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Court of Criminal Appeal 22 June 2026

Carbone v R

[2026] NSWCCA 83

Homicide
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICANT AND CO OFFENDER OFFENDER

Citation: Carbone v R [2026] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 22 June 2026
Judges: Ward P; Cavanagh J; Weinstein J

Background

The applicant was convicted of murder following a judge-alone retrial and sentenced in April 2022 to imprisonment with a non-parole period of 18 years and a balance of term of 6 years. The offending arose from a fatal stabbing and shooting in a Leichhardt shopping centre carpark in August 2014, carried out as part of a joint criminal enterprise. The applicant was taken into custody shortly after the events; his co-offender fled to Thailand, was imprisoned there for several years, and did not enter custody in New South Wales until July 2022.

The co-offender was subsequently sentenced in December 2024, after pleading guilty to the same murder. He received a non-parole period of 12 years and a balance of term of 5 years and 3 months, including a 25 per cent discount for his guilty plea and the benefit of a finding of special circumstances (a formal finding that justifies reducing the proportion of the sentence spent on non-parole).

Following the finalisation of the co-offender's sentence, the applicant sought leave to appeal his own sentence on two grounds: first, that the difference between the two sentences gave rise to a justifiable sense of grievance under the parity principle; and second, that the sentencing judge had erred in declining to find special circumstances in the applicant's case.

  • Whether the disparity between the applicant's sentence and the co-offender's later, lesser sentence was sufficient to give rise to a justifiable sense of grievance under the parity principle.
  • Whether the sentencing judge erred in declining to make a finding of special circumstances, particularly in light of the conditions imposed on custody by the COVID-19 pandemic.

Decision

Ground 1: Parity

The Court confirmed that the parity principle requires there be no marked disparity between sentences imposed on co-offenders that would give rise to a justifiable sense of grievance. That principle applies even where the co-offender is sentenced later. However, appellate intervention is only warranted where the disparity is gross, marked, or glaring, and is not reasonably explained by differences between the offenders and their offending.

The Court found that the substantial difference in sentences was explicable. The co-offender received a 25 per cent discount for his guilty plea and also benefited from a finding of special circumstances, neither of which applied to the applicant. Beyond those factors, the remaining difference in the starting point was approximately one year, which the Court attributed to several objective differences in the two cases. The sentencing facts differed because the applicant was sentenced after a trial while the co-offender was sentenced on agreed facts, meaning different findings were open to each sentencing judge. The co-offender had no criminal history in New South Wales, was found to have shown some remorse, and was not subject to an aggravating finding of conditional liberty at the time of the offending. The applicant was subject to all three of those adverse factors. The Court concluded the difference was explicable and no justifiable sense of grievance arose.

Ground 2: Special Circumstances

The applicant argued the sentencing judge should have found special circumstances on the basis that the COVID-19 pandemic had made, and would continue to make, custodial conditions more onerous. The Court noted that where a sentencing judge expressly accounts for a factor as part of the overall sentencing exercise, using the same factor again as a basis for finding special circumstances risks impermissible double counting.

No error was established. The sentencing judge had expressly accepted that the pandemic had made conditions in custody more harsh than usual and took that into account in the overall sentencing exercise. Critically, no submission was made to the sentencing judge that special circumstances should be found because of the future impact of the pandemic on custodial conditions, and no evidence to support such a finding was placed before the court. In the absence of any such submission or evidence, no error on the judge's part was demonstrated.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a parity challenge can be brought in response to a co-offender's sentence imposed after the applicant's own sentence is finalised, but the disparity must be gross, marked, or glaring before appellate intervention is warranted.
  • In assessing parity, the correct approach requires consideration of the basis on which the co-offender was actually sentenced, not merely the facts as found in the applicant's own proceedings. Different sentencing facts can legitimately explain differences in outcome.
  • A guilty plea discount and a special circumstances finding, taken together, can substantially account for a lower co-offender sentence without producing a justifiable grievance for the convicted-after-trial offender.
  • Where a sentencing court expressly takes a factor into account as part of the overall sentencing exercise, applying that same factor again to justify a finding of special circumstances may constitute impermissible double counting.
  • No error arises from a failure to find special circumstances on a basis that was never put to the sentencing judge and was unsupported by evidence at the sentencing hearing.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases
- Carbone v R (No 2) [2024] NSWCCA 7
- Carbone v R [2020] NSWCCA 318
- Chen v R; He v R [2018] NSWCCA 95
- DS v R [2014] NSWCCA 267
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jones v The Queen (1993) 67 ALJR 376
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Martellotta v R [2021] NSWCCA 168
- R v AA [2017] NSWCCA 84
- R v Carbone [2021] NSWSC 1552
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Rosenberg v R [2022] NSWCCA 295