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Court of Criminal Appeal 16 December 2025

Samate v R

[2025] NSWCCA 221

Assault & violenceTheft & property
OFFENDER

Citation: Samate v R [2025] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 16 December 2025
Judges: Stern JA, Dhanji J, Chen J

Background

In the early hours of 3 September 2023, the applicant and his co-offender entered a service station convenience store in Campsie, NSW. The applicant went behind the store counter and attacked the shop attendant with intent to rob him, while the co-offender initially kept watch and then intervened physically to help the applicant regain the upper hand in the struggle. Separately, the co-offender pushed the owner into shelving when the owner emerged from a storeroom to intervene.

The applicant pleaded guilty to assaulting the shop attendant with intent to rob in company (count 1) and to assaulting the owner occasioning actual bodily harm (count 3). The co-offender stood trial on count 1 and was acquitted, then pleaded guilty to the lesser alternative charge of assaulting the shop attendant occasioning actual bodily harm (count 2) and to count 3.

The applicant was sentenced by the same judge who sentenced the co-offender. The applicant received an aggregate sentence of four years imprisonment with a non-parole period of two years and six months. The co-offender received 18 months to be served by way of an intensive correction order. The applicant sought leave to appeal on the sole ground of unjustifiable sentencing disparity.

  • Whether the disparity between the applicant's sentence and his co-offender's sentence was unjustifiable, giving the applicant a justifiable sense of grievance.
  • Whether the different sentences on count 3 (assault occasioning actual bodily harm against the owner) could be explained by legitimate sentencing factors, given that the co-offender directly inflicted the injury but the applicant's liability was based on joint criminal enterprise.
  • Whether the disparity on counts 1 and 2 (offences against the shop attendant) was similarly impermissible, or whether it was justified by differences in the offenders' roles, criminal histories, and the relative seriousness of the charges to which each pleaded guilty.

Decision

The Court of Criminal Appeal, with Chen J delivering the leading judgment and Stern JA and Dhanji J agreeing, held that there was marked and unjustifiable disparity in the indicative sentences imposed for count 3. The applicant received an undiscounted indicative sentence of two years for that count, while the co-offender received only one year, despite the co-offender being the person who directly pushed the owner and caused the injury. The applicant's liability for count 3 arose through the principles of joint criminal enterprise, making him less directly culpable for that specific act.

The Court found this disparity could not be explained by the broader context of the offending or the need for specific deterrence. This was the critical error warranting appellate intervention: the co-offender, as the direct perpetrator of the assault on the owner, had received a lighter indicative sentence than the applicant, whose responsibility for that particular assault was derivative.

By contrast, the Court found the different sentences on the shop attendant offences (counts 1 and 2) were well justified and not impermissibly disparate. The applicant pleaded guilty to the far more serious charge of assault with intent to rob in company, played the primary role in that attack, and had a more significant criminal history. Those differences legitimately explained the sentencing gap on those counts.

On resentence, the Court applied the discounted indicative sentence for count 3 of one year (reduced by 25% for the early guilty plea to nine months), consistent with the co-offender's sentence for that count. Applying the totality principle and recognising that the two offences were discrete and distinct, the Court imposed an aggregate sentence of three years and nine months with a non-parole period of two years and four months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed on 16 May 2025 quashed.
  • Applicant resentenced to imprisonment comprising a non-parole period of 2 years and 4 months commencing 13 December 2023 and a head sentence of 3 years and 9 months.
  • Eligible for release on parole on 12 April 2026.

Key Takeaways

  • A sentencing disparity becomes impermissible where it would give a co-offender a justifiable sense of grievance, and this Court confirmed that disparity in individual indicative sentences can found that grievance even where aggregate sentences differ for other reasons.
  • Where one offender's liability for a specific count arises from joint criminal enterprise rather than direct participation, sentencing that offender more heavily for that count than the person who directly inflicted the relevant harm can constitute unjustifiable disparity.
  • Disparity between co-offenders is not impermissible where it is explained by genuine differences in the charges to which each pleaded guilty, the role each played in the offending, and their respective criminal histories.
  • The Court applied the rule from Sampson v R [2025] NSWCCA 25 that guilty plea discounts must be calculated without rounding up or down, which produced a slightly different discounted figure for count 1 compared to the sentencing judge's calculation.
  • Under the totality principle, even where offences arise from a single episode, an aggregate sentence must reflect the total criminality of discrete and distinct acts rather than simply absorbing one sentence into another.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Contos v R [2022] NSWCCA 92
- Mohr v R [2024] NSWCCA 197; (2024) 390 FLR 293
- Sampson v R [2025] NSWCCA 25
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Vaughan v R [2020] NSWCCA 3
- Aryal v R [2021] NSWCCA 2
- XY (A Pseudonym) v R [2023] NSWCCA 50
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37