AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 17 September 2025

Towers v R

[2025] NSWCCA 142

Assault & violenceTheft & propertyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS WHERE JUDGMENT DELIVERED EX TEMPORE APPEAL BROUGHT OUT OF TIME

Citation: Towers v R [2025] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 17 September 2025
Judge(s): N Adams J, Sweeney J, Coleman J (Coleman J delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court to four offences arising from an incident at a venue: assault occasioning actual bodily harm, aggravated steal from person using corporal violence, hindering a police officer, and failing to leave premises when required. The offending involved the applicant and his sister jointly assaulting a staff member after being asked to leave. CCTV footage showed an unprovoked attack that briefly rendered the victim unconscious.

The sentencing judge imposed an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 5 months. The final two offences were dealt with by way of a certificate under s 166 of the Crimes (Sentencing Procedure Act) 1999 (NSW).

The applicant filed his notice of appeal out of time and required an extension. He raised four grounds of appeal: error in assessing objective seriousness, failure to find remorse, a parity grievance arising from his sister's lesser sentence, and manifest excess.

  • Whether the sentencing judge erred by taking into account the applicant's age and criminal history when assessing the objective seriousness of the aggravated steal from person offence
  • Whether the sentencing judge erred in declining to find genuine remorse as a mitigating factor
  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and that imposed on his sister
  • Whether the aggregate sentence was manifestly excessive
  • Whether an extension of time for the filing of the appeal should be granted

Decision

Ground 1: Objective seriousness. The Court found that the sentencing judge had erred by taking into account subjective matters, specifically the applicant's age and criminal antecedents, when assessing the objective seriousness of the aggravated steal from person offence. Objective seriousness is assessed by reference to the nature of the offending itself, not the personal characteristics of the offender. However, this error did not produce a lesser sentence, because on the Court's own assessment the objective seriousness of the offending was the same as that reached by the sentencing judge: it was a serious example of that type of offence.

Ground 2: Remorse. N Adams J (with whom the others agreed) set out the applicable principles in some detail. The statutory mitigating factor of remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure Act) 1999 (NSW) requires the sentencing court to be satisfied the expression of remorse is genuine. Here, the sentencing judge found the applicant did not accept responsibility for the harm he caused to the victim. That finding was not shown to be in error. Because genuine acceptance of responsibility is a precondition to a finding of remorse, the sentencing judge's refusal to find remorse was not erroneous. No House v The King error was established.

Ground 3: Parity. The Court accepted that the parity principle applied, even though the applicant and his sister were not charged with a joint criminal enterprise, because the offending arose from the same facts and circumstances. However, the applicant's criminal conduct was markedly more serious than his sister's, and their subjective circumstances differed significantly. The Court found the applicant had no justifiable sense of grievance.

Ground 4: Manifest excess and re-sentencing. The Court declined to find the sentence manifestly excessive. Critically, on re-sentence, N Adams J and Coleman J assessed that the appropriate sentence would in fact be slightly higher than that imposed below, while Sweeney J assessed it as no less. This conclusion meant no lesser sentence than the one imposed was warranted in law, and the appeal was dismissed accordingly.

Orders Made

  • Time for filing the Notice of Appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge commits an error of principle by incorporating subjective factors such as the offender's age or criminal history into the assessment of objective seriousness; those matters are relevant elsewhere in the sentencing exercise but not to objective gravity.
  • No error is established in declining to find remorse where the sentencing judge has found that the offender does not accept responsibility for harm to the victim, because genuine acceptance of responsibility is a prerequisite to the statutory mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure Act) 1999 (NSW).
  • The parity principle is not confined to joint criminal enterprise cases; it can apply wherever co-offenders are sentenced for conduct arising from the same facts and circumstances, as confirmed in the Court's application of Saab v R [2025] NSWCCA 58.
  • In dismissing the appeal, the Court applied the principle from Kentwell v The Queen (2014) 252 CLR 601 that re-sentencing is not required where the Court's instinctive synthesis produces a figure equal to or above the sentence under challenge.
  • N Adams J's reasons provide a useful synthesis of the circumstances in which a sentencing court may err on remorse: failing to consider it at all, conflating it with rehabilitation, declining to state expressly that sworn evidence of remorse is rejected, or making a finding that is plainly unreasonable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure Act) 1999 (NSW), ss 21A(3)(i), 166
- Criminal Appeal Act 1912 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hawat v R [2020] NSWCCA 121
- Braithwaite v R [2024] NSWCCA 15
- BAP v R [2024] NSWCCA 206
- Saab v R [2025] NSWCCA 58
- Brzozowski v R [2023] NSWCCA 129
- Alvares v R; Farache v R [2011] NSWCCA 33
- Butters v R [2010] NSWCCA 1
- Azzi v R [2008] NSWCCA 169
- Foaiaulima v R [2020] NSWCCA 270
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Lee v R [2020] NSWCCA 244
- DS v R [2017] NSWCCA 37
- JM v R [2014] NSWCCA 297
- Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304