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[2026] NSWCCA 83
Court of Criminal Appeal (NSW)
2026-06-22
Ward P; Cavanagh J; Weinstein J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Carbone v R [2026] NSWCCA 83
Hearing dates: 18 May 2026
Decision date: 22 June 2026
Before: Ward P;
Cavanagh J;
Weinstein J
Decision: (1) Leave to appeal granted.
(2) The appeal is dismissed.
Catchwords: CRIME – appeals – appeal against sentence –applicant contends disparity between sentence imposed on applicant and co-offender gives rise to a justifiable grievance on the applicant’s part –applicant and co-offender involved in joint criminal enterprise murder – applicant convicted after plea of not guilty – co-offender sentenced after plea of guilty and discount – where findings of fact in applicant’s sentence were different to facts agreed in sentencing of co-offender – where subjective factors varied in respect of applicant and co-offender – where finding of special circumstances in co-offender’s case justified reduced non-parole period CRIME – appeals – appeal against sentence – applicant contends sentencing judge erred in failing to find special circumstances – whether COVID-19 pandemic would make conditions in custody more onerous on applicant in the future – where sentencing judge expressly accepted that COVID-19 pandemic had made conditions in custody more onerous as part of overall sentencing exercise but declined to find special circumstances on that basis – where applicant made no submission on sentence as to future impact of COVID-19 pandemic on conditions in custody – whether applicant has established a House v The King error
Original judgment source is linked above.
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
Cases Cited: 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 (1994) 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
Category: Principal judgment
Parties: Diego Carbone (Applicant)
Rex (Respondent)
Representation: Counsel:
A Francis (Applicant)
S Lind (Respondent)
Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)
File Number(s): 2014/00255002
[This headnote is not to be read as part of the judgment]
On 11 August 2014, Bradley Dillon (“the deceased”) was stabbed and shot in the carpark of a Leichhardt shopping centre. On 10 December 2021, the applicant, Diego Carbone, was convicted following a plea of not guilty by judge-alone trial of the deceased’s murder. While the applicant was arrested shortly after the events of 11 August 2014, his co-offender, Antonio Bagnato, fled to Thailand, where he was subsequently imprisoned for a number of years in relation to alleged offences committed in that country. Mr Bagnato was eventually deported and first entered custody in New South Wales on 23 July 2022.
The applicant was sentenced to a term of imprisonment comprising a non-parole period of 18 years with a balance of term of 6 years. Nearly three years later, after a plea of guilty, Mr Bagnato was sentenced to a term of imprisonment consisting of a non-parole period of 12 years with a balance of term of 5 years and 3 months.
The applicant sought leave to appeal against the sentence imposed on him. The applicant raised two grounds of appeal: first, the sentence imposed upon the applicant’s co-offender (Mr Bagnato) gives rise to a justifiable grievance on the applicant’s part (Ground 1); and second, that the primary judge erred in failing to find special circumstances (Ground 2).
The Court held (Ward P, Cavanagh and Weinstein JJ), granting leave to appeal and dismissing the appeal:
As to Ground 1:
(1) The principle of parity requires that there should not be a marked disparity between sentences imposed upon co-offenders, such as to give rise to a justifiable sense of grievance. It is always open to an offender to complain of a justifiable sense of grievance having regard to a sentence imposed subsequently upon a co-offender.
*Jones v The Queen (*1992) 67 ALJR 376; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 applied. Chen v R; He v R [2018] NSWCCA 95; Rosenberg v R [2022] NSWCCA 295 cited.
(2) It is only where the discrepancy between sentences is not reasonably explained by the degree of difference between the co-offenders and their offending that the disparity is such that appellate intervention is required. The disparity must be gross, marked or glaring.
DS v R [2014] NSWCCA 267 applied.
(3) In determining whether there is a justifiable sense of grievance having regard to the two sentences, the question is always whether the difference between the sentences can be explained by the findings of the sentencing judges and the material before them. The approach is not to consider only the facts as found or agreed in the applicant’s case; to do so would ignore the basis on which the co-offender has been sentenced.
Martellotta v R [2021] NSWCCA 168; Rosenberg v R [2022] NSWCCA 295 applied.
(4) In the circumstances, no justifiable sense of grievance arose. The substantial difference arose because the co-offender obtained a 25 per cent discount for pleading guilty and received the benefit of a finding of special circumstances. Otherwise, the difference in the starting point of one year is explained by the differences in the individual circumstances of each offender which impacted upon the process of instinctive synthesis undertaken by each sentencing judge.
As to Ground 2:
(5) Where a sentencing court expressly takes account of a relevant factor as part of the overall sentencing exercise, to then take account of that factor for the purpose of special circumstances may lead to impermissible double counting.
R v AA [2017] NSWCCA 84; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; R v Fidow [2004] NSWCCA 172 cited.
(6) No error on the part of the sentencing judge had been established. Rather, the sentencing judge found that the COVID-19 pandemic had made the applicant’s custodial circumstances more harsh than usual, taking this into account as part of undertaking the sentencing exercise.
(7) No submission was made to the sentencing judge that a finding of special circumstances was warranted because the COVID-19 pandemic would cause hardship in custody into the future, nor was there any evidence before the sentencing judge which would have permitted such a finding.
THE COURT: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal a sentence imposed upon him by Garling J on 14 April 2022 for the offence of murder.
The matter has a long history.
Bradley Dillon (“the deceased”) was killed on 11 August 2014. The applicant was charged with his murder.
On 12 October 2017, the applicant was found guilty by a jury following a trial before Mathews AJ. The applicant appealed to the Court of Criminal Appeal and, in 2020, his conviction was quashed and a retrial was ordered (Carbone v R [2020] NSWCCA 318). The retrial was by judge alone, before Garling J. As set out in his Honour’s judgment of 10 December 2021 (R v Carbone [2021] NSWSC 1552), his Honour found the applicant guilty of the murder of the deceased.
On 14 April 2022, his Honour sentenced the applicant to a term of imprisonment comprising a non-parole period of 18 years with a balance of term of 6 years, commencing on 23 July 2015. The applicant will be first eligible for release to parole on 22 July 2033.
The applicant again appealed his conviction. The Court of Criminal Appeal dismissed the appeal on 14 February 2024 (Carbone v R (No 2) [2024] NSWCCA 7). At that time, the applicant did not seek leave to appeal from the sentence imposed upon him.
Subsequent to the finalisation of the proceedings involving the applicant, a co-offender, Antonio Bagnato, was sentenced also for the murder of the deceased, following Mr Bagnato’s plea of guilty to the charge against him.
On 20 December 2024, Cavanagh J sentenced Mr Bagnato to a term of imprisonment, consisting of a non-parole period of 12 years with a balance of term of 5 years and 3 months, commencing 25 February 2021. Mr Bagnato will be first eligible for parole on 24 February 2033. Mr Bagnato received a 25 per cent discount on his sentence as he pleaded guilty to the murder of the deceased.
The applicant now seeks leave to appeal from the sentence imposed upon him by Garling J on two grounds of appeal, being:
The sentence imposed upon the applicant’s co-offender (Mr Bagnato) gives rise to a justifiable grievance on the applicant’s part (that is, a parity appeal); and
The sentencing judge erred in failing to find special circumstances.
It is important to observe that neither the applicant nor the Crown suggests any error or seek to challenge any finding made in the sentencing of Mr Bagnato. Indeed, the applicant adopts the findings for the purpose of this appeal.
Rather, the basis of the appeal is said to be a specific error (special circumstances) in the decision of Garling J and a justifiable sense of grievance arising from the difference between the sentence imposed on Mr Bagnato and the sentence imposed on the applicant.
The facts on which the applicant was sentenced are not the subject of any challenge. His Honour made findings of fact on sentence, adopting much of what he said in his conviction judgment.
Having said that, it is important to observe that Mr Bagnato was sentenced on slightly different facts. That is because the facts on which the applicant was sentenced were found following a trial and a sentence hearing. On the other hand, Mr Bagnato pleaded guilty to the charge against him and there was no trial. The findings on sentence were based on agreed facts which were slightly different to the facts found by Garling J. Those differences may have some significance to this appeal.
At this stage, we will merely summarise the circumstances of the offending, coming back to the differences later in this judgment.
The background or context to the offending is that there was a dispute between Cassie Dillon, the sister of the deceased, and a person with whom she was in a relationship, Adrian Riccio, regarding a sum of money (said to be $1,300), which Ms Dillon had lent to Mr Riccio to enable him to attend a rehabilitation centre in Queensland, and a further $1,000, which Ms Dillon alleged Mr Riccio had stolen from her handbag. Mr Riccio had resisted all attempts by Ms Dillon to recover her money. Indeed, there was some threatening conduct by Mr Riccio involving the use of intermediaries.
Ms Dillon then turned to her brother, the deceased, for assistance. Ms Dillon told Mr Riccio that she would get her brother involved if he did not repay the money to her. As it turns out, Mr Riccio and Mr Bagnato were both members of a gymnasium called the “St Michael’s Fight Club” (“the Fight Club”). The deceased knew several members of the club and attempted to arrange a meeting with Mr Bagnato, who was regarded as a man of influence among the Fight Club members. The deceased wanted to resolve the matter peacefully, particularly as Mr Riccio had made threats against the deceased’s wife and children.
On 11 August 2014, the applicant and Mr Bagnato arranged to meet up for the purposes of a meeting with the deceased. Mr Bagnato and the applicant drove (Mr Bagnato driving) into a loading dock at MarketPlace Leichhardt. Whilst waiting in the vehicle, a “burner phone” which had been brought along by Mr Bagnato was used to telephone the deceased on three occasions over a four-minute period. There were a number of conversations between the deceased and Mr Bagnato, which led to a meeting taking place between Mr Bagnato, the applicant and the deceased at the TAB in a shopping centre adjacent to MarketPlace Leichhardt.
Thereafter, and following further communications, the deceased went into the carpark at MarketPlace Leichhardt. Mr Bagnato parked their vehicle away from the carpark, in Treadgold Street, Leichhardt which Garling J was satisfied beyond reasonable doubt was for the purpose of allowing them to make a quick and unimpeded escape after meeting with the deceased.
Exactly what happened in the carpark leading to the death of the deceased is in dispute.
However, there is no dispute that there was a physical altercation between the applicant and the deceased in the carpark. Garling J accepted that, at one point, the applicant held the deceased from behind, using his arm in a hold resembling a choke hold, during which time the deceased reached behind him with his left hand and scratched the applicant’s left cheek, which resulted in the DNA of the applicant being found underneath the fingernails of the left hand of the deceased.
During that struggle, the deceased was stabbed from behind on four occasions and seriously wounded. Garling J was satisfied that these wounds were inflicted during or immediately after the struggle with the applicant. Further, as the deceased attempted to flee, he was shot at and struck by three of five bullets fired from a Glock pistol. For reasons which his Honour explained, Garling J was satisfied beyond reasonable doubt that it was Mr Bagnato who fired the gun.
On the agreed facts before Cavanagh J, it was unclear which of the two co-offenders stabbed or indeed shot the deceased. The Crown conceded that the evidence did not establish to the requisite standard that Mr Bagnato shot or stabbed the deceased. The basis upon which Mr Bagnato was to be sentenced for murder was that he participated in a joint criminal enterprise to cause grievous bodily harm to the deceased.
After the struggle, the stabbing and the firing of shots, the applicant and Mr Bagnato ran from the scene and escaped in the vehicle which they had earlier parked on Treadgold Street. Mr Bagnato fled the country, flying to Thailand very shortly after the offending. The applicant was arrested as he also attempted to leave the country to fly to Thailand.
The applicant was charged with the murder of the deceased.
Garling J was satisfied that there was a joint criminal enterprise between the applicant and Mr Bagnato to attack the deceased and cause him grievous bodily harm. The applicant was taken to be responsible for the actions of Mr Bagnato in furtherance of the enterprise. His Honour accepted that the applicant was equally guilty for the “brutal, callous and gratuitous murder” of the deceased. His Honour was satisfied that the offence fell “above the mid-level of objective seriousness” for the offence of murder.
His Honour was not satisfied that the Crown had established to the requisite standard that it was the applicant who wielded the knife, which was used to stab the deceased, or that it was the applicant who fired the shots. His Honour was ultimately not able to conclude which of the offenders stabbed the deceased.
Having said that, his Honour accepted that the applicant’s moral culpability for the murder was substantially less than that of Mr Bagnato. His Honour accepted that the applicant’s personality was such that he would have found it difficult to resist taking part in the meeting and falling in with Mr Bagnato’s wishes, or perhaps what the applicant perceived his wishes to be. His Honour accepted the submission that the applicant did not receive any financial benefit from his participation in the murder.
His Honour accepted that any sentence imposed must reflect the applicant’s reduced moral culpability having regard to the role he undertook.
Garling J noted, at [44], that the applicant grew up in a good family and was well-educated. On sentencing, his Honour referred to a report of a psychologist, Ms Grujoska, in which reference was made to the applicant using illicit drugs when he was a teenager, the applicant being bullied at school and the applicant experiencing learning difficulties. Ms Grujoska accepted that the applicant met the criteria for a diagnosis of major depressive disorder.
Garling J also referred to the report of another psychologist, Mr Machlin, which noted that, in 2017, the applicant met the formal psychiatric diagnoses of adjustment disorder with mixed anxiety and depression, a previous major depressive disorder or persistent depressive disorder, and a substance use disorder which was in remission.
The applicant did not give evidence on sentence. Members of his family provided material in support. The applicant wrote a letter to the Court, expressing his regret and putting before the Court a description of the hardship in prison due to the COVID-19 pandemic.
Garling J observed, at [54], that “considerable caution” needed to be taken in accepting at face value the letter from the applicant when he did not give sworn evidence. Having said that, his Honour was satisfied that the applicant’s mental health conditions would mean that his time in custody would be more burdensome than otherwise.
Having regard to the applicant’s prior convictions, his Honour could not regard the applicant as a person of good character, but having regard to his family support and the length of time he would be required to be in prison and serving a period of parole, he was satisfied that the applicant had reasonable prospects of rehabilitation.
We will consider ground 2 firstly.
Garling J declined to make a finding of special circumstances, finding, at [64]:
“I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crime (Sentencing Procedure) Act. In my view, the usual period of parole will be adequate to assist [the applicant] to reintegrate into the community on the completion of his non-parole period. There is no other sufficient reason which has not already been taken into account to find special circumstances.”
In the applicant’s written submissions on sentence, he identified a number of matters which he submitted would warrant a finding of special circumstances, such as to permit a variation of the statutory non-parole period (ss 44(2) and 44(2B) of the Crime**s (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”)).
Those factors were:
The time in custody would be the applicant’s first time in custody;
He was vulnerable in prison;
Hardship in custody due to COVID-19;
He had good prospects of rehabilitation which would be assisted by a longer parole period; and
His youth, particularly having regard to the age he was at the time of the offending.
The applicant submitted on sentence that a finding of special circumstances should be made, such that the non-parole period should be in the order of 50-60 per cent of the head sentence.
In an appeal on a ground such as this, it is necessary to identify a House v The King type error: House v The King (1936) 55 CLR 499; [1936] HCA 40. The applicant submits that in declining to make a finding of special circumstances, the sentencing judge erred in not having regard to the impact of COVID-19 in terms of hardship in custody in the future. That is, his Honour erred in failing to have regard to a relevant sentencing factor.
The Crown submits that no such error is demonstrated, referring to the submissions made by the applicant on sentence and his Honour’s findings.
The applicant did not address the issue orally during the sentence proceedings. Rather, the applicant relied on written submissions, identifying the matters to which we have just referred as grounding a finding of special circumstances.
In respect of the COVID-19 issue, the applicant’s written submissions included:
“Hardship in custody due to the COVID-19 pandemic necessitating restrictions upon correctional inmates, including limitation of visiting rights and access to programs: Valentine v R [2020] NSWCCA 116 at [62], DPP v Hersi [2020] VCC 347, R v Tangi (No 12) [2020] NSWSC 547 at [57]-[58].” (emphasis in original)
In our view, his Honour both addressed and explained the reason he decided not to vary the statutory ratio on the basis of special circumstances.
Firstly, he made an express finding that the usual period of parole would be adequate to assist the applicant to reintegrate into the community on completion of his non-parole period.
Secondly, his Honour explained that there was no other sufficient reason which had not already been taken into account to find special circumstances. This is a reference back to his Honour’s earlier findings, particularly at [60] of the sentencing judgment, where his Honour said he was satisfied that the applicant’s present custodial circumstances and the restrictions imposed over the previous two or more years to keep correctional centres free of COVID-19 had made the applicant’s conditions of imprisonment more harsh than usual.
The applicant does not identify any failure on the part of Garling J to take account of any factor (in making the finding as to special circumstances) other than the impact of COVID-19 in the future. Thus, the House v The King error is identified only as a failure to take account of a relevant matter, being the effect of COVID-19 in the future.
The problem for the applicant is that:
No submission was made to his Honour that he should find special circumstances because of the impact of COVID-19 in the future; and
There was no evidence before his Honour which would have permitted such a finding in any event.
The only submission on the impact of COVID-19 was that to which we have already referred, being the submission made in writing. There was no elaboration orally. There was nothing in the written submissions which directed his Honour to the suggestion that he should be making a finding about the impact of COVID-19 in the future (as a distinct finding from his general finding regarding COVID-19).
Further, no evidence was adduced by the applicant as to the likelihood that the COVID-19 restrictions enforced in prison in the period 2020-2021 would be imposed on a long or even a short-term basis into the future.
His Honour took account of the impact of COVID-19 in determining the overall sentence. His Honour explained why he would not be taking that into further account for the purpose of special circumstances and in any event, to have done so, may have led to impermissible double counting (R v AA [2017] NSWCCA 84 at [74] (Beech-Jones J, with whom Leeming JA and R A Hulme J agreed); R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; at [67] (Spigelman CJ, with whom Mason P, Grove and Sully JJ, and Newman AJ agreed); R v Fido**w [2004] NSWCCA 172 at [18] (Spigelman CJ, with whom Hulme J and Adams J agreed).
For reasons we have identified, his Honour did not err in not making any specific finding as to the impact of COVID-19 in the future.
The applicant has not established ground 2.
The applicant complains that he suffers from a justifiable sense of grievance because of the disparity between the sentence imposed upon him and that imposed upon Mr Bagnato.
The principle of parity requires that there should not be a disparity or marked disparity between sentences imposed on co-offenders, such as to give rise to a justifiable sense of grievance (Lowe v The Queen (1994) 154 CLR 606 at 610; [1984] HCA 46 (Gibbs CJ, with whom Wilson J agreed at 616); Rosenberg v R [2022] NSWCCA 295 at [4] (Beech-Jones CJ at CL, with whom Meagher JA and Garling J agreed)).
It is important to observe that it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between the co-offenders and their offending that the disparity is such that appellate intervention is required. The disparity must be gross, marked or glaring (DS v R [2014] NSWCCA 267 at [39] (Bathurst CJ, Fullerton and Davies JJ)).
Further, where co-offenders have been sentenced on different facts (as has occurred to a certain extent in this matter), the comparison must be between the facts as set out in one offender’s case and the facts set out in the other offender’s case. The approach is not to consider only the facts as found or agreed in the applicant’s case. To do so would ignore the basis on which the co-offender has been sentenced (see Rosenberg at [10]).
It is always open to an offender to complain of a justifiable sense of grievance having regard to a sentence imposed subsequently upon 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, with whom White JA and Harrison J agreed)).
However, a parity appeal does not provide an opportunity for an offender to complain about the sentencing of a co-offender. Rather, an applicant must demonstrate a justifiable sense of grievance having regard to the sentencing of the co-offender, which is not subject to challenge, and the sentence imposed on him.
In determining whether there is a justifiable sense of grievance having regard to the two sentences, the question is always whether the difference between the sentences can be explained having regard to the findings of the sentencing judges and the material before both judges (Martellotta v R [2021] NSWCCA 168 at [58] (Adamson J with whom Basten JA and Walton J agreed)).
A parity appeal such as this remains difficult in circumstances in which the question of parity between co-offenders was expressly considered and dealt with by the second sentencing judge and there is no challenge to the findings of that sentencing judge. This is because implicit in those findings is an explanation for the differences between the sentences.
In these circumstances, it must be incumbent upon the applicant to demonstrate that, without challenging the findings of the second sentencing judge or even the sentence imposed, the objective and subjective features of the applicant’s case are such that he has a justifiable grievance based on the lesser sentence imposed on the co-offender.
Two days after the murder, Mr Bagnato fled to Thailand. On 7 December 2015, Mr Bagnato was arrested in Cambodia, apparently having left Thailand to go to Cambodia following the death of a person in Thailand. He was returned to Thailand and kept in prison in Pattaya in Thailand from 7 December 2015 to 7 February 2017, in extremely difficult conditions. He was ultimately convicted in relation to the death of the person in Thailand and sentenced to death. For a period of 14 months, he remained on death row, awaiting the outcome of an appeal.
Mr Bagnato’s appeal was successful and his sentence was reduced to a term of imprisonment. When he was due to be released on 7 December 2018, he was re-arrested and charged with firearms offences, leading to him remaining in custody in Thailand for a further four years.
Mr Bagnato first entered custody in New South Wales on 23 July 2022. This explains the background to the delay in charging of Mr Bagnato.
Yet, as was explained in the sentencing judgment, all of the events which happened in Thailand arose because he fled Australia having killed the deceased. That which happened to him was of his own making. He was not afforded any reduction in sentence or credit for the time originally spent in prison in Thailand when he was facing charges relating to the death of a person in Thailand.
He was entitled to some allowance for time served in Thailand, but only for a period of 13 months. That did not result in any lesser sentence being imposed upon Mr Bagnato but merely resulted in the commencement date of the sentence being for a period whilst he was in prison in Thailand awaiting extradition to Australia.
Mr Bagnato was sentenced to a term of imprisonment of 12 years with a balance of term of 5 years and 3 months.
On the face of the sentences, there is a substantial difference in the sentences imposed but that substantial difference is explicable having regard to two important factors:
Mr Bagnato pleaded guilty. He received a 25 per cent discount. The applicant did not obtain the benefit of any discount for any plea of guilty; and
A finding of special circumstances was made in favour of Mr Bagnato. This was because Cavanagh J accepted that he would need a slightly longer period on parole for the purposes of assisting his rehabilitation and reintegration into the community, having regard in particular to the long period that he had been in custody and the opinion of his psychologist. Garling J did not find special circumstances with respect to the applicant but took account of the other reasons put forward by the applicant for special circumstances in fixing the overall sentence.
These matters account for what might be viewed as the substantial differences in the overall sentences and the non-parole periods. Neither of these matters gives rise to a justifiable sense of grievance as the reasons for the differences are explicable and apparent and the applicant does not suggest to the contrary.
It is the difference in the starting point about which the applicant complains. The starting point for Mr Bagnato’s sentence was 23 years, being one year less than the starting point for the applicant.
Two things must be said:
Firstly, the starting points are different, but not markedly so. The difference is less than 5 per cent; and
Secondly, the imposition of the total sentence (in Mr Bagnato’s case before the discount) is a reflection of the instinctive synthesis of the objective and subjective features of each offender’s case. Whilst it is appropriate for the applicant to compare and contrast, in matters which necessarily involve a consideration of quite a number of sentencing factors, it is perhaps difficult for the applicant to establish through one factor that he has a justifiable sense of grievance arising from such a small difference.
It is important to emphasise that Mr Bagnato was required to be sentenced according to what is just and appropriate in his circumstances.
The question on this appeal is not whether the sentence imposed on Mr Bagnato was not just, but rather whether, in light of the sentence imposed on Mr Bagnato the applicant has a justifiable sense of grievance.
In our view, he should not have, because of the differences in the findings made on sentence.
As identified by the applicant, the most significant positive difference, that is, positive in favour of the applicant, is that Garling J found that Mr Bagnato shot the deceased and that the applicant’s role was subsidiary to that of Mr Bagnato. His Honour found that the applicant’s moral culpability was substantially less than that of Mr Bagnato. Yet, on the facts agreed in Mr Bagnato’s sentence proceedings, Cavanagh J was unable to distinguish between the roles of the offenders and was unable to make any finding as to which offender may have been the organiser or driver of the events which unfolded in the carpark.
Further, although Garling J accepted that Mr Bagnato shot the deceased, Cavanagh J was unable to make any finding as to who either shot or stabbed the deceased, having regard to the agreed facts before his Honour.
None of the other differences of substance are what might be termed as positive towards the applicant.
For example, Garling J found that there was an aggravating factor under s 21A(2)(j) of the Sentencing Act, on the basis that the applicant was in breach of conditional liberty at the time of the offending. No such aggravating factor was applied in sentencing Mr Bagnato.
The applicant had a prior conviction for entering a building with intent to commit an indictable offence. Mr Bagnato had no criminal history in New South Wales and this was taken into account as a mitigating factor in accordance with s 21A(3)(e) of the Sentencing Act. Because of the applicant’s criminal history, Garling J found that he was disentitled to any leniency which would otherwise be available to him.
In terms of remorse, there was no finding of remorse for the applicant. Cavanagh J accepted that Mr Bagnato was remorseful but also found that any finding of remorse must be tempered by the fact that he had fled to Thailand and came rather late to the idea of remorse and contrition.
In summary, there were similarities between the subjective cases of the applicant and Mr Bagnato, but as we have highlighted, also some differences, in the sense that Mr Bagnato had the benefit of a number of positive findings, which the applicant did not receive.
The substantial difference in the sentences imposed is a reflection of the fact that Mr Bagnato pleaded guilty and he had the benefit of a finding of special circumstances. Other than that, the relatively minor difference (one year) in the starting point is a reflection of the other differences in their cases. The difference is explicable for the reasons we have set out.
In the end, we are not satisfied that the lower starting point of one year is a gross, marked, or glaring disparity, and for the reasons set out, we are not satisfied that the disparity should give rise to a justifiable sense of grievance.
In these circumstances, the applicant has not established ground 2.
Therefore, the orders of the Court are as follows:
Leave to appeal granted.
The appeal is dismissed.
**********
Carbone
R
[1936] HCA 40
[2020] VCC 347
(1936) 55 CLR 499
(1993) 67 ALJR 376
(1994) 154 CLR 606
(2001) 53 NSWLR 704
(1984) 154 CLR 606