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Court of Criminal Appeal 17 April 2026

YA v R

[2026] NSWCCA 38

Assault & violenceHomicide
SENTENCE QUASI

Citation: [2026] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 17 April 2026
Judge(s): N Adams CJ at CL (principal judgment); Rigg J at [197] (agreeing); Coleman J at [198] (agreeing)

Background

This case concerned an appeal against sentence by a young offender ("the applicant") who was one of five co-offenders sentenced for their involvement in a violent altercation between two groups of young men in Blacktown on 1 September 2021. During the altercation, a 17-year-old youth was fatally stabbed and two 15-year-old youths were wounded. The applicant was 17 years and 3 months old at the time of the offences.

The applicant and his co-offenders were members of a group known as "MOB" (Money Over Bitches), while the victims were affiliated with a rival group. The animosity between the groups appears to have arisen over competitiveness around drill rap music. Importantly, the sentencing judge did not sentence the offenders on the basis that the offending constituted "gangland activity" or involved a conflict between gangs.

In December 2024, Hamill J in the Supreme Court sentenced the applicant to an aggregate term of 6 years and 9 months' imprisonment with a non-parole period of 4 years and 3 months for one count of manslaughter and two counts of wounding with intent to cause grievous bodily harm. The applicant had pleaded guilty to all three counts after his four co-offenders were convicted following a jury trial. He sought leave to appeal on four grounds (a fifth ground was not pressed), relating to parity with a co-offender, pre-sentence quasi-custody, the onerousness of his time in custody, and manifest excess.

  • Parity (Ground 1): Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and that of his co-offender AG, given the parity principle.

  • Quasi-custody (Ground 3): Whether the sentencing judge erred by not backdating the sentence to account for the applicant's time on bail, on the basis that his bail conditions were sufficiently harsh and restrictive to amount to "quasi-custody." Additionally, whether the sentencing judge should have accounted for the fact that the applicant would spend a greater proportion of his sentence in adult rather than juvenile detention as a consequence of having been on bail.

  • Onerousness of custody (Ground 4): Whether the sentencing judge failed to adequately account for the fact that the applicant had been assaulted in juvenile detention, making his time in custody more onerous.

  • Manifest excess (Ground 5): Whether the aggregate sentence was unreasonable or plainly unjust in the circumstances.

Decision

On quasi-custody (Ground 3), the Court of Criminal Appeal undertook a detailed review of the law concerning pre-sentence quasi-custody. The Court confirmed that a sentencing judge may find that an offender's bail conditions are so "harsh and restrictive" that they effectively amount to quasi-custody, warranting the backdating of a sentence. However, such a finding is a question of fact and must be reasonably open to the sentencing judge. Here, the applicant had been living at home with his family while on bail. The Court held that it was reasonably open for the sentencing judge to find that these conditions fell short of the "harsh and restrictive" threshold required for quasi-custody. The Court also held that the fact that the applicant would spend a greater proportion of his sentence in adult detention — a consequence of his own forensic decision to apply for bail — did not entitle him to a further reduction of sentence.

On the onerousness of custody (Ground 4), the Court acknowledged that the sentencing judge had not expressly referenced the applicant's prior assault in juvenile detention. However, the Court found that his Honour had in fact ameliorated the sentence by finding special circumstances and reducing the non-parole period on the basis that the applicant's time in custody may be more onerous. This was sufficient to address the concern raised by this ground.

On manifest excess (Ground 5), the Court concluded that the sentence was not unreasonable or plainly unjust. While the applicant had not been found to have been carrying a knife, the sentencing judge had found him to be a willing and enthusiastic participant in the criminal enterprise. Given the seriousness of the criminality — which involved a death and two serious woundings — the sentence was within the available range.

On parity (Ground 1), the Court found that while the objective criminality of the co-offender AG was slightly higher than that of the applicant, the difference was not significant. In contrast, there were significant differences in the subjective cases of the two offenders, with AG having a stronger subjective case. The co-offender AG received a sentence approximately three months shorter than the applicant's. The Court held that this disparity did not give rise to a justifiable sense of grievance, once the differences in the co-offenders' subjective circumstances were properly considered.

Orders Made

  • Leave to appeal was granted.
  • The appeal was dismissed on all grounds.
  • The original sentence of an aggregate term of 6 years and 9 months' imprisonment (non-parole period of 4 years and 3 months) was confirmed.

Key Takeaways

  • Quasi-custody requires genuinely harsh and restrictive bail conditions, and the Court of Criminal Appeal confirmed that living at home with family while on bail, even for an extended period, did not necessarily meet that threshold. Because the assessment was treated as a finding of fact, the appellate court held it would only interfere if the finding was not reasonably open to the sentencing judge.

  • Where an offender chose to apply for bail rather than remain in juvenile detention, the foreseeable consequence of serving a greater proportion of the sentence in adult custody could not later ground a claim for a sentencing reduction. The Court of Criminal Appeal treated this outcome as a result of the applicant's own forensic decision.

  • Parity does not require identical sentences. Even where co-offenders' objective criminality was broadly comparable, significant differences in subjective circumstances (such as background, rehabilitation prospects, or other mitigating factors) could justify meaningful differences in sentence without giving rise to a justifiable sense of grievance.

  • A sentencing judge need not expressly address every individual factor, provided the overall sentencing exercise demonstrates that the relevant consideration has been accommodated. In dismissing this ground of appeal, the Court of Criminal Appeal found that the identification of special circumstances and the consequent reduction of the non-parole period adequately addressed the onerousness of the applicant's custody.

  • Willing and enthusiastic participation in a joint criminal enterprise that resulted in death and serious injury could support a substantial sentence, even where the young offender was not found to have personally wielded the weapon.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 44(2B)
- Crimes Act 1900 (NSW), ss 18(1)(b), 27, 33(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Key Cases:
- Bonett v R [2013] NSWCCA 234
- Brown v R [2020] NSWCCA 132
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 70 NSWLR 1; [2010] NSWCCA 194
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hancock v R [2025] NSWCCA 213
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huckstadt v R [2016] NSWCCA 22
- Kelly v R [2018] NSWCCA 44
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Mohr v R [2024] NSWCCA 197
- Muldrock v The Queen (2011) 244 CLR 120; [2011] H