JUDGES:	T FORREST and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 March 2022
DATE OF JUDGMENT:	18 March 2022
MEDIUM NEUTRAL CITATION	[2022] VSCA 34 (First revision (18 March 2022): para [43])
JUDGMENT APPEALED FROM:	[2020] VCC 1412 (Judge Gwynn)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Aggravated home invasion – Burglary – Theft – Traffick cannabis – Principle of parity – Sentences of 7 years 11 months’ imprisonment with 5 years non-parole and 5 years 11 months’ imprisonment with 3 years 10 months non-parole – Unjustifiable disparity with co-offender resentenced to 3 years 10 months’ youth justice detention – Well-organised and sophisticated sequence of offending – Balshaw v The Queen [2021] VSCA 78, Nipoe v The Queen [2020] VSCA 137, Wong v The Queen (2001) 207 CLR 584 applied – Crimes Act 1958 ss 74, 76–7, 77B, 321M, Drugs, Poisons and Controlled Substances Act 1982 s 71AC, Sentencing Act 1991 s 10AC – Leaves to appeal granted – Appeals allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Abela-Rogers)	Mr P J Smallwood	Lauren Tye Legal
For the Applicant (Farrugia)	Mr N J Goodfellow	Balmer & Associates
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
WHELAN JA:

The applicant Rhys Abela-Rogers pleaded guilty to four charges of aggravated burglary, two charges of burglary, three charges of theft, and one charge each of aggravated home invasion with intent to steal (offensive weapon), attempted aggravated burglary and trafficking cannabis. He also pleaded guilty to a summary charge of dealing with property suspected of being the proceeds of crime.

Abela-Rogers was sentenced as follows:

Charge on Joint Indictment Offence Maximum Sentence Cumulation

1 Aggravated burglary (person present) 25 years’ imprisonment 3 years -

2 Burglary 10 years’ imprisonment 1 year 6 months 2 months

3 Theft 10 years’ imprisonment 1 year -

4 Burglary 10 years’ imprisonment 2 years 2 months

5 Aggravated home invasion (steal) — Offensive weapon 25 years’ imprisonment 5 years 8 months Base

6 Theft 10 years’ imprisonment 1 year 6 months -

7 Aggravated burglary (person present) 25 years’ imprisonment 5 years 6 months

8 Aggravated burglary (offensive weapon) 25 years’ imprisonment 5 years 2 months 6 months

9 Aggravated burglary (person present) 25 years’ imprisonment 5 years 2 months 7 months

10 Theft 10 years’ imprisonment 1 year -

11 Attempted aggravated burglary 20 years’ imprisonment 3 years 4 months

13 Traffick drug of dependence (cannabis) 15 years’ imprisonment 4 months -

Summary charge 27 Deal with property suspected of being proceeds of crime 2 years’ imprisonment Convicted and fined $1,000 -

Total effective sentence: 7 years 11 months’ imprisonment

Non-parole period: 5 years

Pre-sentence declaration: 595 days

Section 6AAA statement: 11 years’ imprisonment with non-parole period of 8…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abela-Rogers v The Queen

Details

AGLC: Abela-Rogers v The Queen [2022] VSCA 34
Case: [2022] VSCA 34
Decision Date: 18 March 2022

CaseChat Overview and Summary

The appellants, Abela-Rogers, appealed against their sentences in the Supreme Court of Victoria, challenging the sentences imposed for their involvement in a series of aggravated burglaries and related offences. The appeal was against the disparity in sentences between them and a co-offender who was resentenced to a significantly shorter term. The appellants argued that the sentences were unjust due to the principle of parity which demands that similar offenders receive similar sentences.

The primary legal issue was whether the sentences imposed on the appellants were unjust given the principle of parity, especially considering the co-offender's resentencing. The court had to consider the principles of sentencing, particularly the principle of parity, in light of the nature and severity of the crimes committed. The court also needed to determine if the sentences imposed were appropriate in the context of the appellants' roles in the offending and the mitigating and aggravating factors.

The Court of Appeal found that the sentences imposed on the appellants were unjust due to the significant disparity with the co-offender's sentence. The court emphasised the principle of parity and noted that the appellants' roles in the offending were comparable to that of their co-offender. The appeals were allowed, and the appellants' sentences were quashed. The matter was remitted to the County Court for resentencing.

The final orders included the quashing of the original sentences and the remission of the matter to the County Court for resentencing, ensuring that the sentences would be reconsidered in light of the principle of parity.

Orders