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Court of Criminal Appeal 20 May 2026

Gillette v R

[2026] NSWCCA 59

Assault & violenceTheft & propertyFirearms & weapons

Citation: [2026] NSWCCA 59
Court: Court of Criminal Appeal (NSW)
Date: 20 May 2026
Judge(s): N Adams CJ at CL; Hamill J; Yehia J

Background

The applicant was found guilty following a judge-alone trial in the District Court of two offences of specially aggravated break, enter and commit serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW). The offences occurred on the night of 22 February 2023, when two men armed with a rifle and a small axe broke into two homes in Bolton Point on Lake Macquarie. During the break-ins, occupants were threatened, struck with the firearm and axe, and intimidated. A related common assault charge was also dealt with.

On 18 October 2024, the sentencing judge imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 7 years. The applicant sought leave to appeal against the sentence on three grounds: that the sentencing judge failed to properly consider comparable cases, that there was error in the determination of special circumstances under the statutory ratio, and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to give proper consideration to, or adequate reasons regarding, the consistency of the sentence with comparable cases.
  • Whether the sentencing judge erred in principle or failed to take into account relevant considerations when determining the extent of special circumstances warranting variation of the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the aggregate sentence of 10 years' imprisonment (with a 7-year non-parole period) was manifestly excessive.

Decision

On ground 1, the Court of Criminal Appeal found no error. The sentencing judge had expressly referred to statistics from the Judicial Commission's JIRS database and to a table of sentences for s 112(3) offences maintained by the Public Defenders. N Adams CJ at CL held there was no basis to conclude that his Honour failed to have regard to this material. The Court emphasised that it would place an "intolerable burden" on sentencing judges to require them, in every case, to include a comparison of similarities and differences between the sentence to be imposed and those in other cases, particularly where the judge has already referred to the relevant principles derived from those cases.

On ground 2, the Court held there was no error in the sentencing judge's approach to the statutory ratio. The sentencing judge found that the variation was relatively minor because the non-parole period represented the minimum period of custody needed to reflect the purposes of sentencing, including objective gravity and general deterrence. The Court confirmed that even if further factors had been identified as constituting special circumstances, this would not have required further variation. Yehia J (with Hamill J agreeing) added that the reference to circumstances being "sufficiently special" does not elevate the requirement to one of "rare," "unusual," or "exceptional" circumstances; a wide range of factors are capable of constituting special circumstances.

On ground 3, the Court found the sentence was not manifestly excessive. The JIRS statistics and comparable cases did not establish that the aggregate sentence was unreasonable or plainly unjust. While the applicant's moral culpability was reduced due to the circumstances of his childhood, he was not entitled to a discount for a guilty plea. The offences were serious, involved a firearm, and carried maximum penalties of 25 years' imprisonment each.

Orders Made

  • Leave to appeal was granted.
  • The appeal against sentence was dismissed.

Key Takeaways

  • Sentencing judges are not required to include in their reasons a detailed comparison of the similarities and differences between the sentence imposed and those in comparable cases, provided they have referred to the relevant comparative material and applicable principles.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the proper exercise of discretion regarding special circumstances is constrained by the need for the non-parole period to reflect both the objective gravity of the offence and the need for general deterrence.
  • The phrase "sufficiently special" to justify variation of the statutory ratio does not impose a threshold of "rare," "unusual," or "exceptional" circumstances, and a wide range of factors may qualify as special circumstances.
  • Even where additional special circumstances are identified, there is no automatic requirement for further variation of the statutory ratio. The extent of any variation remains a matter of discretion.
  • No manifest excess was established where the sentence fell within a range consistent with JIRS statistics and comparable cases, notwithstanding mitigating factors relating to the applicant's background.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166

Key Cases:
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Fidow [2004] NSWCCA 172
- R v Pickard [2023] NSWCCA 7
- R v Dashti [2016] NSWCCA 251
- Brennan v R [2018] NSWCCA 22
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194