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Court of Criminal Appeal 1 April 2022

Yarnton v R; Mouhtaris v R

[2022] NSWCCA 67

Homicide

Citation: Yarnton v R; Mouhtaris v R [2022] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 1 April 2022
Judge(s): Leeming JA, Fullerton J, R A Hulme J

Background

Two applicants sought leave to appeal against sentences imposed following their convictions as participants in a joint criminal enterprise to murder a victim (referred to here as the intended victim). The enterprise involved obtaining gas bottles, travelling to the victim's vehicle at night, dousing the vehicle and surrounding area in petrol, placing gas bottles in and around the vehicle, and attempting to ignite the fuel. The intended murder failed. A third co-offender, Ms Hayes, played a different role and received a substantially lesser sentence. A fourth co-offender, Mr Houda, was sentenced on the same day as one of the applicants, Mr Mouhtaris, to identical terms.

Both applicants were convicted of attempted murder. The first applicant, Ms Yarnton, was the intended victim's relative and was implicated through her connection to Ms Hayes. Mr Mouhtaris was found to have acquired the gas bottles used in the attempt and to have been present at the crime scene, with DNA evidence linking him to a glove recovered there.

The sentencing judge imposed on Mr Mouhtaris a term of 11 years and 6 months' imprisonment with a non-parole period of 7 years and 10 months, the same sentence as Mr Houda. Both applicants sought leave to appeal, raising manifest excess, parity, and, in Mr Mouhtaris's case, an additional challenge to the sentencing judge's finding that his offending fell at the mid-range of objective seriousness.

  • Whether the sentencing judge erred in characterising Mr Mouhtaris's offending as falling at the mid-range of objective seriousness, including the finding that he played a "critical role" in the enterprise
  • Whether either or both sentences were manifestly excessive
  • Whether a justifiable sense of grievance arose from parity comparisons, specifically between Mr Mouhtaris's sentence and those imposed on Ms Hayes (who received a substantially lesser sentence) and Mr Houda (who received an identical sentence)
  • Whether the same parity grounds were available to Ms Yarnton

Decision

The Court of Criminal Appeal granted leave to appeal to both applicants but dismissed both appeals. All three judges agreed on the outcome, though Leeming JA wrote separately to explain his reasoning on the parity ground concerning Mr Houda.

On the objective seriousness ground raised by Mr Mouhtaris, the court found no error in the sentencing judge's description of his role as "critical." The word was used in its ordinary sense: the acquisition of the gas bottles was an indispensable element of the attempt. Critically, the finding did not elevate Mr Mouhtaris's culpability above that of Mr Houda. The sentencing judge had expressly opened with the phrase "as is the case of Mr Houda," making plain that both men were assessed at the same level. The court also found no error in placing the offending at the mid-range, given the limitations on what could be proven about each man's specific acts at the scene.

On the parity ground as between Mr Mouhtaris and Ms Hayes, the court found no justifiable grievance. Ms Hayes's lesser sentence was explicable by material differences in her role and circumstances. On the parity ground as between Mr Mouhtaris and Mr Houda, despite identical sentences, Mr Mouhtaris argued that his superior subjective case warranted a lesser term. The court rejected this. The sentencing judge had presided over a lengthy trial and sentencing hearing and was better placed than the appellate court to assess the interrelationship between the two sentences, particularly given the complexity of the contested factual findings about each man's specific conduct at the scene. All grounds raised by Ms Yarnton were also found not to be made out.

Orders Made

• Leave to appeal against the sentence imposed upon Sharon Joan Yarnton is granted
• The appeal is dismissed
• Leave to appeal against the sentence imposed upon Anthony Mouhtaris is granted
• Quash the sentence imposed in the District Court on 17 June 2020 and in lieu thereof impose a non-parole period of 6 years and 9 months with a balance of term of 3 years and 9 months

Key Takeaways

  • In dismissing both appeals, the Court of Criminal Appeal confirmed that an appellate court should give significant weight to a trial judge's assessment of the interrelationship between co-offenders' sentences, particularly where the judge presided over both a lengthy trial and a complex sentencing hearing involving contested factual findings.
  • A finding that a co-offender played a "critical role" in a joint criminal enterprise does not necessarily elevate that offender's objective seriousness above that of other participants; the finding must be read in the full context of the sentencing remarks, including express comparisons with co-offenders.
  • Where a sentencing court cannot determine which specific acts each participant in a joint criminal enterprise performed at the scene, it may nonetheless assess objective seriousness by reference to the totality of acts attributable to the enterprise, provided the individual's presence and capacity to assist are established.
  • Identical sentences imposed on co-offenders do not automatically give rise to a justifiable sense of grievance in the co-offender who claims a stronger subjective case; the parity principle requires consideration of the full sentencing matrix, not a single factor in isolation.
  • No error was established in placing the attempted murder offending at the mid-range of objective seriousness, notwithstanding evidence of premeditation, where the precise extent of each individual's participation at the scene remained unresolved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(3)(f) and s 10A
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- Blanco v R (1999) 106 A Crim R 303; [1999] NSWCCA 121
- Sabra v R (2015) 257 A Crim R 33; [2015] NSWCCA 38
- Usher v R [2016] NSWCCA 276
- Lloyd v R [2017] NSWCCA 303
- Parkinson v R [2021] NSWCCA 98
- R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24
- R v Rae [2001] NSWCCA 545
- Mulato v R [2006] NSWCCA 282