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Court of Criminal Appeal 16 October 2026

Person 2 (a pseudonym) v R

[2026] NSWCCA 168

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE SHOOTING WITH INTENT TO MURDER WHERE CO OFFENDER RE

Citation: Person 2 (a pseudonym) v R [2026] NSWCCA 168
Court: Court of Criminal Appeal
Date: 16 October 2026
Judge(s): Price AJA at [1]; Sirtes J at [107]; Roberts J at [108]

Background

The applicant pleaded guilty in the District Court to a range of serious offences arising from three discrete episodes of criminal conduct. The first involved a stabbing outside a hotel in Doonside in October 2021. The second, and most serious, involved the applicant's participation as a contracted hitman in a carefully orchestrated shooting outside a gym in Prospect in November 2021, carried out in the context of an ongoing conflict between two organised crime networks. The third episode involved the applicant attempting to sell the assault rifles used in the Prospect shootings while he was on remand.

On 19 July 2024, the sentencing judge in the District Court imposed an aggregate sentence of 24 years imprisonment with a non-parole period of 16 years and 9 months. A combined discount of 50% had been applied to the indicative sentences for early pleas of guilty and other appropriate matters.

One co-offender, Person 1, had been sentenced for four of the same shooting offences. Person 1 successfully appealed his sentence, and the Court of Criminal Appeal re-sentenced him to an aggregate of 15 years with a non-parole period of 10 years and 6 months. The applicant then sought leave to appeal his own sentence, raising arguments about the totality principle, manifest excess, and parity.

Legal Issues

  • Whether the sentencing judge misapplied the principle of totality in arriving at the aggregate sentence
  • Whether the aggregate sentence was manifestly excessive
  • Whether the applicant had a justifiable sense of grievance arising from the marked disparity between his sentence and Person 1's re-sentenced term

Decision

Grounds 1 and 2 (Totality and Manifest Excess):

The court dismissed both grounds. It rejected the applicant's attempt to demonstrate error through a mathematical analysis of the indicative sentences, observing that sentencing is not a mathematical exercise (at [73]). Importantly, the court noted that the issue of totality in the present case was materially distinguishable from Person 1's appeal because the applicant faced three discrete episodes of offending, not just the four shooting counts (at [72]).

The court found the sentencing judge had carefully considered the questions of concurrence, accumulation and totality, and that the aggregate sentence appropriately reflected the totality of a very serious criminal history (at [79]). Even accepting a significant degree of notional accumulation between the indicative sentences, the court was satisfied the aggregate was not unreasonable or plainly unjust (at [83]-[84]). The court also made broader observations about the sentencing of "contract crimes," noting that where a violent offence is deliberately committed for financial reward, its objective seriousness may prima facie fall within the worst category regardless of whether the contracted offender achieved their objective (at [57]).

Ground 3 (Parity):

The court upheld this ground. The Crown accepted it was open to the court to find a justifiable sense of grievance, and the court agreed (at [85], [91]). Person 1's aggregate sentence had been dramatically reduced on appeal from 23 years to 15 years. Although the applicant faced additional offences arising from two further episodes of offending, the court found those offences could not justify the marked difference between the two sentences (at [88]).

A factor weighing in the applicant's favour was that Person 1, at the time of the shooting offences, was on parole and subject to a community correction order, and had a more serious prior criminal history than the applicant, whose prior penalties were limited to fines and no-conviction orders (at [90]). The court proceeded to re-sentence the applicant afresh, applying a 60% combined discount, and reduced the aggregate sentence accordingly (at [100]-[106]).

Orders Made

  • Extension of time for leave to appeal granted
  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 19 July 2024 quashed
  • In lieu thereof, the applicant sentenced to an aggregate term of 19 years imprisonment with a non-parole period of 13 years and 3 months, commencing 17 December 2021 and expiring 16 March 2035, with a balance of term of 5 years and 9 months commencing 17 March 2035 and expiring 16 December 2040
  • Earliest date eligible for parole: 16 March 2035

Key Takeaways

  • Parity between co-offenders requires comparison of all components of each sentence, including the circumstances of both common and unrelated offending; a co-offender's successful appeal can ground a justifiable sense of grievance even where the applicant faces additional charges (at [87]-[88]).
  • A mathematical approach to demonstrating error in the application of the totality principle is misconceived; the principal focus remains whether the aggregate sentence reflects the totality of the criminality involved (at [73], [78]).
  • The Kwu principle, that an appeal materially indistinguishable from an earlier appeal by a co-offender should ordinarily be followed, does not apply where the sentencing issues are materially distinguishable, such as where co-offenders faced different charges arising from different episodes of offending (at [72]).
  • Price AJA observed that where a violent offence is deliberately committed for financial reward, the objective seriousness of the offence may prima facie fall within the worst category, regardless of whether the contracted offender successfully achieved the targeted objective, and that general deterrence must have a significant role in sentencing such "contract crimes" (at [57]-[58]).
  • A finding of special circumstances does not require a substantial adjustment to the statutory ratio between head sentence and non-parole period; here the court maintained a ratio of approximately 69.7% across the re-sentence (at [105]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 23, 32, 53A
- Crimes Act 1900 (NSW), s s 29, 35, 193C
- Criminal Appeal Act 1912 (NSW) , ss 5, 10
- Firearms Act 1996 (NSW), s s 7, 39, 51, 65
- Weapons Prohibition Act 1998 (NSW), s 7
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) , rr 3.1, 3.5

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Chalabian v R [2024] NSWCCA 47
- CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- GG v R [2023] NSWCCA 102
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Haydon v R [2012] NSWCCA 151
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Howard v R [2019] NSWCCA 109
- Hughes v R [2018] NSWCCA 2
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Keen v R [2024] NSWCCA 157; (2024) 389 FLR 9
- Kelly v R [2017] NSWCCA 256
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Kwu v R (2024) 119 NSWLR 344; [2024] NSWCCA 199
- Lee v R [2020] NSWCCA 244
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Merheb v R [2021] NSWCCA 224
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Mohr v R [2024] NSWCCA 197; (2024) 390 FLR 293
- Nair v R [2025] NSWCCA 136
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Person 1 (a pseudonym) v R [2025] NSWCCA 132
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Baartman (Supreme Court (NSW), Dunford J, 18 December 1998, unrep)
- R v Crofts (Supreme Court (NSW), Grove J, 6 December 1996, unrep)
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Koloamatangi; R v Popovic (No 6) [2017] NSWSC 1631
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- R v Suteski (No 6) [2002] NSWSC 457; (2002) 129 A Crim R 559
- R v White [2025] NSWCCA 111
- Symons v R; McDonald v R [2024] NSWCCA 212
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Tasdik v R [2024] NSWCCA 195
- TH v R [2025] NSWCCA 121
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Vaughan v R [2020] NSWCCA 3
- Wood v R [2022] NSWCCA 84
- XE v R (No 2) [2025] NSWCCA 90
- Xerri v R [2021] NSWCCA 268; (2021) 292 A Crim R 355
- Youkhana v R [2011] NSWCCA 37
- ZA v R [2017] NSWCCA 132; (2017) 267 A Crim R 105