Abed v R

1. [1]

   MITCHELMORE JA: I agree with McGuire J.

2. [2]

   CAVANAGH J: I agree with McGuire J.

3. [3]

   McGUIRE J: The applicant, Ali Falih Abed, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by his Honour Judge Everson SC at the Penrith District Court on 20 September 2024. The applicant was found guilty following a trial by judge alone of one count of dishonestly with a view to making a gain, destroying property by means of fire contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 14 years imprisonment.

4. [4]

   The applicant was sentenced to a term of imprisonment of 5 years commencing on 20 June 2024 with a non-parole period of 3 years. The applicant’s non-parole period will expire on 19 June 2027 and the balance of his sentence will expire on 19 June 2029.

5. [5]

   If granted leave, the applicant advances the following grounds of appeal:

6. [6]

   The sentence hearing took place on 20 September 2024, following which the sentencing judge delivered remarks on sentence ex tempore.

The facts

1. [7]

   The factual circumstances of the offending as found by the sentencing judge in his Honour’s remarks on sentence can be summarised as follows.

2. [8]

   In October 2020 Ms Wafaa Al Shamari, the co-offender and the applicant’s partner, purchased a property at 1A Namur Street, South Granville (“the Property”). Ms Al Shamari secured an insurance policy with NRMA Insurance over the Property with replacement insurance cover of $550,000. The policy was in effect from 23 November 2020 for a period of 12 months.

3. [9]

   A short time after the purchase Ms Lynette Cox, a 72 year old lady who lived in the adjacent property at 1 Namur Street, South Granville, saw a woman and a man in the backyard of the Property and assumed that they were the new owners. The woman introduced herself to Ms Cox using the name “Sarah”. His Honour found that the co-offender Ms Al Shamari was the woman who used the name Sarah.

4. [10]

   In February 2021 Ms Al Shamari leased the Property to Ms Nada Hamze for a term of 5 years. At that time Ms Hamze was in a relationship with Ms Al Shamari’s brother. The sentencing judge found that the applicant and Ms Al Shamari had a close personal relationship and that she financially supported him. Ms Al Shamari made payments to the applicant totalling approximately $107,000 between February 2021 and May 2021. Thereafter her payments to the applicant’s account continued but decreased in frequency and amount.

5. [11]

   On 20 April 2021 Ms Al Shamari authored a document entitled “To Do List” which included entries which read “construction loan for 1A Namur Street, South Granville” and “try to purchase 1 Namur Street, South Granville for investment from Lyn”. The document also contained an entry under a sub-heading entitled “Goals” which read “Construction loan, build on 1A Namur Street, South Granville” and an entry under a sub-heading “Investment” which read “1A Namur Street, South Granville and build duplexes and lease”.

6. [12]

   Ms Al Shamari offered to purchase Ms Cox’s property at 1 Namur Street. Ms Cox indicated that she was not interested in selling.

7. [13]

   The learned sentencing judge found that at some point before the fire was lit on 10 August 2021 Ms Al Shamari and the applicant formed an agreement to destroy the house on the Property.

8. [14]

   From late May 2021 Ms Al Shamari took steps to evict Ms Hamze from the Property. Ms Hamze vacated the Property in late July 2021.

9. [15]

   The applicant and Ms Al Shamari agreed to destroy the house on the Property with a view to making a financial gain. The learned sentencing judge found that the financial gain intended would be generated by an insurance payout and the subsequent redevelopment of the Property. His Honour also found that the applicant and Ms Al Shamari had hoped that the fire may persuade Ms Cox into selling her adjoining property, which would then increase the land size and financial reward from the proposed redevelopment.

10. [16]

    Acting on Ms Al Shamari’s direction the applicant then recruited two juveniles, HA and TG, to burn down the house on the Property in exchange for payment. HA told TG that he would be paid $1,000 to burn the house down.

11. [17]

    HA made a call to the applicant’s mobile telephone at around 6:30 pm on 10 August 2021. Shortly after 7:00 pm that evening HA and TG purchased two jerry cans which they filled with petrol. The jerry cans and the petrol were paid for using a credit card in the name of the applicant’s sister. HA and TG then travelled to the Property in an Uber vehicle, which had been booked through a mobile telephone used by the applicant and with an account linked to the applicant’s email address and bank account.

12. [18]

    HA and TG then lit fires on the Property, igniting the house at multiple locations. The fire consumed and destroyed the house. HA and TG then travelled away from the Property in an Uber, which was booked with the same account and telephone as the previous booking. Subsequently, two jerry cans, matching the description of those purchased by HA and TG, were found at the scene of the fire.

13. [19]

    During the events of 10 August 2021 Ms Al Shamari remained at her home in Guildford. She received a telephone call from the police on 22 August 2022 informing her that two juveniles were involved in the fire at the Property.

14. [20]

    On 1 September 2022 the police telephoned Ms Al Shamari and informed her that one of the juveniles involved in the fire had been identified and would be arrested. About 40 minutes later the applicant spoke with HA on the telephone and told HA to conceal his telephone. HA was arrested around five minutes later.

15. [21]

    On 8 September 2022 the police telephoned Ms Al Shamari and informed her that HA and TG had been arrested for lighting the fire, that they were about to arrest the applicant and that they wanted to question her. Ms Al Shamari then telephoned the applicant and told him that the police were going to arrest him. She instructed him to “throw the thing” and “call the solicitor from a different phone”.

16. [22]

    The applicant was arrested on 8 September 2022. He participated in an interview with police, during which he said that he did not recall making the Uber bookings for HA and TG on 10 August 2021 and that he did not recall details about his telephone calls with HA on that same night.

17. [23]

    Prior to attending the Granville Police Station on 8 September 2022 Ms Al Shamari telephoned HA and told him that she was going to be arrested for the “same thing”. Ms Al Shamari’s image was captured on CCTV footage which showed that just before she entered the police station she stopped near a hedge and kicked her leg. Police later searched that location and recovered from underneath the hedge a mobile telephone which was connected with the call Ms Al Shamari had made to HA prior to entering the station.

The applicant’s subjective case

1. [24]

   The applicant was born in Iraq in 1998 and migrated to Australia in 2012 at the age of 14 years. He is one of eight children; the eldest son, and fifth eldest overall.

2. [25]

   In a report dated 5 September 2024 Dr Gerald Chew, consultant general and forensic psychiatrist, records that the applicant was exposed to war and traumatic events during his upbringing in Iraq. The applicant reported that he recalled an incident during which a group he was with were stopped by men with guns who stole money and valuables, raped the girls and women and shot the driver. The applicant witnessed significant conflict in Iraq, particularly conflict and killing between Shia and Sunni Muslims. The applicant’s father came to Australia as a refugee in 1999 and the rest of the family arrived later. The applicant completed year 12, then completed an apprenticeship as an electrician. He then started his own electrician business.

3. [26]

   The applicant reported to Dr Chew that he experienced symptoms of hyperarousal, anxiety, nightmares and flashbacks related to exposure to war and violence. He had used cannabis and alcohol since his teenage years to assist him in coping with his symptoms and was self-medicating with illicit drugs at the time of the offending conduct. His illicit drug use resulted in him going into debt.

4. [27]

   Dr Chew diagnosed the applicant with post-traumatic stress disorder as a result of his exposure to violence and trauma and substance use disorder which was in remission whilst he was in a controlled environment.

5. [28]

   Subjective material from the applicant’s sister and parents established that he had married in 2019 and divorced later that year. He studied to become a plumber, then an electrician. He obtained an apprenticeship as an electrician. He then set up his own business as an electrician and installing solar panels. His parents both describe that the applicant worked hard and provided financial support to the family. They also describe that he would take his mother to medical appointments, take his younger brothers to school, assist with domestic duties and provide emotional support to the family.

6. [29]

   In a letter of apology by the applicant he describes his exposure to trauma in Iraq and states that he continues to suffer nightmares. He says that when he moved to Australia he devoted his life to caring for his mother and sisters. He describes that he had difficulty integrating into Australia, struggled with English, associated with a bad crowd and turned to drugs and alcohol. He states that at the time of the offending conduct he was employed full-time as an electrician and supported both of his parents financially and emotionally.

Remarks on sentence

1. [30]

   The sentencing judge found facts on sentence consistent with the facts found in his Honour’s verdict judgment and summarised above. His Honour found that Ms Al Shamari had arranged the fire in order to claim on her insurance policy and allow for redevelopment at the Property. His Honour found that the applicant would have benefitted from any redevelopment by reason of his close personal relationship with Ms Al Shamari, who the applicant described as his girlfriend and with whom he had been in a relationship for a few years.

2. [31]

   As to subjective factors his Honour stated in his remarks on sentence that the applicant was born in July 1988 and that he was 33 years old at the time of the offence. Those statements were incorrect. In fact the correct position was that the applicant was born in 1998 and was 23 years old at the time of the offending.

3. [32]

   His Honour noted that the applicant had no prior criminal convictions.

4. [33]

   A Sentencing Assessment Report records that the applicant maintained his innocence, had not shown remorse for the offending, had some dependency on illicit drugs and posed a medium to low risk of reoffending. The applicant was also recorded as having the support of his parents and sister. The sentencing judge considered the applicant’s prospects of rehabilitation to be reasonable if the applicant were to address his issues with drug addiction.

5. [34]

   His Honour found that the applicant’s moral culpability was lower than that of Ms Al Shamari as his role was limited to recruiting the juveniles to burn down the house, which he did at the direction of Ms Al Shamari. His Honour found that both offenders were motivated by greed, that the offence was committed without regard for public safety, that the fire presented a risk of injury to others and risk of damage to neighbouring property and that the damage caused was “of high order”. His Honour found that there was a significant degree of premeditation and planning to the offending.

6. [35]

   His Honour stated that he had regard to the material which addressed the applicant’s upbringing and the circumstances of his childhood and adolescence.

7. [36]

   The sentencing judge took into account that the applicant adduced material which showed that he had experienced deprivation in childhood and that he had been diagnosed with post-traumatic stress disorder as a result of exposure to violence and trauma and with substance abuse disorder in remission at the time of sentencing. The evidence relating to deprivation and trauma in childhood related to the applicant’s exposure to the war in Iraq during the years 2006 to 2012. The applicant was between 8 and 14 years of age at the time. He witnessed people being shot and abused, bombs exploding, families being separated and women being taken away to be raped.

8. [37]

   With respect to the circumstances associated with the applicant’s childhood and the application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy), his Honour said:

9. [38]

   After referring to Bugmy at [44] and Dungay v R [2020] NSWCCA 209, his Honour said:

10. [39]

    His Honour found that the applicant’s mental health did not contribute to the offending in any material way. His Honour took into account that a custodial sentence may weigh more heavily on the applicant.

11. [40]

    The sentencing judge noted that the letters tendered on behalf of the applicant at sentence raised the impact of his incarceration on his family. His Honour found that the hardship that would be occasioned to the applicant’s family by the applicant’s incarceration was not so highly exceptional as to mitigate his sentence.

12. [41]

    The sentencing judge considered alternatives to full-time custody and found that no alternative was appropriate.

The submissions - Ground 1

1. [42]

   Ground 1 of the appeal contends that the sentencing judge erred as to the applicant’s age at the time of the offending which led to error in the sentence imposed.

2. [43]

   The applicant submitted that the sentencing judge erred in stating:

3. [44]

   The material tendered on sentence established that the applicant’s correct date of birth is 8 July 1998, not 1988. He was 23 years old at the time he committed the offence, not 33.

4. [45]

   The applicant submitted that the 10 year differential arising from this error was significant because reliance was placed on the applicant’s youth as a mitigating factor due to his age and immaturity. The applicant submitted that the sentencing judge’s error in relation to age was relevant to the assessment of immaturity and the subsequent impact on the assessment of moral culpability.

5. [46]

   Although submissions were made at sentence by the offender and the Crown in relation to immaturity and the impact that that may have on the sentencing exercise, the applicant submitted that the sentencing judge made no reference to the applicant’s youth or immaturity in the remarks on sentence or how they may impact on the assessment of moral culpability. He submitted that, although at 23 years the applicant’s age was approaching the outer limits of what would be considered a youthful offender, age was still an important factor in the instinctive synthesis process and that the applicant’s correct age was important when compared with his co-offender Ms Al Shamari. Ms Al Shamari was born in 1990 and was 31 years old at the time of the offending. The applicant submitted that by making an error in relation to the applicant’s age the sentencing judge incorrectly regarded the applicant as being older than the co-offender, when in fact he was eight years younger. The applicant submitted that the age differential was important in considering the respective roles, responsibilities, objective seriousness and moral culpability of each of the offenders.

6. [47]

   The applicant relied on the prominence to be given to rehabilitation of young offenders in determining sentence (R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 per Grove J at [38]) and on the principles relevant to sentencing young offenders discussed in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 and Tammer-Spence v R [2013] NSWCCA 297 per Rothman J at [36].

7. [48]

   The applicant submitted that when regard is given to the applicant’s correct age, the impact of his exposure to violence and trauma in childhood and the sentencing judge’s finding in relation to his role being limited to acting upon the direction of his co-offender, this Court would find that the imposition of a lower sentence would be appropriate in all of the circumstances.

8. [49]

   The respondent conceded that the sentencing judge erred by mistaking the applicant’s year of birth and his age at the time of the offending. It was further conceded that, as a result of the error, it was open to this Court to find that that was a material error which was capable of affecting the outcome in sentencing or had the capacity to influence the sentence: Rizk v R [2020] NSWCCA 291 at [4]; Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] – [12].

9. [50]

   However, the respondent submitted that if this Court is satisfied that Ground 1 had been established and that the applicant is to be sentenced afresh (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37), the Court would not form the view that any less severe sentence was warranted in all of the circumstances. The respondent submitted that the principles in KT v R and Tammer-Spence v R were generally applied to teenage offenders and extended to offenders in their early 20s in limited circumstances. It was submitted that in the circumstances of the present offending and the role played by the applicant there were no indications that his conduct arose from immaturity or a lack of impulse control. Rather, the respondent pointed to the subjective evidence from the applicant’s family that he contributed financially, emotionally and domestically to the family members, had previously been married, and had started his own business as an electrician as indicating that he was mature for his age. The respondent also submitted that the applicant’s conduct showed a degree of planning, although not particularly sophisticated, premeditation and attempts to conceal his involvement which it was submitted were atypical of irresponsible and unthinking actions of an immature person. The respondent also relied on the absence of any reference to immaturity or lack of impulse control in the psychiatric report by Dr Chew. The respondent submitted that in all the circumstances the Court would take into account that the applicant conducted himself in an “adult manner” by engaging in the offence.

The submissions - Ground 2

1. [51]

   Ground 2 of the appeal contends that the sentencing judge erred by failing to correctly apply the principles in Bugmy, specifically by finding that the applicant’s moral culpability was not reduced by reason of a deprived background as the offending was carefully planned.

2. [52]

   In relation to Ground 2 the applicant submitted that defence counsel submitted in the Court below that the applicant’s exposure to extreme violence and instability in Iraq enlivened the principles in Bugmy and that the Crown took no issue with the evidence of disadvantage and accepted that the applicant came to Australia as a refugee.

3. [53]

   The applicant submitted that although the sentencing judge accepted that the applicant had endured a deprived and disadvantaged background he erred in not acknowledging that background by finding reduced moral culpability.

4. [54]

   The applicant relied on Dungay v R at [153] and Lloyd v R [2022] NSWCCA 18 at [27] for the proposition that it is not necessary to establish the existence of a causal connection between the offending and the disadvantaged background before the Bugmy principles apply and that even in the absence of any such link the Court can still give full weight to a childhood of deprivation if that is established on the evidence. The applicant also submitted that it was incorrect for the sentencing judge to have held that the Bugmy principles did not apply because the offence was preplanned and relied on the authority of Robertson v R [2024] NSWCCA 22 at [110].

5. [55]

   The applicant submitted that participation in the offending, although planned and premeditated, was poorly planned and involved the applicant joining in with the co-offender to carry out an act of violence in the form of arranging for the house at the Property to be destroyed by fire. In those circumstances the applicant submitted that the principles in Bugmy applied and should ameliorate the moral culpability of the applicant.

6. [56]

   The respondent submitted that the High Court’s decision in Bugmy, as applied and considered in authorities since, did not establish that a finding of reduced moral culpability must be made in all cases when an offender had a background of disadvantage. The respondent relied on the authority of Dungay v R at [153] that:

7. [57]

   It was submitted for the respondent that the question of the relationship between a disadvantaged background and moral culpability is one that requires an evaluation of all the facts in the particular circumstances of the given case. It was submitted that where an applicant’s background bears no connection to or relationship with the offending, an offender’s moral culpability need not be reduced and may be taken into account in mitigating the sentence more generally.

8. [58]

   The respondent submitted that the sentencing judge considered the applicant’s background in depth and referred to the tendered material as establishing that he had experienced deprivation as a child or adolescent and that those traumatic life experiences resulted in the applicant suffering post-traumatic stress disorder. The respondent relied on the sentencing judge’s analysis of Bugmy and Dungay v R as the basis for a submission that it was open to his Honour in the circumstances of the case to find that there was no causal link between the background of trauma and the offending conduct and that in those circumstances no reduction in moral culpability was necessary or appropriate.

Consideration

1. [59]

   The respondent conceded the error relevant to Ground 1. It was accepted that the sentencing judge made an error in relation to the applicant’s year of birth and his age at the time of the offending conduct. The material tendered during the sentence proceedings by both the Crown and the defence clearly indicated that the applicant’s date of birth was 8 July 1998. Consequently he was 23 years old at the time of the offence. The evidence also established that his then girlfriend and co-offender was 31 years old at the time and eight years senior to the applicant.

2. [60]

   The parties accepted that the error made by the sentencing judge appeared to be a transposition error in the figures in the applicant’s year of birth. It was the parties’ joint position that the sentencing judge was wrong in stating that the applicant’s year of birth was 1988 and that the applicant was 33 years of age at the time of the offending conduct.

3. [61]

   The fact that the remarks on sentence were delivered ex tempore is a relevant factor for consideration. In R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175, this Court said at [34] – [35]:

4. [62]

   I acknowledge the workload pressures and time constraints under which the judges of the District Court of New South Wales operate. The delivery of ex tempore judgments in such a busy court is commendable and desirable. I accept that as a consequence this Court should consider ex tempore judgments from that Court with a degree of latitude: BAP v R [2024] NSWCCA 206 at [89]. However, as was observed in Lloyd v R at [11], that does not mean that ex tempore decisions attract a different standard of review; only that the appellate court should understand that shortcomings such as poor structure, unclear expression or failure to refer to an applicable provision or principle may find their explanation in the degree of difficulty that attends the task of mustering one’s thoughts to present an oral judgment in open court.

5. [63]

   It would seem in the circumstances that the sentencing judge’s error concerning the applicant’s year of birth arose from an accidental transposition error. Even accepting the necessary degree of latitude to be afforded to ex tempore judgments, that transposition error then resulted in the sentencing judge wrongly stating the applicant’s age. In doing so his Honour was in clear, albeit accidental, error.

6. [64]

   The 10 year differential between the correct position and the position stated by the sentencing judge is significant. That is particularly so because submissions were made on his behalf during the sentence proceedings concerning youth and immaturity. The age differential between the true position and the stated position is also significant because of the effect the error had on the relative age difference between the applicant and the co-offender. The true position is that the applicant was eight years younger than the co-offender, not that he was two years older than her as would be the case if the position stated by the sentencing judge was correct.

7. [65]

   Age was a significant consideration on sentence because of its potential relevance to moral culpability, respective roles and positions of the applicant and the co-offender, prospects of rehabilitation, the significance of general and specific deterrence, the moderation of retribution and hardship in custody.

8. [66]

   The Crown conceded, in my view correctly, that it was open to the Court to find that the error in relation to the applicant’s age was a material error which was capable of affecting the outcome in sentencing or had the capacity to influence the sentence.

9. [67]

   Principles relevant to sentencing young offenders ought to have been considered by the sentencing judge if he had taken into account the applicant’s correct age. Those principles, which are set out in KT v R, include that moderation of general deterrence and retribution, the ability and capacity for young people to reform and mould their character and the increased significance in providing an opportunity for rehabilitation are to be taken into account when sentencing youthful offenders. Consideration ought to have been given by the sentencing judge to the issue of age, not simply in a chronological sense but also as to whether or not there was evidence to establish that the applicant was immature for his age: R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [25]. Accordingly, the sentencing judge should have considered whether the evidence established that the applicant lacked maturity despite his chronological age.

10. [68]

    I am satisfied that the Crown’s concession in relation to Ground 1 was properly made and should be accepted. I would uphold Ground 1.

11. [69]

    The first ground of appeal having been made out, the Court will proceed to re-sentence. In those circumstances it is not necessary to deal with the remaining ground of appeal. However, I consider it is necessary to make some brief comments on the application of the Bugmy principles to the circumstances of this case.

12. [70]

    The Bugmy principles, and how they apply to moral culpability, have been the subject of numerous decisions of this Court. Recently in YZ v R [2025] NSWCCA 165 (“YZ”) this Court summarised at [60]-[68] the application of Bugmy principles and the process to be undertaken when applying those principles.

13. [71]

    The first consideration is to determine whether the applicant’s background is one of “deprivation” or “disadvantage”. There is no requirement that the disadvantage must be “profound” or “sustained”: YZ at [63].

14. [72]

    In considering whether a disadvantaged background affects an offender’s moral culpability for their offending, it is not necessary for a causal link to be established between an offender’s background and the offence for which they are to be sentenced before a court can make a finding of reduced moral culpability: Dungay v R at [136]-[153]; YZ at [64(2)]. Even absent such a causal link, it will often be the case that an offender from a disadvantaged background cannot be said to bear the same moral responsibility as a person whose background is advantaged: YZ at [64(2)]; R v Millwood [2012] NSWCCA 2 at [69].

15. [73]

    The assessment of whether an offender’s moral culpability is reduced by reason of their disadvantaged upbringing often involves a consideration of whether in all the circumstances it can be accepted that the offender bears the same moral responsibility for their offending as a person who has had a conventional upbringing. If that cannot be accepted, there must inevitably be a reduction in the offender’s moral culpability: YZ at [64(3)].

16. [74]

    There is no requirement that the offending be “impulsive” for a court to find that an offender’s moral culpability is reduced by reason of their disadvantaged background. Evidence of planning is not necessarily a barrier to a finding of reduced moral culpability: YZ at [64(4)].

17. [75]

    The effects of a disadvantaged background “do not diminish with the passage of time”: Bugmy at [44]. A long history of offending is not a barrier to a finding of reduced moral culpability and similarly the fact that an offender has lived a pro-social life in the period between their disadvantaged childhood and the offending is also not a barrier to a finding of reduced moral culpability: Robertson v R [114]; Bugmy at [43]-[44]; YZ at [64(5)].

18. [76]

    If moral culpability is reduced, the sentencing judge must then consider how reduced moral culpability impacts the weight to be given to the various purposes of sentencing. The competing purposes of sentencing are a separate consideration to the offender’s moral culpability: NK v R [2025] NSWCCA 73 at [11] (per Fagan J) and at [112] (per Yehia J).

19. [77]

    The requirement to give Bugmy factors “full weight” in every sentencing decision does not mean that they need to be given the same weight in every case. The extent to which the applicant’s moral culpability is reduced will vary in each case. Sometimes it will not be reduced at all but instead taken into account in other ways: Dungay v R at [139].

20. [78]

    A reduction in moral culpability does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 at [89]. A sentencing judge must have regard to countervailing factors, so far as they are relevant: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]; NK v R at [112].

21. [79]

    In the present case the evidence of the applicant’s childhood exposure to violence and trauma was sufficient to establish a relevant disadvantage. Additionally, the evidence established that the applicant continues to suffer from flashbacks, nightmares, anxiety and hyperarousal as a result. Dr Chew is of the opinion that the applicant’s post-traumatic stress disorder occurred as a result of his exposure to multiple violent and traumatic incidents during the war in Iraq.

22. [80]

    Although the sentencing judge referred to the general principles, his statement that moral culpability will not usually be reduced in cases where there is premeditation and planning overstates the law. Rather, the authorities establish that planning is not a barrier to a finding of reduced moral culpability and there is no requirement that the offending be ‘impulsive’. Similarly, the statement that the index offending is not an offence of a kind that could sensibly be regarded as flowing from subconscious dysfunctional tendencies is indicative of error. The authorities establish that there need not be any causal link between the offender’s background and the offence. Rather than focusing on the nature of the offence, the authorities establish that the focus should be on the individual offender. The relevant question is whether the offender bears the same moral responsibility for their offending as a person who has had an upbringing without disadvantage.

23. [81]

    Additionally, although his Honour correctly stated that sometimes moral culpability will not be reduced at all but that the offender’s disadvantaged childhood will instead be taken into account in other ways, he failed to indicate whether he had taken it into account in other ways, and if so, in what ways and to what extent.

Re-sentence

1. [82]

   As noted above, since error has been found under Ground 1, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) of the Criminal Appeal Act: Kentwell v The Queen.

2. [83]

   A number of affidavits were tendered to be relied upon in the event of re-sentence. None of the deponents were required for cross-examination.

3. [84]

   On resentence, the respondent relied on an affidavit from Michael Jones, solicitor in the employ of the Office of the Director of Public Prosecutions (NSW) affirmed on 25 August 2025 which attaches a number of misconduct reports concerning the applicant’s conduct whilst in custody. No objection was taken to the affidavit from Mr Jones. The applicant’s affidavit sworn on 2 September 2025 relating to incidents and conditions in custody was relied on in response. The Crown initially objected to paragraphs 3 and 4 of the applicant’s affidavit on the basis that it had been served only immediately before the hearing of the application for leave and that the respondent had insufficient time to investigate the matters raised. Ultimately the Crown withdrew those objections, instead submitting that in the circumstances the Court might give the content of those paragraphs little weight.

4. [85]

   The affidavit of Mr Jones established that since going into custody the applicant has been the subject of nine misconduct reports. Some of those relate to relatively minor matters relating to breaches of centre routine, failure to attend muster and possession of tobacco and e-cigarettes. In addition, on 23 February 2025 the applicant was found to be in possession of a small amount of drugs described as green vegetable matter and on that same day failed a prescribed drug test, with cannabis metabolite being detected in his urine. On 8 May 2025 he refused to provide a drug test sample when he was required to do so.

5. [86]

   In his affidavit the applicant acknowledged the misconduct incidents on his record and acknowledged that he had used cannabis and failed a drug test whilst in custody. He described that he was ashamed of this conduct and said that he turned to drugs as a way to escape the stress, fear and hopelessness he was feeling whilst in custody. His affidavit also included, in the paragraphs which were the subject of the respondent’s submission as to weight, reference to observing distressing incidents in custody of inmates being sexually assaulted, threatened and violently assaulted, feeling forced to befriend hardened criminals in order to protect himself and receiving recruitment letters from terrorist inmates. Although the respondent has not had an opportunity to investigate these matters, the experience of this Court is that the matters complained of are regrettably not uncommon occurrences in custody. Accordingly in the circumstances where the affidavit material was largely unchallenged, the Court accepts it and will have regard to it in resentencing the applicant.

6. [87]

   It was not suggested that this Court would make any different findings to the sentencing judge in relation to the objective seriousness of the offence. His Honour found that the offending conduct was extremely serious and dangerous. He considered that the extent of damage caused by the fire was of a high order. The house on the Property was not merely damaged by the fire, it was destroyed. His Honour also took into account that the offence was committed without regard for public safety. Given the reasonable possibility that the fire could have spread, his Honour considered that there was a risk of damage to adjoining properties, including the adjoining property of Ms Cox and a risk of injury to other people including the juveniles recruited to set the fires, the neighbours including Ms Cox, and the first responders who attempted to extinguish the fire.

7. [88]

   The applicant also did not challenge any of the sentencing judge’s findings in respect of the applicant’s role, prior character or prospects of rehabilitation.

8. [89]

   The respondent submitted on the question of resentence that this Court should accept the sentencing judge’s findings in relation to objective seriousness, the significant degree of planning and premeditation involved, the motive of greed, the absence of remorse, the applicant’s unresolved drug dependency issues and that he represented a low to medium risk of reoffending. The respondent also submitted that this Court would adopt the sentencing judge’s finding that the applicant had reasonable prospects of rehabilitation provided he addresses his drug addiction issues.

9. [90]

   I am of the view, particularly considering there was no significant challenge by the parties to those findings, that they were correct and appropriate. There is no reason to depart from these findings on resentence.

10. [91]

    Accordingly, the only real issues in dispute on resentence are the impact of the applicant’s correct age and the application of the Bugmy factors on the sentencing considerations.

11. [92]

    As for age, in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5] Hodgson JA observed the following as to when an offender can be described as a “young” offender:

12. [93]

    In Nabalarua v R [2020] NSWCCA 68 Beech-Jones J (as his Honour then was) observed at [56] (Simpson AJA and N Adams J agreeing):

13. [94]

    Although finding that the sentencing judge was in error in relation to age, I am not satisfied that the evidence has established that the applicant was immature.

14. [95]

    It is to be accepted that young people develop emotional maturity and impulse control at different ages; some prior to reaching adulthood and some later. In the present case no evidence was placed before the Court as to the applicant’s immaturity or impulsivity. Although the report of Dr Chew set out the applicant’s history and diagnosis, it did not suggest that he was immature or had difficulty controlling his impulses.

15. [96]

    The evidence contained in the applicant’s apology letter, the affidavits and letters from his family and the other subjective material establish that the applicant was employed in a responsible position, operated his own electrical company, was previously married, provided financial and emotional support for his family and otherwise conducted himself with adult maturity. There is nothing in the material that would establish the applicant was impulsive or any less mature than his chronological age of 23 and his subjective circumstances would indicate.

16. [97]

    In re-sentencing the applicant, I have had regard to the fact that the applicant was 23 years old at the time and that he was younger than his co-offender, but I would not ameliorate the sentence on the basis of his youth.

17. [98]

    As to the application of Bugmy, on resentence I am satisfied that the applicant’s background is one of relevant deprivation or disadvantage. Growing up in a war-torn country and witnessing acts of violence are relevant circumstances of disadvantage or deprivation because of the obvious emotional and traumatic impact those circumstances have on a developing child. Confirmation of this and the lasting impact that background has had on the applicant is evidenced in Dr Chew’s report and diagnoses.

18. [99]

    Even absent any evidence of a causal link between the applicant’s background and the offence for which he is to be resentenced, I am satisfied that the offender cannot be said to bear the same moral responsibility as a person whose background was not disadvantaged. That is so because of the nature of his disadvantaged background and the impact it has had on him. Because of my assessment that it cannot be accepted that the applicant bears the same moral responsibility for the offending as a person who had a conventional upbringing, it must inevitably follow that a reduction in the offender’s moral culpability must be found.

19. [100]

    In so finding I note that it is not required for the offending conduct to be “impulsive” or that there needs to be an absence of premeditation or planning. Despite there being evidence in the present case of some degree of planning, I accept that his exposure to acts of war including bombings which no doubt resulted in destruction of buildings and property damage, does have some connection to his reduced moral culpability in becoming involved in an offence directed at causing the destruction of property.

20. [101]

    In light of my finding that the applicant’s moral culpability is reduced I must then consider how his reduced moral culpability impacts on the weight to be given to the various purposes of sentencing.

21. [102]

    I accept, as is required by the authorities, that there is a requirement to give “full weight” to the Bugmy factors in every sentencing decision but that does not mean that they must be given the same weight in every case. The extent to which moral culpability is to be reduced in the applicant’s case depends on the circumstances of the case.

22. [103]

    The purposes of sentencing are numerous, often difficult to apply and often point in opposing directions. Those purposes of sentencing, although well-known, are worthy of reproduction. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that:

23. [104]

    I am satisfied that in the circumstances of this applicant and the offending that his reduced moral culpability should result in a reduction in the significance of specific deterrence (s 3A(b)) in the resentencing exercise.

24. [105]

    However, the reduced significance of specific deterrence does not automatically translate to a reduced sentence: Harris v R [2021] NSWCCA 322 at [89]. I must have regard to the countervailing factors, so far as they are relevant: Munda v Western Australia at [54]; NK v R at [112].

25. [106]

    In the circumstances of this case other purposes of sentencing, specifically general deterrence, denunciation of the conduct and the protection of the community, must be given significant weight. That is so because, as the sentencing judge found, the offending conduct was extremely serious and resulted in a fire which endangered neighbours, neighbouring properties, the juveniles involved, the first responders and, at least potentially, other members of the public. In addition, significant weight must be given in the resentencing exercise to the applicant being responsible for the recruitment of two juveniles into the criminal enterprise. The evidence contains references to each of those juveniles being charged, convicted and sentenced in the Children’s Court for their involvement.

26. [107]

    The serious endangerment of others and the recruitment of juveniles both require that there be increased significance attributed to general deterrence, denunciation and the protection of the community in resentencing. I am of the opinion that those factors offset the reduction in the significance of specific deterrence.

27. [108]

    In those circumstances, and taking into account the maximum penalty of 14 years imprisonment, objective seriousness, the applicant’s subjective case and all other relevant matters, I do not consider that any lesser sentence than that imposed is warranted.

Orders

1. [109]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.