MO v R [2023] NSWCCA 26

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MO v R [2023] NSWCCA 26 Hearing dates: 17 August 2022 Date of orders: 20 February 2023 Decision date: 20 February 2023 Before: Bell CJ at [1] Davies J at [123] Fagan J at [124] Decision: 1. Grant leave to appeal out of time, and leave to appeal against sentence. 2. Dismiss the appeal. Catchwords: SENTENCING – appeal against sentence – co-offenders – disparity between sentences – proper use of the parity principle – where several co-offenders had already been sentenced before the applicant – where sentencing judge, after considering the circumstances of the co-offenders, stated that the sentence to be imposed on the applicant "should be higher" than those imposed on co-offenders – whether sentencing judge impermissibly invoked parity principle to increase the sentence otherwise to be imposed on the offender – whether Crown submissions on parity amounted to submissions of the kind considered in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 – no error in application of the parity principle SENTENCING – relevant factors on sentence – co-offenders – parity – proper use of the parity principle – where several co-offenders had already been sentenced before the applicant – where sentencing judge, after considering the circumstances of the co-offenders, stated that the sentence to be imposed on the applicant "should be higher" than those imposed on co-offenders – whether sentencing judge impermissibly invoked parity principle to increase the sentence otherwise to be imposed on the offender – whether Crown submissions on parity amounted to submissions of the kind considered in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 – no error in application of the parity principle SENTENCING – appeal against sentence – severity – manifest excess – proper use of sentences imposed in comparable cases in determining whether a sentence was manifestly excessive – approach to a ground of manifest excess where offender was sentenced by way of an aggregate sentence – sentence not manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) ss 319, 328 Criminal Appeal Act 1912 (NSW) s 5(1)(c) Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5) Cases Cited: Afu v R [2017] NSWCCA 246 Anderson v R [2022] NSWCCA 187 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Daw v R [2017] NSWCCA 327 Delaney v The Queen; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 El-Helou v R [2014] NSWCCA 209 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Issa v R [2017] NSWCCA 188 Kelly v R [2017] NSWCCA 256 Kerr v R [2016] NSWCCA 218 Lloyd v R [2017] NSWCCA 303 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Matthews v The Queen (2014) 44 VR 280; [2014] VSCA 291 McClain v R [2011] NSWCCA 191 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 PO v R [2020] NSWCCA 129 Postiglione v The Queen (1997) 189 CLR 295 at 302–303; [1997] HCA 26 R v Giang [2001] NSWCCA 276 R v Nguyen; R v Nguyen [2010] NSWCCA 331 R v Pearce [2020] NSWCCA 61 Steer v R (2000) 171 ALR 463; [2000] FCA 462 Wood v R [2022] NSWCCA 84 Category: Principal judgment Parties: MO (Applicant) The Crown (Respondent) Representation: Counsel: