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Court of Criminal Appeal 15 August 2025

Koosmen v R

[2025] NSWCCA 122

Assault & violenceHomicideTheft & propertyPublic order & justice offences
CRIME A PPEALS APPEAL AGAINST SENTENCE FORM 1 MATTERS WHETHER AN ERROR IN THIS APPROACH CRIME A PPEALS

Citation: Koosmen v R [2025] NSWCCA 122
Court: Court of Criminal Appeal, NSW
Date: 15 August 2025
Judges: McHugh JA; Hamill J; Yehia J (leading judgment)

Background

The applicant pleaded guilty in the Local Court to four offences committed on 1 December 2022: manslaughter, aggravated break and enter and commit a serious indictable offence (intimidation), break and enter and commit a serious indictable offence (intimidation), and stealing property in a dwelling-house. He also asked the sentencing court to take six further offences into account on three Form 1 documents, all committed on the same day.

In the District Court, Sutherland SC DCJ imposed an aggregate sentence of 15 years' imprisonment with a non-parole period of 10 years. The applicant was entitled to a 25% discount reflecting the utilitarian value of his early guilty pleas.

The applicant sought leave to appeal on five grounds, principally targeting the process by which the sentencing judge handled the Form 1 offences, applied the guilty plea discount, and addressed (or failed to address) remorse and rehabilitation.

  • Whether the sentencing judge erred in the process by which Form 1 offences were taken into account on Counts 1, 2 and 4, specifically by identifying a starting point before those matters were incorporated
  • Whether the guilty plea discount was incorrectly applied after, rather than as part of, the incorporation of Form 1 matters
  • Whether the sentencing judge erred by failing to make findings about the applicant's remorse and prospects of rehabilitation, where evidence and competing submissions were squarely before the court
  • Whether, alternatively, the sentencing judge failed to give reasons for not making those findings
  • Whether the aggregate sentence was manifestly excessive

Decision

Grounds 1 and 2: Form 1 process and guilty plea discount

Yehia J confirmed that it is not permissible to impose a distinct penalty for Form 1 offences. The Form 1 matters bear on the need for personal deterrence and retribution, and their consideration forms part of the instinctive synthesis approach to sentencing. Proportionality must be assessed with those additional factors already incorporated, and the guilty plea discount must be applied to the sentence after Form 1 matters have been taken into account, not before.

For Count 1, the sentencing judge identified a starting point before taking the Form 1 offences into account and implicitly added a further period after applying the discount. This was an error in the sentencing process. While it was less clear that the same error affected Counts 2 and 4, the identified error in respect of Count 1 was sufficient to establish Grounds 1 and 2.

Grounds 3 and 4: Remorse and rehabilitation

Yehia J held that the sentencing discretion requires more than a mechanistic approach to mitigating factors. Where mitigating factors are squarely raised and supported by evidence, and where competing submissions are made, the sentencing court must provide clear and transparent resolution of those issues.

In this case, competing submissions were placed before the sentencing judge about the applicant's remorse and rehabilitation prospects, and the applicant gave oral evidence on remorse. The sentencing judge made no reference to that evidence and did not determine the contested issues. That failure constituted a miscarriage of the sentencing discretion. Ground 3 was made out, making it unnecessary to consider Ground 4 (the alternative ground about failure to give reasons) or Ground 5 (manifest excess).

Re-sentencing

Exercising the sentencing discretion afresh, the Court found special circumstances warranting a variation of the statutory ratio, given the applicant's need for extended supervision to address substance abuse issues and the degree of notional accumulation across the offences. The Court imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 26 April 2024 quashed
  • Applicant re-sentenced to an aggregate term of 12 years' imprisonment commencing 1 December 2022 and expiring 30 November 2034, with a non-parole period of 8 years; first eligible for release to parole on 30 November 2030

Key Takeaways

  • Under the instinctive synthesis approach to sentencing, Form 1 matters must be incorporated before a guilty plea discount is applied; identifying a pre-Form 1 starting point and adding a further period after the discount is applied constitutes a sentencing error.
  • A guilty plea discount must be calculated on the sentence that already reflects the additional weight attributed to Form 1 offences, not on a figure determined independently of those matters.
  • Where mitigating factors such as remorse and rehabilitation are squarely raised by evidence and competing submissions, the sentencing court must make clear and transparent findings resolving those competing positions; silence on contested evidence can constitute a miscarriage of the sentencing discretion.
  • The Court of Criminal Appeal confirmed that the requirement to consider mitigating factors is not a tick-box exercise: the quality of judicial engagement with those factors matters, not merely whether they were nominally acknowledged.
  • Identifying errors in the Form 1 process for Count 1 was sufficient to establish error across the sentence, even where the same methodological error was less clearly demonstrated for other counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 52AB(1), 61, 112(1)(a), 112(2), 148, 154A(1)(a), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21A(1)(b), 21A(2)(j), 21A(3)(i), 25D(2)(a), 32, 33, 53A, 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (applied)
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- Director of Public Prosecutions (NSW) v TH (2023) 307 A Crim R 149; [2023] NSWCCA 81
- Nosti v R [2024] NSWCCA 158
- Tukuafa v R [2024] NSWCCA 84
- Huang v R [2019] NSWCCA 144
- Alenezi v R [2023] NSWCCA 283
- Li v R [2023] NSWCCA 112
- STB v R [2024] NSWCCA 36
- Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195
- Masters v R [2019] NSWCCA 233
- Porter v R [2019] NSWCCA 117
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- Moananu v R [2022] NSWCCA 85
- R v Koosmen [2024] NSWDC 161