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Court of Criminal Appeal 24 April 2023

XE v R

[2023] NSWCCA 96

Homicide
CRIME APPEAL APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: XE v R [2023] NSWCCA 96
Court: Court of Criminal Appeal
Date: 24 April 2023
Judges: Adamson JA at [1]; N Adams J at [2]; Weinstein J at [60]

Background

The applicant, referred to as "XE" to protect her anonymity, was 17 years and 7 months old when she participated in a joint criminal enterprise with her father and brother that resulted in the murder of a 19-year-old man. The fatal shooting occurred during a car chase on 2 July 2017, arising from a dispute rooted in revenge. The applicant's father drove the vehicle, her brother fired the fatal shot from the front passenger seat, and the applicant was seated in the back.

The applicant was convicted by a jury following trial and sentenced by Ierace J on 22 July 2021 to 17 years imprisonment, commencing 4 July 2017 and expiring 3 July 2034, with a non-parole period of 10 years and 6 months. Her sentence was substantially lower than those imposed on her brother (32 years) and father (31 years), reflecting the sentencing judge's findings about their respective roles in the enterprise.

The applicant sought leave to appeal to the Court of Criminal Appeal on the sole ground that her sentence was manifestly excessive.

  • Whether the sentence of 17 years imprisonment with a non-parole period of 10 years and 6 months was manifestly excessive in the sense of being unreasonable or plainly unjust.
  • Whether the sentencing judge adequately took into account the applicant's youth, her father's influence in recruiting her to the enterprise, and her positive prospects for rehabilitation.

Decision

N Adams J, with whom Adamson JA and Weinstein J agreed, dismissed the appeal. The court confirmed the applicable standard: an applicant must establish that the sentence is manifestly excessive in the sense that it is unreasonable or plainly unjust. It is not sufficient to show that the appellate court might have exercised its discretion differently.

The applicant did not challenge any of the factual findings made by the sentencing judge. The court found that all matters raised on the applicant's behalf to suggest error had been properly considered by Ierace J, including the three most compelling aspects of her subjective case: her youth, her father's encouragement to join the enterprise, and her very positive rehabilitation while in juvenile detention.

The court also noted that the applicant would complete her non-parole period by the time she was 27 years old, which meant the sentence could not be characterised as "crushing." The sentencing judge had arrived at the sentence through instinctive synthesis, giving proper weight to both objective and subjective factors. No miscarriage of sentencing discretion was established.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that establishing manifest excess requires more than showing an appellate court might have imposed a different sentence; the sentence must be shown to be unreasonable or plainly unjust, applying Obeid v R (2017) 96 NSWLR 155.
  • Where an applicant does not challenge the factual findings made by the sentencing judge, an appeal against manifest excess faces a high bar, as the appellate court proceeds on the basis those findings were correct.
  • Youth, parental influence, and rehabilitation are all relevant mitigating factors in sentencing, but a sentencing judge's decision to weigh them in a particular way will not constitute error simply because an applicant argues they should have been weighted "more dramatically."
  • A sentence that results in non-parole period completion at a relatively young age is a relevant consideration in assessing whether the overall sentence is crushing or unjust.
  • Significant disparity between co-offenders' sentences is not necessarily a basis for a manifest excess appeal where the disparity reflects properly distinguishable findings about each offender's role in the enterprise.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- XE [& ors] [2021] NSWSC 885
- Sarhene v R [2022] NSWCCA 79