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[2026] NSWCCA 40
General information, not legal advice.
Court of Criminal Appeal (NSW)
2026-04-15
N Adams CJ at CL at [1]Sirtes J at [4]Roberts J at [155]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bridge v R [2026] NSWCCA 40
Hearing dates: 20 March 2026
Date of orders: 15 April 2026
Decision date: 15 April 2026
Before: N Adams CJ at CL at [1]
Sirtes J at [4]
Roberts J at [155]
Decision: (1) Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to bring the application for leave to appeal after the expiry of the filing period.
(2) Grant leave to appeal.
(3) Dismiss the appeal.
Catchwords: SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where aggregate sentences imposed – consideration of disparity between indicative sentences for common offences – where aggregate sentences accounted for offending not shared between co-offenders – whether disparity in aggregate sentences justified
SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender sentenced in the Drug Court – consideration of principles to be applied when comparing a sentence imposed by the District Court and a sentence imposed by the Drug Court – comparison of approaches in Scicluna v R and Tobia v R
SENTENCING – penalties – Drug Court – where Drug Court imposes an initial sentence – consideration of objects and structure of the Drug Court Act 1998 (NSW) – whether leniency warranted in an initial sentence imposed by the Drug Court – approach in Tobia v R reconsidered
Legislation Cited: Crimes Act 1900 (NSW) ss 112, 114, 115, 117, 154A, 188, 195
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 44–48, 53A
Criminal Appeal Act 1912 (NSW) s 5
Drug Court Act 1998 (NSW) ss 3, 7A, 12
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5
Cases Cited: Baladjam v R [2018] NSWCCA 304; 341 FLR 162
Beal v R (2020) 104 NSWLR 134; [2020] NSWCCA 357
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chen v R; He v R [2018] NSWCCA 95
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hung v R [2023] NSWCCA 172
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Jones v The Queen (1993) 67 ALJR 376
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lewins v R [2007] NSWCCA 189; 175 A Crim R 40
Martellotta v R [2021] NSWCCA 168
Pannao v R [2025] NSWCCA 201
Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133
Smith (a pseudonym) v R [2022] NSWCCA 123
Tasdik v R [2024] NSWCCA 195
Tobia v R [2016] NSWCCA 99
Wilson v R [2025] NSWCCA 86
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1998
Category: Principal judgment
Parties: Jason Thomas Bridge (Applicant)
Rex (Respondent)
Representation: Counsel:
A Booker (Applicant)
EL Curran (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00308449; 2023/00308458
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
The Applicant pleaded guilty to several offences arising from a series of breaking and entering committed in September 2023. Those offences were committed in the company of his co-offenders, Mr Pymble and Mr Ireland. On 23 October 2024, the Applicant was sentenced in the District Court to an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 2 years and 9 months.
Mr Pymble pleaded guilty to 16 offences, some of which were committed with the Applicant. Mr Pymble was eligible for and referred to the Drug Court for sentencing under the provisions of Pt 2 Div 1 of the Drug Court Act 1998 (NSW). On 6 March 2025, he was sentenced by a different judge in the Drug Court to an aggregate term of imprisonment of 4 years, which was immediately suspended pursuant to s 7A(5) of that Act.
The Applicant sought leave to appeal on the sole ground that he has a justifiable sense of grievance in respect of the disparity between the sentence imposed upon him and the sentence imposed upon Mr Pymble.
The Court (Sirtes J, N Adams CJ at CL and Roberts J agreeing) held, granting leave to appeal and dismissing the appeal:
Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133, followed.
Tobia v R [2016] NSWCCA 99, discussed.
Tobia v R [2016] NSWCCA 99, discussed.
Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133; Beal v R (2020) 104 NSWLR 134; [2020] NSWCCA 357, cited.
Wilson v R [2025] NSWCCA 86; Pannao v R [2025] NSWCCA 201, cited.
Martellotta v R [2021] NSWCCA 168, cited.
Hung v R [2023] NSWCCA 172, cited.
Per N Adams CJ at CL (Roberts J agreeing)**:
Tobia v R [2016] NSWCCA 99, considered.
N ADAMS CJ at CL: I agree with the orders provided by Sirtes J for the reasons provided by his Honour. I would like to add the following to his Honour’s reasons at [105] – [111] concerning whether the Drug Court incorporates a “significant measure of leniency” when fixing an initial sentence.
As Basten JA observed in Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133; at [10], when comparing a sentence imposed on an offender sentenced in the District Court with another offender sentenced in the Drug Court the legitimate comparison is between the initial sentence imposed on both offenders in accordance with the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The sentencing principles set out in that Act apply to both offenders; there are no other additional sentencing principles applicable only to the offender sentencing in the Drug Court. In that respect I agree with Sirtes J that there is no statutory basis to infer that initial sentences imposed by the Drug Court incorporate a “significant measure of leniency”.
Despite there being no statutory basis to infer leniency, that does not detract from the fact that there may well be a perception that offenders sentenced in the Drug Court receive sentences that have a degree of leniency built into them. For my part, that is what I understand Wilson J to be referring to in Tobia v R [2016] NSWCCA 99 at [55] when her Honour observed that such a sentence “may” incorporate “what may be perceived” to be a significant measure of leniency. The difficulty is that if there is in fact, as a matter of practice rather than principle, some measure of leniency in sentences imposed by the Drug Court, it is unquantifiable and thus not something that can be considered when a complaint of a breach of the parity principle falls to be considered.
SIRTES J: Mr Jason Thomas Bridge seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), from an aggregate sentence of imprisonment imposed upon him by Hanley SC DCJ (the Sentencing Judge) in the District Court at Parramatta on 23 October 2024.
The Applicant pleaded guilty in the Local Court to a range of offences committed in September 2023 at Kellyville, Dural, Cremorne and Penrith, contrary to the Crimes Act 1900 (NSW). Those offences were committed in the company of Troy Pymble, Sean Ireland, or both.
After allowing a discount of 25% for his guilty pleas, the Sentencing Judge imposed an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 2 years and 9 months. The Applicant will first be eligible for release on parole on 27 December 2026. The head sentence will expire on 27 September 2029.
| Sequence | Offence | Maximum penalty and SNPP | Indicative sentence | | H407294493 (Hills District Offences) | | 3 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the Crimes Act. | 20 years 5 years SNPP | 3 years (NPP 18 months) | | Form 1 attached to Seq 3 | | Seq 4 – Larceny, contrary to s 117 of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | Seq 9 – Commit offence pursuant to s 114 of the Crimes Act, having previously been convicted of an indictable offence, contrary to s 115 of the Crimes Act. | 10 years – No SNPP (2 years on s 166 certificate) | | Seq 12 – Be carried in conveyance taken without consent of owner, contrary to s 154A(1)(b) of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | 7 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the Crimes Act. | 20 years 5 years SNPP | 4 years (NPP 2 years) | | 13 | Damage property by fire/explosives, contrary to s 195(1)(b) of the Crimes Act. | 10 years – No SNPP | 6 months | | 5 (On a s 166 certificate) | Larceny, contrary to s 117 of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | 3 months | | Form 1 attached to Seq 5 | | Seq 10 – Intentionally damage property, contrary to s 195(1)(a) of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | 6 (On a s 166 certificate) | Larceny, contrary to s 117 of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | 3 months | | Form 1 attached to Seq 6 | | Seq 11 – Intentionally damage property, contrary to s 195(1)(a) of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | H94968672 (Cremorne Offences) | | 3 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the . | 20 years 5 years SNPP | 2 years 6 months (NPP 1 year 3 months) | | | | Seq 4 – Drive conveyance without the consent of the owner, contrary to s 154A(1)(b) of the . | 5 years – No SNPP (2 years on s 166 certificate) |
One of the co-offenders, Mr Ireland, was sentenced by the Sentencing Judge on 4 November 2024. Following a 25% discount for pleas of guilty, he received an aggregate sentence of imprisonment of 6 years, with a non-parole period of 3 years. That sentence accounted for offences committed variously in concert with Mr Pymble, together solely with the Applicant, and in company of both co-offenders. In sentencing Mr Ireland, the Sentencing Judge had regard to parity with the Applicant, whom he had already sentenced, and intended to impose an aggregate sentence that was approximately commensurate with that received by the Applicant. However, Mr Ireland’s sentence is not the subject of this application and need not be considered in any detail.
The other co-offender, Mr Pymble, was sentenced for 16 offences (to which he pleaded guilty) in the Drug Court at Parramatta on 6 March 2025 by Judge Girotto (the Drug Court Judge). Applying a 25% discount, the Drug Court Judge sentenced Mr Pymble to an aggregate term of imprisonment of 4 years. That sentence was immediately suspended pursuant to s 7A(5) of the Drug Court Act 1998 (NSW).
Some of the offences for which Mr Pymble was sentenced were unrelated to the Applicant. However, Mr Pymble was sentenced in relation to four principal offences common to the Applicant. The below table sets out those offences (using the charge and sequence numbers from the Applicant’s sentencing, but omitting the Form 1 offences in relation to each), as well as the indicative sentences for each offender.
| Sequence | Offence | Bridge’s indicative sentence | Pymble’s indicative sentence | | H407294493 (Hills District Offences) | | 3 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the Crimes Act | 3 years (NPP 18 months) | 18 months | | 5 (On a s 166 certificate) | Larceny, contrary to s 117 of the Crimes Act. | 3 months | 2 months | | 6 (On a s 166 certificate) | Larceny, contrary to s 117 of the Crimes Act. | 3 months | 2 months | | H94968672 (Cremorne Offences) | | 3 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the Crimes Act. | 2 years 6 months (NPP 1 year 3 months) | 18 months |
“The applicant has a justifiable sense of grievance in respect of the disparity between the sentence imposed on him in the NSW District Court, and the sentence imposed upon co-offender Troy Pymble, in the NSW Drug Court.”
The Applicant’s notice of intention to apply for leave to appeal was filed on 13 November 2024. The Applicant did not file his Notice of Appeal until 19 January 2026 and is therefore out of time.
The Court may nevertheless grant leave for the Applicant to bring his application after the expiry of the filing period: Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5). That discretion is to be exercised according to the interests of justice in the particular case, including by reference to the prospects of success of the proposed appeal: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 614 [32]–[33]. An explanation for the delay is also relevant: Baladjam v R [2018] NSWCCA 304; 341 FLR 162 at 179 [93] (Bathurst CJ, Hoeben CJ at CL and Fagan J agreeing).
To explain the delay, the Applicant relies on the affidavit of his solicitor, Ms Danka Durovic, affirmed on 16 January 2026. The principal reason for the delay appears to be the difficulty in obtaining the transcript and exhibits from Mr Pymble’s sentencing, because it was conducted in the Drug Court. Given the ground of appeal upon which the Applicant relies, and that the delay is not significant, I am satisfied with this explanation. Because I also consider that his proposed appeal is arguable I would grant the Applicant leave to bring his application for leave to appeal after the expiry of the filing period.
Taking into account that the Applicant’s proposed appeal is arguable, that he has been sentenced to a term of imprisonment of some length, and the interest in finality, I would also grant leave to appeal.
The following is taken from the Agreed Statement of Facts tendered at the Applicant’s sentencing.
The Applicant, Mr Ireland and Mr Pymble were party to a joint criminal enterprise to commit offences of break, enter and stealing, and to dispose of the proceeds of the offences for the purposes of financial gain. When referring to all three I shall call them “the offenders”.
At approximately 1 am on 4 September 2023, the offenders were captured on foot on CCTV inside an underground carpark at Kellyville. They were peering into vehicles (Sequence 9).
Shortly after, Mr Pymble exited the building and drove a stolen grey Mitsubishi Outlander into the underground carpark. The garage door was opened by the Applicant and Mr lreland. Mr Pymble and the Applicant used the Outlander to travel between the levels of the residential carpark (Sequence 12).
The offenders then broke the locks and hinges of a storage cage. Stolen from the cage were various tools and motorcycle tools, a camp chair and a KTM motorcycle (Sequence 3). CCTV captured the Applicant being pushed on the motorcycle by Mr Pymble. The bike had been removed from the cage by cutting a bike lock.
Outside the storage cage was a Mazda 3. The offenders entered the vehicle and stole a backpack containing clothing, a Navman branded dash camera and a Quadlock branded Apple Carplay (Sequence 4).
At about 1.36 am, the offenders smashed the rear passenger side window of an Audi (Sequence 10) and stole a jacket from inside the vehicle (Sequence 5).
At about 1.44 am, the Applicant exited the front passenger seat of the Outlander and approached a parked Silver Mercedes AMG. He smashed the rear passenger window with a yellow and black handled screwdriver (Sequence 11) and stole a bag containing a microblading eyebrow kit (Sequence 6) before returning to the Outlander. The Outlander left the carpark at 1.44 am.
At approximately 8.50 am on 5 September 2023, the Applicant (driver) and Mr Pymble (front passenger) travelled slowly along a residential lane in Cremorne in the Outlander (Sequence 4). Mr Pymble walked about the road area and subsequently approached the gate of a residence and returned to the Outlander which had been parked nearby by the Applicant.
The Applicant and Mr Pymble left the area and returned at 9.50 am. They opened a rear sliding door to the same premises and stole personal documents, a passport, US$500, jewellery, watches, sunglasses, a handbag, a portable speaker, video games and consoles, a laptop, car keys, and a camera (Sequence 3).
On 7 September 2023, between 7.45 am and 10 am, the offenders gained entry to a duplex in Dural by smashing a rear glass laundry door and stole from the owner’s bedroom handbags and jewellery worth over $70,000 (Sequence 7).
Between 8 September 2023 and 18 September 2023, the offenders communicated with each other and their associates regarding the sale of the proceeds of the Dural break and enter. The offenders obtained cash loans on the security of the stolen items.
His Honour took into account the maximum terms of imprisonment and standard non-parole periods which indicated the seriousness with which this type of offending is regarded. He noted that the nature of the offences can nevertheless encompass a considerable range of objective seriousness.
The Sentencing Judge noted that no weapons were used in the offending.
In relation to each of the offences, the Sentencing Judge was satisfied that the Applicant was part of a criminal enterprise that targeted houses in wealthy areas, to yield high results which was apparent from the items stolen. The value of the property stolen was quite considerable.
His Honour found there was a degree of planning and repetitious behaviour in the commission of the offences because a motor vehicle was obtained for the use of the commission of the offences and the addresses that were targeted appeared to have been selected. He noted that the Applicant was on conditional liberty during all offences.
The Sentencing Judge found there were numerous victims and there was a considerable amount of loss, valuable and personal property stolen, and an additional cost to the community by way of increased insurance premiums. His Honour recognised the harm to victims, knowing their homes have been invaded, although he did not take this into account as an aggravating factor.
In relation to the break and entry of the storage cage at Kellyville (Sequence 3), his Honour found there was some degree of professional planning and organisation, there was a degree of vandalism, and the value of the stolen goods was not inconsiderable. He took into account that the Applicant was being carried in a stolen vehicle. The Sentencing Judge found that the offence fell between the low to mid-range of objective seriousness.
For the break and entry into the house at Dural (Sequence 7), the Sentencing Judge found that this offence fell within the mid-range of objective seriousness. There was a degree of vandalism and the value in respect of this offence was considerable (in excess of $70,000) which increased the objective seriousness. His Honour found the Applicant’s intention was to sell the property for financial gain.
The Sentencing Judge found that the Cremorne break and entry (Sequence 3) fell within the mid-range of objective seriousness.
Finally, the destruction of the Mitsubishi Outlander by fire at Penrith (Sequence 13) was assessed at the mid-range of objective seriousness. His Honour took into account the damage, the fact there was a fire in a residential area, the motivation was to destroy evidence, and there was some degree of planning.
At the time of the commission of these offences, the Applicant was on parole for similar offending, for which he was sentenced to 6 years and 3 months’ imprisonment.
For the destruction of the car by fire and some of the Kellyville offences, that they were committed in company was an aggravating factor. His Honour did not take this consideration into account where being in company was an element of the offence.
His Honour also considered that where the offences occurred in the victims’ homes this was also an aggravating factor.
“He presents with a criminal history commencing in 2004 as a juvenile for offences relating to violence, domestic violence, property offences, theft and robberies, driving and drug related offences. His index offences are a continuation of his entrenched offending behaviour which appears to be underpinned by substance use issues. Mr Bridge has continued offending and subsequent incarcerations have seen him spend little time in the community as an adult. It is noted that since he has returned to custody on 28 September 2023, he has incurred two institutional misconduct charges for delivering or receiving an article from a visitor and the latest on refusing to comply with drug testing. Despite that he is noted as being respectful to staff.”
His Honour acknowledged the Applicant’s history was “extensive” and featured similar offences. While the Sentencing Judge did not take his record of offences into account as an aggravating factor it disqualified the Applicant from any leniency. The Applicant’s poor record in custody, going back to 2011, also disentitled him from leniency.
The Applicant’s background was detailed in the psychologist’s report of Dr Dornan dated 10 October 2024, supplemented by an earlier report dated 18 February 2021 by Ms Dombrowski.
The Applicant is an Aboriginal man but he stated that his light skin resulted in his being rejected by the Aboriginal community. That caused him difficulty in attempting to connect to his culture and Aboriginal activities although he had begun to address that with NAIDOC. His family are part of the Stolen Generations, and his Honour accepted that is an ongoing and intergenerational trauma that affects him, referring to the Bugmy Bar Book.
The Applicant is the youngest of three children and was raised by his mother from the age of 2. His mother re‑partnered when he was in childhood, and he has maintained a relationship with his older brothers whose support he enjoyed. He had a half‑sister who suffered from cerebral palsy and a half-brother who was diagnosed with Downs Syndrome. His sister, with whom he shared a close relationship, died in 2012 which had a significant impact at a later stage upon him. The Applicant’s father ceased to have any contact with him which caused feelings of abandonment. It was accepted that the Applicant’s father abused alcohol and was on occasion violent towards the Applicant and his mother.
His Honour found that the Applicant was the victim of serious sexual offences as a child, perpetrated by the principal of his school. This led to a decline in his mental health and left him terrified. Subsequently, when undertaking a residential vocation course, the Applicant was subjected to sexual, physical and emotional abuse by staff, causing him to lose trust. He barely attended school, lacking the motivation to return as a result of having been sexually assaulted.
The Sentencing Judge accepted Dr Dornan’s opinion that the Applicant suffers from post-traumatic stress disorder. This had a continuing impact upon all aspects of his life, particularly in relation to drug use.
The Sentencing Judge considered that it is not uncommon that offenders who have been subjected to serious offences against them tend to associate with an older group where they enjoy protection, and that those persons are often anti-social, as the Applicant’s peers were. The Applicant lacked support systems to manage his cognitive impairments and mental health impairments. Those impairments were reinforced by the Applicant’s anti-social peer group which encouraged illegal behaviour as well as drug and alcohol abuse.
His Honour accepted the long-term impact upon the Applicant of being incarcerated during COVID-19. He also accepted that the protection classification to which the Applicant was subject due to violence was particularly onerous and made it difficult for him to have access to rehabilitative programs. This was a factor which caused the Sentencing Judge to impose a longer period of supervision in the community so that the Applicant could access programs to assist in his rehabilitation.
His Honour considered in the “general mix of subjective factors” the hardship that would be caused to two of the Applicant’s children by his imprisonment, although this did not constitute exceptional hardship.
The Sentencing Judge had regard to the purposes of sentencing prescribed by s 3A of the Sentencing Act. While finding that the Applicant was a less suitable vehicle for general deterrence, his Honour found that specific deterrence was a prominent consideration in light of the Applicant’s record of similar offending. He found there was a need to denounce the Applicant’s conduct and recognise the harm done to the victims and the community. There was no dispute that the s 5 threshold had been crossed.
The Applicant’s rehabilitation was of “extreme importance”. While the evidence in support of this prospect was not positive, his Honour intended to impose a sentence which would give him the opportunity to embrace it in the future.
The Sentencing Judge made a finding of special circumstances to reduce the proportion of the sentence the Applicant would need to spend in custody before being eligible for release on parole.
His Honour considered that the Form 1 offences required marginal increases in the sentences for the principal offences because they represented “distinct criminality” but also found that they formed part of the overall offending.
Having regard to the principle of totality, his Honour backdated the commencement of the sentence to make it partially concurrent with the Applicant’s existing sentence which he was serving after parole was revoked.
In relation to parity with the Applicant’s co-offenders the Sentencing Judge noted that Mr Pymble had not been committed for sentence and said no more about him. In relation to Mr Ireland, his Honour was satisfied that Mr Ireland was more of an instigator than the Applicant, albeit marginally.
The Sentencing Judge imposed an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 2 years and 9 months. He indicated individual sentences as set out in the table at [7] above.
Mr Pymble was sentenced by the Drug Court Judge on 6 March 2025. Her Honour noted that it was agreed that a sentence of imprisonment was the only appropriate sentence for the 16 charges that were before the Court.
Her Honour imposed an aggregate sentence of imprisonment of 4 years, after applying a discount of 25% for Mr Pymble’s plea of guilty. That sentence was immediately suspended pursuant to s 7A(5) of the Drug Court Act. The table below sets out the offences for which Mr Pymble was sentenced, including the maximum penalties and standard non-parole periods, as well as the indicative sentences that the Drug Court Judge disclosed.
| Sequence | Offence | Maximum penalty and SNPP | Indicative sentence | | H95079372 (Baerami Creek Offences) | | 20 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the Crimes Act. | 20 years 5 years SNPP | 2 years | | Form 1 attached to Seq 20 | | Seq 12 – Take conveyance without consent of owner, contrary to s 154A(1)(a) of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | Seq 19 – Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the Crimes Act. | 20 years 5 years SNPP | | H94553904 (Hills District Offences) | | 3 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the Crimes Act. | 20 years 5 years SNPP | 18 months | | Form 1 attached to Seq 3 | | Seq 4 – Larceny, contrary to s 117 of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | Seq 9 – Commit offence pursuant to s 114 of the Crimes Act, having previously been convicted of an indictable offence, contrary to s 115 of the Crimes Act. | 10 years – No SNPP (2 years on s 166 certificate) | | Seq 10 – Drive conveyance taken without consent of owner, contrary to s 154A(1)(b) of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | Seq 11 – Intentionally damage property, contrary to s 195(1)(a) of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | Seq 12 – Intentionally damage property, contrary to s 195(1)(a) of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | | 5 (On a s 166 certificate) | Larceny, contrary to s 117 of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | 2 months | | 6 (On a s 166 certificate) | Larceny, contrary to s 117 of the Crimes Act. | 5 years – No SNPP (2 years on s 166 certificate) | 2 months | | 13 | Break and enter house and steal, contrary to s 112(1)(a) of the Crimes Act. | 14 years – No SNPP | 16 months | | 14 (On a s 166 certificate) | Attempt to dispose of stolen property, contrary to s 188(1) of the Crimes Act. | 10 years – No SNPP (2 years on s 166 certificate) | 6 months | | H95273664 (Cremorne Offences) | | 4 | Aggravated break and enter dwelling in company and steal, contrary to 112(2) of the . | 20 years 5 years SNPP | 18 months | | | | Seq 2 – Be carried in conveyance taken without consent of owner, contrary to s 154A(1)(b) of the . | 5 years – No SNPP (2 years on s 166 certificate) | | Seq 5 – Commit offence pursuant to s 114 of the , having previously been convicted of an indictable offence, contrary to s 115 of the . | 10 years – No SNPP (2 years on s 166 certificate) |
As to the objective seriousness of the break, enter and steal matters, her Honour regarded that offending as serious, becoming more prevalent and causing significant harm to victims who lose property, sometimes of significant monetary or sentimental value. In addition was the psychological harm caused by such offences by the invasion of privacy and the sense of grievance that often follows from unlawful interference. The Drug Court Judge also considered the time, inconvenience and costs in the need for people to take additional measures to secure their possessions.
In relation to the break, enter and steal at Dural involving $76,000 worth of property, her Honour noted that Mr Pymble was not involved in the burglary aspect. While Mr Pymble was alleged to be a co-offender in this offence at the Applicant’s sentencing, the Crown withdrew this charge at Mr Pymble’s sentencing. The Drug Court Judge observed that Mr Pymble was nevertheless afterwards involved in trying to dispose some of the stolen property, particularly the Rolex watch. That watch was not, however, sold by Mr Pymble but Mr Ireland, such that Mr Pymble’s conduct fell at the lower end of objective seriousness.
Her Honour observed that Mr Pymble’s criminal history was “fairly crowded” and had involved several dishonesty, break, enter and steal offences, and driving offences, for which he had served sentences of imprisonment. It was also noted that at the time of the offending, Mr Pymble was on parole for similar offences. Nevertheless, the Drug Court Judge found that his criminal history was not relevant to increase the objective seriousness of the offences committed, but the fact that such offences were committed when Mr Pymble was on conditional liberty and where he had a history of similar offending called for greater weight to be given to personal deterrence to prevent Mr Pymble from reoffending, as well as to protect the community.
Her Honour considered that it was difficult to assess Mr Pymble’s subjective case in circumstances where he tendered no evidence. The Court was in receipt of a letter from Mr Pymble which was described as a “plea”. Oral submissions were made on Mr Pymble’s behalf, which her Honour took into account “to the extent I can absent any evidence or supporting material”.
In relation to Mr Pymble’s childhood, his mother was described as a “good mum”, although his father was absent and had alcohol problems. Mr Pymble began taking drugs at the age of 13, and by the age of 19 was addicted to ice. He had been through the Drug Court program on a prior occasion for eight months as well as a compulsory drug treatment program in gaol. However, he relapsed during COVID-19.
“Question of the co-offenders, I think it is agreed between the prosecution and your lawyers that the - there are different co-offenders for a variety of these charges before me. The co-offenders are much older than you are. They have different matters and longer histories and they have been sentenced in a different jurisdiction I think, so all of those things point to there being not really a parity issue that you should get the same as them. But it does serve as a guide as to what I can do with you okay.”
The Drug Court Judge remarked that she had regard to the principle of totality, but that the offences were “very serious matters”. In taking into account the Form 1 offences, her Honour noted that while the focus remains on the principal offences, the offences on the Form 1s would be considered “with a view to increasing the penalty that would otherwise have been appropriate”.
Her Honour imposed an aggregate sentence of 4 years’ imprisonment. In accordance with s 7A(4) of the Drug Court Act, no non-parole period was fixed.
Without the slightest criticism, it is important to note that the sentencing remarks provided by the Drug Court Judge are considerably more succinct than the remarks given by the Sentencing Judge in sentencing both the Applicant and Mr Ireland. As the Applicant’s comparison table (in his written submissions) confirms, the Drug Court Judge did not give consideration to the following matters referred to by the Sentencing Judge:
Bugmy factors;
institutionalisation;
remorse and insight;
prospects of rehabilitation; and
risk of reoffending.
This could be a result of several factors including the evidence and information provided to the Drug Court Judge, different practical approaches adopted between sentencing in the Drug Court and sentencing in the District Court and matters of style and approach adopted by different judges. Whilst that may be, the considerably more detailed sentencing remarks by the Sentencing Judge in the District Court makes an analysis of parity between the sentences more, rather than less, difficult.
“[58] The application of the parity principle is governed by a number of considerations. First, the test to be applied has been stated as being “whether any disparity between sentences engenders a justifiable sense of grievance and an appearance of injustice to ‘that impassive representative of the community, the objective bystander’”: Hiron v R [2018] NSWCCA 10 at [50] (Johnson J with Leeming JA and Adamson J agreeing) citing Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 613 (Mason J); [1984] HCA 46 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [31] (French CJ, Crennan and Kiefel JJ). Thus, the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria and does not involve a judgment about an offender’s subjective feelings of grievance: Green at [31].
[59] Secondly, the application of the principle is concerned with considerations of substance rather than form, so that formal identity of charges against the offenders whose sentences are to be compared is not a necessary condition of its application: Green at [30].
[60] Consequently, the parity principle requires the avoidance of objective “unjustifiable disparity” between the sentences imposed upon offenders involved in the same criminal conduct or a common criminal enterprise, even if they are not being sentenced for exactly the same offences. It is an aspect of “equal justice” inherent in the rule of law: Green at [19] and [28]. It applies in New South Wales by virtue of s 21A of the Sentencing Procedure Act which specifies in effect that the matters which a court is required to take into account include “any other matters that are required or permitted to be taken into account by the court under any Act or rule of law”: Green at [19].
[61] Thirdly, equal justice and thus the parity principle do not require the same outcome for all offenders involved in the same criminal conduct. Parity requires different outcomes in cases that are different in some relevant respect or respects: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (Gaudron, Gummow and Hayne JJ); Green at [28]. At a somewhat abstract level, the “relevant respects” have been described as co-offenders’ “different degrees of culpability or their different circumstances”: Postiglione v The Queen (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ); [1997] HCA 26. Some of the potentially relevant types of differences were identified in Green at [31] as including “age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”, citing Lowe at 609 (Gibbs CJ). It is evident, however, that that list is not an exhaustive statement of potentially relevant differences.
[62] Fourthly, in determining whether there has been a disparity of a kind sufficient to give rise to a justifiable sense of grievance, it is appropriate to consider all of the facts and circumstances applicable to the relevant individuals involved and not just the aggregate or head sentence but also all the components, including the non-parole period, any indicative sentences and the total effective period of imprisonment: Nguyen v The King [2024] NSWCCA 178 (Nguyen) at [84] (Ierace J, with Harrison CJ at CL, and Faulkner J agreeing), quoting Rees v R [2012] NSWCCA 47 (Rees) at [50] (Garling J, with Macfarlan JA and R S Hulme J agreeing) and the authorities there cited.
[63] Fifthly, in order to succeed on the basis that a sentence imposed gives rise to a justifiable sense of grievance, it is not necessary to show that the sentence is manifestly excessive: Dib v R [2023] NSWCCA 243 (Dib) at [132] (Simpson AJA, with Garling and Ierace JJ agreeing). Moreover, in Nguyen at [84], it was accepted that, as had been stated in Rees at [50], this Court ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, where such a result would be an affront to the proper administration of justice. By way of contrast, there have been statements such as that by Mason J in Lowe at 613-4 that “a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate”. These two positions are not, however, inconsistent, as was explained in Green at [33]:
‘There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co‑offender’s sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, “an affront to the proper administration of justice.” Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.’”
A complicating feature of the present application is that the Applicant and Mr Pymble were sentenced by different judges on different occasions. It is open to the Applicant to seek to bring a parity appeal by reference to sentences subsequently imposed on a co-offender: Jones v The Queen (1993) 67 ALJR 376 at 377 (Brennan, Deane and McHugh JJ); Chen v R; He v R [2018] NSWCCA 95 at [42] (Johnson J, White JA and Harrison J agreeing). It is the sentence imposed upon Mr Pymble that is said to give rise to a sense of injustice not the sentence imposed upon the Applicant: Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 at 42 [7] (Howie J, Basten JA and Grove J agreeing). There is no challenge to the approach adopted by the learned Sentencing Judge, and nor could there be, as “a complaint of disparity accepts that the sentence is otherwise appropriate”: Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 (Jimmy) at 597 [251] (Campbell JA, Howie and Rothman JJ agreeing).
Nor is it open to an applicant on a parity ground to seek to call into question the sentence received by a co-offender on the basis of an error in the sentencing judgment. As explained by Adamson J (with whom Basten JA and Walton J agreed) in Martellotta v R [2021] NSWCCA 168 (Martellotta) at [58]:
“A parity ground does not afford an applicant an opportunity to impugn the sentencing judgment of a co-offender by alleging error in the sentencing judgment for a co-offender. A parity ground is to be resolved by reference to a comparison between the sentence imposed on the applicant and the sentence imposed on a co-offender to determine whether the applicant has a legitimate grievance. As referred to above, where the co-offenders were sentenced by different judges, a further question arises as to whether the two sentences can be explained by reference to the different material before each sentencing judge. In order to answer that question, it is necessary to address the material before each judge and the assessment by each of that material as reflected in their respective reasons.”
It is necessary for the purposes of this application to consider the principles that apply where a co-offender has been sentenced in the Drug Court of New South Wales for the reasons set forth in [92] below.
The Drug Court was established by the Drug Court Act 1998 (NSW). Its long title describes it as “An Act to provide for the establishment of the Drug Court of New South Wales, for the referral of drug offenders to the Drug Court, and for the supervision of drug programs by the Drug Court; and for other purposes.”
The objects of the Act are set forth in s 3. It provides:
3 Objects
(1) The objects of this Act are—
(a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and
(b) to promote the re-integration of such drug dependent persons into the community, and
(c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies.
(2) This Act achieves its objects in relation to eligible persons by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs.
(2A) This Act achieves its objects in relation to eligible convicted offenders by establishing a scheme for compulsory drug treatment and rehabilitation for certain drug dependent persons.
(3) Reducing a person’s dependency on drugs should reduce the person’s need to resort to criminal activity to support that dependency and should also increase the person’s ability to function as a law abiding citizen.
Pursuant to s 7A(2), the Drug Court may deal with a person in relation to an offence if it is satisfied of a number of matters, including that the person is an “eligible person” and that the person has pleaded guilty to the offence, whether before the referring court or the Drug Court, and has been found guilty of the offence.
Section 7A(3) provides that, subject to subs (4), the Drug Court deals with a person under the section in relation to an offence by convicting the person and sentencing the person in accordance with the Sentencing Act. Subsection (4) excludes the operation of ss 44–48 of the Sentencing Act in relation to that exercise, with the effect that the Drug Court is not to impose a non-parole period.
After the imposition of that initial sentence, the Court must make an order imposing the conditions that constitute the offender’s program under the Act. The sentence is suspended for the duration of the program: s 7A(5).
Section 7A(7) sets forth the kinds of conditions that the Drug Court may impose on a person. Those are specific provisions that do not form part of the sentencing provisions of the Sentencing Act and are specific to the Drug Court.
On the termination of the offender’s program, the Court must reconsider the initial sentence and impose a final sentence, having regard to the offender’s participation in and compliance with their program: s 12.
The Applicant and the Crown initially joined issue as to the extent to which the imposition of a sentence by the Drug Court on Mr Pymble is a factor that must or should be taken into consideration in relation to any assessment of any disparity. The Crown argued, at [66] of its written submissions:
“Furthermore, an assessment of any disparity between the initial sentence imposed upon Pymble and the indicative sentences of the applicant should be made in light of the particular statutory objectives of the Drug Court Act (which apply in respect of Pymble but not the applicant). The differences between the indicative and aggregate sentences imposed upon the applicant and the indicated sentences upon Pymble is neither marked nor unjustified.”
During oral exchanges with the Court, the Crown accepted that the Drug Court is required to sentence in accordance with the Sentencing Act, which Counsel acknowledged signalled a departure from the argument contained in [66] of its written submissions.
In Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133 (Scicluna) this Court considered the utility of using a sentence imposed by the Drug Court as a point of comparison with a co-offender sentenced in another court for the purpose of the parity principle. The applicant in that case had been sentenced in the District Court. He complained of a justifiable sense of grievance that his co-offender had been diverted into the Drug Court program and had his sentence suspended for the period of the program, and was therefore dealt with more leniently than a person not offered that opportunity.
Justice Basten (with whom Barr J agreed) considered this argument at 136 [9] – 137 [10] as follows:
“[9] That assessment may be accepted in its terms. However, the leniency so perceived does not reflect an assessment of the seriousness or culpability of the offending. It reflects the separate purposes and objects of the statutory scheme: see Drug Court Act, s 3. As the Minister stated in the Second Reading Speech (Hansard, 27 October 1998, p 9030):
‘An offender may choose to participate in the Drug Court program or, alternatively, be dealt with through the normal channels of the criminal justice system. Given the structure of the program and the target group, the choice facing an offender will often be rehabilitation or gaol. The Drug Court program represents an ethically defensible form of legally coerced treatment for drug-dependent offenders. It uses the threat of imprisonment as an incentive for treatment entry and the fear of return to prison as a reason for complying with drug treatment whilst on parole or probation.’
[10] It follows that it is not the diversion into a rehabilitation program which is to be compared, for the purposes of parity in sentencing, with the imprisonment imposed on a co-offender. The legitimate comparison is between the initial sentence imposed in accordance with the Sentencing Procedure Act and the sentence imposed on the co-offender. The fact that one co-offender is eligible for the program because of drug dependency, whilst another is not, may itself have consequences for the relevant comparison; nevertheless, it is the equivalent sentences under the Sentencing Procedure Act which must be compared.”
(Emphasis added.)
“Where the statutory preconditions for its operation apply in relation to one co-offender, but not the other, the statute itself will operate to permit, or even mandate, disparate treatment. Accordingly, to the extent that the statutory scheme provides for apparent leniency, through the suspension of a sentence, any sense of grievance felt by the co-offender who does not fall within the scheme is not a justified grievance. Rather, the discrepancy is mandated by statute.”
This Court returned to the question in Tobia v R [2016] NSWCCA 99 (Tobia). The applicant in that case was similarly sentenced in the District Court while his co-offender was successful in gaining a place in the Drug Court program. This gave rise to an application for leave to appeal in part on the ground of a marked disparity between the sentences of the co-offenders.
After quoting the judgment of Basten JA in Scicluna at 136–137 [10], Wilson J (with whom R A Hulme and Garling JJ agreed) concluded at [59] that:
“One can readily understand that the applicant could feel aggrieved that his co-offender, through the happenstance of being both eligible for the Drug Court program, and selected for one of the limited available places by ballot, received an apparently better outcome than him. However, the sense of grievance necessary to attract the intervention of this Court is measured by objective criteria, without reference to the feelings of the person aggrieved.”
Her Honour held that “the comparison for the purposes of determining a parity ground is to be made between the initial indicated sentence of 2 years and 3 months imprisonment fixed for the co-offender (final sentence not having been determined), and that of 3 years imprisonment for the applicant”: at [60]. This approach is consistent with what was laid down in Scicluna.
At the hearing of the present application the Court’s attention was drawn to the observations of Wilson J at [56] in Tobia:
“Due to the specific statutory objectives under which initial and final sentences are determined by the Drug Court, objectives that have no application outside that court, it is generally unproductive to attempt to make a direct comparison between a sentence imposed in that jurisdiction and a sentence imposed in another court. Such an exercise is not dissimilar to making a comparison between a sentence imposed for a particular offence in the Children’s Court and a sentence imposed for the same offence in the Local Court. The parity principle in those circumstances could have little or no application. It must similarly have little or no application in circumstances where the complaint of disparity, as here, focuses on the suspension of sentence pursuant to s 7A(5)(b) of the Drug Court Act, and the access given to a co-offender to a rehabilitation program.”
“It must be accepted that sentences imposed by the Drug Court, whether they be initial or final sentences, may incorporate what may be perceived to be a significant measure of leniency. That is a consequence of the importance of achieving an offender’s rehabilitation, consistent with the objectives of the statutory scheme under which the Drug Court operates.”
Those objects find form in s 3 of the Drug Court Act which I have set out above.
There is no dispute that, as her Honour determined, the principle of parity has no role to play when the focus of the complaint is on the suspension of a co-offender’s sentence pursuant to the Drug Court Act. As was held in Scicluna at 137 [12], in such a case the grievance felt by the co-offender, who did not receive the benefit of that suspension, is not justified because the discrepancy is mandated by statute.
However, insofar as Wilson J found at [56] that “it is generally unproductive to attempt to make a direct comparison between a sentence imposed in that jurisdiction and a sentence imposed in another court”, I respectfully consider that proposition to be too broadly stated, at least in relation to an initial sentence fixed by the Drug Court. That statement is difficult to reconcile with this Court’s holding in Scicluna that such a comparison is “legitimate”, and it invites further consideration in light of her Honour’s orthodox decision, in accordance with principle, to make such a comparison at [60].
If the observations in Tobia at [55] are accepted, then it would follow that to compare a sentence imposed in the District Court with an initial sentence fixed by the Drug Court would generally be unhelpful, as the exercise of the respective sentencing discretions would be informed by different considerations and made for different purposes.
I am unable to accept that there is any statutory basis to infer that initial sentences imposed by the Drug Court do, or properly should, incorporate a “significant measure of leniency”. That is for three reasons.
First, I agree that the objects set forth in s 3(1) can fairly be characterised as forming the foundation of a scheme that provides a measure of leniency, in comparison with offenders who are not sentenced in the Drug Court. Even so, due regard must be had to the fact that those objects are achieved, in relation to (relevantly here) “eligible persons”, by the diversion of drug dependent persons into programs designed to eliminate, or at least reduce, their dependency on drugs: s 3(2). In other words, it is the suspension of the sentence and diversion to treatment programs which constitutes the leniency that the Drug Court affords, not the imposition of the initial sentence itself.
Secondly, the Drug Court Act mandates that where an eligible person is referred to the Drug Court, the Court is to deal with the offender “by convicting the person and sentencing the person in accordance with the Crimes *(*Sentencing Procedure) ”: s 7A(3). The exception is that the Drug Court does not fix a non-parole period: s 7A(4). Accordingly, an initial sentence in the Drug Court is imposed for the same purposes as a sentence imposed by any other court applying the , being the purposes of sentencing prescribed in s 3A of that Act (including to promote the rehabilitation of the offender). It is on this basis that Basten JA described the sentences so imposed as “equivalent”: at 137 [10]. The equivalence of the sentences renders their comparison “legitimate”.
“The logical purpose of the initial sentence, which is ‘suspended’ in view of the participant’s acceptance into the program, is clearly to set their sentence on the basis of the evidence before the court at that time, subject to their performance in the Drug Court program, so that they understand exactly what is at stake if they abandon the program.”
For these reasons, I consider that the Drug Court Act does not provide a basis to incorporate a “significant measure of leniency” in the fixing of an initial sentence in the Drug Court, such that the sentence would be rendered unhelpful as a comparative tool.
As the Court held in Scicluna, when making a comparison for the purposes of parity in sentencing, the legitimate comparison is between the sentence imposed on a co-offender in another court and the initial sentence imposed by the Drug Court, because both of those sentences have been fixed in accordance with the Sentencing Act. There may be a reason, in the circumstances of a particular case, why that comparison is rendered difficult or inutile. There is no reason, however, to conclude that such a comparison is generally unproductive as a matter of principle.
It follows from my reasoning that I do not consider that the mere fact of Mr Pymble receiving a sentence in the Drug Court prevents this Court from concluding that an unjustified disparity may exist when comparing a sentence for the same or similar offences imposed by the District Court.
The Applicant’s submissions can be distilled as follows:
he has a justifiable sense of grievance in respect of the disparity between the sentence imposed on him and the sentence imposed upon his co-offender Mr Pymble in the Drug Court;
despite Mr Pymble being sentenced in the Drug Court, there is no inherent disparity required by operation of statute, as s 7A(3) of the Drug Court Act mandates the application of the same sentencing principles that apply to sentences imposed in the District Court;
the Applicant and Mr Pymble were involved in the same offending with respect to sequences H407294493/3 (Kellyville) and H94968672/3 (Cremorne). There is very little distinction in these cases in relation to both the objective criminality and the subjective cases; and
despite Mr Pymble being five years younger than the Applicant at the time of the offending, he was not so young that the sentencing principles concerning weight being given to a younger offender should apply, nor is there evidence that the five-year difference in age caused Mr Pymble to be considerably more vulnerable or impressionable than the Applicant.
The Crown submitted, in summary, that:
the differences in the objective and subjective cases of the Applicant versus Mr Pymble are such to justify the disparity in the sentences indicated in respect of each;
the Applicant, in relation to the Kellyville offences, asked the Court to take into account an additional offence of damaging property on Form 1s attached to each of the counts of larceny;
when examining the totality of the offending of the Applicant, as compared to the entirety of the offending for which Mr Pymble was sentenced, there is an explicable foundation for the differences between the sentences ultimately imposed, including:
(a) the difference in age, where the Applicant was 36 years old and Mr Pymble was 30 years old; (b) Mr Pymble’s criminal history contains criminal offending of a less serious nature; (c) the Applicant was on parole at the time of the commission of the subject offences for offences of robbery armed with a dangerous weapon and not stopping during a police pursuit; and
While both courts dealt with some of the s 166 related offences in slightly different ways (either indicating sentences for them or taking them into account on Form 1s on different principal offences), the Applicant and Mr Pymble were in essence sentenced for two episodes of common offending:
the offending at Kellyville on 4 September 2023, consisting of the break, enter and stealing from the storage case, the damage to property and larceny from two vehicles, and either the driving of or being carried in a knowingly stolen car; and
the offending at Cremorne on 5 September 2023, including the break, enter and stealing from a residential premises, and the driving of or being carried in a knowingly stolen car.
There were no relevant findings made by either the Sentencing Judge or the Drug Court Judge as to differences in roles between the Applicant and Mr Pymble in the co-offending.
The Applicant was also sentenced for offending that Mr Pymble was not. Mr Pymble was not charged with the offence of break, enter and steal at Dural (apart from an attempt to sell a watch stolen therefrom), and nor was he involved in the destruction of the Mitsubishi Outlander by fire.
Mr Pymble, in turn, was sentenced for offending at Baerami Creek and Castle Hill which did not involve the Applicant. As noted above, he was also sentenced for an attempt to dispose of stolen property. Further, while both offenders were sentenced for the conduct at Cremorne, taken into an account on a Form 1 in Mr Pymble’s case was an offence against s 115 of the Crimes Act, which was not preferred against the Applicant for the Cremorne offending.
Therefore, the sentencing of each offender proceeded on the basis that, for the offences common to them, there were no relevant differences between them in the commission of those offences. However, there were further offences committed by each offender which were necessarily accounted for in the imposition of the aggregate sentences.
Both the Sentencing Judge and the Drug Court Judge found that each offender had significant criminal histories.
In sentencing the Applicant, the Sentencing Judge remarked that his criminal history was “extensive” and quoted the Sentencing Assessment Report which described the offences for which he was to be sentenced as “a continuation of his entrenched offending behaviour”. His record of violence commenced in 2006. The material placed before his Honour disclosed that history, the most serious offences of which included the following:
in May 2013, the Applicant was sentenced to imprisonment for 3 years, with a non-parole period of 1 year and 9 months, for aggravated break, enter and commit serious indictable offence, larceny, possession of an unregistered/unauthorised prohibited firearm in a public place, and driving while disqualified;
in April 2017, the Applicant was sentenced to imprisonment for 4 years and 3 months, with a non-parole period of 2 years and 3 months, for two counts of robbery while armed with an offensive weapon;
in July 2017, the Applicant was sentenced to imprisonment for 2 years and 7 months, with a non-parole period of 3 months and 17 days, for two counts of common assault (domestic violence) and one count of using an offensive weapon to commit a serious indictable offence; and
in April 2021, the Applicant was sentenced to imprisonment for 6 years and 3 months, with a non-parole period of 3 years and 9 months, for two counts of robbery while armed with a dangerous weapon, aggravated break, enter and steal (with two further such counts taken into account on Form 1s), and police pursuit – drive dangerously. The Applicant was on parole for these offences when he committed the index offences.
While his Honour did not regard this history as an aggravating factor it did disqualify him from any leniency as I have noted above. The Sentencing Judge also had regard to the Applicant’s custodial record, finding that he had a “lengthy history of breaches of Corrective Services regulations going back to 2011”. This also disqualified the Applicant from leniency.
In sentencing Mr Pymble, the Drug Court Judge remarked that his criminal history was “fairly crowded”, and had escalated to include “several dishonesty, break, enter and steal, stealing, [and] drive whilst disqualified” offences. He had a record of violent offending from 2012. The most significant examples of that history included the following:
in December 2014, Mr Pymble was sentenced to imprisonment for 3 years and 2 months, with a non-parole period of 2 years, for a raft of aggravated break and enter, destroy or damage property, and dishonestly obtain financial advantage offences;
in December 2017, Mr Pymble was sentenced to imprisonment for 3 years, with a non-parole period of 1 year and 6 months, for aggravated break and enter and commit serious indictable offence;
In both cases, the sentencing courts had regard to each offender’s background, which included family dysfunctionality and substance abuse.
As set out at [45]–[56] above, the Sentencing Judge undertook a detailed assessment of the Applicant’s background. Most significantly, it included his being a victim of child sexual abuse. While his Honour did take this history into account in accordance with the principles in Bugmy, he found that it needed to be balanced against the “protection of the community, which is the real challenge in balancing those two important considerations”. Similarly, the Sentencing Judge accepted that the principles in De La Rosa were engaged and found that they reduced the need for deterrence “to some extent”, but “not entirely”.
In respect of the Applicant’s prospects of rehabilitation his Honour found that the evidence “has not been positive”. The Sentencing Assessment Report concluded that he had a “medium to high risk of reoffending”. The Sentencing Judge took into account the Crown’s submission that those prospects are “guarded” at best, and that the Applicant had not been deterred by past sentences and previous supervision had proved fruitless.
Recounted at [73]–[74] above is the Drug Court Judge’s assessment of Mr Pymble’s background. That assessment was necessarily brief because Mr Pymble did not tender any evidence before her Honour. Nevertheless, her Honour took into account Mr Pymble’s letter and submissions made on his behalf that detailed his history of substance abuse. The Drug Court Judge did not make an explicit finding about Mr Pymble’s prospects of rehabilitation or his risk of reoffending.
It is apparent that both judges considered each offender’s background and history of substance abuse. The Applicant’s background caused a reduction in his sentence because of the abuse he had suffered, but the Sentencing Judge was careful to indicate that principles of deterrence could not be disregarded because of the need to protect the community. However, the Applicant’s prospects of rehabilitation were not positive, whereas no such finding was made in relation to Mr Pymble.
At the time the offences were committed, the Applicant was 36 years of age. Mr Pymble was 30 years old. This was raised by the Applicant and the Crown in their written submissions and at the hearing of this application.
When sentencing Mr Pymble, the Drug Court Judge remarked that the co-offenders were “much older” than him. For my own part, I do not consider this age gap to be significant of and by itself, but it is relevant to the Applicant’s lengthier criminal history and the Sentencing Judge’s remark that the Applicant’s offending was a “continuation of his entrenched offending behaviour”.
This is not to say that age disparity between co-offenders cannot be a relevant factor, but it must be assessed along with other objective criteria such as “background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474–475 [31] (French CJ, Crennan and Kiefel JJ).
As set out in the table at [10] above, individual sentences were indicated for four identical charges between the Applicant and Mr Pymble:
for the aggravated break, enter and steal of the storage cage at Kellyville, the Applicant received an indicated sentence of 3 years, whereas Mr Pymble received an indicated sentence of 18 months;
for the larceny of the jacket from the Audi, the Applicant received an indicated sentence of 3 months and Mr Pymble received an indicated sentence of 2 months;
for the larceny of the bag containing the eyebrow kit from the Mercedes, the Applicant received an indicated sentence of 3 months and Mr Pymble received an indicated sentence of 2 months; and
for the aggravated break, enter and steal at the residential premises at Cremorne, the Applicant received an indicated sentence of 2 years and 6 months, compared to Mr Pymble’s 18 months.
However, in each case the offences taken into account on Form 1s in relation to each offender were not identical.
In Mr Pymble’s sentence for break, enter and steal from the storage cage, taken into account on Form 1s, in addition to the Form 1 offences in the Applicant’s sentencing for this offence, were the intentional damaging of the Audi and Mercedes vehicles. In the Applicant’s sentencing, those two offences were considered on Form 1s in relation to the two larceny offences, offences which did not have Form 1 offences attached in Mr Pymble’s sentencing.
On this point it is helpful to return to the Crown’s submissions adverted to at [114(2)] above. In its written submissions at [56], the Crown sought to explain the disparity between the sentences for larceny on the basis that the Applicant asked for the damaging property offences to be taken into account on Form 1s, which the Sentencing Judge found required a “marginal increase” to the principal offences. That submission may be accepted as far as it goes. But Mr Pymble asked for those offences to be taken into account on Form 1s in relation to the break, enter and steal offence at Kellyville, while the Applicant did not. The Applicant received an indicative sentence for the Kellyville break, enter and steal offence which was 100% longer than that received by Mr Pymble.
Also taken into account on a Form 1 for the Cremorne offence in Mr Pymble’s case (in addition to the Form 1 offence also considered in the Applicant’s case) was an offence against s 115 of the Crimes Act, with which the Applicant was not charged. The Applicant received an indicated sentence for the Cremorne offence 66% longer than Mr Pymble’s indicated sentence.
In making these comparisons, it must be recalled the indicative sentences may serve as a guide in determining whether a sentence offends the parity principle: *(* [2022] NSWCCA 123 () at [49] (Bell CJ, Button and N Adams JJ agreeing). Full allowance must be made for the fact that it is the aggregate sentences which must ultimately be compared, because an appeal lies from an aggregate rather than an indicative sentence or sentences: at [48].
The Applicant was sentenced for two further offences. For the aggravated break, enter and steal at Dural, he received an indicative sentence of 4 years’ imprisonment. For the destruction of the car by fire, he received an indicative sentence of 6 months’ imprisonment.
Mr Pymble was sentenced for three further offences. For the aggravated break, enter and steal at Baerami Creek, the Drug Court Judge indicated a term of 2 years’ imprisonment. For the break, enter and steal at Castle Hill, Mr Pymble received a 16-month indicated term of imprisonment. For the attempt to dispose of stolen property, her Honour nominated a sentence of 6 months’ imprisonment.
These further sentences are especially important when determining whether the disparity in the aggregate sentences imposed on each offender was explicable.
The question for determination is whether the Applicant’s sense of grievance in the disparity between the aggregate sentences imposed upon him and Mr Pymble is objectively justifiable. I have concluded that it is not.
When one compares the indicative sentences nominated for the common offending, the Applicant received higher sentences. But this was explicable by relevant differences in the sentencing analysis by the respective judges based on the material before them: Martellotta at [58]. While there was no relevant distinction between the offenders in their roles during the commission of the common offences, the above analysis of the respective sentences discloses three primary differences.
First, the Applicant’s criminal history was worse than Mr Pymble’s. I do not accept the Applicant’s submission that it is difficult to distinguish between the Applicant and Mr Pymble in this respect. The Applicant had a longer criminal history, as the Drug Court Judge observed. The sentences he had received for that offending were appreciably more severe. The seriousness of that history was the circumstance which disentitled the Applicant from being sentenced in the Drug Court. There was ample basis to regard the Applicant’s offending as “entrenched”. Added to this, the Sentencing Judge considered the Applicant’s “lengthy” history of breaches of discipline in custody. The Drug Court Judge was not presented with any such history in relation to Mr Pymble.
Secondly, the Sentencing Judge’s determination of the Applicant’s prospects of rehabilitation was not favourable. His Honour explicitly considered the assessment of the Applicant’s risk of reoffending as “medium to high” and took into account that the Applicant “has not been deterred from committing offences by the past sentences imposed”. The Drug Court Judge did not make such a finding in respect to Mr Pymble.
Thirdly, even though, as I have addressed at [132] above, I have not attributed significance to the age gap between the Applicant and Mr Pymble, Mr Pymble’s relative youth was nevertheless an important factor that influenced the Drug Court Judge’s reasoning process and for that reason ought to be acknowledged as a matter that distinguishes the sentences imposed.
Those indicative sentences only serve as a guide and are not determinative of whether the Applicant’s sense of grievance is justified.
The Applicant was sentenced in relation to further serious offending which Mr Pymble was not, including an aggravated break, enter and steal offence for which a sentence of 4 years’ imprisonment was indicated, and a destruction by fire offence which attracted an indicative sentence of 6 months’ imprisonment. No challenge is brought against those sentences: Jimmy at 597 [251].
While Mr Pymble was also sentenced for further offending, which the Applicant did not commit, lower sentences were indicated for those offences. The longest indicative sentence for those offences was 2 years’ imprisonment, and the total length of the sentences indicated for all those further offences was 3 years and 10 months.
For those reasons, I propose the following orders:
Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to bring the application for leave to appeal after the expiry of the filing period.
Grant leave to appeal.
Dismiss the appeal.
ROBERTS J: I agree with the orders proposed by Sirtes J for the reasons provided by his Honour. I also agree with the additional observations of N Adams CJ at CL at [1]-[3].
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Bridge
R [2026] NSWCCA 40
(2020) 104 NSWLR 134
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2011) 244 CLR 462
(2010) 77 NSWLR 540
(1993) 67 ALJR 376
(2014) 252 CLR 601
(1984) 154 CLR 606
(2001) 207 CLR 584
(1997) 189 CLR 295
Set out in the below table are the offences for which the Applicant was sentenced, including the maximum penalties and standard non-parole periods that each offence attracts, as well as the individual sentences that the Sentencing Judge indicated pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (**the Sentencing Act).
When the Applicant was 16 he left home and was homeless. Dr Dornan noted he had persistent symptoms of undiagnosed post-traumatic stress disorder throughout adolescence and into his adulthood. Despite regular attempts, he encountered difficulty maintaining employment.
The Applicant has served several periods in custody. His Honour was concerned that the Applicant while in custody was capable of undertaking regular employment and attending programs, which he enjoyed, but was frustrated that he could not function well in the community. He found it difficult to adjust to life outside prison and was unable to maintain abstinence from illicit drugs and stabilise his mental health. The Sentencing Judge accepted Dr Dornan’s characterisation of the Applicant becoming institutionalised.
He was assaulted in 2017 when he was stabbed 32 times.
The Applicant was prescribed methadone by Justice Health in custody but was not compliant when he returned to the community. His Honour considered that he would have been a suitable candidate for the Compulsory Drug Treatment Program but was disqualified by the nature of his past offending.
The Sentencing Judge accepted that there was a causal connection between the Applicant’s deprived background and the commission of these offences, and that it was to be taken into account in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy). His Honour found these considerations nevertheless had to be balanced against the interest in protecting the community.
His Honour considered the report of Dr Tagkalidis dated 7 November 2023, which disclosed that the Applicant was suffering from persistent depressive disorder, post-traumatic stress disorder, and poly-substance use disorder. In view of the Applicant’s mental health issues, his Honour took into account the principles established in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa). He considered that it reduced the need to emphasise deterrence to “some extent”, but not entirely.
Thirdly, in the context of the statutory scheme, the imposition of an initial sentence is intended to function as a warning to the offender. In the Second Reading Speech, extracted in Scicluna at 136 [9], the Minister observed that the Drug Court “uses the threat of imprisonment as an incentive for treatment entry and the fear of return to prison as a reason for complying with drug treatment whilst on parole or probation”. The Minister further noted that “the prospect of imprisonment hanging over the offender is a key part of the program’s philosophy, in so far as it seeks to marry a set of incentives and sanctions into the case management of individual offenders”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1998 at 9031. Indeed, this Court has held that, having regard to the objects of the Act and the statutory scheme generally, the purpose of the initial sentence can properly be characterised as a “‘Damocles sword’ hanging over the head of a person participating in the Drug Court program”: Beal v R (2020) 104 NSWLR 134; [2020] NSWCCA 357 at 150 [73] (Ierace J, Johnson and N Adams JJ agreeing). At 150 [74], the Court went on to remark that:
in October 2018, Mr Pymble was sentenced to imprisonment for 3 years and 4 months, with a non-parole period of 2 years and 2 months, for robbery in company; and
in May 2023, Mr Pymble was sentenced to imprisonment for 2 years, with a non-parole period of 1 year, for aggravated break and enter in company with intent to steal, break and enter with intent to steal, enter dwelling with intent to steal, two counts of larceny, three counts of driving while disqualified, five counts of drive conveyance taken without consent of the owner, police pursuit – drive dangerously, and destroy or damage property. Mr Pymble was on parole for these offences when he committed the offences for which he was sentenced.
The Drug Court Judge similarly did not take this history into account as an aggravating factor. However, it did increase the weight to be given to personal deterrence. No evidence of custodial infractions by Mr Pymble was placed before her Honour. The Drug Court Judge recorded that Mr Pymble’s co-offenders, including the Applicant, had “longer histories”.
While both offenders had significant criminal antecedents for similar offending, the material placed before the sentencing courts discloses that the Applicant’s was longer and had attracted more severe sentences. Furthermore, the Applicant had a lengthy disciplinary record in custody which Mr Pymble did not have.
When viewed in that context, that the Applicant received a sentence of 5 years and 6 months compared to Mr Pymble’s sentence of 4 years is not a “marked and unjustified disparity”: Hung v R [2023] NSWCCA 172 at [32] (Leeming JA, Rothman and McNaughton JJ agreeing). That disparity was justified by the relevant differences in the co-offenders’ subjective cases based on the material placed before the sentencing courts, as well as the seriousness of the further offences for which the aggregate sentences accounted, as reflected in the individual sentences indicated for those offences.
It follows that the ground is not made out. The appeal should be dismissed.