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Court of Criminal Appeal 14 October 2026

Russell v R

[2026] NSWCCA 165

Theft & property
SENTENCING APPEAL AGAINST SENTENCE PARITY PRINCIPLE WHERE CO OFFENDER’S SENTENCE APPEAL UPHELD

Citation: Russell v R [2026] NSWCCA 165
Court: Court of Criminal Appeal
Date: 14 October 2026
Judge(s): N Adams CJ at CL (with Campbell J and Coleman J agreeing)

Background

The applicant, a 19-year-old woman at the time of the offending, pleaded guilty to two offences of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years' imprisonment. The offences arose from a confrontation with a neighbour, the victim, in which the applicant and her father (the co-offender) threatened him into signing over a motor vehicle and attending an ATM to withdraw $2,000 cash.

The sentencing judge in the District Court imposed an aggregate sentence of 4 years and 9 months' imprisonment with a non-parole period of 2 years and 7 months. The applicant's father was sentenced by the same judge approximately 10 months later, receiving an aggregate of 5 years with a non-parole period of 2 years and 9 months.

The applicant sought leave to appeal on the basis that the minimal disparity between her sentence and her father's gave rise to a justifiable sense of grievance under the parity principle, particularly given that her youth was identified as an important mitigating factor at her own sentencing.

Legal Issues

  • Whether the applicant's notice of appeal, filed out of time, should be accepted and an extension of time granted
  • Whether the minimal disparity between the applicant's sentence and her co-offender's sentence gave rise to a justifiable sense of grievance under the parity principle
  • Whether, on re-sentence, any adjustment to the aggregate sentence was warranted

Decision

Extension of Time

The notice of appeal was filed out of time. The Court granted the extension on the basis that the merits of the application justified it, noting that the delay was partly explained by the co-offender not being sentenced until February 2026, with further delays in obtaining transcripts and sentencing remarks (at [5]-[6]).

Ground of Appeal: Parity

The sentencing judge had not been in a position to apply the parity principle when sentencing the applicant because her co-offender had not yet been sentenced at that point. The sole ground of appeal was that when the co-offender was subsequently sentenced, the resulting disparity was insufficient to reflect the material differences between the two offenders (at [54]-[55]).

The Court accepted that three factors distinguished the applicant from her co-offender: her youth (she was 19 and he was 36 at the time of the offending); the co-offender's slightly more elevated role in the actual robberies; and an additional Form 1 offence taken into account for the co-offender (at [39]). The Court found that the difference in role and the Form 1 matter might explain a modest disparity, but could not account for the added weight of youth as an identified mitigating factor. The sentencing judge had described youth as an "important" consideration and noted that the applicant had "barely attained her majority," that youth ameliorated her sentence, and that there was a substantial public interest in the rehabilitation of young offenders (at [56]-[57]). Notwithstanding the Crown's submission that the applicant's offending was serious, planned, and motivated by personal gain, the Court was satisfied that there should have been greater disparity between the two aggregate sentences to reflect youth as a differentiating feature (at [58]-[59]).

Re-sentence

The Court adopted the sentencing judge's findings in full. It noted the applicant's completion of drug and alcohol treatment programs and other courses during custody, and expressed slightly more optimism about her rehabilitation prospects, while maintaining the characterisation as "guarded" (at [62]-[63]). The Court emphasised that, but for the parity principle, it would not have imposed a lesser sentence than the original (at [64]).

Orders Made

  • Extension of time to bring the appeal granted
  • Leave to appeal granted
  • Aggregate sentence of 4 years and 9 months quashed and replaced with an aggregate sentence of 4 years and 3 months, commencing 20 June 2024 and expiring 19 September 2028
  • Non-parole period of 2 years and 4 months, commencing 20 June 2024 and expiring 19 October 2026
  • The applicant is eligible for parole on 19 October 2026

Key Takeaways

  • Where a co-offender is sentenced after an applicant, the parity principle can still be engaged: a justifiable sense of grievance may arise from insufficient disparity in the co-offender's later sentence, not only from a harsher sentence imposed on the applicant (at [54]-[55]).

  • The parity principle is free-standing and does not depend on a finding that the original sentence was manifestly excessive; the test is objective, not a matter of the applicant's subjective feelings (at [53]).

  • A sentencing factor identified as "important" at the original sentencing must be capable of being seen as reflected in the disparity between co-offenders' sentences; where it is not apparent how a significant mitigating factor is accounted for, appellate intervention may be warranted (at [56]-[57], [59]).

  • The Court of Criminal Appeal confirmed that where error is established on a parity ground, it must set aside the original sentence entirely and re-exercise the sentencing discretion, taking into account developments since the original sentence (at [60]-[63]).

  • Certificates of completion for rehabilitation programs undertaken in custody were accepted as a basis for slightly greater optimism about an applicant's prospects of rehabilitation on re-sentence, even without elevating the overall assessment from "guarded" (at [62]-[63]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(a)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Miller v R [2015] NSWCCA 86
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- TH v R [2025] NSWCCA 121