Abed v R

Citation: Abed v R [2025] NSWCCA 223
Court: Court of Criminal Appeal
Date: 17 December 2025
Judges: Mitchelmore JA, Cavanagh J, McGuire J

Background

The applicant was convicted after a judge-alone trial of dishonestly destroying property by fire with a view to making a gain, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). The offending arose from a scheme involving the applicant and his partner, who had purchased a residential property in South Granville and insured it for $550,000. After evicting the tenant, they directed two juveniles to burn the property down, intending to collect the insurance payout and redevelop the land. There was also a hope the fire might pressure the neighbouring 72-year-old owner to sell her property, enlarging the site for development.

The applicant was sentenced in the Penrith District Court on 20 September 2024 to five years' imprisonment with a non-parole period of three years. He sought leave to appeal against that sentence on two grounds.

Legal Issues

• Whether the sentencing judge erred by misstating the applicant's age in his remarks on sentence, recording him as approximately 10 years older than his true age of 23 at the time of offending, and whether that error affected the sentence imposed.
• Whether the sentencing judge erred in failing to apply the principles in Bugmy v The Queen (2013) 249 CLR 571 correctly, specifically by declining to find that the applicant's moral culpability was reduced by his deprived background on the basis that the offending was carefully planned.

Decision

Ground 1: Age error

Both parties accepted that the sentencing judge had misstated the applicant's age, recording him as approximately 10 years older than he actually was. The Court of Criminal Appeal acknowledged that some latitude is afforded to remarks delivered ex tempore, but held that even allowing for that, the misstatement constituted legal error. Because the applicant was in fact 23 at the time of offending, the sentencing judge ought to have considered principles applicable to young offenders: moderation of general deterrence and retribution, the greater capacity for young people to reform, and an assessment of whether the applicant was immature for his age.

Ground 2: Deprived background and moral culpability

The Court noted that while the sentencing judge correctly acknowledged that a deprived background does not always reduce moral culpability, his Honour did not explain whether he had taken the disadvantaged background into account in other ways, or how. That omission was problematic in light of the Bugmy principles. However, the Court found it unnecessary to determine whether Ground 2 was independently made out, because error was already established under Ground 1 and the Court was required to resentence in any event.

Resentencing

On resentencing, the Court found that the evidence did not establish that the applicant was immature for his age, and so his sentence was not ameliorated on the basis of youth. The Court accepted that the applicant's background of deprivation did reduce his moral culpability, and that this warranted a reduction in the weight given to specific deterrence. However, other sentencing purposes, particularly general deterrence, denunciation, and community protection, were required to carry significant weight given the serious endangerment caused by the fire and the applicant's role in recruiting two juveniles into the criminal enterprise. Those countervailing factors offset the reduction in specific deterrence. The Court concluded that no lesser sentence than the one originally imposed was warranted, and the appeal was dismissed.

Orders Made

• Leave to appeal granted.
• Appeal dismissed.

Key Takeaways

• A sentencing judge's misstatement of an offender's age in ex tempore remarks constitutes legal error, even allowing for the latitude ordinarily extended to remarks delivered without preparation, where the error leads to relevant sentencing principles being overlooked.
• Where an offender is 23 years old at the time of offending, principles applicable to young offenders must be considered at sentence, including moderation of general deterrence and retribution, the capacity for reform, and whether the offender was immature for their age.
• Under Bugmy, when an offender has a background of deprivation, a sentencing court must address whether that background reduces moral culpability and, if not, must explain whether and how it has been taken into account in other ways.
• In dismissing the appeal despite establishing error, the Court of Criminal Appeal confirmed that a reduction in the significance of specific deterrence flowing from reduced moral culpability does not automatically produce a lesser sentence, and must be weighed against countervailing factors.
• Recruiting juveniles into a criminal enterprise and seriously endangering neighbours, first responders, and the public are factors that warrant significant weight being given to general deterrence, denunciation, and community protection at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 197(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
- R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
- Lloyd v R [2022] NSWCCA 18
- BAP v R [2024] NSWCCA 206
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Harris v R [2021] NSWCCA 322
- NK v R [2025] NSWCCA 73
- YZ v R [2025] NSWCCA 165
- Robertson v R [2024] NSWCCA 22
- Dungay v R [2020] NSWCCA 209
- R v Millwood [2012] NSWCCA 2
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Tammer-Spence v R [2013] NSWCCA 297
- Rizk v R [2020] NSWCCA 291
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435