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Court of Criminal Appeal 27 August 2025

Person 1 (a pseudonym) v R

[2025] NSWCCA 132

HomicideFirearms & weapons
CRIME A PPEALS APPEAL AGAINST SENTENCE OFFENCES OF SHOOT WITH INTENT TO MURDER LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: Person 1 (a pseudonym) v R [2025] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 27 August 2025
Judges: Ball JA; Fagan J; Sweeney J (Sweeney J delivering the principal judgment, Ball JA and Fagan J agreeing)

Background

The applicant, referred to by pseudonym, pleaded guilty in the Local Court to four offences of shooting with intent to murder under s 29 of the Crimes Act 1900 (NSW). The offences arose from a contract killing arrangement in which the applicant was recruited by a named associate to shoot members of a rival crime network, in part to pay off a drug debt of approximately $30,000. On 29 November 2021, the applicant and co-offenders attended a gym carpark and fired 18 rounds at four targets, injuring one in the leg. Several bullets entered a nearby childcare centre, narrowly missing three young children and two workers.

The applicant was 23 years old at the time and was on parole. He had spent most of his years between 18 and 22 in custody, had experienced childhood violence at the hands of his father, and was assessed by a psychiatrist as being of below average intelligence. He expressed remorse for the offences.

At sentence in the District Court on 14 June 2024, Judge McGuire SC applied a 50% discount to the indicative sentences (25% for the guilty plea, 25% for an offer to give evidence against co-accused). The discounted indicative sentences were 7 years with a non-parole period of 4 years and 10 months for the first offence, and 6 years and 9 months with a non-parole period of 4 years and 8 months for each of the remaining three. His Honour then imposed an aggregate sentence of 23 years imprisonment with a non-parole period of 16 years. The applicant sought leave to appeal, arguing the aggregate sentence misapplied the totality principle and was manifestly excessive.

  • Whether the sentencing judge misapplied the principle of totality when determining the aggregate sentence from the discounted indicative sentences.
  • Whether the resulting aggregate sentence was manifestly excessive, having regard to the totality of the offending and the uncontested 50% discount.

Decision

The Court granted leave to appeal and allowed the appeal on both grounds. On the totality ground, the Court found that the degree of accumulation applied by the sentencing judge was close to the total that would have resulted from simply adding all indicative sentences together. Given the close factual and temporal connection between the four offences (which arose from a single shooting incident), that degree of accumulation was excessive and failed to reflect the principle that an aggregate sentence must represent a just and appropriate overall punishment for the totality of the conduct.

A critical consequence of this error was that the 50% discount, which the Crown had accepted was properly earned, was substantially eroded at the aggregation stage. Fagan J observed that without that discount, the Court would likely have imposed an aggregate term in the order of 30 years with a non-parole period of 21 years. The effect of the excessive accumulation was therefore to effectively claw back a significant portion of an uncontested concession.

Because the aggregate sentence fell to be set aside, the Court conducted the full sentencing exercise afresh. It substantially accepted the indicative sentences nominated by the sentencing judge. The Court reduced the applicant's moral culpability slightly, having regard to his childhood exposure to violence, youth at the time of offending, assessed intelligence, and lack of family guidance. That reduction was counterbalanced by the strong need for general deterrence in relation to serious gang-related violence.

Applying proper totality principles to the discounted indicative sentences, the Court imposed an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years and 6 months, both dating from 29 June 2022.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed in the District Court on 14 June 2024 set aside.
  • In lieu, the applicant sentenced to an aggregate sentence of 15 years imprisonment, with an aggregate non-parole period of 10 years and 6 months imprisonment, both to date from 29 June 2022.

Key Takeaways

  • Excessive accumulation of indicative sentences at the aggregation stage can itself constitute a sentencing error, even where the individual indicative sentences are unimpeachable.
  • Where a sentencing court has applied a substantial and uncontested discount at the indicative sentence stage, the aggregate sentence must not effectively negate that discount through disproportionate accumulation.
  • The totality principle requires that the aggregate sentence reflect the overall criminality of closely connected offences, not merely a mechanical near-addition of all individual terms.
  • Reduced moral culpability arising from disadvantaged background, youth, and cognitive limitations may reduce sentence, but the Court of Criminal Appeal confirmed this reduction can be counterbalanced where serious gang-related violence calls for strong general deterrence.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), discounts for offering to give evidence against co-accused serve the public interest in bringing offenders to justice, and courts must ensure those discounts are preserved through the full sentencing process, including aggregation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 29 (shoot with intent to murder; maximum penalty 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (discount for assistance to authorities)

Cases
- Obeid v The Queen (2017) 96 NSWLR 155; [2017] NSWCCA 221
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Postiglione v The Queen [1997] HCA 26; (1997) 94 A Crim R 397
- MJR v R [2025] NSWCCA 51
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- York v The Queen [2005] HCA 60; (2005) 225 CLR 466
- R v Cartwright (1989) 17 NSWLR 243
- AGF v R [2016] NSWCCA 236
- R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159