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Court of Criminal Appeal 26 August 2024

Karaali v R

[2024] NSWCCA 162

Assault & violenceHomicide
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER DISPARATE SENTENCES BETWEEN CO APPEAL DISMISSED

Citation: Karaali v R [2024] NSWCCA 162
Court: Court of Criminal Appeal, NSW
Date: 26 August 2024
Judges: Ward P (principal judgment); Wilson J and Sweeney J (both agreeing)

Background

The appellant was convicted of murder following a 2023 trial before Campbell J in the Supreme Court. The offending arose from a dispute over counterfeit Apple AirPods sold on Facebook Marketplace in February 2020. After discovering the earphones were not genuine, a co-offender arranged, through a third party acting as a decoy, to lure the deceased to a shopping centre carpark where the appellant and the co-offender were waiting.

The appellant carried out a prolonged and escalating physical assault on the deceased. At its most serious, the attack continued while the deceased lay unconscious and defenceless on the ground. Two bystanders separately approached but were sent away under false pretences. The appellant and the co-offender then fled, making no real effort to obtain help for the victim, who later died from his injuries.

Campbell J sentenced the appellant to 28 years' imprisonment with a 21-year non-parole period. The principal co-offender, who had pleaded guilty and was dealt with on agreed facts, received a sentence of 16 years and 2 months with a 12-year non-parole period from the same judge.

  • Whether the sentencing judge erred in finding that the appellant had an actual intent to kill at the time of the offence, particularly given findings made about the co-offender's lesser culpability.
  • Whether the significant disparity between the appellant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance under the parity principle.
  • Whether the 28-year head sentence was manifestly excessive.

Decision

Intent to kill: The Court of Criminal Appeal rejected the appellant's argument that the sentencing judge erred in finding an intent to kill. Regardless of whether the appellant was acting under the co-offender's direction, the CCTV footage showed that he continued to deliver significant blows to the deceased while the victim lay prone and unconscious. The Court found that inference of an intent to kill was overwhelming in those circumstances.

Parity: The Court confirmed that a parity complaint is assessed by reference to objective criteria, comparing each co-offender's culpability based on the facts established in their respective proceedings. A parity complaint is harder to sustain where the same judge sentenced both offenders, as was the case here. The sentencing judge had expressly considered the parity principle and identified substantial differences between the two offenders: the appellant was found to have had an actual intent to kill, his offending was assessed as above the mid-range in objective seriousness, and his subjective case was not compelling. By contrast, the principal co-offender was convicted on the basis of constructive murder (criminal liability for a death arising from a dangerous act, without necessarily an intent to kill), was dealt with on agreed facts following a guilty plea, and had a more compelling subjective case. Those differences justified the sentence gap.

Manifest excess: To succeed on this ground, an appellant must establish that the sentence was unreasonable or plainly unjust. The Court emphasised that sentencing is not a mathematical exercise and that there is no single correct sentence. Here, the offending was described as senseless in the extreme. The appellant showed no contrition or remorse, prospects of rehabilitation were guarded, and there was no plea of guilty. The sentencing judge had also noted that the appellant passed up two opportunities to cease the violence at a point when the victim's injuries were likely still survivable. The Court held the sentence fell within the range of acceptable outcomes.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where an appellant continues to inflict serious blows on a victim who is unconscious and defenceless, the Court of Criminal Appeal confirmed that an inference of intent to kill can be overwhelming, even where that appellant acted in concert with another offender who had a different mental state.
  • A parity complaint is more difficult to sustain where both offenders were sentenced by the same judge: the sentencing court is presumed to have applied consistent principles, and the appellate court will look to whether meaningful differences in culpability and subjective circumstances justify any disparity.
  • The parity comparison is conducted by reference to each offender's culpability as established on the facts in their own proceedings. Differences in the basis of conviction (for example, actual intent to kill versus constructive murder), the existence of a guilty plea, and the strength of subjective matters are all relevant factors.
  • Manifest excess requires an appellant to demonstrate the sentence was unreasonable or plainly unjust. The absence of remorse, a weak subjective case, and a finding of above-mid-range objective seriousness each weigh against that conclusion.
  • In dismissing all three grounds, the Court of Criminal Appeal reinforced that sentencing judges retain considerable flexibility in balancing competing considerations, provided their approach is consistent with applicable principles.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Azzopardi v R [2019] NSWCCA 306
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232
- Croke v R [2021] NSWCCA 294
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lloyd v R [2017] NSWCCA 303
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Martellota v R [2021] NSWCCA 168
- Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160
- Moran v R [2022] NSWCCA 217
- Neale v R [2024] NSWCCA 159
- Ocek v R [2023] NSWCCA 308
- R v Dyson [2023] NSWCCA 132
- R v Erdogan [2023] NSWSC 101
- R v Fernando (1992) 76 A Crim R 58
- R v Hamdach [2023] NSWSC 298
- R v Jacobs; R v Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462
- R v JB [1999] NSWCCA 93