account for pre-sentence quasi-custody. Significant reliance was placed on the decision in Quinlin in support of this submission. There are three problems with that reliance. First, the sentencing judge was one of the judges who decided Quinlin so his Honour was well aware of the decision. Secondly, the sentencing judge expressly referred to Quinlin in his reasons. Thirdly, the sentencing judge expressly stated that the facts in Quinlin differed to the applicant’s case by reference to the decision in Butler.

19. [124]

    It was reasonably open for the sentencing judge to find that the applicant’s period on bail living at home with his family, including his two professional parents, fell short of the sort of “harsh and restrictive” bail conditions envisaged by the Court in Quinlin. No House error is established.

20. [125]

    The third complaint was that the sentencing judge erred in not taking into account the fact that the applicant by reason of the timing of his entry into detention would spend a greater proportion of his imprisonment in adult detention, thus making his time in custody more onerous. In order to understand this complaint, it is necessary to consider how the applicant spent his time between arrest and sentence.

21. [126]

    The applicant was arrested on 22 February 2022. He spent 426 days in juvenile detention until he was granted Supreme Court bail on 24 April 2023. By the time of his proceedings on sentence, he was 20 years and 6 months old. At his proceedings on sentence, he requested that the sentencing judge order that, pursuant to s 19 of the Children (Criminal Proceedings) Act, the applicant serve his sentence of imprisonment as a juvenile offender until he reached the age of 21 years.

22. [127]

    After the applicant was sentenced on 20 December 2024, he spent a further 155 days in juvenile detention (between 20 December 2024 and 24 May 2025) until he turned 21 and was transferred to an adult Correctional Centre.

23. [128]

    His Honour made a number of favourable findings in relation to the applicant’s custody. One such finding was that he had given assistance for the purposes of s 19(4)(c) of the Children (Criminal Proceedings) Act such that there would be an unacceptable risk that he would suffer from “physical or psychological harm” if placed in adult custody (ROS [225]). Another favourable finding was of special circumstances within the meaning of s 44(2B) of the Sentencing Act. His Honour set the applicant’s parole period at only 62.96% of the head sentence. One of the reasons for making this finding was “the possibility that his time in custody would be more onerous” (ROS [250]).

24. [129]

    The nub of this third complaint would appear to be because, unlike any of his co-offenders, the applicant applied for and was granted bail at a time when he was being held in juvenile detention, he should have received a lower sentence because he was out of custody for a period when he was under the age of 21 and thus did not obtain the full benefit of spending that portion of his custody in juvenile rather than adult gaol.

25. [130]

    AG did not apply for bail. The result of this was that AG remained in juvenile detention until he turned 21 years of age on 26 January 2025. This meant that he spent a longer time than the applicant did in juvenile detention. The applicant relied on this fact to highlight the consequences of the purported error of the sentencing judge under this ground.

26. [131]

    The decision whether to apply for bail or not is often a forensic decision. It is well recognised that an inmate on remand may not have access to the same programs as a sentenced inmate and that remand conditions can be more onerous in other ways. On the other hand, if the Crown case against an inmate is very strong a decision may be made to remain in custody in the knowledge that any sentence would be backdated. It can be disruptive to rehabilitation to be released on bail and then have to be returned to custody when sentenced. On the other hand, if an inmate is released to undertake rehabilitation whilst on bail that may mean that favourable material can be put before a sentencing judge that may ameliorate any sentence imposed. These are all decisions for any inmate seeking bail to consider.

27. [132]

    The applicant chose to make a release application. There is no evidence that AG applied for bail. As a result, AG will be released before the applicant and he spent a greater proportion of his sentence in juvenile detention. But it was the applicant’s choice to make a release application. He is not entitled to a further reduction of sentence on that basis.

28. [133]

    I would dismiss ground 3.

Ground 4

1. [134]

   Ground 4 asserts that a miscarriage arose as a consequence of the sentencing judge’s inaccurate assessment of the onerousness of the applicant’s time in custody.

2. [135]

   The complaint made is that the sentencing judge erred in failing to consider the evidence that the applicant had been the victim of two separate assaults years earlier whilst on remand. Reliance was placed on the following portion of the Background Report from Juvenile Justice (at page 2):

3. [136]

   It was submitted that the sentencing judge failed to acknowledge or mention the applicant was the victim of the physical assaults despite those events having been referred to in the Background Report. The applicant also relied upon the fact that an Incident Advice (Summary) was included in the applicant’s tender bundle on sentence which confirmed the assaults.

4. [137]

   It was submitted that the applicant was not given the benefit of these attacks which were a “glaring example” of his time in custody being more onerous as opposed to a mere “possibility” of being so.

5. [138]

   Although it was accepted that the sentencing judge accepted those parts of the applicant’s statement which dealt with his changed attitude and progress towards reform, complaint was also made in this Court that the sentencing judge made no reference to how the applicant’s time in custody would be made more onerous because of the statement he made to police.

6. [139]

   The Crown noted that the assault principally relied upon under this ground occurred more than two and half years before the applicant was sentenced and no evidence was put before the court as to how the second assault took place. It was submitted that the fact that the applicant was assaulted in custody on one or two previous occasions years before sentence did not make his time in custody more onerous in the future.

7. [140]

   As to the complaint about the use by his Honour of the word “possibility”, it was submitted that this could not have made any difference given that the non-parole period was reduced based on that finding in any event.

Ground 4 – consideration

1. [141]

   The complaint under this ground is that the sentencing proceedings miscarried because of the sentencing judge’s “inaccurate assessment of the onerousness of the applicant’s time in custody”.

2. [142]

   It is well accepted that if there is evidence that an offender’s time in custody may be more “onerous” than the typical inmate, his sentence can be ameliorated on that account. Examples include when an offender is suffering from a mental illness (see Director of Public Prosecutions (Cth) v De La Rosa (2010) 70 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) at [177]) or if an offender has given assistance to authorities (see R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299 at [13]). If the evidence is sufficient to make such a finding, then one way in which the sentence can be ameliorated is to make a finding of special circumstances within the meaning of s 44(2B) of the Sentencing Act and vary the statutory ratio such that a lesser portion of the term is spent in custody.

3. [143]

   In this case the sentencing judge made a finding of special circumstances and set the applicant’s parole period at 62.96% of the head sentence. One of the reasons for making this finding was “the possibility his time in custody will be more onerous” (ROS [250]; emphasis added). In addition, as stated above in my consideration of ground 3, his Honour also ordered that the applicant remain in juvenile detention until his 21st birthday on the basis that there was an “unacceptable risk” that he would suffer physical or psychological harm if placed in adult custody: Children (Criminal Proceedings) Act, s 19(4)(c).

4. [144]

   Although the applicant accepted that the sentencing judge made all of these favourable findings, the complaint under this ground was that the non-parole period should have been reduced even further because the sentencing judge made no express reference to the fact that the applicant was twice assaulted in juvenile detention two and a half years earlier before he was released on bail.

5. [145]

   No error has been established under this ground. His Honour was aware of the previous assaults and the fact that the applicant had provided some assistance. He ameliorated the sentence accordingly. The applicant is only required to spend 62.96% of his sentence in custody. As was observed by Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) in Regina v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [63], the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality of the offence: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26. Similarly, in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) observed at [57], “[f]ull-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody”.

6. [146]

   As to the complaint about the use by his Honour of the word “possibility” I would make two observations. First, it is difficult to see how the sentencing judge could have predicted with certainty that the applicant would be assaulted in custody in the future. The fact that he had been years earlier when in juvenile detention does not assist in reaching the level of certainty for which the applicant now contends. Secondly, the fact remains that the applicant’s non-parole period was reduced so it could not have made any material difference in any event.

7. [147]

   Finally, to the extent that the applicant contends that the evidence of the assaults was somehow relied upon by the sentencing judge to reduce the extent to which he had good prospects of rehabilitation, that submission is not only speculative but also inconsistent with his Honour’s finding that the applicant had “very good” prospects of rehabilitation (ROS [192]).

8. [148]

   I would not uphold this ground.

Ground 5

1. [149]

   Ground 5 asserts that the sentence imposed on the applicant was manifestly excessive.

2. [150]

   The applicant submitted that the above errors impact on all three counts and are such that they had a significant material effect on the aggregate sentence. In particular, the length of time that the applicant was subject to very strict bail conditions and the fact that his time in custody was more onerous due to his previous assaults.

3. [151]

   No challenge was made to the sentencing judge’s assessment of objective seriousness nor to any of the other findings about the applicant’s subjective circumstances. Rather, the applicant relied upon his age, absence of prior criminal convictions, the lack of a positive finding that he was in possession of a knife, the fact that he was hiding, his remorse, his very good prospects of rehabilitation and the unlikelihood of reoffending. Reliance was also placed on the applicant’s diagnosis of an “adjustment disorder” and the fact that the sentencing judge found that the applicant’s behaviour was motivated by a “sad attempt” to be accepted by others associated with the group.

4. [152]

   I have addressed the Crown submissions in my consideration below.

Ground 5 – consideration

1. [153]

   The relevant principles for manifest excess are well established. The applicant must establish that the aggregate sentence imposed is “unreasonable or plainly unjust”. The principles were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

2. [154]

   More recently, in TH v R [2025] NSWCCA 121 at [4]-[5], Bell CJ (Garling J agreeing) observed the following:

3. [155]

   The principles applicable to a contention that an aggregate sentence is manifestly excessive were explained by Beech-Jones CJ at CL (Payne JA and Fagan J agreeing) in Lee v R [2020] NSWCCA 244 at [32] as follows:

4. [156]

   To the extent that this ground relied on the purported errors alleged in grounds 3 and 4, I have not upheld those grounds, so those arguments are to be put to one side.

5. [157]

   The starting point is that the applicant was to be sentenced for three offences each of which carried a maximum penalty of 25 years’ imprisonment. The offending behaviour involved three separate victims. A 17-year-old youth was killed and two 15-year-old youths were injured, one of them seriously. His Honour made a number of findings about the seriousness of the offending including that the offences were planned, involved “wanton lawlessness” on the part of the applicant and his group (ROS [119]), occurred in company and involved the use of weapons and face coverings.

6. [158]

   Although the applicant relied heavily on the fact that he was not carrying a knife, the sentencing judge also found that the applicant was a “willing and enthusiastic participant” (ROS [122]) in the enterprise and attended the residence knowing that knives were being used to carry out the offending. Although his Honour could not be satisfied beyond reasonable doubt that the applicant himself possessed a knife, I accept the Crown submission that that finding made by the sentencing judge concerning AG (ROS [122]) applies equally to this applicant given that all of the young men were “so obviously acting in concert”: [56] and [216].

7. [159]

   The sentencing judge spoke of the impact on the deceased’s father of losing his young son in such sad circumstances. The emotional toll has been such that Mr Moore had lost 34 kilograms in weight. His Honour recounted at length the impact on Mr Moore (ROS [23]-[31]).

8. [160]

   It is to be accepted that the applicant was 17 years and 3 months old at the time of his offending and had a positive subjective case but, as I will discuss further below in consideration of ground 1, his subjective case was not as strong as some of his co-offenders, in particular his co-offender AG.

9. [161]

   The sentencing judge did not make any finding that the applicant’s moral culpability was reduced. This was because there was no material that called into play the principles derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) or De La Rosa at [177].

10. [162]

    The application of the principle of totality to these offences which involved three distinct victims required a degree of notional accumulation to ensure that “the individual dignity of each victim was vindicated in the sentencing process and in the punishment imposed”. His Honour expressly stated that he adopted that approach to ensure there is no erosion of “public confidence” of the kind referred to by the Court in R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [18]: ROS at [205]-[206].

11. [163]

    In SB v R [2022] NSWCCA 164, Wilson J (with whom Beech-Jones CJ at CL and Garling J agreed) observed the following in relation to consideration of a ground of manifest excess at [55]:

12. [164]

    In the circumstances, I am not satisfied that a sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 3 months is “unreasonable or plainly unjust” given the criminality involved.

13. [165]

    I would dismiss this ground as well.

Ground 1

1. [166]

   This ground concerns parity between the applicant and his co-offender, AG.

2. [167]

   The applicant submitted that the sentencing judge’s factual findings provided a stark contrast between the offenders, including the applicant and AG, which “did not translate to the arithmetical assignment” of indicative sentences and the final aggregate sentence. At the hearing of the appeal some time was spent going through all of the sentencing judge’s factual findings in relation to the applicant and AG to make good this argument. In particular, the applicant relied upon the following three factual findings relevant to the differing roles played by the applicant as opposed to AG.

3. [168]

   First, his Honour did not make a positive finding beyond reasonable doubt that the applicant was in possession of or armed with a knife at any time on 1 September 2021, while AG was found to be carrying a knife in the aftermath of the altercation.

4. [169]

   Secondly, his Honour found that AG’s conduct in goading the deceased to come out of the house “place[d] his conduct at a significant level of seriousness”.

5. [170]

   Thirdly, there was no evidence led and the sentencing judge made no findings of fact that the applicant was present during the altercation on Suffolk Street (count 1). The sentencing judge also made a positive finding that the applicant was not on Norfolk Street during the commission of counts 2 and 3 as he went to hide because he was “scared”.

6. [171]

   Based on these differences, it was submitted that the applicant’s culpability was starkly different and significantly less serious than his co-offenders, including AG. The applicant submitted that while all offenders were guilty by reason of the principles of joint criminal enterprise, some played a more significant role in that enterprise than others, relying on the decisions of R v Barri [2004] NSWCCA 221 at [39], Brown v R [2020] NSWCCA 132 at [38] and McDowall v R [2019] NSWCCA 29 at [50].

7. [172]

   As for the comparable subjective cases, the applicant pointed to the fact that AG had a limited criminal record whereas the applicant had no prior criminal convictions.

8. [173]

   Further, the applicant submitted that his subjective case was supported by sworn evidence in affidavit form from himself, his mother and his father, whereas AG’s subjective case was “predicated on self-reporting”. As counsel for the applicant submitted before this Court, this “exposed” the applicant to cross-examination even if no questions were ultimately asked.

9. [174]

   While counsel for the applicant accepted that the sentencing judge found AG’s subjective case to be compelling and reduced his moral culpability, Mr Terracini SC submitted that even if AG’s subjective case was stronger, this did not overcome AG’s greater involvement in the offending, leaving the applicant with a justifiable sense of grievance.

Ground 1 – consideration

1. [175]

   The sentencing principles pertaining to what has become known as the “parity principle” are well established. They have been considered by the High Court in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. In Postiglione v The Queen, Dawson and Gaudron JJ observed the following at 301:

2. [176]

   As Gibbs CJ earlier observed in Lowe v The Queen at 610, “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” To warrant appellate intervention, the disparity complained of must be “marked” (Lowe v The Queen at 610; Green v The Queen at [31]), “unjustified” (Green v The Queen at [32]) or “manifest” (Lowe v The Queen at 613). The application of the parity principle does not involve a judgment about the “feelings” of the person complaining of disparity with regard to a justified sense of grievance. The test is an objective one: Green v The Queen at [31].

3. [177]

   As a corollary of the principle that “like offenders should be treated in a like manner”, different sentences can be imposed upon like offenders “to reflect different degrees of culpability and/or different circumstances”: Green v The Queen at [28]. Relevant types of differences were identified in Green v The Queen at [31] as including “age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”.

4. [178]

   In the present case, all five co-offenders were sentenced by the same sentencing judge in the same decision. As Button J (with whom Johnson and Fagan JJ agreed) observed in Huckstadt v R [2016] NSWCCA 22 at [90], when the same judge hears both matters simultaneously, he or she “will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”. Similar observations were made in Tuivaga v R [2015] NSWCCA 145 by Hoeben CJ at CL (with whom R A Hulme and Wilson JJ agreed) at [55]-[56]. However, as Bell CJ observed in Mohr v R [2024] NSWCCA 197 at [24]:

5. [179]

   The sentencing judge made explicit reference to the principles of parity (at [208]-[209]) and expressly identified that the differences between the individual cases lies not only in the assessment of the objective gravity of their conduct but also in the diminution of their moral culpability.

6. [180]

   As for the differences between the applicant’s criminality as opposed to AG, I am not satisfied that the differences between them is as significant as was contended for on this appeal. Neither the applicant nor AG stabbed the deceased. Although it is to be accepted that the judge was satisfied beyond reasonable doubt that AG was carrying a knife but could not be satisfied to the same standard in relation to the applicant, as his Honour observed, they were both willing to be involved in the offending behaviour knowing that the others were all masked and carrying a knife.

7. [181]

   Further, the relevant finding was that AG was in possession of a knife after the stabbings, and not before or at the time of the violent confrontations. This was also at a point in time after two members of AG’s group had been injured and where the offenders believed their actions were necessary in self-defence.

8. [182]

   In relation to count 2, it is accepted that the applicant and AG were being sentenced for different offences (the same actus reus but a different mens rea element). This meant that the applicant’s objective criminality was less than that of AG, but both offences carried the same maximum penalty and there was otherwise nothing else in their respective cases which would lead to different findings of objective seriousness.

9. [183]

   In relation to count 3, the finding of the sentencing judge was that there was “little to distinguish the criminality of each of the offenders”.

10. [184]

    As for the significance of the fact that the applicant was found hiding when EO and EC were wounded, again this does not distinguish the applicant’s case in any significant way to that of AG. AG also was not sentenced on the basis that he used a knife against EO or EC and was himself injured.

11. [185]

    Further, it is to be recalled that the sentencing judge found that the applicant was a “willing and enthusiastic participant” in the events that day based on the recording he made the night before.

12. [186]

    The high point of any difference between the objective criminality of the applicant as compared with AG is that the sentencing judge was satisfied that AG’s conduct in goading the deceased to come out of the house placed his conduct “at a significant level of seriousness”.

13. [187]

    Overall, I am satisfied that the objective criminality of AG was slightly higher than that of the applicant, but the difference was not significant.

14. [188]

    I am satisfied, on the other hand, that there were significant differences in the subjective case that AG presented to the Court when compared with that of the applicant.

15. [189]

    As outlined at [77] above, AG had a traumatic childhood. This engaged the Bugmy principles. By comparison, the applicant had “excellent family support” from his professional parents.

16. [190]

    AG was found to have mental health issues causally related to the offending such that his moral culpability was diminished “substantially”. In contrast, the applicant had a more limited diagnosis and his moral culpability was not reduced.

17. [191]

    AG was also found to have “excellent” prospects of rehabilitation, while the applicant was described as having “very good” prospects of rehabilitation.

18. [192]

    AG’s Youth Justice report was described by the sentencing judge as being “remarkable”. His Honour described it as “probably the most positive I have seen in decades of working in the criminal law”. The sentencing judge also recorded his intention “to record the most lenient sentence that I could” for AG.

19. [193]

    Although it is to be accepted that the applicant had a favourable subjective case, his moral culpability was not reduced (unlike AG’s) and it is abundantly clear that the sentencing judge was particularly impressed with AG’s case such that he ameliorated the sentence imposed on AG to a greater degree than that he imposed on the applicant.

20. [194]

    Overall, the aggregate head sentence imposed on the applicant was only three months longer than that imposed on AG as was the aggregate non-parole period. The applicant has not established that this three-month disparity gives rise to a justifiable sense of grievance on the applicant’s part having regard to all of the objective and subjective factors to which I have referred.

21. [195]

    I would dismiss this ground of appeal.

Orders

1. [196]

   Accordingly, I would propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [197]

   RIGG J: I agree with N Adams CJ at CL.

3. [198]

   COLEMAN J: I have had the considerable advantage of reading the judgment of N Adams CJ at CL in draft.

4. [199]

   I agree with the orders proposed by her Honour and her reasons for those orders.