Citation: [2026] NSWSC 595
Court: Supreme Court of New South Wales
Date: 29 May 2026
Judge(s): Sweeney J
Background
The offender was found guilty of the constructive murder of a man who was shot and killed during an attempted armed robbery at his apartment on 2 April 2019. The offender did not attend the robbery or fire the weapon. His culpability arose from an agreement with a co-offender to rob the apartment's occupants, and from providing a loaded Glock pistol and other items for use in the robbery. The offender stayed behind due to a sudden need to use the toilet but did not withdraw from the agreement or ask for the return of the firearm.
The matter had a lengthy procedural history. The offender was convicted by jury in 2022, but the Court of Criminal Appeal quashed the murder conviction in 2024, holding that accessorial liability could not work coherently with constructive murder as it had been left to the jury. The DPP's application for special leave to the High Court was ultimately revoked. A retrial proceeded as a judge-alone trial, resulting in a guilty verdict on 27 February 2026.
Several sentencing factors were contested between the Crown and the offender, including the degree of the offender's rehabilitation, the application of the victim impact statement provisions, parity with the co-offender, and the effect of delay and time spent on quasi-custody (bail conditions).
Legal Issues
- What was the objective seriousness of the offender's constructive murder, given that he was absent during the robbery and did not intend for anyone to be harmed?
- Whether a victim impact statement from the deceased's father could be taken into account under s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in determining punishment, where the Crown had not made that application at the original sentencing
- The relevance of the offender's substantial rehabilitation and maturation since the offence, and whether he stood at a "cross-roads" in his life
- Whether the "ceiling principle" applied to constrain the sentence by reference to the sentence imposed at the original sentencing
- Parity with the co-offender who carried out the robbery and fired the weapon
- The weight to be given to delay, periods of quasi-custody on bail, and the facilitation of the administration of justice
- Whether hardship to the offender's family members warranted a reduction in sentence
Decision
Sweeney J assessed the offence as below the mid-range of seriousness for constructive murder. The offender had not been present during the robbery, had not discharged the weapon, and had no intention that anyone would be shot or killed. Critically, it was not an element of the offence that the offender foresaw the gun would be discharged, and the court was not satisfied that he had such foresight. The evidence, drawn from recorded conversations, indicated the offender was taken aback when he learned of the shooting. Nevertheless, the provision of a loaded pistol for use in a home robbery was recognised as serious conduct.
On the victim impact statement, the court held it appropriate to take the statement of the deceased's father into account under s 30E(3) as an aspect of the harm done to the community, even though the Crown had not made such an application at the original sentencing and the offender opposed it. The court acknowledged the significant and enduring impact on the family from the "tragic and senseless death" of their son, while recognising that no sentence could ease their emotional pain.
The court considered the offender's subjective circumstances, including evidence of substantial rehabilitation and maturation since the 2019 offence. The judgment text (truncated in the available material) indicates a dispute between the Crown and the offender on these matters. The court's references to whether the offender stood at a "cross-roads" and was unlikely to reoffend suggest these factors were given meaningful weight, consistent with established sentencing principles.
Additional sentencing considerations included the delay occasioned by the lengthy appellate process, the offender's period on bail subject to restrictive conditions (quasi-custody from December 2024 to February 2026), and parity with the co-offender who actually carried out the robbery and fired the fatal shots. The court also noted the offender's facilitation of the administration of justice as a relevant factor.
Orders Made
- The full sentencing orders are not available in the truncated judgment text provided. The offender was found guilty of murder (constructive murder) carrying a maximum penalty of life imprisonment and a standard non-parole period of 20 years. The sentence imposed would have reflected the court's assessment of the offence as below mid-range seriousness, together with the subjective and mitigating factors identified.
Key Takeaways
- Constructive murder is not to be regarded as inherently less serious than other forms of murder, but there are degrees of seriousness, and the appropriate sentence depends on the nature of the offender's conduct and the part played in events giving rise to death, as reaffirmed from R v Jacobs and Mehajer.
- An offender who provides a loaded firearm for use in an armed robbery but is absent during the commission of the offence and has no intention that anyone be harmed may be assessed as below mid-range seriousness for constructive murder.
- Under s 30E(3) of the Crimes (Sentencing Procedure) Act 1999, a court may take a family victim's impact statement into account as an aspect of harm to the community in determining punishment, even where the Crown did not make such an application at a prior sentencing for the same conduct.
- The Court of Criminal Appeal's earlier finding that accessorial liability cannot work coherently with constructive murder as left to the jury shaped the retrial, which proceeded on the basis of the offender's direct agreement to commit the foundational offence of armed robbery.
- Substantial rehabilitation, maturation, delay caused by protracted appellate proceedings, and periods of quasi-custody on bail were all treated as relevant sentencing considerations.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30E(1), (3)
Cases:
- Armstrong v R [2015] NSWCCA 273
- Dukagjini v R [2023] NSWCCA 210
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- McL v The Queen (2000) 203 CLR 452; [2000] HCA 46
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Gilmore (1979) 1 A Crim R 416
- R v Halloun [2014] NSWSC 1705
- R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452
- R v JB [1999] NSWCCA 93
- R v Mills NSWCCA 3 April 1995
- R v Osenkowski (1982) 5 A Crim R 394
- R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253
- R v Stanley [2025] NSWSC 735
- R v Todd [1982] 2 NSWLR 517
- Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425