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Court of Criminal Appeal 28 May 2025

DPD v R

[2025] NSWCCA 77

Assault & violenceHomicideTheft & propertyFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR EXTENSION OF TIME CONSTRUCTIVE MURDER JOINT CRIMINAL ENTERPRISE

Citation: DPD v R [2025] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 28 May 2025
Judges: Price AJA; Cavanagh J; Yehia J

Background

The applicant, a young male referred to as DPD, was one of five co-offenders who carried out a home invasion intending to rob the deceased of drugs and money. During the invasion, the deceased was physically assaulted and stabbed multiple times, dying from a fatal stab wound. The applicant was armed with a shortened firearm throughout the offence and was also involved in assaulting a female present at the premises.

The applicant pleaded guilty to murder on the basis of constructive murder, with the foundational offence being assault with intent to rob in company while armed with a dangerous weapon under s 97(2) of the Crimes Act 1900 (NSW). Because the applicant was under 18 at the time of the offence, the standard non-parole period of 20 years did not apply. He was sentenced in the Supreme Court on 5 May 2023 to 15 years and 3 months imprisonment with a non-parole period (NPP) of 10 years and 3 months.

Two co-offenders who also pleaded guilty had already been sentenced by the same judge. The applicant sought leave to appeal out of time, contending that his sentence was infected by several errors, most significantly that it was markedly disproportionate to the sentence imposed on one of his co-offenders, EE.

  • Whether the sentencing judge erred in assessing the objective seriousness of the murder offence, including whether his Honour was bound by the agreed statement of facts.
  • Whether the applicant suffered a justifiable sense of grievance arising from a marked disparity between his sentence and that imposed on co-offender EE, engaging the parity principle.
  • Whether the sentencing judge erred by failing to treat the partially cumulative nature of the sentence as a special circumstance warranting a greater adjustment to the non-parole period ratio.

Decision

Ground 1: Objective gravity and departure from agreed facts. The Court rejected this ground. A sentencing judge is not bound to sentence strictly in accordance with agreed facts. The Court found that the judge's findings on objective seriousness arose directly from the way both the Crown and defence senior counsel conducted the sentencing proceedings, and that there had been no denial of procedural fairness. This approach followed the principle in Nguyen v R [2015] NSWCCA 268.

Ground 3: Special circumstances and cumulation. The Court also rejected this ground. The sentencing judge had made a finding of special circumstances and had considered cumulation and concurrence. The Court found this was not one of those "clear and rare" cases where a miscarriage of justice had resulted from an oversight of the accumulation issue, so appellate intervention was not warranted.

Ground 2: Parity. This ground succeeded. The undiscounted starting point for the applicant was 18 years and 6 months, compared to 12 years and 6 months for EE, a difference of six years. That produced an end sentence for the applicant that was more than double EE's sentence. The Court accepted that, while the two offenders had different roles and there were slightly different findings on objective seriousness, their subjective circumstances were similar. A starting point approaching 50% higher than EE's was not, in the Court's assessment, justified by those differences and gave rise to a justifiable sense of grievance.

On resentencing, the Court fixed an undiscounted starting point of 16 years and 6 months for the murder. It applied the guilty plea discount, found special circumstances arising from the cumulative nature of the sentence, and reduced the ratio between the head sentence and NPP to approximately 66.2%.

Orders Made

  • Extension of time for leave to appeal against sentence granted; leave to appeal granted.
  • Sentence imposed in the Supreme Court on 5 May 2023 quashed.
  • Applicant resentenced to imprisonment of 13 years and 7 months, comprising a non-parole period of 9 years commencing 23 April 2021 and expiring 22 April 2030, with a balance of term of 4 years and 7 months commencing 23 April 2030 and expiring 22 November 2034.
  • Earliest eligible release on parole: 22 April 2030.

Key Takeaways

  • A sentencing judge is not bound by agreed facts when determining objective seriousness, provided that findings made beyond those facts arise from the way the sentencing proceedings were actually conducted by both parties.
  • The parity principle requires that sentences imposed on co-offenders should not differ so markedly as to produce a justifiable sense of grievance; a six-year gap in undiscounted starting points between similarly situated young co-offenders was sufficient to engage that principle here.
  • Even where a sentencing judge has carefully considered similarities and differences between co-offenders, the Court of Criminal Appeal must independently assess on an objective basis whether any resulting disparity is unjustifiable.
  • Partial accumulation of sentences may support a finding of special circumstances, but appellate intervention on this basis is reserved for clear cases where a miscarriage of justice has resulted from oversight of the issue.
  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period for murder does not apply where the offender was under 18 at the time of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 61, 94(a), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 21A(2)(n), 21A(3)(m), 44(2), 54D(3)
- Firearms Act 1996 (NSW), s 62(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(b), 33(1)(f)
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)

Key Cases:
- Lowe v The Queen (1984) 154 CLR 606 (parity principle)
- Postiglione v The Queen (1997) 189 CLR 295 (parity)
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 (parity)
- Betts v The Queen (2016) 258 CLR 420 (special circumstances)
- Bugmy v The Queen (2013) 249 CLR 571
- Kentwell v The Queen (2014) 252 CLR 601
- Mill v The Queen (1988) 166 CLR 59
- Nguyen v R [2015] NSWCCA 268 (agreed facts)
- Moodie v R [2020] NSWCCA 160
- Mohr v R [2024] NSWCCA 197
- R v Crowley [2004] NSWCCA 256
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v DPD [2023] NSWSC 477 (sentence under appeal)