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Court of Criminal Appeal 20 June 2025

York v R

[2025] NSWCCA 81

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHERE THE APPLICANT AND CO OFFENDER STARTED THE FIRE OFFENDER LIT THE FIRE

Citation: York v R [2025] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 20 June 2025
Judges: Kirk JA, Davies J, Wright J

Background

The appellant was convicted after trial of three offences arising from events on 15 October 2020. He was found driving a stolen Toyota Land Cruiser with his co-offender, Joshua Duke, in the passenger seat. During a pursuit by both employees of the vehicle's owner and police, a firearm was pointed at several of the employees from inside the vehicle. The pursuit was eventually abandoned.

Later that morning, the vehicle was driven to bushland near a rural property and set on fire. The co-offender was subsequently shot dead by police while attempting to steal another vehicle. The appellant evaded police for several days before being arrested on 18 October 2020.

At trial, the appellant raised a defence of duress, which the jury rejected. The sentencing judge proceeded on the basis that the appellant had entered into a joint criminal enterprise with his co-offender. On 5 July 2024, Judge Wilson SC sentenced the appellant to an aggregate term of 7 years' imprisonment with a non-parole period of 4 years and 6 months. The appellant sought leave to appeal that sentence.

  • Whether the sentencing judge erred by failing to distinguish between liability for offences as part of a joint criminal enterprise and the individual moral culpability of a participant based on their specific role in the offending
  • Whether the sentencing judge erred in rejecting the submission that there was a reasonable possibility the co-offender, not the appellant, had started the fire, and in making a finding adverse to the appellant without the requisite standard of proof
  • Whether the sentencing judge failed to properly assess the effect of delay and the appellant's prospects of rehabilitation

Decision

Ground 1: Role in joint criminal enterprise (upheld)

The Court found that the sentencing judge erred by treating liability under a joint criminal enterprise as determinative of moral culpability. The judge made no distinction between the two concepts, effectively treating the appellant and the co-offender as equally culpable simply because they had common liability. This approach is inconsistent with the principles established in R v JW and R v Sukkar, which require a sentencing court to separately assess the individual participant's role when determining their moral culpability.

The Court also found error in the sentencing judge's rejection of the submission that there was a reasonable possibility the co-offender lit the fire. A finding adverse to the appellant on that factual question had to be established beyond reasonable doubt. Given the scant evidence about who actually set the vehicle alight, the judge ought not to have resolved the point against the appellant.

Ground 2: Delay and rehabilitation (dismissed)

The Court found no error in the sentencing judge's treatment of delay or rehabilitation. The judge had regard to all relevant matters, including the appellant's custodial history. The conclusion that the appellant's prospects of rehabilitation were guarded was clearly open on the material. Questions of weight in that assessment were properly for the sentencing judge.

Re-sentence

The Court re-sentenced the appellant to an aggregate term of 6 years and 3 months' imprisonment, commencing 7 April 2022 and expiring 6 July 2028, with a non-parole period of 4 years. The objective seriousness of the police pursuit offence was assessed as just above the mid-range. The appellant's moral culpability for the weapon offence was reduced by reason of his role as the driver rather than the person who wielded the firearm. A finding of special circumstances was made, principally to allow for a longer period on parole to address the appellant's entrenched drug problems.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 5 July 2024 quashed
  • Appellant re-sentenced to an aggregate term of imprisonment of 6 years and 3 months commencing 7 April 2022 and expiring 6 July 2028, with a non-parole period of 4 years expiring 6 April 2026
  • Convictions with no further penalty for sequences 1 and 3 on the s 166 certificate remained unchanged

Key Takeaways

  • Liability for an offence as a participant in a joint criminal enterprise does not, of itself, fix the degree of an individual's moral culpability for sentencing purposes. A sentencing court must separately consider the role each participant actually played.
  • Where a factual finding is adverse to a defendant at sentence, that finding must be established beyond reasonable doubt. A reasonable possibility favouring the defendant cannot be resolved against them without sufficient evidence to meet that standard.
  • In dismissing Ground 2, the Court of Criminal Appeal confirmed that assessing the weight to be given to rehabilitation and delay is a matter for the sentencing judge, and an appellate court will not interfere merely because a different weight might have been assigned.
  • Special circumstances, justifying a departure from the standard non-parole period ratio, can be established by a demonstrated need for a longer period of supervised release to treat ongoing drug dependency.
  • Bugmy factors and mental health issues may reduce an offender's moral culpability and the emphasis placed on general deterrence, though their weight in any given case depends on the particular evidence before the court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 51B, 154A, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A
- Road Transport Act 2013 (NSW), s 54
- Road Transport (Vehicle Registration) Regulation 2017 (NSW), s 129

Cases
- Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Elchiekh v R [2016] NSWCCA 225
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- R v Sukkar [2011] NSWCCA 140
- R v Todd (1982) 2 NSWLR 517
- SS v R; JC v R [2009] NSWCCA 11
- TA v R [2008] NSWCCA 179
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460