Zahed v R

Court of Criminal Appeal (NSW)|2024-08-28|Before: Fagan J, Adams J, Faulkner J, Button J

HEADNOTE [This headnote is not to be read as part of the judgment] Tarek Zahed appealed against a sentence imposed for hindering a police investigation into the unlawful killing of Youssef Assoum, contrary to s 315(1) of the Crimes Act 1900 (NSW). Following a late plea of guilty, the applicant was sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months. On 10 December 2014 Mr Assoum was detained in a Volkswagen Touareg, violently assaulted and shot in the right thigh at close range. Abdul Zahed, the applicant's brother, was in the vicinity when this assault occurred and was at the scene when Mr Assoum was removed from the vehicle and placed unconscious near Bankstown Hospital. Mr Assoum was pronounced dead in the early hours of 11 December 2014. In the following months Abdul gave several false and misleading statements to investigating officials with the object of assisting those involved to evade detection and punishment. He entered a late plea of guilty to a charge of being accessory after the fact to the murder and was sentenced on 7 June 2024 to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 6 months. After the events of 10 December 2014, Triantefilos Vlangos was requested by another male, neither the applicant nor his brother, to destroy the Volkswagen Touareg in which Mr Assoum had been assaulted and shot. Vlangos was charged with intentionally attempting to destroy property by fire, contrary to s 195(1)(b) of the Crimes Act. Considering time already served (including a restrictive period of home detention), as well as his plea of guilty, the charge against Vlangos was disposed of by way of an 18-month Community Corrections Order. The applicant's single ground of appeal was that he had a justifiable sense of grievance having regard to the sentences imposed on Vlangos and Abdul Zahed. The Court (Fagan J, Adams J and Faulkner J) dismissed the appeal. The Court held that the applicant's sentence was not comparable with that imposed on Vlangos due to the real, practical and substantive differences in their offending. Unlike the applicant, Vlangos was sentenced to a simple property crime and it was not alleged that he acted with knowledge of the death of Mr Assoum or of any connection between the vehicle and a police investigation. Although this not argued by the Crown, either at first instance or on appeal, Vlangos could not properly be characterised as a co-offender with respect to whom the applicant could legitimately expect parity of sentence. In consideration of Abdul Zahed's sentence, the Court held that whilst the applicant's sentence was only slightly shorter than his brother's, this could not give rise to a justifiable sense of grievance. Taking into account a comparison of all objective and subjective features of their respective cases, it was open to the learned sentencing judge in the exercise of his discretion to differentiate the sentences to the degree that he did.

JUDGMENT

THE COURT: Tarek Zahed applies for leave to appeal from a sentence imposed by Button J on 12 March 2024 for the offence of hindering a police investigation of a serious indictable offence, namely the unlawful killing of Youssef Assoum. The charge was laid under s 315(1) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 7 years imprisonment. Following a late plea of guilty and allowing a discount of 5% on that account, a sentence of 3 years and 6 months imprisonment was imposed with a non-parole period of 2 years and 4 months.
Youssef Assoum was killed on the night of 10-11 December 2014 and the applicant's actions that hindered the investigation were carried out on 12 December 2014. He was arrested on the hindering charge on 28 August 2022, more than seven years later. From the date of his arrest the applicant was remanded in custody. The commencement of his sentence was backdated so that all time on remand would count.
The sole ground of appeal is as follows: The applicant has a justifiable sense of grievance having regard to the sentences imposed on Triantefilos Vlangos and Abdul Zahed.
Abdul Zahed ("Abdul") is the applicant's younger brother. The applicant was 34 years old in December 2014 and Abdul was 30. Abdul was also sentenced by Button J but not until 7 June 2024, three months after sentence had been passed on the applicant. Abdul pleaded guilty to a charge of being an accessory after the fact to the murder of Youssef Assoum, contrary to s 349 of the Crimes Act. Abdul entered a late plea of guilty and received a discount of 5%. On 7 June 2024 he was sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 6 months. The maximum penalty for an offence against s 349 is imprisonment for 25 years.
Abdul was arrested on this charge on 6 September 2022. He was then serving an aggregate sentence of 2 years and 6 months with a non-parole period of 1 year and 8 months for a group of offences committed on 20 January 2022 (drive while licence cancelled, acquire ammunition contrary to prohibition order, deal with proceeds of crime and supply prohibited drug). The non-parole period of the aggregate sentence expired on 19 September 2023. Button J allowed 6 months of backdating of the sentence that he imposed, "to reflect broadly the concurrence that I think would have been granted if the offender had been dealt with for [the offence of accessory after the fact to the murder of Youssef Assoum] at the same time as the imposition of his most recent aggregate sentence". When Abdul acted as an accessory after the fact to murder in December 2014 he was on parole for still earlier offences. He was initially charged with concealing an offence in relation to the death of Youssef Assoum. That charge resulted in his parole being revoked for a period of 2 months and 4 days between December 2014 and February 2015, until the initial charge was withdrawn. The Crown accepted that the short period of revocation was referable to conduct of Abdul for which sentence was to be passed by Button J and it acquiesced in further backdating of the commencement by an equivalent period.
The sentence imposed on Triantefilos Vlangos ("Vlangos"), as referred to in the applicant's appeal ground, was for attempting to destroy property by fire, intentionally, contrary to s 195(1)(b) of the Crimes Act. The maximum prescribed penalty pursuant to ss 195(1)(b) and 344A is 10 years imprisonment but the charge was dealt with in the Local Court, where the Magistrate could impose no more than 2 years. The property concerned was the deceased's Volkswagen Touareg motor vehicle in which he had been violently assaulted and then shot in the leg late on the evening of 10 December 2014. Vlangos attempted to destroy the vehicle by fire in the early hours of 20 December 2014. He was arrested on 1 September 2022 and was remanded in custody for 3 months, before release on bail conditions that were the equivalent of home detention for approximately 7 months. Taking those prior restrictions on liberty into account and allowing a 15% discount for his plea of guilty the learned Magistrate disposed of the matter by way of a Community Corrections Order of 18 months duration. The sentence proceeding took place and the order was made on 15 December 2023.
The police investigation of the death of Youssef Assoum did not identify the person or persons responsible. No one has been tried for his murder. For that reason there are gaps and uncertainties in the following summary of the facts. The summary given here is a consolidation drawn from separate statements of agreed facts provided to Button J on the sentencing of the applicant and Abdul and provided to the Local Court on the sentencing of Vlangos.

Facts

Late in the evening of 10 December 2014 the deceased was detained and violently assaulted inside his Volkswagen Touareg. He was restrained at his ankles and wrists and beaten severely around the head and body. Amongst other injuries he sustained complex blunt force damage to both sides of his head, two fractures of the skull, subarachnoid haemorrhage, some brain injury and extensive bruising to his trunk. The deceased was shot in the right thigh at close range with a firearm. The projectile perforated the right femoral artery.
Abdul was sentenced on the basis of an agreed fact that he was in the vicinity when the assault and shooting of Youssef Assoum took place and that he knew the persons responsible. A male known to him drove both him and the deceased from the location where the attack upon the deceased had taken place to a street near Bankstown Hospital, where the deceased was removed from the vehicle and placed unconscious on the ground. Staff of the hospital were alerted and they summoned emergency services who attended at about 12:10 am on 11 December 2014. Abdul was present at the scene on the street. Abdul had taken his shirt off and it had been tied around the deceased's right leg at the site of the gunshot wound. Abdul was shouting for assistance from those who attended the scene. The deceased had no pulse. His Touareg motor vehicle was nearby and was driven away by another male shortly after emergency personnel arrived. The deceased was transported to Liverpool Hospital and pronounced dead in the Emergency Department there at 12:47 am. The proximate cause of death was massive blood loss through the perforated femoral artery.
Abdul made numerous false statements with the object of assisting the perpetrator(s) of the assault and shooting to evade detection and punishment. At the scene near Bankstown Hospital he claimed to hospital staff that he lived in the street, that he heard a noise and came out to investigate and that he then found the deceased in his injured and unconscious state. When police arrived he gave a different version, identifying the deceased and saying "they left us here". He falsely claimed that "they stole my phone and driver's licence".
The Touareg motor vehicle was driven to the home of the Zahed brothers' cousin. Investigating police did not ascertain when it was so driven or by whom. On 12 December 2014 the applicant and Male A attended at the cousin's home, collected the Touareg and drove it to Male A's residence. There, the applicant instructed Male A to clean the vehicle and the two of them together wiped down the interior surfaces to remove blood from the front seat, the floor and the dashboard. The applicant then instructed Male A to have the car delivered to a friend of one of them who operated a wrecking yard, who would "chop it up".
The agreed facts in the sentencing of the applicant included that, at the time of engaging Male A to destroy the Touareg, he: a. knew that the deceased had died; b. suspected that [Abdul] was involved in the deceased's death; c. knew that police were investigating the deceased's death and had charged [Abdul] with concealing a serious indictable offence; d. believed that the deceased's vehicle was relevant evidence to the police investigation into that death and e. intended by his actions to prevent the police discovering evidence which was relevant to their investigation.
Male A was unable to arrange destruction of the vehicle by the operator of the wrecking yard and instead drove it to Vlangos' residence and agreed to pay him $2,000 to "blow it up". Male A told Vlangos that the vehicle was stolen. It was stored in Vlangos' garage until 20 December 2014. On that day Vlangos attempted to carry out his mission in parkland at Georges Hall. He distributed accelerant in or on the vehicle and ignited it. Police observed the blaze and it was extinguished. On 23 and 26 December 2014 investigators were able to make a forensic examination of the partly damaged vehicle. The registration plates affixed had been stolen from a different vehicle. Vlangos' DNA was detected on the plates, indicating that he had made the swap.
Fingerprints of the applicant were developed at two locations on the exterior of the bodywork of the fire damaged Toureg. Two impact damaged bullets were located in the passenger compartment with human blood that was matched by DNA analysis to the deceased.
On 16 December 2014 Abdul gave a false account of the events of 10 December 2014 to his parole officer. He asserted that he had been in the company of the deceased when he, Abdul, was struck to the back of the head and rendered unconscious. He said that when he came around he saw the deceased bleeding, he performed CPR on him and then went to the hospital to summon help.
On 7 January 2015, in an intercepted phone conversation the applicant instructed Abdul to make certain misleading statements to police to hinder their investigation of the murder. The applicant said, "You remember [the deceased] coming. You should remember nothing. If you copped a beating, you don't remember nothing brother. … After the beating, you don't remember nothing brother. All you remember is fucking waking up next to [the deceased]".
On 12 January 2015 Abdul provided a written statement to his solicitors, which they forwarded to police on 13 January 2015. Therein he asserted that he and the deceased had gone for a drive to an unknown house and that two or three people wearing balaclavas suddenly appeared and he was knocked unconscious. The next thing he remembered was waking up with the deceased lying next to him badly injured, whereupon he applied his shirt as a tourniquet to the deceased's leg.

Principles of parity in sentencing

The judgment of Yehia J in Keen v R [2024] NSWCCA 157 includes at [143]-[146] reference to the leading current authorities on the principles of parity in sentencing. For present purposes the following extracts from the authorities to which her Honour referred will suffice: There must not be a marked disparity between the sentences imposed on co-offenders such as to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 - 610 per Gibbs CJ. [The] "parity principle" … requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ). The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge [citations omitted]. It is not necessary to find a "gross, marked or glaring" discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, "marked disparity" or "marked and unjustified disparity": Fenech v R [2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89]: see Hung v R [2023] NSWCCA 172 at [32] (Leeming JA, Rothman and McNaughton JJ agreeing).
The applicant's argument on the present application is that the sentence he was given is not sufficiently shorter than the sentence imposed upon Abdul to reflect differences in the particulars of their offending and in their respective levels of culpability and subjective circumstances. Further, it is argued that the greater severity of his sentence compared to that of Vlangos is out of proportion to the measure by which the objective and subjective circumstances of his case were more adverse than those bearing upon Vlangos' sentence.

Incomparability of Vlangos' sentence

In the applicant's sentence proceeding the Crown tendered the statement of agreed facts on which Vlangos was sentenced as well as Vlangos' criminal history. In written submissions the Crown referred to Vlangos as a co-offender and submitted that "details of the co-offender's plea and subsequent sentence [are] of limited relevance save to demonstrate the elevated role of [the applicant] as the directing mind". On the basis that the Crown accepted that parity with the sentence imposed upon Vlangos was a relevant consideration in sentencing the applicant, his Honour held as follows: [34] Separately, because I accept that he can be broadly thought of as a co-offender, I have reflected on the sentence imposed upon Mr Vlangos, the gentleman who tried to dispose of the vehicle. I have done so to ensure that the offender cannot have an objectively justifiable sense of grievance when he compares the sentence that I shall impose with the sentence imposed on Mr Vlangos. [35] He pleaded guilty to one charge of attempting to intentionally destroy property by fire, an offence that carries a maximum penalty of imprisonment for 10 years on indictment, and a jurisdictional limit of imprisonment for two years when dealt with in the Local Court, as it was in this case. He was sentenced for his failed effort to destroy the vehicle by fire, using an accelerant. During the investigation of that offence, he lied to the police, and denied any involvement in the matter. He was ultimately sentenced to a CCO of 18 months, which is set to expire in June 2025. [36] There are a number of important points of distinction between the two men, as follows. Mr Vlangos possessed a criminal record of some length, but certainly not as serious as that of the offender. He was not said by either party to have been subject to conditional liberty when he offended. Thirdly, he was the factotum, and this offender [the applicant] was the organising mind. Finally, the two matters were dealt with in different jurisdictions, to my mind quite appropriately. For those reasons, although I have borne in mind the sentence of that other offender, and I accept that some points of distinction argue the other way, I feel comfortable in imposing a somewhat more severe sentence on this offender.
In this Court the Crown adhered to its acceptance that parity with Vlangos' sentence was a relevant consideration in sentencing the applicant. The Crown contended that the difference between the respective sentences of the two men at first instance appropriately reflected "the differences in objective criminality, moral culpability and subjective circumstances". Assuming parity considerations to be applicable, the Crown's contention is amply supported by the points of comparison to which the learned sentencing judge referred.
Although the Crown did not dispute the need to consider parity between the applicant and Vlangos, either at first instance or on appeal, in truth the question did not arise. In Kiraz v R [2023] NSWCCA 177 at [42]-[43] RA Hulme J explained that the principle is only engaged on appeal where the appellant seeks to compare his or her sentence with that imposed on a co-offender who was involved in the same criminal enterprise - as follows: [42] There is no doubt that the parity principle is concerned with the comparison of sentences imposed upon co-offenders involved in the same criminal enterprise (even if charged with different offences arising therefrom). It has been confirmed by the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 per French CJ, Crennan and Kiefel JJ at [30] and in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [30]. The same was said in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 (per Campbell JA at [136]-[137], [202] and per Howie J at [246]). [43] The parity principle is not, however, concerned with the comparison of sentences imposed upon persons who were not co-offenders: R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at [66] (Johnson J); Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [148]-[149] (Bathurst CJ).
Vlangos was not in any sense or to any degree involved in a common criminal enterprise with the applicant. On the agreed facts, the applicant's offending constituted a knowing, deliberate obstruction of a police investigation into an unlawful killing. The agreed facts with respect to Vlangos show that he was sentenced for a simple property crime. There was no allegation that he knew of the death of the deceased, let alone that he knew anything about the circumstances in which it had occurred or that there was an investigation concerning it or that the vehicle he was tasked by Male A to destroy had, or might have had, any connection with the death. Although forensic examiners were able to find blood on some part of the interior of the vehicle after the fire, it was no part of the facts on which Vlangos was sentenced that blood was visible to the naked eye when he received the vehicle after the wipe down by the applicant and Male A, or that he actually saw the blood and should have inferred foul play, or that he noticed the two bullet holes that police subsequently found.
Vlangos was sentenced on facts that he had no contact at all with the applicant. His attempt to destroy the vehicle by fire was undertaken pursuant to a request and offer of reward from an intermediary, Male A. In a real, practical and substantive sense the offending for which the applicant was sentenced had nothing in common with Vlangos' offending. For that fundamental reason the single appeal ground in this case could not be supported by comparison with the penalty imposed upon Vlangos.

Comparative criminal records of the applicant and Abdul

From 1993 (at the age of about 13 years) up to December 2014 the applicant committed numerous offences including violent interactions with police. By July 2003, at age 23, his offending had escalated to malicious infliction of grievous bodily harm (for which he was sentenced to 5 years imprisonment with a non-parole period of 3 years). In September 2009 at age 29 years he discharged a firearm with intent to cause grievous bodily harm and was sentenced to 8 years with a non-parole period of 5 years. The applicant had been released to parole under the last-mentioned sentence approximately two months prior to committing the offence of hindering an investigation in December 2014.
After commission of that offence, which is the subject of the present appeal, up to his arrest for it on 28 August 2022, the applicant dealt in proceeds of crime (September 2016 to January 2019: 14 months imprisonment with a non-parole period of 9 months) and he carried out acts with intent to pervert the course of justice (May 2019: community corrections order 9 months). From about late 2014 or 2015 the applicant was involved in an outlaw motorcycle gang, in which he rose to a senior position. The applicant's record disentitled him from leniency and contributed to his Honour's lack of satisfaction, on balance, that he would be rehabilitated.
In February 1999 at the age of 14 Abdul committed offences of detain for advantage and aggravated break and enter involving a dangerous weapon. He was not dealt with for those matters until 2008, at which time he was sentenced to 4 years and 3 months imprisonment. He served the non-parole period of that sentence, 12 months, in 2008-2009. Also at the age of 14 years, in April 1999, Abdul committed another offence of aggravated break and enter, which attracted a sentence of 3 years with a non-parole period of 1 year (served in 2000-2001, in juvenile detention). In April 2002 at age 17 he maliciously inflicted grievous bodily harm and was sentenced to 1 year and 6 months with a non-parole period of 9 months. In June 2003 at age 19 he carried out an aggravated robbery and other offences and was sentenced to a total effective term of 7 years with a non-parole period of 4 years. In September 2011 at age 26 he was in possession of an unauthorised prohibited firearm (a semiautomatic pistol) and received a sentence of 4 years and 3 months with a non-parole period of 2 years and 3 months. That is the sentence referred to earlier, under which he was released to parole on 30 May 2014 and was still subject to parole in December 2014.
After commission of the index offence and before his arrest on 6 September 2022 Abdul committed an offence on 29 January 2019 of threatening a potential witness for which he was sentenced to 1 year and 9 months with a non-parole period of 1 year. On 20 January 2022 he committed offences of driving while licence cancelled, acquiring ammunition subject to a prohibition order, dealing with proceeds of crime and supply prohibited drug. An aggregate sentence of 2 years and 6 months was imposed with a non-parole period of 1 year and 8 months. That sentence commenced on 21 January 2022 and was still being served when the index charge was laid.
As with the applicant, the learned judge found that Abdul's criminal record disentitled him to leniency. It is a worse record than that of the applicant but, on the basis of other considerations such as Abdul's attempts to overcome opioid addiction, his participation in therapy while in custody and a positive relationship with a partner and young daughter, his Honour expressed "very guarded optimism" with respect to the possibility of rehabilitation.

Comparison of other subjective circumstances of the applicant and Abdul

Although the applicant and Abdul are brothers and were brought up in the same household, they presented to the learned sentencing judge, at their respective sentence hearings, divergent cases as to their early childhood years. His Honour found that in the applicant's case there was "no suggestion that his upbringing as a child was anything other than a happy one". On the other hand, with respect to Abdul His Honour found the following: [21] I do accept on balance, however, that this man had a very difficult childhood, which began with his family fleeing the Lebanese Civil War in the 1970s and seeking to make a new life in this country. Regrettably, his home life as a child was unsatisfactory, in that his father had a gambling problem; the offender suffered violence at the hands of his father and elder brother; there was physical conflict between his parents as well; and after reflection I also accept on balance (without needing to speak explicitly now) that the offender in his childhood suffered other grave crimes perpetrated against him, although the exact extent of them is unclear to me. [27] I accept that the upbringing of the offender was deprived and profoundly unsatisfactory in many ways, that it predisposed him to criminality from an early age, and that it therefore reduces his moral culpability for this offence to some degree. I also accept that the life of the offender has been distorted by prohibited drugs for many, many years. I further accept that the world in which he has lived has been a frightening, ruthless one in which he has been in mortal danger at times.
Both the appellant and Abdul performed poorly at school. Their education was impaired by behavioural problems and, in the applicant's case, "a reasonably low level" of intellect. Neither of them completed high school. By the age of 13 they were both consuming illicit drugs and both had commenced on careers of criminal activity that later progressed, as described above, to acts of serious violence and use of firearms.
With respect to the applicant the learned judge took into account two circumstances in mitigation of penalty that were not present in Abdul's case. First, the applicant had been gravely injured in an attempt that was made on his life in May 2022, only three months before his arrest in August 2022. The applicant suffered 10 gunshot wounds that caused the loss of one eye and skeletal, muscular and organ injuries with continuing disabilities and pain. Another of the applicant's brothers was killed in his presence during this attack. At the time of the applicant being sentenced he continued to suffer symptoms of post-traumatic stress disorder as a result of the shooting. He sustained further injury in the course of his arrest. The sentencing judge accepted that while in custody the applicant would continue to suffer physical and psychological symptoms that could not be addressed as readily as would be the case if he had access to healthcare in the community. Secondly, due to the applicant's classification in prison his time on remand pending sentence was spent under high security conditions, substantially amounting to solitary confinement, which was particularly burdensome in conjunction with the ongoing pain and disabilities that resulted from the shooting attack.

Parity between the sentencing of the applicant and Abdul

Section 315(1)(b) of the Crimes Act is applicable to hindering the discovery of evidence concerning any "serious indictable offence", defined as any offence punishable by imprisonment for 5 years or more. The offending to which the applicant pleaded guilty specified the relevant serious indictable offence as "unlawful killing", meaning manslaughter, for which the maximum penalty is 25 years imprisonment. The more serious the offence to which the concealed evidence may relate, the more serious is the infringement of s 315(1)(b). Justifiably, his Honour found that the charge against the applicant was "a serious example of an offence against public justice".
The offence of being an accessory after the fact to murder, for which Abdul was sentenced, may be committed in a very wide range of different ways, with a correspondingly wide range of objective gravity. Although the maximum penalty is 25 years imprisonment, the cases show that penalties are commonly at the low end of that range, reflecting that an accessory's acts are often of relatively minor significance and efficacy compared to what might be envisaged in a case within the worst category. At [17] of his remarks on sentence concerning Abdul, the learned judge noted that his offending was constituted by making specific false statements rather than withholding information and remaining silent. His Honour inferred that the investigating police had not been deflected from their task by what Abdul said to them. His statements were inherently incredible and the police immediately saw through them, as evidenced by the initial charge of hindering that was laid against Abdul during the night on which the deceased died. His Honour was not satisfied beyond reasonable doubt that the perpetrator(s) of the murder would have been found but for Abdul's falsehoods. He said that the offending "must be seen as a less serious example of a nevertheless serious offence".
In Keen v R Yehia J said this at [145]: This Court has endorsed the proposition that it will be cautious and not overly willing to intervene where the same judge has sentenced all (or some) co-offenders: Chamon v [2020] NSWCCA 112 at [35]-[37] per RA Hulme J (Hamill and Wilson JJ agreeing); Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173] per Hoeben CJ at CL (Johnson and Schmidt JJ agreeing); Tatana v R [2006] NSWCCA 398 at [28] per Howie J (Sully and Latham JJ agreeing).
In Lloyd v R [2017] NSWCCA 303, R A Hulme J (Payne JA and Garling J agreeing) said at [97]: In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion? That passage was cited and applied in Vujinovic v R [2024] NSWCCA 10 by Weinstein J (Davies and Button JJ agreeing) at [52] and again by Yehia J in Keen v R at [143], with citation of additional authority to the same effect.
Adopting that approach it can be said that the fixing of the two sentences at the relative levels adopted by the learned sentencing judge in this case was open to him in the exercise of his discretion. Overall, Abdul's offending was slightly more objectively grave than that of the applicant; the criminal records of the two were substantially comparable; their subjective circumstances were in all other respects very similar; Abdul's culpability was reduced by the adverse influence of his early home life; the applicant's sentence warranted mitigation by reason of his injuries, post-traumatic stress disorder and highly restrictive conditions of custody on remand. Taking everything into account the applicant could not have a justifiable sense of grievance as a result of receiving a sentence only slightly shorter than that imposed upon Abdul.

Orders

For the above reasons the orders of the Court will be as follows: 1. Grant leave to the applicant to appeal against sentence. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2024

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