Faaoloii v R

1. [1]

   FREE JA: I have had the advantage of reading in draft the reasons for judgment of both Fagan J and Huggett J. I agree with Huggett J that, for the reasons given by her Honour, leave to appeal should be granted and that error has been demonstrated only in respect of one part of ground 1. I agree that no lesser sentence is warranted and that in the circumstances the appeal should be dismissed. I agree with the additional observations made by Fagan J.

2. [2]

   FAGAN J: I have had the advantage of reading in draft the judgment of Huggett J. For the reasons given by her Honour, I agree that leave to appeal should be granted but that only one aspect of ground 1 has merit. Upon synthesising all relevant factors for the purposes of re-sentence I conclude that there is warranted no lesser sentence than that which was imposed in the District Court. I therefore also agree with her Honour that the appeal should be dismissed.

3. [3]

   Briefly stated, my principal reasons for the view I take on length of sentence are as follows. This was objectively a very serious manslaughter. The applicant volunteered himself into a dispute that did not involve him and about which he knew nothing. Having invited himself to take part in a physical confrontation that was being organised between two groups of youths, the applicant escalated the potential for violence, unilaterally and dramatically, by advancing with a loaded shotgun whereas other intending participants were arming themselves with a baseball bat and cricket stumps.

4. [4]

   It was accepted by the Crown that the applicant did not discharge the gun intentionally. The unlawful and dangerous act of pointing a loaded firearm at the deceased’s chest was a sufficient contributory cause of death to sustain criminal liability notwithstanding that inadvertent pressure on the trigger was also necessary to result in the lethal discharge. That is consistent with the analysis of causation that has been accepted in similar cases of manslaughter by unlawful and dangerous act, for example, R v Van Oosterum [2004] NSWSC 532; R v Abbas [2013] NSWSC 1379; R v Elsamad [2020] NSWSC 1372.

5. [5]

   When attention is confined to the facts and circumstances of and immediately leading up to the commission of the offence, the applicant’s moral culpability is seen to be high. There are no compelling features of his subjective case to mitigate penalty. On the contrary, his convictions for multiple armed robberies in company committed prior to the index offence and for two counts of wounding with intent to cause grievous bodily harm, perpetrated against a fellow inmate while on remand for the manslaughter, support a conclusion that the applicant poses a significant risk of reoffending in ways that would constitute a danger to the community.

6. [6]

   The sentence of 12 years imprisonment with a non-parole period of 9 years, imposed after allowance of 25% discount for a plea of guilty, is consistent with sentences that have been passed in broadly comparable cases of manslaughter by unlawful and dangerous act – with due allowance for material points of difference in objective and subjective circumstances. R v Abbas (which was unsuccessfully appealed on the ground of manifest excess: Abbas v R [2014] NSWCCA 188) and R v Zarshoy [2023] NSWSC 1177 are quite closely comparable to the present case in most aspects, except that neither of those cases involved the element of gratuitous, escalatory intrusion into a confrontation between others, which was a feature of the applicant’s offending conduct.

7. [7]

   As proposed by Huggett J, the orders of the Court should be; leave to appeal granted; appeal dismissed.

8. [8]

   HUGGETT J: Alonzo Faaoloii (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed on him by his Honour Judge Wilson SC (the sentencing judge) in the District Court of New South Wales on 28 October 2024.

9. [9]

   Having pleaded guilty in the Local Court to one count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment, the applicant was sentenced to a term of imprisonment of 12 years, with a non-parole period of 9 years imprisonment. The sentence commenced on 26 May 2022. The non-parole period will expire on 25 May 2031, and the head sentence will expire on 25 May 2034.

10. [10]

    The sentencing judge allowed a discount of 25% for the applicant’s plea of guilty.

Grounds of appeal

1. [11]

   By Notice of Appeal filed on 27 August 2025, the applicant proposed the following grounds of appeal:

   1. (1)

      The sentencing judge erred in his assessment of the applicant's moral culpability.

   2. (2)

      The sentencing judge erred in his application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

   3. (3)

      The sentencing judge erred in concluding that the applicant's previous convictions amounted to an aggravating factor pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA).

   4. (4)

      The sentence imposed on the applicant is manifestly excessive.

Agreed Facts

1. [12]

   The applicant was sentenced on the basis of a statement of agreed facts (the Agreed Facts). The following is taken from that document.

2. [13]

   On 14 February 2020, AA, who is a relative of the deceased, had a fist fight with BB. That event led to a brawl behind Casula Mall between a group of young males aged between 13 and 15, which ended when security guards intervened causing those involved to flee.

3. [14]

   Two young persons suffered minor injuries in the brawl, both of whom were relatives of the deceased. One of those persons was the deceased’s 15-year-old cousin, CC.

4. [15]

   Noah Albert came to know that BB was involved in the brawl after he saw some video footage. Noah Albert knew BB because his best friend, DD, is BB’s brother.

5. [16]

   On 15 February 2020, the deceased and a group of teenagers from his extended family met (the other group). They discussed the brawl and decided to make enquiries on social media to identify and contact the associates of the persons who fought with their young relatives.

6. [17]

   EE messaged BB, whereupon BB contacted Noah Albert and said, “there’s these two guys messaging me on Instagram, telling me to meet up with them and bring some guys if I was scared”. Noah Albert told BB not to go and asked for the names of the persons messaging him, which BB provided. Noah Albert told BB he would message those persons and find out what was going on.

7. [18]

   Noah Albert messaged EE whereupon both EE and FF began communicating with Noah Albert. A voice call (made on speaker phone) took place between Noah Albert and FF. During that call, a number of insults and threats were exchanged between them.

8. [19]

   While this voice call was taking place, Noah Albert was at the home of the applicant’s grandparents on Lamont Place, Cartwright (the Lamont Place home). Although Noah Albert was initially the only person at the Lamont Place home participating in the voice call, he was later joined by Chadwick Matapuku and JM who joined with Noah Albert in exchanging insults and threats to EE and FF. Several more calls were made during which the insults and threats continued to be issued by each group against the other.

9. [20]

   During this period, Octavian Paulo arrived at the Lamont Place home.

10. [21]

    Noah Albert challenged the other group to meet at Miller Park, and they eventually agreed.

11. [22]

    Noah Albert, Chadwick Matapuku, JM and Octavian Paulo (the co-offenders) agreed to attend Miller Park for the purpose of fighting with the other group. As they did not have access to a car, they left the Lamont Place home on foot to walk to Miller Park, which was close by.

12. [23]

    In the meantime, members of the other group stopped at Kmart Casula on the way to Miller Park and purchased a baseball bat and cricket stumps. They divided these items amongst their group and travelled to Miller Park as follows:

    1. (1)

       EE, FF and GG travelled in a black Toyota Corolla. They were the first group to arrive at Miller Park.

    2. (2)

       Noah Abdul Latif and Abulrahman Nachabe travelled in a maroon Nissan Tiida.

    3. (3)

       HH and JJ travelled in a white VW Golf. JJ was in possession of the baseball bat.

    4. (4)

       The deceased and CC travelled in a silver Lexus. On arrival at Miller Park, they parked on Cabramatta Avenue. They could not see anyone and remained in the Lexus.

13. [24]

    On the way to Miller Park, JJ called Noah Albert and said, "We are on the way". Noah Albert replied, "Meet us at Miller Park, make sure you are there at eleven". JJ later received a call from Noah Albert asking, "Are you'se here?". JJ replied saying they were "just down the road".

14. [25]

    Meanwhile, when the co-offenders were walking to Miller Park and were only about 10 metres from the Lamont Place home, the applicant, who was driving a red Mazda, pulled up. He asked JM where they were going. Noah Albert replied that they were going to Miller Park to meet up with some boys to sort out “some drama”. The applicant asked, “What happened?” and told the group to get in the car saying, “We’ll go down together”.

15. [26]

    The co-offenders got into the Mazda and the following conversation took place:

16. [27]

    Noah Albert explained to the applicant all that had happened and confirmed they were going to Miller Park to have a fight.

17. [28]

    The journey to Miller Park took one to two minutes, during which time Noah Albert contacted members of the other group that he knew and those he had earlier been in contact with.

18. [29]

    On arrival, the applicant parked on Rommey Crescent. Noah Albert got out of the car. An individual who will be referred to as MM (to ensure the efficacy of existing non-publication orders) replied to him saying that JJ was his “little cousin”. Noah Albert called FF and asked how far away they were and whether he was part of the other group. FF did not reply.

19. [30]

    In one call, Noah Albert asked FF, “what he's going to do, like, do you just want to sort this out?” to which FF said, “We'll see youse when we see youse”.

20. [31]

    Through the open driver side windows of the Mazda, Noah Albert told Chadwick Matapuku, JM, Octavian Paulo and the applicant that the boys they were meeting were related to his friend MM. Chadwick Matapuku, JM, Octavian Paulo and the applicant told him, “Call your mate and tell him to call them and see what they were going to do”.

21. [32]

    At 10.46pm Noah Albert sent a message to FF saying, “You Zac and that's little couzns?” At the same time, Noah Albert and MM exchanged the following messages:

22. [33]

    By 11.05pm, several members of the other group, including the deceased, were at Cabramatta Avenue, Miller in three cars. JJ was still on the telephone to Noah Albert as the VW Golf pulled up in the street.

23. [34]

    At 11.06pm, Noah Albert was standing on his own at the back of the Mazda. He spoke to JJ for 92 seconds. The applicant told Noah Albert to ask if “they” were in three cars, whereupon Noah Albert asked JJ, “Is that you in the three cars?”

24. [35]

    The applicant got out of the Mazda, followed by Chadwick Matapuku and JM and walked towards the cars driven by the other group. Noah Albert stayed near the Mazda, still talking on the telephone. Octavian Paul was still in the Mazda.

25. [36]

    A few seconds later, Octavian Paul got out of the Mazda and said, “Can you hear that, can you hear that?” and ran to catch up to Chadwick Matapuku and JM.

26. [37]

    The applicant, followed by Chadwick Matapuku, JM, Octavian Paulo and at some stage Noah Albert, made his way across the road towards the cars. He was carrying a loaded shotgun which was 50 to 60 centimetres in length.

27. [38]

    HH saw the group approaching and saw that the applicant had a gun. He warned JJ and GG.

28. [39]

    EE and FF fled in the Toyota Corolla and HH and JJ fled in the VW Golf.

29. [40]

    The deceased did not hear any warning about the firearm and remained parked in the Lexus with CC in the front passenger seat.

30. [41]

    The applicant approached the passenger side of the Lexus and pointed the shotgun at CC’s head saying, “What are you’se here for?” The applicant loaded the shotgun by pumping it.

31. [42]

    The deceased asked the applicant, “what are you’se doing?” The applicant walked around the front of the car to the driver’s side, with the shotgun pointed at both CC and the deceased. As that was occurring, the deceased told CC to get out of the car.

32. [43]

    The applicant asked the deceased, “What are you’se doing here? Are you’se here about the drama?” The deceased replied, “I don’t know what you’se are talking about”.

33. [44]

    By the time the applicant had reached the driver’s side, the deceased had alighted from the driver’s seat. The applicant again actioned the firearm, causing one of the cartridges to unload and fall to the ground. The firearm was still loaded with a second cartridge.

34. [45]

    CC got out of the car and as he did so, the applicant discharged the shotgun into the deceased’s chest at close proximity. The deceased collapsed to the ground with a large shotgun wound in the centre of his chest.

35. [46]

    At the time the applicant discharged the firearm, he did not have an intent to kill or inflict grievous bodily harm on the deceased. It is agreed he is guilty of manslaughter on the basis that his conduct in pointing a loaded shotgun at the deceased at close range was an unlawful and dangerous act.

36. [47]

    CC fled into nearby bushes. Chadwick Matapuku and Octavian Paulo, who were at that point next to the Lexus, chased him into the bushes but they were unable to catch him. Octavian Paulo said, “Come on, let’s go”.

37. [48]

    Neither the applicant, nor the co-offenders assisted the deceased. They fled back to the Lamont Place home in the Mazda. The applicant had the firearm with him. It has not been recovered. On the way back, he said, “Fuck, like fuck - like, I’m sorry boys, I’m sorry, that wasn’t supposed to happen”.

38. [49]

    Members of the public and emergency services attempted to revive the deceased but when paramedics arrived, it was determined that he was deceased. A postmortem examination revealed that the deceased died as a result of a shotgun wound to the chest.

39. [50]

    After returning to the Lamont Place home, Noah Albert called DD to tell him what happened. The applicant told Noah Albert to get off the phone and not to talk to anyone or call anyone. The applicant continued to apologise to the co-offenders and told them he would “take the rap” for the death of the deceased.

40. [51]

    The applicant removed his clothes and placed them and his mobile phone in a bag. A short time later, he disposed of the bag.

41. [52]

    Noah Albert was charged with murder after he had been identified through Instagram messages. He was ultimately acquitted in November 2021 after giving evidence inculpating those involved in the offence, including the applicant.

42. [53]

    The applicant did not assist police in their enquiries into the killing of the deceased.

Proceedings on Sentence

1. [54]

   The sentence hearing took place on 22 and 23 October 2024 and the sentence was imposed on 28 October 2024.

2. [55]

   The Crown tendered documents marked Exhibit A which included the Agreed Facts, the applicant’s criminal and custodial histories, a Victim Impact Statement of the deceased’s mother and the judgment of this Court in R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263. A Sentence Assessment Report (the SAR) prepared by a Community Corrections Officer, Ms Whitley dated 17 June 2024 was marked Exhibit B.

3. [56]

   The applicant did not give evidence at his proceedings on sentence. Rather, he relied upon documentary material marked Exhibit 1 to establish his subjective circumstances. That material included a report of Ms Julie Dombrowski, psychologist, references from his domestic partner and two of his (younger) sisters, and a reference from his employer (regarding his employment at the time of his arrest).

4. [57]

   I propose to outline those parts of the evidence before the sentencing judge which have particular relevance to the grounds of appeal.

5. [58]

   In 2016 the applicant was sentenced in the District Court of New South Wales for six offences of robbery while armed with an offensive weapon (the prior offences). Four additional offences were taken into account on several Form One documents, namely one offence of robbery while armed with an offensive weapon and three offences of attempted armed robbery.

6. [59]

   The prior offences and the Form One offences were committed between 7 and 24 October 2014, at which time the applicant was aged 18, in circumstances where the applicant acted in a joint criminal enterprise with two or three co-offenders. Their modus operandi involved driving to a 24-hour service station or restaurant, gaining entry with their faces covered and one offender being armed with a crowbar with another being armed with a painted cap gun. Threats and/or demands were made of employees and money and/or other property was stolen. The applicant was armed with a crowbar or cap gun at the time of the prior offences.

7. [60]

   In the first and second offences, the applicant was armed with a crowbar. In the second offence, he used the crowbar to smash the front door of a service station.

8. [61]

   In the third offence, entry was gained by smashing the glass doors of a service station. The applicant was armed with a cap gun, which he pointed at an employee.

9. [62]

   In the fourth offence, entry was gained by smashing the glass doors of a service station. The applicant was armed with a cap gun. When an employee retreated into a cool room, the applicant dragged him out by the collar of his jacket, hit him on the back of the head, pointed the gun at him and said, “Open the safe or I’ll shoot you”.

10. [63]

    In the fifth offence, the applicant armed with a cap gun, pushed it into the body of an employee of a service station, forcing him back into the store. He then pointed the cap gun at the employee’s chest while demanding that a safe be opened. When the employee told the applicant that he did not have the key to the safe, the applicant became angry, slammed his fist on the counter, kicked a nearby tin and said, “give me the money or I’ll kill you”. At the conclusion of the robbery, the applicant told the employee to lay on the floor and not to call the police.

11. [64]

    In the sixth offence, the applicant who was armed with a cap gun, grabbed the manager of a McDonald’s restaurant and pointed the cap gun towards his face, forced him into an office and demanded that he open a safe.

12. [65]

    In the first Form 1 offence, the applicant entered a service station armed with a cap gun and threatened an employee with the cap gun.

13. [66]

    In the second Form 1 offence, a co-offender took a McDonalds restaurant employee into a storeroom. He said he was not going to hurt her but demanded she open the registers at the front of the store.

14. [67]

    In the third Form 1 offence, the applicant was armed with a cap gun. The glass in the front door of a service station was smashed, and an employee was threatened with the cap gun and a crowbar.

15. [68]

    In the fourth Form 1 offence, the applicant remained in the vehicle while his co-offenders attempted to rob a service station. One offender smashed the front door with a crowbar, and the other was in possession of a cap gun. They were interrupted by police.

16. [69]

    In Faaoloii, Schaafhausen & Tuala, this Court upheld a Crown appeal against the inadequacy of the sentence imposed at first instance. The aggregate head sentence was increased from a term of imprisonment of 4 years and 6 months to a term of imprisonment of 6 years, however, the Court exercised its discretion not to interfere with the aggregate non-parole period imposed at first instance of 2 years and 3 months. The applicant’s earliest date of release to parole was 24 January 2017, although he was not released to parole until 23 January 2018, at which time he was aged 21. His parole was due to expire on 23 October 2020.

17. [70]

    The applicant was thus on parole at the time of the index offence.

18. [71]

    In her Victim Impact Statement, the deceased’s mother describes the pain of losing her son. She describes that she wakes up every day with a heavy heart, knowing the deceased is no longer with her. She reports experiencing post-traumatic stress disorder and describes her grief as being so overwhelming at times that she feels it is impossible to go on. She describes that the deceased was a wonderful brother to his younger siblings and that he touched the lives of all who knew and loved him.

19. [72]

    In preparation of the SAR, Ms Whitley interviewed the applicant several times and also obtained information from sources, including family members.

20. [73]

    Ms Whitley made brief reference to aspects of the applicant’s background including that he described a “somewhat challenging upbringing” following the separation of his parents, however noted that enquiries disclosed that the applicant remained close to his family who were supportive.

21. [74]

    Ms Whitley observed that although the applicant made admissions as to his offending, he gave a “vague” and at times contradictory recollection of the factors leading to the offence and his conduct thereafter. This included that his involvement was at the request of a friend who asked for assistance and who sounded fearful on the night in question, that he could not recall whether he knew the firearm was loaded at the time of the time of the offence and that he did not consider the consequences of his actions or that having possession of a firearm was against the law.

22. [75]

    Ms Whitley reported that the applicant stated that he thinks about the offence every day and regrets his actions and recognises that the deceased’s family, friends and acquaintances would have been significantly impacted.

23. [76]

    Ms Whitley noted that the applicant denied that he could be considered a violent person although he acknowledged that his actions were of a violent nature. Ms Whitley described the index offence as being a significant escalation in the severity of the applicant’s offending. According to the Level of Service Inventory - Revised tool, the applicant posed a medium risk of reoffending.

24. [77]

    Ms Dombrowski interviewed and assessed the applicant on 28 June 2024. She was provided with a copy of the Agreed Facts and copies of his criminal and custodial histories.

25. [78]

    Ms Dombrowski noted that the applicant reported a background which included the following features:

    1. (1)

       His parents separated when he was eight and thereafter, he continued to live with his mother, maternal grandparents and four of his younger siblings.

    2. (2)

       His mother drank heavily and had a diagnosed history of bipolar mood disorder, leading to periods of hospitalisation.

    3. (3)

       His maternal grandfather provided financial support to his family, but he was a strict disciplinarian who used corporal punishment and prevented the applicant socialising after school.

    4. (4)

       He regularly visited his father, who lived nearby with three of his younger siblings. His father worked and was also a strict disciplinarian who at times used corporal punishment in the home.

    5. (5)

       He did not experience any difficulties reaching developmental milestones and had no childhood history of misconduct.

    6. (6)

       He began using alcohol and cannabis regularly, and cocaine and ecstasy sporadically, in social contexts at the age of 17.

    7. (7)

       He completed Year 12 achieving above average grades across most subjects and had hoped to attend university but was incarcerated for the prior offences.

    8. (8)

       While in custody for the prior offences he was told that his 4-year-old cousin had passed away and that his paternal grandfather had sexually assaulted one of his sisters.

    9. (9)

       While in custody for the prior offences, he experienced episodes of heightened anxiety and suicidal ideation and regularly used heroin, non-prescribed buprenorphine and methylamphetamine. He also formed some antisocial relationships and had occasional contact with such persons after being released to parole.

    10. (10)

        He had not used illicit substances following his release to parole for the prior offences and thereafter had been (and still is) on a Buvidal program.

    11. (11)

        After being released to parole for the prior offences, he lived with his father, who was himself shortly thereafter incarcerated for drug-related offending.

    12. (12)

        He worked for a period of time at the age of 22 constructing timber trusses and frames.

    13. (13)

        Prior to being arrested for the index offence, he had been working at a supermarket distribution centre for approximately six months.

    14. (14)

        He had a long-term supportive relationship with a prosocial partner who was training to become a beauty therapist. Together they have a child who was born before the applicant was arrested for the index offence.

    15. (15)

        His family is loving, close-knit and supportive and the applicant maintains regular contact with them.

26. [79]

    In relation to the circumstances of the offence, Ms Dombrowski noted that the applicant’s account included that he agreed to attend the confrontation because he feared persons in the other group might kill one of the co-offenders and that he felt increasingly fearful and anxious upon arrival at the park.

27. [80]

    Ms Dombrowski noted that the applicant had never been diagnosed with a psychiatric illness and that there was nothing suggesting compromised intellectual functioning. She further noted that he had never accessed any type of treatment for trauma, anxiety or mood disorder.

28. [81]

    Using a tool which assesses emotional/psychiatric and personality functioning (the MCMI-III tool), Ms Dombrowski found no evidence of severe personality pathology or an inherently anti-social or sadistic pre-disposition. However, she considered that the applicant presented with a “masochistic-avoidant personality style”, which made him vulnerable to anxiety and social rejection.

29. [82]

    Based on scores obtained on the Self-Appraisal Questionnaire (the SAQ), Ms Dombrowski was of the opinion that the applicant had a low-moderate risk of re-offending and that he was remorseful. That said, in her evidence Ms Dombrowski conceded that the SAQ was an assessment tool intended to identify criminogenic treatment needs rather than to assess future risk of re-offending. She acknowledged that the SAQ did not discriminate on the basis of how many prior offences the applicant had committed and agreed that she did not have access to the facts regarding the prior offences.

30. [83]

    Ms Dombrowski accepted that it was difficult to formulate reliable opinions about the applicant given he had not been completely forthcoming as to what took place or why he armed himself with a firearm.

31. [84]

    Ms Dombrowski ultimately agreed that the index offence was a serious escalation in violence.

The Remarks on Sentence

1. [85]

   Having regard to the grounds of appeal, it is appropriate to make mention of particular findings and conclusions expressed by the sentencing judge in his detailed sentencing remarks.

2. [86]

   The sentencing judge provided an overview of the SAR. His Honour rejected the applicant’s assertions that his actions were intended to de-escalate the situation and that he could not recall whether he knew the firearm was loaded at the time of the offence. His Honour noted that the applicant appeared to be leading the co-offenders and that he was solely responsible for the involvement of a firearm. His Honour considered that the applicant’s assertion that his involvement was at the request of a friend was an attempt to downplay the seriousness of his offending.

3. [87]

   The sentencing judge considered the applicant’s claim that he had not considered the potential consequences of his actions or that he was breaking the law by being in possession of a firearm to be “alarming” and reflected poorly on his moral culpability.

4. [88]

   His Honour spent some time recounting the evidence regarding the applicant’s background. That account broadly reflected the matters described in [78]. In dealing with a submission on behalf of the applicant that his background was dysfunctional, his Honour stated:

5. [89]

   The sentencing judge found that Ms Dombrowski’s report revealed significant misstatements by the applicant which had been relied upon to formulate particular opinions. In relation to the MCMI-III tool and Ms Dombrowski’s opinion regarding persons with a “masochistic avoidant personality style”, the sentencing judge noted that these opinions were based largely on the applicant’s assertion that he only became involved at the request of a friend or family member, which was inconsistent with the Agreed Facts.

6. [90]

   The sentencing judge was satisfied the aggravating factors in s 21A(2)(e) (offence committed in company) and s 21A(2)(j) (applicant was on conditional liberty) of the CSPA had been established beyond reasonable doubt.

7. [91]

   His Honour was not persuaded that the applicant had established any mitigating factors pursuant to s 21A(3) of the CSPA. His Honour declined to find that the applicant had good prospects of rehabilitation or that he was unlikely to reoffend. His Honour noted that although the applicant had lived pro-socially and had not committed any offences after committing the index offence (save for two irrelevant driving offences in 2020 and 2021), “far from being a period where he was acting positively and in a prosocial fashion, it was a period during which he was aware of his offending and failed to take responsibility for it”. His Honour was not satisfied the applicant had demonstrated that he was remorseful.

8. [92]

   The sentencing judge “wholly” rejected the applicant’s denial to Ms Whitley that he could be considered a violent person and accepted her assessment that he posed a medium risk of reoffending.

9. [93]

   The sentencing judge spent some time dealing with the relevance of the applicant’s prior convictions. In doing so, his Honour understood the applicant’s position to be that the only relevance of the prior offences would be to deny leniency, while the Crown’s position was that the applicant’s record of prior offending would be taken it into account in a way that would signify a heavier rather than lighter sentence. In so submitting, the Crown referred to s 21A(2)(d) of the CSPA and the principles enunciated in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477- 478; [1988] HCA 14 (Veen (No 2)).

10. [94]

    Given Ground 3 (and (part of) Ground 1) raise complaints about the manner in which the sentencing judge used the prior offences, it is appropriate to set out in full what his Honour said in relation to the prior offences:

11. [95]

    A short time later, the sentencing judge found that all of the purposes of sentencing enunciated in s 3A of the CSPA were relevant, adding that there was a “real need for both general and specific deterrence”.

12. [96]

    In relation to MFI 3, and particular cases referred to by the parties which were said to be comparable, his Honour made specific reference to Paterson v R [2021] NSWCCA 273; Chandler v R [2023] NSWCCA 59 and R v Rae (No 2) [2024] NSWSC 713 and expressed reasons for why he considered the index offence to be more serious than the offence committed in each of these cases.

13. [97]

    Acknowledging that the applicant’s decision to become involved was a spontaneous one, his Honour found the offence to be “a very serious example of offending of this type” and listed 25 considerations that bore upon that assessment. They included the following facts:

    1. (1)

       Having been told there was going to be a fight, the applicant got out of the car with a shotgun containing at least two cartridges.

    2. (2)

       The applicant led the co-offenders (each of whom was younger than he was) towards the deceased’s vehicle where the deceased and his 15-year-old cousin were seated.

    3. (3)

       The deceased and his cousin did nothing to provoke the applicant.

    4. (4)

       The applicant did not know the deceased and expressed uncertainty as to whether he was involved in “the drama”.

    5. (5)

       The applicant pointed the gun at head of the 15-year-old cousin and then walked directly to the driver's side of the car and actioned the gun a second time, displacing a cartridge and reloading a second.

    6. (6)

       The deceased was not armed and was defenceless and vulnerable in that he was initially inside the car and was shot very soon after getting out of the car.

    7. (7)

       The applicant’s behaviour would have caused extreme fear in the mind of the deceased.

    8. (8)

       The shotgun was fired at close range to the deceased.

    9. (9)

       The shooting took place in a residential area at night.

    10. (10)

        The applicant fled the scene, leaving the deceased on the ground in a critical condition and failed to provide any assistance.

14. [98]

    The sentencing judge rejected the submission that the applicant’s moral culpability was reduced by reason of any of the factors relied upon and ultimately found it to be high. In that regard, his Honour stated:

15. [99]

    The sentencing judge observed that offending which causes the death of another person is a most serious type of offending and that the maximum penalty of 25 years imprisonment was a relevant guidepost.

16. [100]

    In response to the Crown’s submission that the applicant was not entitled to a finding of special circumstances, the sentencing judge declined to find special circumstances and imposed the sentence stated at [9].

17. [101]

    I turn now to a consideration of the grounds of appeal. I propose to deal with Ground 2 first.

Ground 2: The sentencing judge erred in his application of the principles in Bugmy

1. [102]

   The applicant relies on the following passages of the sentencing judgment to establish Ground 2:

2. [103]

   To consider Ground 2, it is necessary to reproduce the following parts of counsel’s submissions:

3. [104]

   Counsel submitted that although the sentencing judge declined to accept parts of Ms Dumbrowksi’s evidence, that part of her evidence that recounted aspects of the applicant’s background was not rejected by his Honour. It was therefore submitted that the sentencing judge was obliged to take the applicant’s background into account in a manner consistent with the principles set out in Bugmy, and in particular, it would lead to a finding that the applicant’s moral culpability for his offending was reduced.

4. [105]

   The Crown submitted that the sentencing judge did not approach the issue of the application of the Bugmy principles on the basis that a particular level or threshold of deprivation, disadvantage and/or dysfunction had to be reached before the principles would be engaged. The Crown contended that having considered the evidence in relation to the applicant’s background, it was open to the sentencing judge to find that it did not establish a background of deprivation, disadvantage and/or dysfunction in the sense described in Bugmy. Accordingly, there was no basis to reduce the applicant’s moral culpability on account of the Bugmy principles.

5. [106]

   Further, the Crown submitted that having referred in some detail to the salient aspects of the applicant’s background, the sentencing judge did otherwise take the applicant’s background into account as part of the instinctive synthesis of all relevant considerations in sentencing the applicant.

Determination

1. [107]

   Properly understood, Ground 2 asserts error in two respects:

   1. (1)

      The sentencing judge misapplied the Bugmy principles by (wrongly) assuming that a particular level (or threshold) of deprivation, disadvantage and/or dysfunction had to be established before the principles were enlivened.

   2. (2)

      The sentencing judge failed to have regard to a relevant consideration in sentencing the applicant, namely his background, said to be evidenced by a failure of the sentencing judge to state how the applicant’s background had otherwise been taken into account.

2. [108]

   The Bugmy principles reflect a recognition that a childhood or adolescence marked by profound deprivation, disadvantage and/or dysfunction may inhibit the development of values, the acquisition of a moral compass and/or the capacity of a person to make behavioural decisions in accordance with prevailing social norms: R v MJ [2023] NSWCCA 306 at [5] per Simpson AJA.

3. [109]

   The terms deprivation, disadvantage and/or dysfunction are interchangeable, but I will use the term deprivation.

4. [110]

   In Hoskins v R [2021] NSWCCA 169, Brereton JA at [57] observed that there is “no magic in the word ’profound’, and it is not necessary to characterise an offender’s childhood as one of ’profound deprivation’ before the principle is engaged”. This view was endorsed by Hamill J in Nasrallah v R [2021] NSWCCA 207 at [87].

5. [111]

   The circumstance which attracts the potential operation of the Bugmy principles is an offender having a background of deprivation, rather than a particular degree of deprivation that can be described as "profound" or "sustained": YZ v R [2025] NSWCCA 165 per Weinstein J (Wright and Sweeney JJ agreeing) at [63]. It will always be an evaluative assessment by the sentencing judge, based on the particular evidence presented, where the focus will be on the experience of growing up in a such an environment that may leave its mark on the person and have an inhibitory or compromising impact on their development warranting a reduction of their moral culpability.

6. [112]

   Where the evidence establishes childhood deprivation, the Bugmy principles must be given “full weight”. The effects of such a background “do not diminish with the passage of time”: Bugmy per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at [43]. However, this does not mean they must be given the same weight in every case. The extent to which moral culpability will be reduced will vary from case to case and sometimes it will not be reduced at all, but instead an offender’s background will be taken into account in other ways as part of an instinctive synthesis: Bugmy per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at [40], [44]; Dungay v R [2020] NSWCCA 209 per N Adams J at [139], [153] (Bell P and Davies J agreeing); Fuentes v R [2025] NSWCCA 230 per McGuire J at [47] (Bell CJ and Free JA agreeing).

7. [113]

   In NK v R [2025] NSWCCA 73, Yehia J at [110]-[113] (Ball JA and Fagan J agreeing) held that the correct approach to the application of the Bugmy principles involved three considerations. That approach was approved by N Adams J (with whom Bell CJ and Payne JA agreed) in DG v R [2025] NSWCCA 137 at [111]-[115] and by Weinstein J in YZ at [61]-[68] (with whom Wright and Sweeney JJ agreed).

8. [114]

   The sentencing judge engaged with the first of these considerations. His Honour detailed the evidence regarding the applicant’s background and assessed whether there was anything in his background that reduced his moral culpability. His Honour observed that while the applicant had faced some challenges growing up, his childhood was “generally unremarkable”, and his life had been “fairly normal” until he committed his first offences (ie. the prior offences) at the age of 18. His Honour noted the applicant’s close connection to his family who remained supportive of him. It was open to his Honour to find that while there were some “plainly challenging” events that arose during his formative years, the evidence did not establish a background of disadvantage as contemplated in Bugmy.

9. [115]

   In so far as his Honour used the terms “level” and “degree” as contemplated by the High Court, this is not indicative of a misapplication of principle by proceeding on the basis that a particular level of disadvantage had to be disclosed before the Bugmy principles might be engaged. His Honour was required to evaluate the evidence in order to determine whether there was anything arising from the applicant’s background that reduced his moral culpability. That is precisely what his Honour did; ultimately finding that there were not features of the applicant’s childhood that reduced his moral culpability for his offending. That this issue was decided adversely to the applicant notwithstanding there was some evidence of a “somewhat challenging upbringing” and “plainly challenging moments” is not indicative of error.

10. [116]

    Turning then to the complaint that the sentencing judge failed to have regard to a relevant consideration, namely, the applicant’s background, said to be evinced by a failure by the sentencing judge to state how the applicant’s background had otherwise been taken into account.

11. [117]

    It is not necessary for a sentencing judge to state expressly that an offender’s background was taken into account if it is apparent from the whole of the remarks that the judge did so: Cooper v R [2021] NSWCCA 65 per Bathurst CJ at [69] (Beech-Jones and Wilson JJ agreeing).

12. [118]

    I have already observed that the sentencing judge recounted the evidence before him in relation to the applicant’s background. The inclusion of this evidence in the sentencing remarks and his Honour’s observations about this evidence strongly supports the conclusion that the applicant’s background was, otherwise than as operating to reduce moral culpability, taken into account in a general way in the process of instinctive synthesis applied when determining an appropriate sentence.

13. [119]

    I would reject Ground 2.

Ground 1: The sentencing judge erred in his assessment of the applicant’s moral culpability (by having regard to post offending conduct)

1. [120]

   The applicant relies on the passage in the sentencing judge’s reasons reproduced at [98] to establish Ground 1. As distilled in submissions, it is contended that the sentencing judge erred in assessing the applicant’s moral culpability by taking into account the following two matters:

   1. (1)

      The applicant’s failure to acknowledge his responsibility for the offending after committing the offence and before his arrest.

   2. (2)

      The applicant’s prior record of offending (ie. the prior offences).

2. [121]

   In support of Ground 1, counsel for the applicant relied on the following statement of Garling J in Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226 at [49]:

3. [122]

   Counsel submitted that the sentencing judge erred when assessing the applicant’s moral culpability because both matters referred to in [120] “go beyond what is permissibly able to be taken into account in assessing the moral culpability of the applicant, being matters that extend beyond the facts and circumstances of the offence itself, and beyond those relevant to the commission of the offence”.

4. [123]

   Furthermore, counsel submitted that the sentencing judge impermissibly double counted the prior offences by finding they “affected” the applicant’s moral culpability and “simultaneously” finding they established the aggravating factor provided by s 21A(2)(d) of the CSPA.

5. [124]

   There is substantial overlap between the second part of Ground 1 and the complaint advanced in Ground 3. Both assert error in the way the sentencing judge used the prior offences. Accordingly, the second aspect of Ground 1 will be dealt with in Ground 3.

6. [125]

   The Crown conceded that it would be open to this Court to find that the sentencing judge erred in assessing the applicant’s moral culpability by having regard to an irrelevant consideration, namely, the fact that the applicant failed, over a period in excess of two years, to acknowledge his responsibility for his offending.

7. [126]

   The Crown acknowledged that if this concession is accepted, it will be necessary for this Court to re-sentence the applicant.

8. [127]

   That part of Ground 1 that relates to the applicant’s post-offending conduct can be dealt with briefly. While there may be instances where post-offending conduct will bear upon the assessment of an offender’s moral culpability, a failure to acknowledge responsibility for an offence by volunteering guilt does not bear upon an offender’s moral culpability. It is of course uncontroversial that such conduct may well be relevant to other sentencing considerations such as remorse, a risk of re-offending and prospects of rehabilitation.

9. [128]

   The Crown’s concession of error (in so far as it relates to the applicant’s post offending conduct) was properly made. I would uphold this aspect of Ground 1.

Ground 3 and (part of) Ground 1: The sentencing judge erred in concluding that the applicant’s previous convictions amounted to an aggravating factor pursuant to s 21A(2)(d) CSPA and in assessing the applicant’s moral culpability (by having regard to the prior offences)

1. [129]

   The applicant relies on the passages of the sentencing remarks reproduced at [94] to establish Ground 3, and at [98] to establish that part of Ground 1 which relates to the bearing the prior offences had on the applicant’s moral culpability.

2. [130]

   As particularised, the applicant’s complaints regarding the manner in which the sentencing judge had regard to the prior offences are as follows:

   1. (1)

      The sentencing judge erred by finding that the principles developed in Veen (No 2) had application.

   2. (2)

      The sentencing judge double counted the applicant’s prior record by finding it increased his moral culpability and established s 21A(2)(d) of the CSPA.

   3. (3)

      The sentencing judge failed to indicate how the applicant’s record was taken into account.

3. [131]

   Counsel submitted that the only finding that could be made from the fact of the prior offences was that they would deny the applicant the leniency which might be afforded to a first-time offender.

4. [132]

   It was submitted that the sentencing judge had erred in his reliance upon Veen (No 2) (as set out at [94]). It was submitted that the applicant’s history of prior offending was “markedly different” from the background in Veen (No 2), which involved an offence of manslaughter committed a short time after release for the same offence committed in similar circumstances. Counsel noted that although the prior offences involved the applicant engaging in serious criminality over a discrete period in 2014, the prior offences were of a different type to the index offence, the applicant had not faced other charges or convictions and had behaved in a “relatively pro-social way” after the prior offences and until committing the index offence.

5. [133]

   In relation to the applicant’s moral culpability, counsel submitted that the sentencing judge erred by finding that it was affected by the prior offences. Moreover, by “simultaneously” finding that the prior offences established the aggravating circumstance in s 21A(2)(d) of the CSPA, the prior offences had been double counted in a way adverse to the applicant.

6. [134]

   Somewhat inconsistently with a ground asserting a misuse of the applicant’s prior offences, counsel submitted that the sentencing judge failed to identify the manner in which the applicant’s criminal history was taken into account, a process described in R v Walker [2005] NSWCCA 109 per Johnson J (Giles JA and Hoeben J agreeing) at [32] as "unsatisfactory".

7. [135]

   The Crown noted that the evidence in relation to the applicant’s criminal history revealed that convictions were recorded for six armed robbery offences, each committed as part of a joint criminal enterprise and that in four of the robberies, he was armed with a cap gun which had the appearance of a real weapon and that he used to threaten employees.

8. [136]

   The Crown pointed to the fact that the index offence was a significant escalation in violence.

9. [137]

   The Crown submitted that a fair reading of the whole of the sentencing remarks indicates that the sentencing judge approached the question of the use that could be made of the prior offences in accordance with the principles stated in Veen (No 2), as described by Simpson AJA (Rothman and Button JJ agreeing) in Meis v R [2022] NSWCCA 118 at [41]-[42], an approach which was principled and did not involve double counting.

10. [138]

    In relation to the contention that the sentencing judge had impermissibly had regard to the prior offences when assessing the applicant’s moral culpability, the Crown submitted that this submission involved a misunderstanding of Veen (No 2). The Crown observed that the sentencing judge found the index offence to be “a very serious example of offending of its type” and further rejected the submission that the applicant’s moral culpability was reduced by reason of any factor. Relying on the observations of Beech-Jones CJ at CL, N Adams and Cavanagh JJ in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (DS; DM) at [91], the Crown submitted that it followed that the applicant’s moral culpability corresponded to the objective seriousness of the offence. Accordingly, it was open to the sentencing judge to assess the applicant’s moral culpability as being high.

11. [139]

    The Crown submitted that when read in context, including the fact the impugned statement at [98] was made after his Honour’s findings in relation to the prior offences at [94] and in the context of addressing the Crown’s submissions that the Veen (No 2) was engaged, the sentencing judge did not err.

12. [140]

    It is useful to restate the principles in relation to the relevance of prior offending when sentencing an offender for a subsequent offence.

13. [141]

    In Veen (No 2) at 477, Mason CJ, Brennan, Dawson and Toohey JJ stated that an antecedent criminal history can be taken into account in the sentencing synthesis because it may illuminate the moral culpability of the offender for a subsequent offence and may inform the weight to be given to sentencing considerations, such as specific deterrence and protection of the community. An antecedent criminal history might also be relevant to show whether a subsequent offence is an uncharacteristic aberration or whether by its commission, the offender has demonstrated a continuing attitude of disobedience of the law revealing a need for additional weight to be afforded to specific deterrence. An attitude of continuing disobedience may justify, through retribution, deterrence and protection of society, “a more severe penalty”. However, an antecedent criminal history cannot be given such weight as to lead to the imposition of a penalty disproportionate to the gravity of a subsequent offence because to do so would be to impose a fresh penalty for past offending.

14. [142]

    That same year, the High Court in Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 [1] observed that it would be wrong for a sentencing court to increase a sentence beyond what it considered to be an appropriate (proportionate) sentence on the basis that the offender’s criminal history increased the seriousness of a subsequent offence.

15. [143]

    The following year, the High Court in Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 [2] stated that “a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”.

16. [144]

    On 1 February 2003 s 21A was inserted into the CSPA. Pursuant to ss 21A(1) and 21A(2)(d), a sentencing court is to take into account as an aggravating factor whether “the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence [3] and has a record of previous convictions for serious personal violence offences)”, to the extent it is relevant.

17. [145]

    Section 21A(4) adds an important qualification by ensuring that an aggravating (or mitigating) factor is not to be taken into account in a manner inconsistent with common law sentencing principles: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 per Spigelman CJ, Wood CJ at CL and Simpson J at [56]-[57]; Meis per Simpson AJA (Rothman and Button JJ agreeing) at [24]. To put it another way, the common law is preserved.

18. [146]

    In R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242, this Court, sitting as a bench of five, considered the manner in which a record of previous convictions should be used against an offender in light of common law principles expressed in cases including Veen (No 2), Baumer and Hoare.

19. [147]

    The following propositions relevantly emerge:

    1. (1)

       The common law principle of proportionality requires that a sentence be no more or less than what is proportionate to the objective circumstances of the offence. Objective circumstances do not include prior convictions. Accordingly, a record of prior convictions cannot be used to increase a sentence beyond what is an appropriate (proportionate) sentence for the offence.

    2. (2)

       A record of prior convictions is not restricted to an offender’s claim for leniency. Subject to proportionality, prior convictions can be relevant in the ways expressly authorised by Veen (No 2).

    3. (3)

       The reference to prior convictions in s 21A(2)(d) of the CSPA should be interpreted as referring to the use of prior convictions in the ways expressly authorised in Veen (No 2).

20. [148]

    It was the fact that the applicant had been sentenced to imprisonment in 2016 for the prior offences. The prior offences committed by the applicant involved armed robberies committed in company upon service stations and a restaurant. There were similarities between the prior offences and the index offence. In the prior offences, the victims were defenceless strangers who had not provoked the applicant, nor posed any threat to him. The applicant was an active participant in the prior offences and was armed and threatened the victim/s on each occasion. Within a relatively short period of returning to the community and while still subject to parole, the applicant committed the index offence which was an escalation in the seriousness of his offending.

21. [149]

    It was open to the sentencing judge to be satisfied beyond reasonable doubt that the applicant’s prior offences established the aggravating factor provided by s 21A(2)(d). That being so, ss 21A(1) and 21A(2) obliged his Honour to take that fact into account, provided he did so in a manner consistent with common law principles, including that the sentence imposed be proportionate to the criminality of the index offence alone.

22. [150]

    In considering the use that could be made of the prior offences, the sentencing judge engaged directly with the Veen (No 2) principles. His Honour’s remarks demonstrate that he understood that the reference to prior convictions in s 21A(2)(d) of the CSPA, was to be interpreted as referring to the use of prior convictions in a way authorised by Veen (No 2), that is, in a manner consistent with common law principles. Moreover, his Honour appreciated that the prior offences were of a different type to the index offence and there had been a gap in offending. The principles in Veen (No 2) do not require that a repeat offender commit the same type of offence within a particular period of time. What was pertinent was that the applicant’s conduct demonstrated a continuing attitude of disobedience of the law in the form of repeat offending using unprovoked violence with a weapon. His Honour adopted an approach that was orthodox and accorded with the common law.

23. [151]

    In relation to the applicant’s complaint of impermissible double counting, it is submitted that the sentencing judge double counted the prior offences by finding that they “affected” his moral culpability and established the aggravating factor in s 21A(2)(d) of the CSPA. That contention must be rejected. It involves a misunderstanding of s 21(4) of the CSPA and the principles developed in Veen (No 2) restated above. There was no impermissible double counting.

24. [152]

    Counsel for the applicant submitted that the sentencing judge erred when assessing the applicant’s moral culpability because of his Honour’s statement at [98] wherein he stated that the applicant’s moral culpability was “affected” by his prior offences.

25. [153]

    As stated at [121], the applicant relies on the statement of Garling J in Gommesen to establish this complaint. In Gommesen, the applicant was sentenced for aggravated dangerous driving occasioning death, the circumstance of aggravation being that he drove with a blood alcohol content of 0.172 grams of alcohol per 100 millilitres of blood. Eighteen months earlier, the applicant had been convicted of driving under the influence of alcohol. His blood alcohol reading was 0.094 grams of alcohol per 100 millilitres of blood.

26. [154]

    One of the arguments on his appeal against sentence was that the sentencing judge erred in assessing objective seriousness by having regard to his earlier conviction. In support of this complaint, it was submitted that the sentencing judge’s finding that his moral culpability was high, was, at least in part, affected by the prior conviction.

27. [155]

    It was observed by Garling J at [30] that the need to determine the offender’s moral culpability arose from the guideline judgment of this Court in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. In Whyte, Spigelman CJ observed (at [205]) that the degree of moral culpability of an offender is a critical component of the objective circumstances of the offence of dangerous driving. In expressing a guideline, momentary inattention or misjudgement was equated with low moral culpability, and the presence of any (of the enumerated) aggravating factors suggested an abandonment of responsibility and a high moral culpability. It was in this particular context that Garling J made the statement in Gommesen reproduced at [121].

28. [156]

    In more recent years, the law in relation to “moral culpability” has developed and it is now accepted that the references to moral culpability in Whyte are to be understood as references to the objective criminality of the offending: R v Eaton (2023) 308 A Crim R 465; [2023] NSWCCA 125 per Hamill J at [56]. Moreover, it now appears to be agreed that moral culpability, while related to objective seriousness, is a separate concept.

29. [157]

    The assessment of the objective seriousness of an offence has always been an essential step in sentencing an offender because of the principle of proportionality. The objective seriousness of an offence generally involves an assessment of the seriousness of the offence and the matters causally related to it and not matters personal to an offender. However, some subjective matters can affect the assessment of the objective seriousness of an offence, including motive, provocation, excessive self-defence and non-exculpatory duress: Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 per Johnson J ( Payne JA and Simpson AJA agreeing) at [112]; Britton v R [2024] NSWCCA 138 per Rothman J (Stern JA and Yehia J agreeing) at [113]-[114].

30. [158]

    A mental health impairment suffered by an offender might also affect the assessment of objective seriousness, but much will depend upon the nature of the impairment, the nature and circumstances of the offence and the degree of connection between them: DS; DM per Beech-Jones CJ at CL, N Adams and Cavanagh JJ at [96].

31. [159]

    Prior offending cannot inform the objective assessment of the seriousness of an offence. However, a prior record may impact on the sentencing process in other ways, for example, in what it demonstrates about moral culpability, an attitude of disobedience to the law and the extent to which the community needs to be protected and/or the offender deterred. Such considerations are relevant to a sentence that is proportionate as judged by the nature of the offending and the circumstances of the offender.

32. [160]

    An offender’s “moral culpability” refers to an assessment of how morally culpable or blameworthy the offender is for the offence they committed. Matters personal to the offender are central to the assessment of moral culpability and will include consideration of circumstances which may affect their capacity to reason as to the wrongfulness of their actions or control their conduct including intellectual and cognitive impairments and mental illness [4] and a background of social deprivation, [5] including being raised in an environment where the abuse of alcohol was common. [6]

33. [161]

    Although moral culpability and objective seriousness are separate concepts, the assessment of an offender’s moral culpability includes consideration of the objective seriousness of their offence because what is being assessed is the person’s blameworthiness for committing that offence. While a court cannot re-punish an offender for past offences, past offences can "illuminate" moral culpability as established in Veen (No 2). Expressed differently, prior offending is relevant to moral culpability but only in the ways described in Veen (No 2).

34. [162]

    Where a sentencing judge is not satisfied there are factors which moderate an offender’s moral culpability, as was the case in relation to the applicant, their moral culpability will generally correspond or substantially correspond with the objective seriousness of their offence: DS; DM per Beech-Jones CJ at CL, N Adams and Cavanagh JJ at [91].

35. [163]

    In so far as the sentencing remarks reveal that while dealing with the parties’ submissions, the sentencing judge stated that the applicant’s moral culpability was “affected” by his prior offending (at [98]), I do not discern error by his Honour. As the principles I have discussed make clear, subject to proportionality, prior offences may impact on the sentencing process in a number of ways, including by “illuminating” an offender’s moral culpability. Accordingly, I reject the submission that the approach adopted by the sentencing judge was a departure from a principled approach.

36. [164]

    The complaint advanced by counsel for the applicant to the effect that the sentencing judge failed to refer to the manner in which the applicant’s prior record was taken into account cannot be sustained. As the excerpts from the remarks on sentence at [94] and [98] reveal, the sentencing judge expressly stated how the applicant’s record was taken into account.

37. [165]

    I would not uphold Ground 3 or that part of Ground 1 that relates to the manner in which the sentencing judge had regard to the applicant’s prior offences.

Ground 4: The sentence imposed on the applicant is manifestly excessive

1. [166]

   Although there is a fourth ground of manifest excess, it is accepted there is no need to consider this ground given error has been established in relation to part of Ground 1 requiring this Court to exercise the sentencing discretion afresh: Kentwell v the Queen (2014) 252 CLR 601; [2014] HCA 37. That said, some of the arguments advanced and cases relied upon in support of Ground 4 will be relevant to resentencing the applicant.

Resentence

1. [167]

   The applicant must be resentenced, unless in the exercise of the sentencing discretion afresh, this Court is of the opinion no lesser sentence is warranted at law: s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell per French CJ, Hayne, Bell and Keane JJ at [42]-[43].

2. [168]

   The applicant has filed an affidavit dated 13 February 2026, which he relies upon without objection on resentence. He says that since being sentenced he has matured both mentally and emotionally. He says he has spent a considerable amount of time reflecting on the pain he had caused the deceased’s family and will “forever be sorry”. He says he has a job as a foreman in a furniture workshop which involves the supervision and teaching of approximately five other inmates in building wooden frameworks and attaches a letter from a Mr Robert Shaw who oversees his work. He says he hopes to commence a trade qualification while in custody and acquire his forklift accreditation and says he is confident he can obtain work in scaffolding with one of his uncles on his release. Counsel for the applicant submitted that on resentence, more favourable findings would be made regarding the applicant’s prospects of rehabilitation.

3. [169]

   The applicant states he has made “some mistakes” during his time in custody but has been “trying my best to be better”. He referred to an incident in January 2024 for which he was charged and recently sentenced, which involved himself and another inmate being “in an altercation” with another inmate. He says he is “deeply ashamed of how the incident occurred” and that he is working every day in custody to avoid getting into more trouble and to learn from his mistakes.

4. [170]

   On resentence, the Crown relies in reply on two affidavits sworn by Mr Steven Thomson which were admitted without objection. Mr Thomson produced evidence relating to events that postdate the imposition of sentence for the index offence. The Crown contends that this material is relevant to this Court’s assessment of the applicant’s prospects of rehabilitation and risk of re-offending.

5. [171]

   The evidence discloses that the applicant was sentenced for two offences of wounding with intent to cause grievous bodily harm. Both offences were committed on the same day (29 January 2025) upon the same victim who was himself detained at the correctional centre where the applicant was imprisoned (the wounding offences).

6. [172]

   As reflected in the agreed facts for the wounding offences (which were attached to one of Mr Thompson’s affidavits), the applicant acted in a joint criminal enterprise with three other inmates in attacking and wounding a fellow inmate. The applicant and his co-offenders were members of “Outcast / OC” gang while the victim was a member of a rival gang.

7. [173]

   The applicant first joined an assault on the victim by two co-offenders in an exercise yard. He kicked the victim in the head, tried to kick him a second time (but missed) and then kicked him again while the two co-offenders were continuing to assault him. (Offence 1) The victim was permitted to walk away.

8. [174]

   As the victim walked into a cell, he and a co-offender started punching each other. The applicant and another co-offender ran upstairs toward the cell. The other co-offender swung a sandwich press at the victim (and missed) and then all three men started advancing toward the victim. A fourth co-offender punched the victim from behind, causing him to fall to the ground. The applicant and two co-offenders punched, kicked and stomped onto the victim while he was on the ground. Two co-offenders struck the victim to the head with the sandwich press a number of times. The applicant kicked and stomped the victim’s head 11 times (Offence 2).

9. [175]

   After pleading guilty to the wounding offences, the applicant was sentenced in the District Court of New South Wales on 26 September 2025.

10. [176]

    Further evidence tendered on resentence discloses that the applicant incurred three custodial infringements after being sentenced for the index offence. Namely, possession of cigarette filters, possession of a drug and unlawfully delivering an article to another inmate. Each infringement occurred on the same day (21 May 2025) and was detected during a cell search. For the cigarette filter matter, the applicant was confined to his cell for four days and for the latter two infringements, he was reprimanded and cautioned.

11. [177]

    The applicant is to be afforded a 25% discount for his plea of guilty.

12. [178]

    The applicant did not challenge the vast majority of the findings made by the sentencing judge and aside from that part of the complaint in Ground 1 that I would uphold, I would reject the other complaints advanced by the applicant in his appeal against sentence.

13. [179]

    The Crown submits that on resentence, this Court would proceed on the basis of the sentencing judge’s findings regarding the following matters:

    1. (1)

       The circumstances of the offending and that the index offence was a very serious example of offending of its type.

    2. (2)

       The aggravating factors in s 21A(2)(e) and s 21A(2)(j) of the CSPA having been proved beyond reasonable doubt.

    3. (3)

       The use that could be made of the applicant’s prior record of convictions, and in particular that the Veen (No 2) principles were enlivened.

    4. (4)

       The applicant’s moral culpability being high.

    5. (5)

       The applicant’s background not supporting a reduction in his moral culpability.

    6. (6)

       The applicant not having demonstrated genuine remorse.

    7. (7)

       The applicant posing a risk of reoffending.

    8. (8)

       That all the purposes of sentencing are relevant including a “real need” for general and specific deterrence and protection of the community.

14. [180]

    I agree with this submission and adopt the sentencing judge’s findings in these regards.

15. [181]

    In relation to [179(4)], while I have determined that the sentencing judge erred in taking into account the applicant’s post-offending conduct in assessing his moral culpability, my assessment of the applicant’s moral culpability is that it corresponds with the objective seriousness of the index offence. I find his moral culpability to be high.

16. [182]

    In relation to [179(7)], while I appreciate there are matters in the applicant’s affidavit that show promise in relation to his prospects of rehabilitation, including his employment in custody and the steps he is taking towards obtaining qualifications, the wounding offences suggest otherwise. I find he poses a medium risk of reoffending and his prospects of rehabilitation are guarded.

17. [183]

    The agreed basis for the applicant’s guilt for manslaughter was his commission of an unlawful and dangerous act causing death, namely intentionally pointing a firearm at the deceased at close range, knowing the firearm was loaded, whereupon the firearm accidentally discharged.

18. [184]

    It has often been observed that the range of sentences for manslaughter is so broad that it is difficult to derive assistance from sentences passed in other cases, even within the same category of manslaughter. Much will depend upon the particular circumstances of each case: R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep).

19. [185]

    Mindful of these limitations, to assist the Court on resentence, the parties submitted a joint table of manslaughter cases said to be comparable to the present case, at least in terms of the offence having been committed by use of a firearm.

20. [186]

    I have read all of the cases contained within the table and have found some to be of greater relevance. Others are of less relevance due to more significant differences in the objective circumstances of the offence and the subjective circumstances of the offender.

21. [187]

    In R v Maguire (Supreme Court (NSW), 15 September 1990, unrep), the offender (aged 46) was found not guilty of murder but guilty of manslaughter at trial. He and the deceased were members of the same club where the offender had been drinking from midday. The deceased arrived around 4.00pm. Sometime during the evening, a dispute arose between the offender and a group which included the deceased. The offender punched the deceased in the face causing him to stagger back and then charge at the offender, pushing him into the toilets. The offender was followed into the toilets by the deceased and two other members of his group. The offender made threats against the deceased before leaving and obtaining a loaded rifle. He then returned to the club. When the deceased was leaving, the offender drove his utility at the deceased, hitting him. The offender then got out of his vehicle and a fight broke out between he and the deceased during which the offender grabbed the rifle and accidentally discharged it, killing the deceased.

22. [188]

    Justice McInerney noted that the offender was considerably affected by alcohol. His Honour found as a matter of mitigation that the offender did not immediately shoot at the deceased but drove his vehicle at the deceased and did not attempt to use the firearm until after he had engaged in “unarmed conflict”. His Honour noted that the offender had no convictions for violent offences, had not committed any offence since 1981 and that his previous record consisted of stealing and breaking and entering offences only. His Honour noted that the offender had a deprived background and was found to be somewhat remorseful. The offender was sentenced to a term of imprisonment of 10 years, with a non-parole period 8 years. A ground of manifest excess was rejected on appeal: R v Maguire (Court of Criminal Appeal (NSW), 30 August 1995, unrep).

23. [189]

    In R v Bessant (Supreme Court (NSW), 20 May 1998, unrep), the offender (aged 25) and an associate were provided with a sawn-off shotgun and contracted to drive past and shoot at two houses to frighten but not harm the occupants in exchange for a quantity of heroin. At 7.30pm on a Sunday, the associate drove a stolen vehicle in which the offender was a passenger to the vicinity of the first house. The offender discharged one barrel at the first house, no one was injured. The offender then moved to the second house and discharged one barrel, hitting and killing a 5-year-old girl inside.

24. [190]

    In assessing the objective seriousness of the offence, Smart J referred to the high degree of dangerousness of the offender’s conduct which killed a young child in her home. His Honour noted that the offence occurred 2 months after the offender had been released from gaol. His Honour had regard to the offender’s history of alcohol and drug use and progress in rehabilitation, his confession and contrition and his progress in custody. Allowing no discount for his plea of guilty, the offender was sentenced to a term of imprisonment of 18 years with a non-parole period of 12 years.

25. [191]

    In R v Papandrea [1999] NSWSC 978, the offender (approaching 30) pleaded guilty to manslaughter on the fifth day of trial (in full satisfaction of an Indictment for murder). He and the deceased were acquaintances. The deceased was staying at the offender’s home and they had both consumed alcohol and cannabis. The offender was in possession of a loaded firearm and held it at close range to the deceased and pressed the trigger. The precise circumstances leading to the discharge were unclear. The offender’s judgment, coordination and concentration were “somewhat impaired” by alcohol and drugs. Studdert J found the offence to be objectively very serious. His Honour noted the offender’s minor criminal record for driving offences, offensive language, resisting police and drug-related offending. His Honour accepted that the offender was contrite. Acknowledging that the offender’s plea was to be taken into account in his favour (in an unquantified way), the offender was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years.

26. [192]

    In R v Pennisi [2001] NSWSC 461, the offender (aged 28) was found not guilty of murder but guilty of manslaughter. He and the deceased were in a legal dispute arising from a lease agreement between the deceased (as the lessor) and the offender (as the lessee). The offender drove to a shopping centre owned by the deceased armed with a semi-automatic rifle. He was intending to confront the deceased and scare him into dropping the legal proceedings. The offender concealed the gun at the scene, went home, and returned later that morning. When the offender presented the gun, the deceased approached him and took hold of the barrel of the gun and wrestled the offender. The gun discharged into the deceased’s stomach. The deceased was not incapacitated after the first shot and continued to try and disarm the offender, at which point the offender panicked and fired repeated shots at the deceased. The offender then took the deceased’s keys and fled the scene in the deceased’s car. 45 minutes later he handed himself into police and made a full confession. The offender gave evidence that when he went to the shopping centre, he had planned to kill himself if the deceased did not agree to drop the legal proceedings. He wrote two suicide notes at the scene before the confrontation.

27. [193]

    Bell J found that the offence to be a very serious case of manslaughter. Her Honour noted that the offender had a strong subjective case which led to significant mitigation, including no prior criminal convictions, genuine remorse, multiple offers to plead guilty to manslaughter and good character. Her Honour noted the offender’s history of depression and anxiety and the fact he had engaged in three attempts of suicide in the six months leading up to the offence. Having allowed a discount of 25% on account of his previous offers to plead guilty to manslaughter prior to committal, the offender was sentenced to a term of imprisonment of 9 years, with a non-parole period 6 years. On appeal, a ground of manifest excess was rejected: R v Pennisi [2001] NSWCCA 326.

28. [194]

    In Elsamad, the offender (aged 19) was confronted by the deceased in company with another male, assaulted the deceased and made an attempt to run him over. That evening, the two men returned to the vicinity of the offender’s home, looking for him. The deceased yelled at the offender’s friends. The offender went to his unit and retrieved a loaded shotgun before returning to the offender’s home. The offender and deceased yelled at each other. The offender said, “What did you say about my mum,” with the shotgun pointed at the deceased’s chest. The gun discharged, killing the deceased. Hidden AJ was not satisfied the gun had discharged deliberately and accepted that the applicant did not know the gun was loaded. His Honour nevertheless described the offence as serious. Having allowed a discount of 15%, the offender was sentenced to a term of imprisonment of 10 years with a non-parole period of 7 years.

29. [195]

    In R v Barby [2001] NSWSC 1169, the offender (aged in his mid-40’s) was found not guilty of murder but guilty of manslaughter. He and the deceased and another person were all intoxicated and decided to go pig shooting. The offender was carrying a shotgun. The deceased emerged from a bush and walked towards the offender. The offender aimed the shotgun at the deceased and shot him in the chest once from a distance of two to three metres. O’Keefe J found that the offender had not expressed remorse or contrition during the trial or sentence proceedings. The offender had convictions for possession of an unlicenced firearm, however his Honour did not take that into account in any manner adverse to the offender. His Honour noted the offender’s positive behaviour in custody and noted that he had spent most of his incarceration in protective custody with the prospect of that continuing for the duration of his sentence. The offender was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years.

30. [196]

    In Van Oosterum, the offender (aged 50) pleaded guilty to an offence of manslaughter (in full satisfaction of an Indictment for murder). He had a loaded shotgun in his vehicle with the safety catch off and was preparing to confront the deceased, who he believed was having an affair with his wife. The offender intended to use the firearm to ensure the deceased would “hear him or yield to his wishes”. The offender presented the shotgun on a highway while yelling at the deceased. There was a struggle over the gun and the gun discharged killing the deceased. Greg James J found the offence to be serious and “grave” and not in the “lower continuum of crimes of manslaughter”. His Honour noted that the offender had been a worthy member of the community until the events in relation to his marriage overwhelmed him. It was noted that he had the support of his children and was of good character. The offender was found to be remorseful and unlikely to re-offend with extremely good prospects of rehabilitation. After allowing a discount of 25% for his plea of guilty, the offender was sentenced to a total term of 7 years imprisonment with a non-parole period of 4 years.

31. [197]

    In R v Mariam [2012] NSWSC 1023, the offender (aged 24) was found guilty of manslaughter. A pre-arranged confrontation was organised by two groups of young men who were armed. When the groups met, the offender fired first, discharging at least ten cartridges from a pistol at the opposing group. One bullet struck a truck driver passing by, killing him instantly. Latham J found the objective gravity of the offence to be high. Her Honour rejected a submission that the offender had demonstrated that he was remorseful. Her Honour referred to the offender’s criminal history as having relatively minor significance. As the offender had offered to plead guilty to manslaughter, the sentencing judge allowed a discount of 15% and imposed a term of imprisonment of 7 years and 9 months, with a non-parole period of 5 years and 9 months. Following a successful Crown appeal, the offender was resentenced by this Court to a term of imprisonment for 12 years with a non-parole period of 8 years and 9 months: Mariam v R; R v Mariam [2013] NSWCCA 338.

32. [198]

    In R v Abbas, the offender (aged 18) pleaded guilty to an offence of manslaughter. The offender was owed money by Mr Huang, a drug addict and drug. Huang was avoiding the offender as the offender was trying to recover the debt. Ms Cincotta, who herself owed Huang money, told the offender Huang would be visiting her to collect part of what she owed him. The offender asked his friends Mr Dogan and the deceased to accompany him to Cincotta’s home. Later, Huang called the offender and told him that he would be in a position to repay some of the money he owed as he expected to be paid by Cincotta. When Huang arrived at Cincotta’s house, he was carrying drugs and scales. He was led into the loungeroom. Shortly afterwards, the offender, Dogan and the deceased arrived and went to the lounge room. The deceased grabbed Huang by the feet and Dogan held him around his neck. The offender asked Huang if he had the money and he replied he did not. The offender began to hit Huang on his face with both hands. He then pulled a pouch out of his pocket and used it to hit Huang causing a large bruise and significant swelling to his head and face. The offender then retrieved a pistol from the pouch and pointed it in the direction of Huang’s legs, ordering him to get up from the floor. Dogan released his grip on Huang’s neck, and the deceased helped Huang up. The offender walked behind Huang who was facing the deceased. The offender was still holding the gun. Without the applicant expecting it to do so, the gun discharged. It was no more than two feet from the deceased’s face. The bullet passed through the deceased’s left check and lodged in his brain. He died in hospital the following day, having been maintained on a ventilator in the interim. The offender left the scene with the gun, which was not recovered.

33. [199]

    Beech-Jones J found that offence was undoubtedly a very serious example of manslaughter by an unlawful and dangerous act. In relation to the offender’s subjective circumstances, his Honour noted that the offender had used drugs from the age of 14 and that he had a limited criminal record, had good prospects of rehabilitation and was remorseful. Having allowed a discount of 25% on account of his offer to plead guilty prior to committal, the offender was sentenced to a term of imprisonment of 11 years, with a non-parole period 7 years. On appeal a ground of manifest excess was rejected: Abbas v R.

34. [200]

    In Zarshoy, the offender (aged 28) was found guilty of manslaughter. The offender and deceased were colleagues. The offender agreed to purchase an illegal firearm from the deceased and attended at his home for that purpose. The offender then shot the deceased from a short distance in the left leg and ran away. There was no evidence of arguing or yelling prior to the shooting. Davies J found the offence fell above the mid-range of objective seriousness. His Honour referred to the offender’s mental health and impoverished refugee background however found that the offender’s mental health concerns arose from his drug use and did not find it operated to reduce his moral culpability. Notwithstanding a letter expressing remorse, his Honour found that little weight could be attributed to the offender’s expressions of remorse, noting that the offender was not prepared to acknowledge the truth of the events and blamed the deceased’s friend for what occurred. The offender was sentenced to a term of imprisonment for 12 years with a non-parole period of 8 years.

35. [201]

    In Rae (No 2), the offender pleaded guilty to manslaughter on the day of his trial. While in possession of a loaded pistol, the offender confronted the deceased about a drug debt. The deceased asked the offender, “What are you going to do, shoot me?” The offender replied, “I should shoot you right fucking now cunt.” The deceased said, “If you’re going to shoot me, go on and do it cunt”. A physical confrontation took place while the firearm was in the offender’s hand. Several punches connected. The deceased had the offender in a “bear hug”. A witness stepped in and pulled them apart, causing the gun to discharge killing the deceased.

36. [202]

    N Adams J found the offence to be a serious example of manslaughter. Her Honour noted the offender’s significant subjective circumstances, including years of drug abuse and significant mental health issues which remained untreated, the loss of his father to suicide at the age of 15 whereupon he left school in Year 10 to care for his siblings and his mother, who had her own mental health issues. Her Honour found that the principles in Bugmy were enlivened, which reduced the offender’s moral culpability to an extent. Her Honour noted that the offender had a significant criminal history, involving firearm offences and had spent 87% of his life between 2010 and 2024 in custody and was at risk of institutionalisation. Having allowed a discount of 10% for his plea of guilty, the offender was sentenced to a term of imprisonment of 9 years with a non-parole period of 5 years and 9 months.

37. [203]

    The cases to which I have just referred provide some measure of the types of sentences that have been imposed in similar, but not identical, circumstances.

38. [204]

    Having considered all relevant subjective and objective factors, exercising my discretion afresh, I have arrived at a sentence that is the same as that imposed on the applicant by the sentencing judge. I reach that conclusion taking into account the matters raised in the applicant’s affidavit which I have set out.

39. [205]

    Even accepting that the applicant has now demonstrated insight and some responsibility for the harm his offending has caused, I do not consider this mitigating factor would, having regard to all factors I must synthesise that are relevant to sentencing the applicant, alter the conclusion that the sentence I would impose is the same at that imposed by the sentencing judge.

40. [206]

    In so finding, I have had regard to the guidepost of the maximum penalty of 25 years, the objective seriousness of the applicant’s offending, the aggravating circumstances, and the applicant’s subjective case.

41. [207]

    Although the applicant only became involved in the confrontation very shortly before it was due to occur, and acknowledging that the index offence was unplanned and spontaneous, the applicant took it upon himself to drive the younger co-offenders to the confrontation. He got out of his vehicle and led the co-offenders towards the deceased’s vehicle. He was carrying a shotgun containing at least two cartridges, which he intended to use to intimidate members of the other group in circumstances where he had no reason to believe that any of them might be armed. He deliberately pointed the firearm at the head of the deceased’s 15-year-old cousin and manually actioned the firearm to load it. He aimed the loaded shotgun at both occupants of the vehicle as he walked around to the deceased’s side of the car and manually actioned the firearm a second time. The applicant did not know the deceased and when he questioned whether he was involved in “the drama,” the deceased responded that he did not know what the applicant was talking about. As the deceased’s cousin was getting out on the passenger side, the applicant accidentally discharged the shotgun striking the deceased at close range to the centre of his chest. The deceased had not done anything to provoke the applicant. Having shot the deceased, the applicant rendered him no assistance, leaving him on the ground in a critical condition.

42. [208]

    The applicant’s conduct in deliberately pointing a firearm at the deceased at close range, knowing it was loaded, thereby exposing the deceased to an appreciable risk of serious injury, was extremely serious and dangerous conduct. One of the dangers of carrying a loaded firearm is the risk it can discharge and kill, or injure, persons in the vicinity. Should the gun discharge, the risk of someone being killed or seriously wounded is substantial. That risk of death materialised in the present case.

43. [209]

    I would dismiss the appeal.

Orders

1. [210]

   Accordingly, I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal.

   2. (2)

      Dismiss the appeal.