Begg v The Queen

[2020] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0093

JAMES BEGG	Applicant
v
THE QUEEN	Respondent

S APCR 2019 0077

DAMIEN HOBBY	Applicant
v
THE QUEEN	Respondent

S APCR 2019 0085

ANTHONY CLARIDGE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2020
DATE OF JUDGMENT:	8 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 183
JUDGMENT APPEALED FROM:	[2019] VCC 337 (Judge Riddell)

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CRIMINAL LAW – Appeal – Sentence – Co-offenders – Different involvements in three incidents – Aggravated burglary – Common assault – Theft – Prohibited person in possession of firearm – Pleas of guilty – Applicant Begg sentenced to 6 years and 6 months’ imprisonment with non-parole period of 4 years – Applicant Hobby sentenced to 8 years and 6 months’ imprisonment with non-parole period of 6 years and 10 months – Applicant Claridge sentenced to 11 years’ imprisonment with non-parole period of 8 years and 3 months – Whether individual sentences, orders for cumulation, total effective sentence and non-parole period for each applicant manifestly excessive – Whether principle of parity infringed – No unjustifiable disparity between sentences – Individual sentences, orders for cumulation and total effective sentence not manifestly excessive for each applicant – Non-parole period not manifestly excessive for applicants Begg and Claridge – Leave to appeal refused for applicants Begg and Claridge – Non-parole period manifestly excessive for applicant Hobby – Leave to appeal allowed for applicant Hobby – Resentenced to non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Begg	Mr R W O’Neill	Valos Black & Associates
For the Applicant Hobby	Mr H A Rattray with Ms F Fox	David Barrese & Associates
For the Applicant Claridge	Mr R W Backwell	Chris McLennan & Co
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
T FORREST JA:

Introduction

1. In this complicated set of appeals against sentence, there are three co-offenders (James Begg, Anthony Claridge and Damien Hobby) each seeking leave to appeal with different involvements in three separate incidents.  They pleaded guilty to the charges in the County Court[1] and were sentenced on 2 March 2019.  The details of their sentences are set out in the tables below.[2]  For convenience, we shall refer to each applicant by his surname.

   [1]The charges relating to Claridge and Hobby are contained in Indictment C1711385.1 (‘first indictment’) and the charges relating to Begg are contained in Indictment H12173739.1 (‘second indictment’).

   [2]We have modified the table of sentences which is appended to the judge’s reasons for sentence: see DPP v Begg [2019] VCC 337, appendix 1 (‘Reasons’).

2. The co-offenders were sentenced as follows in relation to incident one:

Incident one	Sentence: Claridge	Sentence: Hobby	Sentence: Begg
Indictment 1 — charge 1 (assault contrary to common law)	Aggregate sentence of 3 years and 4 months’ imprisonment; 12 months’ cumulation	Aggregate sentence of 3 years and 4 months’ imprisonment; 12 months’ cumulation	N/A
Indictment 1 — charge 2 (assault contrary to common law)			N/A
Indictment 1 — charge 3 (intentionally damaging property contrary to s 197(1) of the Crimes Act 1958)			N/A
Indictment 1 — charge 4 (prohibited person in possession of a firearm contrary to s 5(1) of the Firearms Act 1996)	18 months’ imprisonment; 10 months’ cumulation	N/A	N/A
Summary charge 26 (entering a private place without lawful excuse contrary to s 9(1)(e) of the Summary Offences Act 1966)	4 months’ imprisonment; concurrent	N/A	N/A
Summary charge 12 (entering a private place without lawful excuse contrary to s 9(1)(e) of the Summary Offences Act 1966)	N/A	4 months’ imprisonment; concurrent	N/A

1. The co-offenders were sentenced as follows in relation to incident two:

Incident two	Sentence: Claridge	Sentence: Hobby	Sentence: Begg
Indictment 1 — charge 5 (aggravated burglary contrary to s 77(1) of the Crimes Act 1958)	6 years’ imprisonment; base sentence	N/A	N/A
Indictment 2 — charge 1 (aggravated burglary contrary to s 77(1) of the Crimes Act 1958)	N/A	N/A	5 years’ imprisonment; base sentence
Indictment 1 — charge 6 (conduct endangering life contrary to s 22 of the Crimes Act 1958)	5 years’ imprisonment; 2 years and 6 months’ cumulation	N/A	N/A
Indictment 2 — charge 2 (prohibited person in possession of a firearm contrary to s 5(1) of the Firearms Act 1996)	N/A	N/A	2 years’ imprisonment; 12 months’ cumulation
Indictment 1 — charge 7 (theft contrary to s 74(1) of the Crimes Act 1958)	Aggregate sentence of 12 months’ imprisonment; 6 months’ cumulation	N/A	N/A
Indictment 1 — charge 8 (theft contrary to s 74(1) of the Crimes Act 1958)		N/A	N/A
Indictment 1 — charge 9 (obtaining property by deception contrary to s 81(1) of the Crimes Act1958)		N/A	N/A
Indictment 1 — charge 10 (attempting to obtain property by deception contrary to ss 81(1) and 321M of the Crimes Act 1958)		N/A	N/A
Indictment 2 — charge 3 (theft contrary to s 74(1) of the Crimes Act 1958)	N/A	N/A	Aggregate sentence of 12 months’ imprisonment; 6 months’ cumulation
Indictment 2 — charge 4 (theft contrary to s 74(1) of the Crimes Act 1958)	N/A	N/A
Indictment 2 — charge 5 (obtaining property by deception contrary to s 81(1) of the Crimes Act 1958)	N/A	N/A
Indictment 2 — charge 6 (attempting to obtain property by deception contrary to ss 81(1) and 321M of the Crimes Act 1958)	N/A	N/A

1. The co-offenders were sentenced as follows in relation to incident three:

Incident three	Sentence: Claridge	Sentence: Hobby	Sentence: Begg
Indictment 1 — charge 11 (aggravated burglary contrary to s 77(1) of the Crimes Act 1958)	N/A	5 years’ imprisonment; base sentence	N/A
Indictment 1 — charge 12 (causing injury intentionally contrary to s 18 of the Crimes Act 1958)	N/A	4 years’ imprisonment; 2 years concurrent	N/A
Indictment 1 — charge 13 (theft contrary to s 77(1) of the Crimes Act 1958)	N/A	3 months’ imprisonment; concurrent	N/A

1. The co-offenders were sentenced as follows for other charged acts:

On arrest	Sentence: Claridge	Sentence: Hobby	Sentence: Begg
Indictment 1 — charge 14 (handling stolen goods contrary to s 88(1) of the Crimes Act 1958)	3 months’ imprisonment; 1 month’s cumulation	N/A	N/A
Indictment 1 — charge 15 (prohibited person in possession of a firearm contrary to s 5(1) of the Firearms Act 1996)	N/A	18 months’ imprisonment; 6 months’ cumulation	N/A
Indictment 2 — charge 7 (possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	N/A	N/A	1 month’s imprisonment; concurrent
Indictment 2 — charge 8 (possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	N/A	N/A	1 month’s imprisonment; concurrent
Summary charge 16 (possession of cartridge ammunition contrary to s 124(1) of the Firearms Act 1996)	Aggregate fine of $500	N/A	N/A
Summary charge 18 (possession of cartridge ammunition contrary to s 124(1) of the Firearms Act 1996)		N/A	N/A
Summary charge 17 (failure to comply with a direction requiring assistance contrary to s 465AAA(4) of the Crimes Act 1958)	3 months’ imprisonment; 1 month’s cumulation	N/A	N/A
Summary charge 18 (possession of cartridge ammunition contrary to s 124(1) of the Firearms Act 1996)	N/A	N/A	Fine of $300

1. Thus the total effective sentence for each applicant is as follows:

Total effective sentence	Claridge	Hobby	Begg
	11 years’ imprisonment with a $500 fine	8 years and 6 months’ imprisonment	6 years and 6 months’ imprisonment with a $300 fine
Non-parole period	8 years and 3 months	6 years and 10 months	4 years
Pre-sentence detention	595 days	364 days	595 days
Section 6AAA statement	13 years’ imprisonment with a non-parole period of 10 years	11 years’ imprisonment with a non-parole of 9 years	8 years’ imprisonment with a non-parole period of 6 years

1. The grounds of appeal are expressed as follows:

   Applicant Begg

   1. The Learned Sentencing Judge erred in the application of the parity principle, and the principle of equal justice, in relation to the sentence imposed on charge 1.

   2. The Learned Sentencing Judge erred in the application of the parity principle, and the principle of equal justice, in relation to the sentence imposed on charge 2.

   3. The sentence of 2 years imprisonment imposed on charge 2 and the order for 12 months of that sentence to be cumulative on the base sentence is manifestly excessive.

   4. That the sentence of 5 years imprisonment imposed on charge 1 is manifestly excessive.

   5.The aggregate sentence of 12 months imprisonment imposed on charges 3-6 and the order for 6 months of that sentence to be cumulative on the base sentence is manifestly excessive

   6.That in all the circumstances of this case the total effective sentence and the non-parole period is manifestly excessive.

   Applicant Claridge

   1. The Learned Sentencing Judge erred in finding that the use of ice was an aggravating feature.

   2. The individual sentences, the total effective sentence and the non-parole period are manifestly excessive in all the circumstances.

   Applicant Hobby

   1. That the learned sentencing Judge erred in failing to afford the Applicant procedural fairness in so far as it concerned a finding that Her Honour made with respect to the Applicant being in possession of a weapon during incident 1.

   Particulars:

   a.the prosecution opening did not allege that the Applicant was in possession of a weapon;

   b.the finding that the Applicant was in possession of a weapon was not raised during the plea;

   c.the finding was required to be made to the standard of beyond reasonable doubt; and

   d.as a matter of procedural fairness the Applicant should have been given the opportunity to make submissions to the learned sentencing Judge about that finding.

   2. That the learned sentencing Judge erred in finding, beyond reasonable doubt, that the Applicant was in possession of a weapon during incident 1.

   Particulars:

   a.the finding was required to be made to the standard of beyond reasonable doubt; and

   b.the finding was not open to the learned sentencing Judge.

   3. That the Learned Sentencing Judge erred in her application of the parity/disparity principle in relation to the sentence imposed on charges 1, 2 & 3 with respect to the Applicant and CLARIDGE;

   Particulars:

   a.the fact that CLARIDGE possessed a firearm during the commission of the above offences is a serious aggravating feature of the offending that was not present in the sentencing synthesis of the Applicant;

   b.this distinction warranted a significant disparity in sentence in favour of the Applicant.

   4. That the aggregate sentence of 3 years and 4 months imprisonment imposed on charges 1, 2 & 3 and the order for 12 months of that sentence to be cumulative on the base sentence is manifestly excessive.

   5. That the sentence of 4 years imprisonment imposed on charge 12 and the order for 2 years of that sentence to be cumulative on the base sentence is manifestly excessive.

   6. That the sentence of 18 months imprisonment imposed on charge 15 and the order for 6 months of that sentence to be cumulative on the base sentence is manifestly excessive.

   7. That in all the circumstances of this case the total effective sentence and the non-parole period is manifestly excessive.

   Background

2. The most efficient approach is to set out the circumstances of each of the three incidents and each of the three applicants.[3]  We will then consider the merits of each application individually.  The number of applicants, incidents and grounds of appeal means that some repetition is inevitable.

   [3]The circumstances of the offending are largely derived from the Summary of Prosecution Opening on Plea.

   Incident one — Claridge and Hobby

3. On Monday 3 July 2017 at 7.10pm, Shayne Ashwood and his three children were at their Keysborough house.  Claridge and Hobby, with an unknown third offender, attended at the front door of the house.  They knocked and kicked at the door.[4]  The unknown third offender walked about the perimeter of the house.  Claridge walked around the apron of the front entry area.  He pulled a homemade firearm from behind him and concealed it beneath his clothing.[5]  Claridge and Hobby then resumed kicking the front door and yelling at Mr Ashwood to come outside.  All those inside were terrified.  One of the offenders broke a lounge room window.[6]  The unknown offender entered the house through an unlocked rear door.  The children saw this man in the kitchen area of the house.  He left immediately.  All offenders then left the area.  It is not suggested that either Claridge or Hobby knew that this third offender entered the house.  The motivation for this offending and the subsequent incidents was said to be a substantial falling out between Hobby and Mr Ashwood.

   [4]Claridge and Hobby: related summary offences (entering a private place without lawful excuse).

   [5]Claridge: charge 4 on the first indictment (prohibited person in possession of a firearm).

   [6]Claridge: charges 1 and 2 on the first indictment (common assault); charge 3 on the first indictment (intentionally damaging property).

   Incident two — Claridge and Begg

4. Two and a half weeks later, on 21 July 2017 at 2.56 am, Claridge and Begg were observed to walk past the Parkmore Medical Centre in Cheltenham Road, Keysborough.  Both were wearing hooded jumpers.  The two men and an unknown third male went to Mr Ashwood’s house, where he was home alone.  Claridge and the unknown male kicked in the rear door.  One of them was armed with a sawn-off rifle.  This was known to Begg, who remained outside.  Mr Ashwood was in the kitchen of the house.  He was confronted by Claridge and the unknown male.  One of the men pointed the rifle at Mr Ashwood.[7]  Mr Ashwood ran to the lounge room as a shot was fired from the rifle in his direction.  The bullet lodged in the wall that divides the kitchen and the lounge room.[8]  Mr Ashwood was then chased from his house.  Claridge and Begg stole his wallet containing $2,500 cash, three Apple iPhones, a Samsung mobile phone and a National Australia Bank (‘NAB’) card in the name of Kathy Ashwood.[9]  At 6.36 am on the same day, Claridge and Begg were captured on CCTV at a Commonwealth Bank ATM in Beaconsfield.  Claridge used Kathy Ashwood’s NAB card to withdraw $1,000.[10]  Claridge, in company with Begg, made five further attempts to use the NAB card.[11]

   [7]Claridge: charge 5 on the first indictment (aggravated burglary).  Begg: charge 1 on the second indictment (aggravated burglary).

   [8]Claridge: charge 6 on the first indictment (conduct endangering life).

   [9]Claridge: charges 7 and 8 on the first indictment (theft).  Begg: charges 3 and 4 on the second indictment (theft).

   [10]Claridge: charge 5 on the first indictment (obtaining property by deception).  Begg: charge 5 on the second indictment (obtaining property by deception).

   [11]Claridge: charge 10 on the first indictment (attempting to obtain property by deception).  Begg: charge 6 on the second indictment (attempting to obtain property by deception).

5. Later that morning, Claridge and Begg went to the home address of Anca Tiglar.  All three persons then drove to Begg’s Cranbourne house.  Begg showed Tiglar the stolen phones and asked Tiglar if she was able to unlock them.

   Incident three — Hobby

6. On 27 July 2017 at approximately 4.00 pm, Mr Ashwood and his sister, Sheona Ashwood, were present at Mr Ashwood’s Keysborough address.  Two other persons were present, known only by given names, Emily and Jay.  Hobby and an unknown male co-offender forced the front door and entered the kitchen area.[12]  Mr Ashwood backed away.  He was assaulted by both men.  He was kicked, punched and hit with an iron pole to his head, arms, back and torso.  While he was on the ground, Hobby continually stomped on his torso.[13]  Mr Ashwood escaped, ran to a nearby commercial premises and telephoned the police.  While at the Keysborough house, Hobby and his unknown co-offender stole an Apple iPhone.[14]  Mr Ashwood received cuts to his face, lips, mouth and upper arms.  He also received soreness and bruising to his torso.

   [12]Hobby: charge 11 on the first indictment (aggravated burglary).

   [13]Hobby: charge 12 on the first indictment (causing injury intentionally).

   [14]Hobby: charge 13 on the first indictment (theft).

   Search warrants and arrests

7. Claridge and Begg were arrested on 2 August 2017.  Claridge’s vehicle was searched and the following items were seized:

   ·one 12-gauge shotgun cartridge;[15]

   ·one yellow container with a .22 calibre cartridge; and

   ·one set of Victoria number plates bearing the registration ‘UIM 000’.[16]

   [15]Claridge: related summary offence (possession of cartridge ammunition).

   [16]Claridge: charge 14 on the first indictment (handling stolen goods).

8. On the same day, Begg’s house in Cranbourne was searched.  Relevantly, a .22 calibre Ruger sawn-off rifle and magazine was seized.[17]  Also seized were two .22 calibre cartridges.[18]

   [17]Begg: charge 2 on the second indictment (prohibited person in possession of a firearm).

   [18]Begg: related summary offence (possession of cartridge ammunition).

9. A search warrant was executed at 5.44 pm on the same day at Claridge’s house.  Relevantly, the following items were seized:

   ·one box of 12-gauge shotgun cartridges;[19]

   ·one homemade shotgun;[20]

   ·five 12-gauge shotgun cartridges; and

   ·one Samsung mobile phone.[21]

   [19]Claridge: related summary offence (possession of cartridge ammunition).

   [20]Claridge: charge 4 on the first indictment (prohibited person in possession of a firearm).

   [21]Claridge: related summary offence (failure to comply with a direction without lawful excuse).

10. On 4 August 2017 at 10.10 am, police executed a search warrant at Hobby’s home address in Dandenong North.  Relevantly, they seized a homemade firearm.[22]

    [22]Hobby: charge 15 on the first indictment (prohibited person in possession of a firearm).

    Interviews

11. Claridge confirmed his phone number, and confirmed ownership of the firearm and the ammunition found at his house.  He made no comment to all other allegations.

12. Hobby stated that in early July 2017, he went to the Keysborough house with an intention to assault Mr Ashwood.  He was with two others.  As soon as he saw children there, he left.  He admitted attending the Keysborough address on 27 July 2017 (the third incident) with ‘Em’ and two others.  He told police that he punched and kicked Mr Ashwood.  He said he was aware that the other co-offenders had weapons when they entered the Keysborough house.  He then told police he was carrying a trolley pole when he entered.  He denied stealing a mobile phone.  He admitted that he owned the firearm seized by police from his house.

13. Begg denied any involvement in any of the aggravated burglaries, although he admitted to having been at the Keysborough house with Hobby earlier in July 2017.  He denied knowledge of the firearm found at his house.

1. Thus Claridge pleaded guilty to offences that occurred during the first and second incidents; Hobby pleaded guilty to offences that occurred during the first and third incidents; and Begg pleaded guilty to offences that occurred during the second incident.

   Personal circumstances

2. These were taken from the judge’s sentencing remarks.[23]

   [23]See Reasons [35]–[111].

   Claridge

3. Claridge was 28 years old at the time of offending and 29 when he appeared for sentence.  He was a talented sportsman, left school after completing Year 9 and completed three years of a carpentry apprenticeship.  He then worked as a furniture removalist and by the age of 25, he had commenced his own removalist business.  It was successful for a time, and he employed three people and ran two trucks.  A relationship breakdown in 2016 caused him to escalate his methylamphetamine use and his business closed down in early 2017.  By that stage, he was using methylamphetamine on a daily basis.

4. In May 2017, he was placed on a Community Correction Order (‘CCO’) for unlawful assault.  He was on this CCO at the time of the relevant offending in this matter.  In 2011, Claridge was convicted of theft.  There is no other prior criminal history.  His family continue to offer support and with one exception, he has remained drug free in custody.  Her Honour considered that he had guarded but positive prospects for rehabilitation.  In part, this assessment was based on his 11 negative urine tests whilst on remand, together with his completion of an ‘ice addition program’.  His plea was entered at a reasonably early stage.

   Hobby

5. Hobby was 27 years old when he appeared for sentence.  He also was placed on a CCO only a few weeks before committing these offences.  His parents separated and divorced when he was 18 years old.  He completed a Victorian Certificate of Applied Learning in 2008 and worked as a plasterer, qualifying in 2012.  He changed occupations, and commenced working in sales and marketing thereafter, with intermittent unemployment.  He also was a good sportsman.

6. He began using alcohol at the age of 14, cannabis at 16 and methylamphetamine at 18.  By the age of 21, it was a serious addiction.  At the time of offending, he was smoking up to a gram of ice each day.  In 2013, he was placed on a 12-month CCO for criminal damage, two charges of making a threat to kill, recklessly causing injury and unlawful assault.  He breached that CCO and at the hearing of the breach, it was varied to a 24-month CCO.  He apparently abided by that order.

7. In 2017, six weeks before the commission of the offences the subject of this application, he appeared in the Magistrates’ Court and pleaded guilty to four charges of burglary, two charges of theft, handling stolen goods, dealing with the proceeds of crime, criminal damage, and being in possession of a prohibited weapon and possessing ammunition without a licence or permit.  This was the CCO to which we referred earlier as being breached almost immediately by this offending.  He received a sentence of eight months’ imprisonment, which has now been served.  His parents remain highly supportive and he used his time in custody (leading up to sentence) productively, undergoing rehabilitative courses, including drug and alcohol programs.  His time in custody has been made more onerous by the death of his grandmother, with whom he was very close.

8. Her Honour read and accepted his expression of remorse, and noted his cooperation during the record of interview.  His prospects for rehabilitation were positive but ‘as with [his] co-offenders, they relied almost entirely on [his] ability to stay drug free’.[24]  His plea of guilty was entered at an early stage.

   [24]Ibid [83].

   Begg

9. Begg was 35 years old when he appeared for sentence.  He has a positive relationship with his divorced parents and with his older brother.  He left school after Year 9.  He was unemployed for some years and then worked in a factory for some time before a serious workplace injury occurred when his right hand was caught in a press.  He returned ultimately to casual work.  He estimated that since leaving school, he had worked for about 40 per cent of the time.  He has been in a relationship for 10 years and has a six year old daughter.

10. He began smoking cannabis at 13 or 14 years old; used amphetamines at 16; tried LSD, cocaine, ecstasy and GHB; and by 18, commenced using ice.  This caused great strain on his relationship with his family.  Two years ago, he suffered a drug-induced psychosis, which required a two-week hospital admission.  He was then abstinent from drug use for 15 months but relapsed.

11. In his early 20s, he was dealt with for assault, drug possession and possession of a prohibited weapon.  At the age of 30, he was dealt with for possessing an unregistered handgun and ammunition, possessing a prohibited handgun and possessing cannabis.  He was placed on a CCO, which he breached.  He was fined and a further CCO was imposed.  In 2015, he was dealt with for theft and placed on another CCO, which was completed by the time of the current offending.

12. A psychologist engaged by his solicitors described him as ‘cognitively, socially and emotionally immature’,[25] having learnt to avoid internal distress with drug use.  He, too, had used time in custody productively, being abstinent from drugs.  The judge accepted that he had positive prospects for rehabilitation if he could remain drug free.  His plea was on the eve of the trial and was a late plea, but still carried with it a utilitarian benefit.  The judge accepted that he was remorseful.

    [25]Ibid [98].

    The judge’s reasons for sentence

13. The judge considered the offending to be

    … extremely serious.  It is vigilante action in a serious form.  On behalf of the community the courts must denounce such behaviour. Sentences imposed must deter others from acting in such a brazen and dangerous fashion.  Just punishment, deterrence and community protection must be at the forefront of sentencing considerations.[26]

    [26]Ibid [33].

14. In sentencing the applicants, her Honour paid particular attention to the impact the offending had on Mr Ashwood.  He was the victim of repeated attacks in his home, and each of the attacks was accompanied by a ‘willingness to engage in violence, and in the second and third incidents, by actual violence’.[27]  The judge considered that the use of weapons, particularly firearms, constituted very serious examples of this type of offending.

    [27]Ibid [34].

15. Her Honour gave ‘anxious consideration to issues of parity and totality’ in sentencing.[28]  In these circumstances, she observed that parity was not a ‘straightforward’[29] exercise in light of the offences to which the applicants have each pleaded guilty and their differing involvement across the three incidents.  The judge gave consideration to each set of offending, and to each applicant’s relevant prior criminal history and personal circumstances.  She also considered the applicants’ pleas of guilty and their efforts at rehabilitation.

    [28]Ibid [112].

    [29]Ibid [113].

    Claridge

16. Her Honour stated that Claridge committed the offending in ‘a what was described as a state of ice-fuelled madness’,[30] which ‘aggravated the situation’.[31]

    [30]Ibid [49].

    [31]Ibid.

17. In the first incident, Claridge demonstrated violent intention through trespassing, yelling at Mr Ashwood and kicking at the front door.  The intention was further demonstrated by the fact that he possessed a homemade shotgun.  At the time of that possession, he was a prohibited person.  The judge considered the victim impact statements of Mr Ashwood’s children, aged 10 to 13.  They speak of terror and being in fear for their safety when they saw Claridge with the gun.  The children had become unable to sleep, they have nightmares and flashbacks, and are withdrawn and hypervigilant about their safety.[32]  Mr Ashwood’s mother also prepared a victim impact statement, in which she stated that Mr Ashwood suffered mentally from the incident, and has had counselling and medication.  One of the children is seeing a psychologist.

    [32]Ibid [51].

18. Although the judge accepted that the assaults in charges 1 and 2 on the first incident are at a lower end in that they did not involve any physical contact, her Honour said it was clear from the victim impact statements that the children, in particular, were aware of the serious threat Claridge and his co-offenders posed.  The judge noted that the children were aware of Claridge and the other co-offenders’ presence moving around the house, they were confronted inside the house by a co-offender and they were aware that Claridge had a gun.

19. Her Honour considered the offending in the second incident to be ‘extremely serious’:[33]

    It was committed in the middle of the night on a man alone in his home and vulnerable.  There was forced entry.  You entered the premises, Mr Claridge.  You or your co-offender was armed with a sawn-off rifle.  That weapon was pointed at the victim and fired towards him.  That is an extremely serious offence.[34]

    [33]Ibid [56].

    [34]Ibid.

20. Given that Claridge was on a CCO at the time of these offences, it formed an aggravating feature in his personal circumstances (which we have set out above in paragraphs 22 to 27) and the judge emphasised the need for specific deterrence in sentencing him to a substantial term of imprisonment with a non-parole period.

    Hobby

21. The judge considered that there was ‘little to separate’[35] Hobby and Claridge on the facts of the offending in the first incident, although she accepted that Hobby was not aware of the firearm in Claridge’s possession.

    [35]Ibid [60].

22. The judge accepted that Hobby was also not aware of the second incident.  Like Claridge, however, Hobby had been present at Mr Ashwood’s house during the first incident when his children were inside and Mr Ashwood was placed in fear.  His return to Mr Ashwood’s house in incident three indicated his disregard for the fact that his victim felt fear and Hobby’s moral culpability was high, particularly in relation to incident three.

23. The offending in the third incident occurred in the presence of Mr Ashwood’s sister and friends, and it was ‘a sustained and vicious attack on a defenceless man in his own home’.[36]  The impact on Mr Ashwood's sister of witnessing that assault in incident three has been significant.  According to her victim statement and that of her mother, she suffered fatigue, lacked motivation, and rarely left her house.

    [36]Ibid [64].

24. As with Claridge, the commission of these offences when Hobby was in an ice-affected state was an aggravating feature in sentencing.  Other aggravating features included possession of a homemade firearm despite being a prohibited person and committing these offences while on a CCO.

    Begg

25. Begg was involved in the single incident on 21 July 2017 (incident two).  The judge accepted that there was no evidence that he was aware of incident one and in that sense, his moral culpability was less than that of Claridge.  He did not know the victim, and the judge accepted that he ‘went along with others out of some sense of misguided loyalty’.[37]  He was aware that his co-offenders were armed with the sawn-off rifle when they went into the house.  He was a prohibited person in possession of that firearm and therefore liable to a higher maximum penalty.  The judge made it clear that she did not sentence him for the firing of the shot inside the house.  Her Honour noted, however, that the potential for serious violence by a person entering with a loaded firearm is obvious and would have been obvious to Begg at the time of the offending.  He and his co-offenders were present for the sole purpose of violent confrontation, and his behaviour after that offending in dealing with the stolen items demonstrated his ‘enthusiastic participation in these events and [his] willingness to treat those spoils as [his] own’.[38]

    [37]Ibid [109].

    [38]Ibid [110].

26. We shall consider the applications for leave to appeal separately, except for Hobby and Begg’s parity grounds, which we shall consider jointly.

    Claridge’s grounds of appeal

27. It will be recalled[39] that Claridge was sentenced to a total effective sentence of 11 years’ imprisonment with a non-parole period of eight years and three months.

    [39]See paragraphs 2 to 6 of these reasons.

    Ground 1 — Did the trial judge err in finding that the use of ice was an aggravating feature?

28. In a short written case, Claridge contended that the judge erred when stating:

    [The offences] were committed in what was described as a state of ‘ice-fuelled madness’.  To my mind that aggravates the situation.  Courts and the community are well aware of the increase in aggression and unpredictable behaviour when persons are ice affected.  Those comments apply to all three of you.[40]

    [40]Reasons [49].

29. Claridge relied on Samac v The Queen,[41] which he contended was authority for the proposition that it was erroneous to treat drug use as an aggravating circumstance.

    [41][2011] VSCA 171 (‘Samac’).

30. In Samac, which was an appeal against sentence by a large-scale drug trafficker, Ashley JA, with whom Weinberg JA and Hargrave AJA (as he was at the time) agreed, stated:

    [T]he judge’s observation that, to the extent that the applicant was a drug-user, he understood the disabilities of drug users and ‘so much the worse [was his] offending’, was in my view erroneous in the circumstances of the case.[42]

    [42]Ibid [68].

31. Ashley JA referred to Beckerton v The Queen.[43]  In Beckerton, Weinberg JA considered that there were special circumstances in which ‘drug addiction’ could lead to ‘increased moral culpability’, but those circumstances should be narrowly circumscribed’.[44]  It is apparent that both Samac and Beckerton were concerned with the question of whether ‘drug addiction’ itself could aggravate offending by increasing moral culpability.

    [43][2011] VSCA 107 (‘Beckerton’).

    [44]Ibid [48].

32. We consider that the trial judge’s reference to ‘ice-fuelled madness’ as aggravating the situation was quite different to the statements of principle set out in Samac and Beckerton.  In sentencing Claridge, the judge was directing her observations not to the fact of Claridge’s drug use, but to his erratic and dangerous state of drug-fuelled fury when he was engaged in the offending.  Her Honour was entitled to be concerned with Claridge’s conduct, which was placed squarely before her by Claridge’s counsel on the plea.  Counsel’s opening words were:

    There is no doubt, Your Honour, this offending is serious.  Ice-fuelled madness would be a good description.  The offending was obviously frightening, dangerous and persistent.

    Counsel for Claridge now criticises the judge for adopting and acting upon his very words.

33. We agree with defence counsel’s concession at the plea that his client’s conduct was ‘frightening, dangerous and persistent’.  The judge’s comments, based on this concession, were, we consider, entirely justified.  The applicant’s addiction was not the aggravating feature.  It was his drug-driven, dangerous and erratic conduct which was quite properly treated as an aggravating feature.  This ground must be rejected.

    Ground 2 — Are the individual sentences, the total effective sentence and the non-parole period manifestly excessive in all the circumstances?

34. Appeals against sentence are constrained by the principles of appellate review of discretionary decisions.  In the absence of demonstrating specific error on the part of the sentencing judge, an applicant who contends manifest excess must demonstrate that the sentence imposed was unreasonable or plainly unjust.  The applicant must demonstrate that the sentence below was ‘wholly outside the range of sentencing options available to the sentencing judge’;[45] that it was not reasonably open to the sentencing court to impose it.[46]

    [45]R v Boaza [1999] VSCA 126, [42] (Winneke P).

    [46]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].

35. Claridge’s sentencing details are set out in paragraphs 35 to 39 of these reasons.  He participated in the first and second incidents.  On the first occasion, he was armed with a firearm.  On the second occasion, at around 3.00 am, he and an unknown man kicked in Mr Ashwood’s rear door, confronted him and pointed a rifle at him.  As Mr Ashwood retreated, a shot was fired in his direction.  This was very serious offending which called for a long term of imprisonment.  The fact that both sets of offending occurred only weeks after his entry into a CCO was an aggravating feature.  Her Honour set out and clearly had regard to the various mitigating features, including Claridge’s early plea, family support, solid employment history, the loss of his business and his relationship, his progress towards rehabilitation and his relative lack of prior criminal history.

36. We consider the total effective sentence to be stern, but it cannot be characterised as beyond the range of sentences reasonably open to her Honour.  It comprises 11 indictable offences and four related summary offences.  Further, it cannot be said that any of these individual sentences is wholly outside the range of sentences available to the sentencing judge; indeed, the individual sentences imposed on charges 5 and 6 are, in our view, quite moderate, given the overall circumstances of the second incident.  We are not satisfied that Claridge has made good this ground and it must be rejected.

    Hobby’s grounds of appeal

    Ground 1 — Did the sentencing judge err in failing to afford Hobby procedural fairness insofar as it concerned a finding that the judge made with respect to Hobby being in possession of a weapon during the first incident?

    Ground 2 — Did the sentencing judge err in finding that Hobby was in possession of a weapon during the first incident?

37. Grounds 1 and 2 can be considered together.

38. In ground 1, Hobby complained that, in finding he was in possession of a weapon during the first incident, he was denied procedural fairness in that:

    ·the prosecution opening did not allege that Hobby was in possession of a weapon;

    ·the finding that he was in possession of a weapon was not raised during the plea hearing;

    ·the finding was required to be made beyond reasonable doubt; and

    ·as a matter of procedural fairness, Hobby should have been given the opportunity to make submissions about that finding.

39. In ground 2, Hobby complained that it was not open to the judge to conclude beyond reasonable doubt that he possessed a weapon in the first incident.

40. In the reasons for sentence, the judge stated:

    Turning to you, Mr Hobby.  In relation to incident one, apart from Mr Claridge’s possession of the firearm, there is little to separate you on the facts of that actual offending.  Although I accept you were not aware of the firearm in the possession of Mr Claridge, I can reasonably infer that the item you placed down your pants was a weapon of some description.

    I draw that conclusion based on the facts that, like your co-offender, your sole purpose of attending was for a violent confrontation.  That violence is demonstrated by what occurred on those premises.  You admitted during your record of interview that when you became aware of the presence of children you decided you would return and ‘get him’ another day.[47]

    [47]Reasons [60]–[61].

41. There is nothing in these two grounds.  In the prosecution opening, the prosecutor stated:

    [Hobby] kicked the front door in an attempt to force it open.  He also concealed an object within his dark coloured ‘Monster’ jacket.

42. Later, in his reply to defence submissions, the following exchange occurred between the prosecutor and the judge:

    PROSECUTOR:       … the evidence does show that [Hobby] was placing an object down the front of his pants, whilst outside of the premises.  But we’re unable to say what that object was.

    HER HONOUR:      Can the Crown go as far as to say it’s a weapon of some sort?

    PROSECUTOR:       We would say that that it was of some sort.

    HER HONOUR:      Yes.

    PROSECUTOR:       Taken there, and in my submission, it would be a reasonable inference that can be drawn.  Because the overarching circumstances are such that the three persons who attended that place, obviously did so for the purposes of having a confrontation.  But for the presence of the children, Your Honour may be dealing with a very different set of circumstances.

1. It is apparent that there was ample discussion on Hobby’s potential possession of a weapon in the prosecutor’s opening and closing remarks.  That defence counsel did not address it, does not mean that he was denied the opportunity to do so.  It is true that the prosecutor in his opening referred to something being concealed within Hobby’s ‘Monster’ jacket and in closing, changed that to an object being placed down the front of his pants, but this discrepancy is, in our view, immaterial.  From the outset, it was part of the prosecution case that Hobby concealed something on his person in circumstances where his only apparent purpose in attending Mr Ashwood’s home was to participate in a confrontation.  If counsel was not on notice then that an adverse finding may be made against his client, he surely must have been on notice during the later exchange set out in paragraph 61, where her Honour asked directly whether the Crown maintained that what was concealed was a weapon of some sort and the prosecutor replied affirmatively.  There was no denial of procedural fairness and ground 1 must be rejected.

2. We are also of the view that it was open to the judge to be satisfied beyond reasonable doubt that Hobby did have a weapon of some sort secreted about his person.  The prosecution summary on this issue was undisputed.[48]  Hobby admitted to police that he went to Mr Ashwood’s home in early July with the intention to assault him, but after seeing the children, resolved to ‘get him another day’.  These facts, together with the fact that he concealed something in his ‘Monster’ jacket at the time that he kicked the front door, in our view, provide sufficient foundation for the judge to conclude that it must have been a weapon of some sort.  At the time of the undisputed concealment of some object, Hobby was in the course of attempting to gain access to Mr Ashwood’s house by kicking in the door to ‘get him’.  Ground 2 must be rejected.

   [48]See paragraph 60 of these reasons.

3. Ground 3 is a parity ground and we shall consider it later in these reasons.

   Ground 4 — Is the aggregate sentence of three years and four months’ imprisonment imposed on charges 1, 2 and 3 manifestly excessive?  Is the order for 12 months of that sentence to be cumulative on the base sentence manifestly excessive?

4. In ground 4, Hobby contended that the aggregate sentence of three years and four months’ imprisonment on charges 1, 2 and 3 (which concern the first incident) is manifestly excessive, as is the order for 12 months’ cumulation on the base sentence.

5. We have set out the principles relating to an appeal ground of this nature in paragraph 53 above.  It ought to be noted immediately that the sentence imposed on the two common assaults and the intentional damage of property was an aggregate sentence covering the totality of charged conduct that constituted the first incident.

6. We have also set out the circumstances of the first incident in paragraph 9 of these reasons.  Hobby, Claridge and an unknown man went to Mr Ashwood’s family home at 7.10pm, and immediately attempted to knock and kick in the front door.  Claridge was armed with a firearm (although this was unknown to Hobby at this stage), Hobby was armed with a weapon and the joint intention was to confront Mr Ashwood and, in Hobby’s words, ‘get him’.  The undisputed prosecution opening was that the intruders yelled for Mr Ashwood to come outside.  It was also undisputed that Mr Ashwood and the child victims were terrified at this stage.  One of the offenders — her Honour could not say whom — broke a lounge room window.  One of the offenders entered the house through a back door.  Hobby, by his plea to charge 3, accepted complicit responsibly for this.

7. Section 9(2) of the Sentencing Act 1991 (‘Sentencing Act’) provides that the term of an aggregate sentence of imprisonment ‘must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences in accordance with this Act if the court had imposed a separate sentence of imprisonment in respect of each of them’.  The aggregate sentence of three years and four months’ imprisonment must be considered against the overall offending conduct concerning the first incident, and not as against any discrete aspect of that conduct.

8. If these offences were the subject of individual sentences, the maxima would be 10 years’ imprisonment on each charge, so the theoretical maximum for this aggregate sentence, by a process of arithmetic and the operation of s 9(2) of the Sentencing Act, would be very long indeed.

9. Unlike Claridge, Hobby has a significant criminal history.  At the time of the commission of the offences the subject of this application, he was the subject of a
   

   [49]From 2013 onwards.

   12-month CCO for burglary, theft, criminal damage, knowingly dealing with the proceeds of crime, and sundry other criminal offences.  He has recent[49] prior convictions for possessing a prohibited weapon without exemption or approval, possessing cartridge ammunition, going equipped to steal, handling stolen goods, dishonestly receiving stolen goods, criminal damage, making a threat to kill, recklessly causing injury and unlawful assault.

10. We are unable to conclude that the aggregate sentence on these charges is ‘wholly outside the range of sentences available’ for this offending.  Put positively, we consider it was within range.  The victims, including the three children (charge 2 on the first indictment), were undisputedly terrified.  Hobby had no business being at Mr Ashwood’s home, he was armed with a weapon and his object was to ‘get’ Mr Ashwood.  This is serious offending which calls for a considerable measure of both general and specific deterrence.  In her Honour’s sentencing remarks after taking into account Hobby’s moral culpability, the nature of the offending and his personal circumstances, the judge concluded that deterrence and community protection must be at the forefront of sentencing considerations.  We agree with that statement.

11. For the same reasons, we are not satisfied that 12 months’ cumulation ordered in respect of this aggregate sentence is manifestly excessive.  The first incident was self-evidently discrete from Hobby’s other offending in the third incident and, whilst not as serious as his offending in the third incident, was serious offending nevertheless.  We consider that the order for 12 months’ cumulation was well within the range of cumulation available to the sentencing judge.

    Ground 5 — Is the sentence of four years’ imprisonment imposed on charge 12 manifestly excessive?  Is the order for two years of that sentence to be cumulative on the base sentence manifestly excessive?

12. Ground 5 of Hobby’s application for leave to appeal contended that the sentence of four years’ imprisonment on charge 12 and the order for two years’ cumulation on the base sentence are manifestly excessive.  Counsel for Hobby conceded on this application that incident three[50] plainly involved serious criminal offending and that the penalty of five years’ imprisonment imposed on charge 11 on the first indictment (aggravated burglary) was ‘warranted for that offence’.  The argument proceeded, however, that her Honour’s characterisation of incident three as ‘high criminality’[51] was a ‘miscategorisation’ as it applied to charge 12 on the first indictment (intentionally causing injury), and that this was a mid-range example only of this offence.  Hobby contended that there was also the risk of double punishment for the fact that the offending occurred inside the victim’s home, involved the use of a weapon, was committed in company, and after the commission of the offending in incident one.

    [50]See paragraph 12 of these reasons.

    [51]See Reasons [64].

13. It is instructive to recall the judge’s sentencing remarks about Hobby’s activities during the third incident.  No factual challenge was made on this application to these findings:

    On Thursday 27 July 2017 at 4 pm Mr Ashwood was at home with his sister, Sheona Ashwood.  Also present was a female known to Shane Ashwood as Emily and a male known as Jay.  All four were seated in the kitchen area.

    Shortly after 4 pm, you, Mr Hobby, and an unknown male co-offender entered the premises by forcing open the front door.  You then proceeded to the kitchen.  Mr Ashwood recognised you, Mr Hobby, but not the other person.

    Mr Ashwood backed away trying to get into the lounge room when he was assaulted by both of you.  He was kicked, punched and hit with an iron pole to his head, arms, back and torso.  While he was on the ground, you, Mr Hobby, continually stomped on his torso.

    Mr Ashwood again managed to escape the house and ran to the Keysborough Denture Clinic where staff called 000.[52]

    [52]Ibid [16]–[19].

14. A little later, the judge observed:

    The criminality of your offending in incident three is high.  That offending occurred in the presence of Mr Ashwood's sister and friends.  It was a sustained and vicious attack on a defenceless man in his own home.  He sustained physical injuries as a result.  Again it only stopped because he was able to flee.[53]

    [53]Ibid [64].

15. The aggravated burglary was complete when Hobby and his co-offenders broke into Mr Ashwood’s home.  At that stage, Hobby was armed with a weapon, intending to commit an assault with that weapon and fixed with the knowledge that Mr Ashwood was, at least probably, present.  What happened after he entered constituted significant discrete criminal misconduct and merited significant discrete criminal sanctions.  We do not detect any flavour of double punishment in the judge’s reasons.  We note that on the plea, Hobby’s counsel accepted, sensibly, in our view, that charge 12 on the first indictment was a ‘serious one and probably in its own right’.

16. We consider that the sentence imposed, having regard to all relevant factors, was stern but within the range available to the judge. We consider that the judge correctly characterised the offending that constituted charge 12 as ‘brazen and dangerous’,[54] and as we have said, correctly concluded that deterrence and community protection must be at the forefront of sentencing considerations as they concerned this charge.

    Ground 6 — Is the sentence of 18 months’ imprisonment imposed on charge 15 manifestly excessive?  Is the order for six months of that sentence to be cumulative on the base sentence manifestly excessive?

    [54]Ibid [33].

17. This ground contended that the sentence of 18 months’ imprisonment imposed on charge 15 on the first indictment (prohibited person in possession of a firearm) is manifestly excessive.  The cumulation of six months is also subject of complaint.

18. Hobby contended that the homemade nature of the firearm, his belief that the firearm was inoperative and the fact that it was not used in the commission of an offence put this case in a lower offending category when compared to a fully functional, professionally made firearm possessed for use in offending.

19. It was undisputed on the plea that, in fact, the firearm was operative.  Notwithstanding this, counsel for Hobby maintained that his client’s belief was that the firearm was inoperative, and it seems that the judge accepted that proposition.[55]  Hobby became a prohibited person as a result of being placed on a CCO a bare six weeks before this spate of offending.

    [55]Ibid [31].

20. In Berichon v The Queen,[56] Redlich JA discussed the two broad categories into which offenders, found guilty of this type of offence, usually fell:

    The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness.  Those categories have been discussed in R v Graham[57] and Armistead v The Queen.[58]  The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity.  Sentences of a low order of imprisonment are usually appropriate[59] unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence.[60]  The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order.[61]  Such sentences will be appropriate where the firearm is for example possessed in the context of a criminal activity to provide security or as a means of enforcement.  The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.[62]

    [56][2013] VSCA 319 (‘Berichon’).

    [57](2007) 178 A Crim R 467 (‘Graham’).

    [58][2011] VSCA 11.

    [59]Sentences in the range of six to 18 months are ordinarily imposed.

    [60]R v DJ [2007] VSCA 148, [7] (Buchanan JA).

    [61]Hudson v The Queen (2010) 30 VR 610, 624 [54]; R v Rudd (2009) 23 VR 444, 464; Graham (2007) 178 A Crim R 467, 470 (Vincent JA).

    [62]Berichon [2013] VSCA 319, [26].

21. This statement, whilst not to be regarded as a statute, provides a helpful guide to sentencing in this type of offence.  Every case, of course, must be considered individually, and given Hobby’s previous criminal history, a ‘more substantial’ sentence was warranted, proportionate to the gravity of the offence.  In our view, neither the sentence of 18 months, constituting 15 per cent of the maximum sentence available, nor the six months declared to be cumulative on the base sentence and other sentences, can be said to be wholly outside the range of sentences available to the judge.

22. This ground of appeal must be rejected.

    Ground 7 — Are the total effective sentence and the non-parole period manifestly excessive?

23. Ground 7 contended that the total effective sentence and the non-parole period are manifestly excessive.  It will be apparent from our reasons thus far that we regard Hobby’s conduct, particularly during the third incident, as reprehensible.  Eight years and six months’ imprisonment is a lengthy term of imprisonment by any standard, but Hobby’s conduct in both the first and third incidents provided ample justification for such a lengthy term.  Offenders and would-be offenders can only be deterred from this type of offending, described by her Honour as ‘vigilante action’,[63] by the imposition of long terms of imprisonment.  This ground, insofar as it concerns the total effective sentence, must be rejected.

    [63]Reasons [33].

24. We have had more difficulty with the minimum term imposed by the judge. Six years and 10 months was ordered to be served before parole eligibility. That is approximately 80 per cent of the head sentence. By comparison, Claridge, who received a longer sentence and whose offending was considered, correctly, to be more serious than that of Hobby, received a minimum term of 77 per cent of his head sentence,[64] and Begg — a lesser offender — received a minimum term of 61.5 per cent of his head sentence.[65]

    [64]Claridge received a head sentence of 11 years’ imprisonment with a minimum term of eight years and three months.

    [65]Begg received a head sentence of six years and six months’ imprisonment with a minimum term of six years.

25. Whilst no parity ground was advanced on Hobby’s behalf on this issue, insofar as the total effective sentence and the minimum term are concerned, this comparative exercise confirms to us that the minimum term is out of kilter with the maximum term.  We have concluded that this ground ought to succeed insofar as it concerns the minimum term and it will be adjusted downwards to a period in the range of 70 per cent of the maximum term.

    Begg’s grounds of appeal

26. Begg was involved in incident two only.  It will be recalled that he, Claridge and an unknown male attended at Mr Ashwood’s address.  Begg knew that Claridge was armed with a sawn-off rifle.  He did not enter the house, but by his plea to aggravated burglary, he admitted complicity in that very serious criminal conduct.  He was not a party to the reckless conduct within the house after the jointly committed aggravated burglary, however, was complicit in the theft of Mr Ashwood’s wallet containing $2,500 cash, a bank card and four mobile phones.  He was also complicit with Claridge in withdrawing $1,000 from an ATM using the stolen bank card that belonged to Kathy Ashwood.  When he was arrested on 2 August 2017, his house was searched and police seized a sawn-off rifle and cartridge ammunition.  Further details of his offending are set out in paragraphs 10 and 11 of these reasons.

27. Grounds 1 and 2 are parity grounds and we consider them later in these reasons.

    Ground 3 — Is the sentence of two years’ imprisonment imposed on charge 2 manifestly excessive?  Is the order for 12 months of that sentence to be cumulative on the base sentence manifestly excessive?

28. Ground 3 contended that the sentence of two years’ imprisonment on charge 2 on the second indictment (prohibited person in possession of a firearm) is manifestly excessive.  Begg contended that he was in the lower category identified by Redlich JA in Berichon[66] and thus two years’ imprisonment was beyond range — there was, he contended, no basis upon which it could be concluded that the firearm was kept for a criminal purpose.

    [66]See paragraph 81 of these reasons.

29. Begg, aged 35, was also a substantial methylamphetamine user who has been hospitalised in the past for drug-induced psychosis.  In her sentence, the judge set out his prior criminal history:

    You have a relevant prior criminal record having been dealt with for assault, drug possession and possessing a prohibited weapon in your early 20s.  At age 30 you were dealt with for possession of an unregistered handgun and ammunition, a prohibited weapon, general category handgun and cannabis.  You were placed on a 12-month CCO with treatment which was breached by further offending by way of carrying a prohibited weapon.  You were fined and a further CCO was imposed.  In 2015 you were dealt with for theft and placed on another CCO with work and treatment conditions.  You apparently completed a deal of that order and it is not breached by this offending.[67]

    [67]Reasons [97].

30. The judge also said:

    You were a prohibited person in possession of that firearm and therefore liable to a higher maximum penalty.  In company with the firearm was ammunition which elevates the seriousness of possessing that weapon.  I do not sentence you for the firing of the shot inside the house.  However, the potential for serious violence by a person entering with a loaded firearm is obvious and would have been obvious to you.  You were all there for the sole purpose of violent confrontation.[68]

    [68]Ibid [110].

31. The respondent submitted that the judge made it clear that she sentenced the applicant on the basis that the possession of the firearm was made more serious as a result of the possession of the ammunition.  The respondent also noted that the applicant had relevant priors for firearms offences.

32. In our view, the sentence of two years’ imprisonment, while stern, is within the range available to the judge in the exercise of her sentencing discretion.  The firearm was not a homemade confection.  It was a sawn-off rifle and being stored by Begg with ammunition nearby.

33. We consider that a sentence of 20 per cent of the available maximum penalty after a plea of guilty for this 35 year old man with relevant prior convictions cannot be said to be wholly outside the range of available sentences in the reasonable exercise of sentencing discretion.  For the same reasons, we consider the order for cumulation to be stern but within that range.  Whilst the possession of the firearm could not be said to be possessed for ‘some ongoing criminal activity’,[69] cut down firearms have only one realistic use and that is use in the commission of violent crimes.  Where prohibited persons elect to possess such single purpose weapons, they cannot expect much in the way of lenience.  This ground must be rejected.

    [69]Berichon [2013] VSCA 319, [26].

    Ground 4 — Is the sentence of five years’ imprisonment imposed on charge 1 manifestly excessive?

1. Ground 4 contends that the sentence of five years’ imprisonment on charge 1 on the second indictment is manifestly excessive.  In his written case, counsel for Begg sensibly accepted that ‘charge 1 plainly involved serious offending’.  We have set out the circumstances of the second incident at some length at paragraph 10 and 11 of these reasons.  Counsel for Begg focussed on the limited role played by his client in the offending, neither actively participating in the confrontation inside the house, the shooting or the chasing of the victim from the house.  The fact remains that by his plea, Begg admitted criminal complicity in this serious example of an aggravated burglary.  This Court has recently expressed its concern at the incidence and nature of this type of offending:

   As this Court has stated in a number of cases, including Filiz v The Queen[70] and DPP v Meyers,[71] confrontational aggravated burglaries … are all too prevalent in our society.  They are calculated to cause lasting and serious physical and emotional harm to the victim.  By their nature, such offences have the potential to escalate into incidents that result in serious harm and, on occasion, human tragedy.  For that reason, general deterrence is a sentencing purpose of particular significance in such cases.  It is important that the courts, by sentences imposed in such cases, make it clear that those persons who contemplate indulging in such a form of conduct will, upon apprehension, lose their right to be at liberty in society for a substantial period of time.[72]

   The sentence is not manifestly excessive and this ground must be rejected.

   Ground 5 — Is the aggregate sentence of 12 months’ imprisonment imposed on charges 3 to 6 manifestly excessive?  Is the order for six months of that sentence to be cumulative on the base sentence manifestly excessive?

   [70][2014] VSCA 212.

   [71](2014) 44 VR 486.

   [72]Laa v The Queen [2020] VSCA 136, [50]. See also Turney v The Queen [2020] VSCA 131, [43].

2. Ground 5 contended that both the aggregate sentence on charges 3 to 6 of 12 months’ imprisonment and the order for six months’ cumulation are manifestly excessive.  Begg argued that the theft of $2,500 (in total), four mobile phones, a wallet and a bank card, together with a successful attempt to withdraw $1,000 and five other unsuccessful attempts to withdraw money, would, considered by itself, be unlikely to result in a custodial sentence.  He argued that given the other offending to be dealt with, an aggregate sentence of imprisonment was inevitable but that 12 months was wholly outside the range appropriate to the judge’s sentencing discretion.  We disagree.  These thefts should not be viewed in isolation.  We agree with the judge, who stated in relation to these offences:

   Your behaviour after that offending on 21 July in dealing with the stolen items demonstrates your enthusiastic participation in these events and your willingness to treat those spoils as your own.[73]

   [73]Reasons [111].

3. The judge, while astute to avoid double punishment, was entitled to consider the circumstances that surrounded charges 3 to 6.  A substantial sum of cash was taken, together with the other contents of Mr Ashwood’s wallet, and five further attempts by Begg were made to procure cash using a stolen bank card.  The wallet, card and phones were stolen from Mr Ashwood after he had hurriedly fled the house.  We do not consider this to be ‘low range’ offending and consider that if an aggregate sentence were to be imposed, a term of imprisonment was the only sensible sentencing option.  We are not satisfied that the sentence imposed was beyond the range of sentences available.  Further, we consider that this discrete offending of a different character to that which precedes it called for some cumulation on the other sentences imposed.  We are not satisfied that the cumulation was manifestly excessive.  This ground also must be rejected.

   Ground 6 — Is the total effective sentence manifestly excessive?  Is the non-parole period manifestly excessive?

4. Ground 6 is a broad ground that contended both that the overall total effective sentence and the minimum term to be served before parole eligibility are manifestly excessive.

5. For the reasons that we have already expressed at paragraphs 87 to 97 of this judgment, we do not accept these contentions.  We repeat that the second incident, in particular, involved significant serious criminality.  Begg enthusiastically participated in this criminal conduct, knowing both its purpose and that a firearm was to be used.  We consider that the total effective sentence is a fair and proportionate response to that criminality, the principle of totality and the mitigating factors argued on Begg’s behalf.  This ground must be rejected.

   Hobby and Begg’s grounds of appeal on parity

6. The parity grounds contended by Hobby and Begg are as follows:

   Hobby (ground 3)

   3. That the Learned Sentencing Judge erred in her application of the parity/disparity principle in relation to the sentence imposed on charges 1, 2 & 3 with respect to the Applicant and CLARIDGE;

   Particulars:

   a.the fact that CLARIDGE possessed a firearm during the commission of the above offences is a serious aggravating feature of the offending that was not present in the sentencing synthesis of the Applicant;

   b.this distinction warranted a significant disparity in sentence in favour of the Applicant.

   Begg (grounds 1 and 2)

   1. The Learned Sentencing Judge erred in the application of the parity principle, and the principle of equal justice, in relation to the sentence imposed on charge 1.

   2. The Learned Sentencing Judge erred in the application of the parity principle, and the principle of equal justice, in relation to the sentence imposed on charge 2.

7. The principle of parity is directed towards the avoidance of ‘unjustifiable discrepanc[ies] in sentencing’.[74]  Recently, this Court restated this principle in a convenient form.[75]  We shall not attempt to rephrase it:[76]

   [74]Lowe v The Queen (1984) 154 CLR 606, 611 (Mason J) (‘Lowe’).

   [75]Nipoe v The Queen [2020] VSCA 137 (‘Nipoe’).

   [76]Ibid [38]–[40].

   Consistency in the application of the law is a fundamental aspect of the rule of law.[77] In a very different context, but in terms that are relevant to discretions generally, Brennan J said that: ‘[i]nconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.’[78]  The High Court has observed that:

   [77]Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ) (‘Green’).

   [78]Drake v Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634, 639 (Brennan J).

   Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’.[79]

   Appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention.[80] However, any assessment of an argument based on parity requires this Court to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders and to recognise that:

   Equal justice requires identity of outcome in cases that are relevantly identical.  It requires different outcomes in cases that are different in some relevant respect.[81]

   The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgements required’ to arrive at the sentence imposed.[82]  It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced.  As Vincent JA, with whom Brooking and Phillips JJA agreed, said in R v Djukic:

   Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[83]

   Hobby (ground 3) — Did the sentencing judge err in her application of the parity principle in relation to the sentence imposed on charges 1, 2 and 3 with respect to Hobby and Claridge?

   [79]Green (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ) (citations omitted). See also Lowe (1984) 154 CLR 606, 610 (Mason J).

   [80]Green (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ).

   [81]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original), cited in Green (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ).

   [82]Green (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ); McCloskey-Sharp v The Queen [2015] VSCA 87, [17].

   [83][2001] VSCA 226, [25].

8. Ground 3 deals with the sentences imposed on the first incident.  It is contended that the aggregate sentence of three years and four months’ imprisonment imposed on both Hobby and Claridge infringes the principle of parity.  The argument proceeds that Claridge possessed a firearm during this incident, which possession was unknown to Hobby.  This was said to be a distinguishing factor that should have led to a significant disparity of sentence.

9. We are not satisfied that this ground has been established.  We agree with the sentencing judge’s conclusion that, leaving to one side Claridge’s possession of the firearm, there was little to separate Hobby and Claridge’s actual participation in the first incident.[84]  Claridge’s firearm possession is, however, balanced to some degree by factors relevant only to Hobby.  Hobby had a weapon of some sort himself.[85]  His prior criminal history was relevant and significant.[86]  Claridge’s prior criminal history was insignificant.[87]  He also had a solid employment history.[88]

   [84]Reasons [60].

   [85]See paragraphs 62 and 63 of these reasons.

   [86]Reasons [74]–[77].

   [87]Ibid [46].

   [88]Ibid.

10. The sentencing judge was clearly astute to avoid disparity:

    In sentencing each of you I have given anxious consideration to issues of parity and totality.  Parity of course takes into account not simply the role each played in the individual offending but their personal circumstances.

    Consideration of parity is often difficult.  Here it was not straightforward given the offences to which you have each pleaded guilty and your differing involvement across the three incidents.  I have given consideration to each set of offending, to your relevant prior criminal histories and to your personal circumstances.  I have considered your pleas of guilty and your efforts at rehabilitation.[89]

    [89]Ibid [112]–[113].

11. To succeed in establishing this type of ground, an applicant must demonstrate that it was not ‘reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders’[90] in the way he or she did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances.

    [90]Nipoe [2020] VSCA 137, [40].

12. This was a difficult issue upon which reasonable minds may differ.  We have concluded that it was open to the judge to ‘fail to differentiate’ between Claridge and Hobby when sentencing on his first incident.  It is clear to us that her Honour concluded that Claridge’s possession of the firearm was counterbalanced by Hobby’s possession of an unknown weapon, his more extensive prior criminal history, and slightly less favourable personal factors.  We consider this conclusion was reasonably open to the judge and this ground must be rejected.

    Begg (ground 1) — Did the sentencing judge err in the application of the parity principle and the principle of equal justice in relation to the sentence imposed on charge 1?

13. Begg contended under this ground that Claridge’s participation in incident two, as compared to Begg’s participation, justified a far greater disparity between the two sentences than in fact eventuated.  It will be recalled that Claridge was sentenced to six years’ imprisonment on the charge of aggravated burglary and Begg to five years’ imprisonment on the same charge.

14. It was submitted on Begg’s behalf that the following facts justified this greater disparity:

    (a)This was the second time that Claridge had attended at Mr Ashwood’s home.  On both occasions, he was armed with a firearm and committed offences involving the intimidation of Mr Ashwood.  There was no evidence that Begg knew of the first incident.  It was submitted that the judge correctly identified that Claridge’s moral culpability was greater than Begg’s for that reason.

    (b)Claridge entered Mr Ashwood’s house with an unknown co-offender.  One of them was carrying and used the firearm.  Begg did not enter the house.

    (c)Claridge was on a CCO at the time of the second incident.  Begg was not.

15. We consider that on this charge, it was open to the judge to distinguish between Begg and Claridge to the extent that she did.  Whilst Claridge went inside the house and had been there before, Begg was complicit in this serious offending.  He knew his co-offenders were armed with a sawn-off rifle; they were all there for the purpose of violent confrontation, and Begg had prior convictions for assault, possession of prohibited weapons, possession of an unregistered handgun and ammunition, and possession of a general category handgun.  In contrast, Claridge had a short and less relevant criminal history.  Both men were ice addicts at the time of offending.  Claridge, who was also dealt with for his participation in the first incident, could also draw in aid the principle of totality with its compressive effect on the individual sentences imposed.  The judge stated:

    In sentencing each of you I have given anxious consideration to issues of parity and totality.[91]

    Given the number of serious charges faced by Claridge, totality had more work to do in his case than in that of Begg.

    [91]Reasons [112].

16. Begg also argued that his five-year sentence for aggravated burglary offends the parity principle when measured against Hobby’s sentence for the same offence — also five years’ imprisonment imposed for the aggravated burglary that was part of the offending which constituted the third incident.  In our view, it was open to the judge not to distinguish between Begg and Hobby.  The second incident involving entry with a loaded firearm was objectively more serious than the third incident.  The judge was entitled to conclude that Begg’s lesser involvement in the second incident, as compared to Hobby’s involvement in the third incident, was offset by the greater objective gravity of the second incident.

17. In our view, Begg has failed to establish this ground.  We consider that it was reasonably open to the judge to differentiate, to the extent that she did, between the sentence imposed on Begg for aggravated burglary on incident two as compared to Claridge’s aggravated burglary sentence.  Further, we consider that it was also reasonably open for the judge to fail to differentiate between Hobby’s aggravated burglary sentence on incident three and Begg’ aggravated burglary sentence on incident two.  This ground must be rejected.

    Begg (ground 2) — Did the sentencing judge err in the application of the parity principle and the principle of equal justice in relation to the sentence imposed on charge 2?

18. Begg’s second ground of appeal contended that the sentence imposed for the charge of being a prohibited person in possession of a firearm (charge 2 on the second indictment) of two years’ imprisonment infringes the parity principle when compared with Claridge’s sentence of 18 months’ imprisonment for the same offence.

19. It will be recalled that a sawn-off rifle was found at Begg’s house when it was searched by police on 2 August 2017.  Begg denied any knowledge of the firearm located at his house.  In our view, the difference in prior criminal histories of Claridge and Begg was sufficient to justify the disparity between the two offenders.  We have already set out Begg’s criminal history with firearms.[92]  In short, he has prior convictions over the last 14 years for, amongst other things, carrying a prohibited weapon without approval (2014), possessing an unregistered general category handgun (2013 and 2014), possessing ammunition without a permit (2013 and 2014), and possessing a prohibited weapon without approval (2006).  In our view, this criminal history by itself is sufficient to explain the disparity in sentences between Claridge, who had no history of firearms or weapons offences, and Begg.  We consider that it was reasonably open to the judge to distinguish between Begg and Claridge in this context in the manner that she did.  This ground must be rejected.

    [92]See paragraphs 30, 90 and 109 of these reasons.

    Conclusion

20. The judge’s reasons for sentence are careful and conscientious.  All relevant factors were considered and their competing merits evaluated.  Three co-offenders, playing different parts over three discrete offences, made this a challenging exercise.  With one limited exception, we consider the applicants have failed to make good their appeal grounds.  We will order as follows:

    (a)Leave to appeal is refused on Claridge and Begg’s applications.

    (b)In respect of Hobby’s application, leave to appeal is granted on ground 7 and the appeal is allowed. We shall direct that six years be served before parole eligibility. Out of an abundance of caution, we shall declare that a period of 840 days, not including this day, be reckoned as already having been served under the sentence pursuant to s 18(1) of the Sentencing Act.  All other orders made by the sentencing judge are affirmed.

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