Courts Must Assess Individual Moral Culpability in Cases of Joint Criminal Enterprise

A Toyota Land Cruiser was stolen from electronics store Karera in the New South Wales Central Coast town of Tuggerah in mid-October 2020. 

At 9 am on 15 October 2020, Adam Jones, the son of a Karera manager, spotted the stolen vehicle at the corner of the Pacific Highway and Wadalba’s Louisiana Road. Jones followed the car, which was being driven at high speed and in contravention of road rules.

Joshua York was driving the Land Cruiser, with his accomplice Joshua Duke in the passenger seat. 

Adams picked up a Mr McLaughlin, and they chased the stolen car down a dirt track. The vehicle being pursued then did a U-turn and McLaughlin saw Duke pointing a firearm, and as York drove back past Adams, with a metre between cars, McLaughlin noted the gun pointed directly at him.

Two other Karera owned vehicles joined the chase, with two passengers aware of the gun being pointed at them. As York then turned into Pollock Road in Wadalba, NSW police spotted the vehicle and gave pursuit. Two police cars followed the Land Cruiser, with three senior police constables involved. The car was observed driving “erratically” and at 100 kilometres an hour in a 50 km zone.

The stolen vehicle broke harshly at times, colliding with a police vehicle the first time, and police slimly missing a second collision. Senior Constable Bishop gave chase on foot at one stage. Then another police vehicle joined the pursuit, which then saw the Land Cruiser take off across paddocks, breaking through numerous fences to getaway, and the pursuit was at that point abandoned.

CCTV captured the vehicle at various points near various properties afterwards. The later footage shows Duke having taken over the driving. The car then entered a rural property on Minnesota Road in Hamlyn Terrace, where it was driven into bushland and set on fire. York stayed in the bush, while Duke went back to steal a vehicle from the house on the property and NSW police shot him dead.

York avoided NSW police for a number of days, prior to being arrested on 18 October 2020.

A long list of offences

A NSW District Court jury found York guilty of three offences, when he was tried in 2024. The first was one count of use dangerous weapon to resist arrest, contrary to section 33B of the Crimes Act 1900 (NSW). This crime carries a maximum penalty of 12 years imprisonment.

The second offence involved one count of police pursuit, contrary to section 51B of the Crimes Act, which carries up to 3 years gaol time. However, if an accused has already been convicted of this crime, the maximum that applies is 5 years.

The third count York was convicted over was the offence of destroying property, contrary to section 195 of the Crimes Act. This offence carries up to 2 years imprisonment if tried in the NSW Local Court and 5 years if tried in the District Court. However, as per subsection 195(1)(b), due to the car being destroyed by fire this fact raised the maximum to 10 years in prison.

Three further offences were taken into account on a section 166 certificate. Section 166 of the Criminal Procedure Act 1986 (NSW) permits the court to certify and transfer an offence into a broader case that is usually focused on more serious crimes. These related offences can then be considered in sentencing, on what is then referred to as a section 166 certificate.

The first sequence on the section 166 certificate was driving whilst disqualified, contrary to section 54(1) of the Road Transport Act 2013 (NSW).

If the accused is facing this offence, and it is their first major traffic offence in the last 5 years, it carries 6 months prison time, 6 months licence disqualification and a $3,300 fine. But if it is a second or subsequent offence over the last 5 years, as was the case with York, the maximums rise to 12 months prison time, 12 months licence disqualification and a fine of $5,500.

The second sequence was a charge of taking conveyance without consent, contrary to section 154A of the Crimes Act, which makes a person liable to up to 5 years in gaol.

The final sequence involved the offence of use a class A vehicle displaying misleading numberplates, contrary to regulation 129(3)(b) of Road Transport (Vehicle Registration) Regulation 2017 (NSW).

The legal defence of duress

During the trial, the prosecution argued that York was involved in a joint criminal enterprise, while York raised the defence of duress, which involves a defendant claiming that they’d committed their crimes because they’d been threatened by a co-offender. This can result in an accused then being acquitted of the charges laid against them.

York claimed that Duke threatened him with the firearm. The jury rejected this defence and considered that York was acting in a joint criminal enterprise. 

During sentencing, it was submitted that York may have been subject to partial duress when taking part in the criminal enterprise, which, while not resulting in acquittal, can act as a mitigating factor. The suggestion led to discussion of whether non-exculpatory duress could be argued, even though the jury found York was acting as part of a joint criminal enterprise.

NSW District Court Judge David Wilson considered this could be the case. However, his Honour listed a number of reasons why he was not convinced that duress had been a factor, including due to the way York presented in court.

Judge Wilson then sentenced York to 7 years imprisonment, with non-parole set at 4 years and 6 months. The non-parole period was longer than the legislated stipulation because ‘special circumstances’ were found, as an extended period on parole would permit York to deal with his mental health issues, which were linked to his illicit drug use.

Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), allows a judge to sentence an offender to a parole period that is in excess of a third of the time of the overall non-parole period being handed down if special circumstances are found.

Appealing the lack of individual assessment

York appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 23 May 2025. He did so based on three grounds. The first was that the sentencing judge had failed to assess his individual role in the joint criminal enterprise. The second was that the offender’s rehabilitation wasn’t properly assessed, and the third ground involved the sentence being manifestly excessive.

The first ground involved the assertion that the sentencing judge had failed to consider that York had not been holding the firearm during the police pursuit and neither had he been threatening people, and further, there was no evidence linking him to the burning of the vehicle, which he claimed was the work of Duke.

Judge Wilson had assessed the objective seriousness of the crimes as mid-range, and he also rejected the proposition that York’s moral culpability was reduced due to duress, and there was no issue with these assessments.

However, it was found on appeal that the sentencing judge had failed to consider York’s moral culpability in regard to the individual role he played in the joint criminal enterprise.

NSWCCA Justice David Davies found the authorities stipulate that a sentencing judge should assess an individual’s moral culpability even when they’re involved in a joint criminal enterprise. But Judge Wilson had remarked it “was immaterial” who was driving and who was holding the gun, while his Honour too considered York equally guilty of burning the car regardless of whether he lit the fire.

“Those statements do not distinguish between being liable for the offence by being a participant in a joint criminal enterprise and the culpability of the participant by reason of that person’s role,” Justice Davies set out.

“The result was that the sentencing judge did not give consideration to the issue of the applicant’s moral culpability for his role in the offending. He was not to be punished as if he held the gun and brandished it at those pursuing the offenders.”

Therefore, this ground was made out, which led to the need to resentence York, and this ruled out any reason to consider whether his existing sentence was manifestly excessive as per ground three.

In terms of the second ground involving the assessment of rehabilitation, it was found that Judge Wilson had considered this in sentencing, and his finding that the prospect for York’s rehabilitation was guarded was justified.

Lesser time inside

On 20 June 2025, Justice Davies quashed York’s original sentence and resentenced him to 6 years and 3 months imprisonment, with a non-parole period of 4 years.

And NSWCCA Justices Jeremy Kirk and Robertson Wright agreed with their colleague’s reasons and his subsequent orders.