Brent Geoffrey Whelan v The Queen
[2018] VSCA 59
•16 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0263
| BRENT GEOFFREY WHELAN | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 16 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 59 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1746 (Judge McInerney) |
---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
---
CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, intentionally causing serious injury and theft – Sentence of 9 years’ imprisonment with non-parole period of 7 years’ imprisonment – Specific errors alleged – Whether sentence manifestly excessive – Whether disparity in sentences of applicant and co-offender justified – Whether trial judge failed to take into account early plea of guilty – Leave to appeal granted in part.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Leanne Warren & Associates |
| For the Respondent | No appearance | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA:
The applicant, now aged 23, pleaded guilty in the County Court to one charge of aggravated burglary, one charge of intentionally causing serious injury and one charge of theft. On 22 November 2017, he was sentenced as follows:
Charge Offence Maximum penalty Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77] 25 years’ imprisonment 7 years’ imprisonment Base 2 Intentionally causing serious injury [Crimes Act 1958 s 16] 20 years’ imprisonment 5 years’ imprisonment 2 years 3 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment 6 months’ imprisonment Nil Total effective sentence: 9 years’ imprisonment Non-parole period: 7 years’ imprisonment Pre-sentence detention declaration 406 days Section 6AAA Statement 11 years’ imprisonment with non-parole period of 9 years Other relevant orders Forensic sample order; forfeiture and disposal orders
The applicant now seeks leave to appeal against sentence.
Circumstances of the offending
The applicant was sentenced together with a co-offender, Timothy O’Neill, who pleaded guilty to one charge of aggravated burglary and one charge of possessing a drug of dependence. In the case of both offenders, the victims were Andrew George and Simon George. The offending took place on 29 September 2016.
On 28 September 2016, Andrew George, Simon George, O’Neill and a female associate attended the funeral of a close friend. Later that evening, they attended O’Neill’s address. After some time, they left.
On the morning of 29 September 2016, O’Neill could not find two grams of the drug ice. He believed that he had left the drug on a table in his bedroom. He sent a message to Daniel Kessler via Facebook Messenger and accused him of stealing the ice, which Kessler denied. O’Neill then said that he had armed himself with an axe, that he was angry and that someone was going to die. He referred to Andrew George and Simon George.[1]
[1]Screenshots of the messages, which were later found on Kessler’s and O’Neill phones, were tendered on the plea.
O’Neill and Kessler made contact with the applicant as well as Jesse Slatter and an unknown person. The five men drove to Andrew George’s address in Malvern East. They believed that Simon George was at the address too. CCTV footage shows the men arriving at 10:21 am.
O’Neill and Kessler knocked on the front door of the house. At the same time, the applicant, the unknown person and Slatter kicked in the back door, leaving a shoe impression on it. They ran through the house and joined O’Neill and Kessler at the front door. O’Neill and Kessler confronted Andrew George about the missing ice.
Shortly thereafter, a housemate, Ryan Mitchell, woke up and admonished the intruders. The applicant produced a tomahawk, raised it above his shoulder and threatened to axe Mitchell. At this point, he was dragged away by the others.
The events that took place at Andrew George’s house formed the basis of the aggravated burglary charge to which O’Neill pleaded guilty. It also formed part of a rolled up charge in which two entries into Andrew George’s home on the same day were treated as a single offence.
Later that morning, the five men drove to Simon George’s address in Murrumbeena. They arrived at about 11:02 am. There were two dwellings at this address. Simon George resided in the rear dwelling.
The applicant and O’Neill knocked on the front door of the front dwelling. The occupant opened the door. The applicant and O’Neill asked for Simon George and tried to walk through the front dwelling to access the rear dwelling. The occupant told them that there was no rear door. They then walked down the driveway where they attempted to open a side gate that was locked.
The applicant climbed over the side gate and opened a garage door that allowed access in and out of the property. He walked back to the front of the property and notified O’Neill and Slatter. They all walked through the garage and entered the rear dwelling.
The applicant, O’Neill and Slatter walked onto the balcony area where they confronted Simon George about the missing ice. Simon George denied that he had stolen it. Some ten minutes later, the applicant suggested that the men return to Andrew George’s address in Malvern East. The applicant and Slatter left, while O’Neill stayed with Simon George.
The applicant, Slatter, Kessler and the unknown person returned to Andrew George’s home, arriving at 11:26 am. The applicant was armed with a tomahawk and a folding knife. Slatter was armed with a screwdriver and the unknown person a fence paling. All four men cordoned off the house.
Mitchell observed the applicant walking down one side of the house holding a tomahawk. He shouted to Andrew George that the intruders had returned. He ran from the house and called the police.
The applicant, Slatter and the unknown person confronted Andrew George and pushed him into a room. The unknown person remained at the front entrance. Slatter remained at the door to the room. The applicant struck Andrew George several times to the head and body with the tomahawk. Slatter struck Andrew George with the screwdriver, and the applicant removed the folding knife from his pocket and stabbed Andrew George. The attack continued as Andrew George was dragged into the rear sun room, kitchen and laundry.[2]
[2]These circumstances gave rise to charge 2 (intentionally causing serious injury).
The applicant and Slatter left Andrew George unconscious in a pool of blood. They stole a number of items from the dwelling, including a television, and fled by foot.[3] The applicant himself sustained a self-inflicted stab wound to his left hand.
[3]These circumstances gave rise to charge 3 (theft).
In the event, Andrew George sustained a collapsed lung and had several lacerations on his face, around his head, torso and arm and several stab wounds including on his chest and near the ribs. He had a fractured nasal bone and suffered from blood collection on the back of his head, with active arterial bleeding.
On 30 September 2016, the applicant attended Frankston Hospital for the injury to his left hand. It was decided that he would need plastic surgery. He remained overnight and was discharged on 1 October 2016. On 12 October 2016, police arrested the applicant after an appointment with a plastic surgeon. During his police interview, the applicant declined to comment on the offending.
Sentencing remarks
The sentencing judge described the charges of aggravated burglary and intentionally causing serious injury as particularly serious. He said that the applicant had a high degree of culpability for these offences.[4] He also said that the circumstances of aggravation included the applicant’s possession of a tomahawk and that the applicant was reckless as to the presence of the persons in the premises.[5] According to the sentencing judge, the applicant’s case met the classic definition of a confrontational aggravated burglary.[6]
[4]DPP v Whelan [2017] VCC 1746 [2] (‘Sentencing remarks’).
[5]Ibid [3].
[6]Ibid, citing Hogarth v The Queen (2012) 37 VR 658.
The sentencing judge considered the applicant’s criminal history to be considerable. He said that the applicant has some relevant prior convictions, including assault with a weapon, robbery and intentionally causing injury, for which he was given a six-month term of imprisonment with a community corrections order of one year and six months. The sentencing judge noted that the applicant was an example of ‘a person who is not interested in reform’, having been released from prison on 1 September 2016, some 28 days before the date of the present offending.[7] Other prior offences included unlawful assault, burglary, recklessly causing injury and assault.[8]
[7]Sentencing remarks [6].
[8]Ibid.
The sentencing judge summarised the injuries suffered by Andrew George, as set out in three medical reports that were tendered on the plea, as follows:
There are a considerable number of serious wounds inflicted, which are detailed in that report, from the combined attack undertaken upon Mr Andrew George. There were fractures, stabbings and most importantly, the need for an emergency chest drain insertion and surgery because of the finding of a large right pneumothorax.
The opinion of the specialist forensic surgeon, was that the injuries perpetrated upon Mr George, produced a life threatening internal injury to one of the organs essential to life, that is the lungs.
There were various impacts of stabbings and trauma and assaults involving multiple blows and probable stabbings. The force involved required multiple sharp impacts, caused the multiple stab injuries over multiple body parts. The severity of the injuries were described, including a large pneumothorax, with a lunge collapse, as severe. Such required a period of weeks – two months for the bone fractures to heal. Without medical treatment to the lung, recovery would have been unlikely.
Without initial first aid, direct pressure to the stab wounds, the medical assistance and treatment by ambulance and in hospital, the subject would have deteriorated and have been dead. That is indicative of how serious this assault was. It is simply by way of, no doubt, good luck of Andrew George and the skill of the surgeons, that Mr Whelan does not find himself across the road and indeed, Mr O’Neill, facing murder charges. To demonstrate to the Court the actual injuries, tendered [were] the photographs taken at the time, by the police. There are two photo books, and at my insistence at the original plea, there was also filed updated photographs of the victim Mr George, dated 15 August 2017.
They show a person who has been subject to a significant attack. The face scar, in particular, the one down his left cheek, is significant. The scarring to his chin is significant. Both of those will have to be endured by him for the rest of his life. The scars to the back are significant, as are the arms and the scars to the chest and the thighs are also significant. All of them give demonstration to the Court of how serious this attack was.
In addition, the reports of the treating hospital were tendered …
It is quite clear that this was an emergency situation faced by the hospital because of the injuries inflicted on the victim, Mr George. To say the least, the initial photos are stark. They always are, when they are taken very shortly after an attack like this. But the updated photos are also stark. This man has been severely scarred. I accept the evidence that the trauma imposed and inflicted upon Mr George would have had an impact upon his ongoing depression. Defence counsel in regard to Mr Whelan accepted that his client was responsible and liable for all of those injuries.[9]
[9]Ibid [17]–[23].
The sentencing judge observed that, although the applicant was jointly responsible for the offending, other assaults were being carried out by those around him. He said that it appeared that the applicant did not personally carry out the assaults that took place in the kitchen.[10]
[10]Ibid [35].
The sentencing judge took into account several reference letters that were tendered on the applicant’s behalf. They showed that the applicant had support from friends and family and that, as a child, he grew up in a violent and abusive household.[11]
[11]Ibid [36].
A report from Jeffrey Cummins, consulting clinical and forensic psychologist, was tendered on the plea. The sentencing judge summarised parts of that report.[12] He said that Mr Cummins was of the opinion that the applicant was emotionally immature, suffers from an adjustment disorder and has problems with self-control. However, according to Mr Cummins, the applicant has gained insight into the seriousness of his offending and the need for him to contain his own anger. Mr Cummins described the applicant’s ‘prognosis with respect to further violent offending’ as guarded.
[12]Ibid [38]–[39].
The sentencing judge said that he was asked to consider the issues of proportionality and totality and added that ‘an appropriate non-parole period could be taken into account’.[13] He continued:
As against that of course, I have to take into account how serious these crimes are. They were unprovoked and were part of a campaign of retribution of which Mr Whelan willingly became involved and ultimately the main instigator. Then on his own, and with the other two parties who are contesting the allegations, was party to inflicting these very serious injuries. Both Counts 1 and 2 must be seen as counts of very high culpability.[14]
[13]Ibid [40].
[14]Ibid [41].
After passing sentence on the applicant, the sentencing judge said:
Mr Whelan it is important for me, and Parliament have asked me to make sure you understand the actual benefit of pleading guilty. What effectively I have given you is a period of nine years in total, with a minimum of seven. Had you not pleaded guilty to these very serious offences, the sentence that you would have faced would have been a period of eleven years or the minimum of nine. It is important for you to understand the effect of your plea of guilty.[15]
[15]Ibid [45].
The sentencing judge turned to the circumstances of O’Neill’s offending. For the purposes of considering the applicant’s third proposed ground of appeal, which is set out below, it is necessary to summarise the sentencing judge’s remarks with respect to O’Neill.
The sentencing judge noted that O’Neill has no prior convictions but, in January 2014, was found guilty in the Children’s Court of recklessly causing injury.[16] He found that O’Neill ‘was clearly the instigator’ of the first charge of aggravated burglary to which he pleaded guilty.[17] He added:
This instigation was drug related and was brought about by him taking the law in his own hands, wanting to punish people for what he believed to be theft in his premises and recruiting the other offenders to follow him. It was his grievance, upon which this whole endeavour began, that is, the alleged drug theft.[18]
[16]Ibid [8].
[17]Ibid [10]. See also Sentencing remarks [13].
[18]Ibid [13].
The sentencing judge said that the instigation ‘was totally unwarranted’; neither Andrew George nor Simon George ‘were involved’,[19] presumably in the disappearance of the two grams of the drug ice from O’Neill’s address.
[19]Ibid [55].
The sentencing judge also described the charge of aggravated burglary as one of the ‘utmost seriousness’.[20] However, he accepted that O’Neill pleaded guilty at the earliest opportunity.[21] He had served 40 days of pre-sentence detention and was a young man who has the support of his family and has a limited criminal history.[22]
[20]Ibid [55].
[21]Ibid.
[22]Ibid.
The sentencing judge had regard to O’Neill’s personal circumstances.[23] He said that O’Neill has maintained regular, part-time employment in a supermarket and then as an apprentice painter and decorator. He occasionally works as a disc jockey. He is enrolled in a diploma that was due to start in 2018. He has also sought counselling with respect to his drug problems and has been on the Court Integrated Services Program.
[23]Ibid [56].
The sentencing judge said that it was to O’Neill’s credit that he dragged the applicant away from Mitchell when the applicant threatened to axe Mitchell with a tomahawk.[24] He was satisfied that O’Neill’s plea showed remorse and insight, ‘albeit much too late’.[25] The sentencing judge accepted that O’Neill is an immature and a relatively young person and that he has sought to get on with his life. He said that O’Neill comes from a good background and that he may be seen as being unlikely to reoffend.[26]
[24]Ibid [57].
[25]Ibid [60].
[26]Ibid.
The sentencing judge noted an opinion that was expressed in a report prepared by Pamela Matthews, forensic psychologist, that drug use played a significant part in O’Neill’s offending and that there should be a period of supervision imposed on O’Neill.[27] On this matter, the sentencing judge concluded that O’Neill is ‘a person who should not be anywhere near drugs, much less ice’.[28]
[27]Ibid [61].
[28]Ibid.
The sentencing judge also said that there was no suggestion that O’Neill would suffer any difficulties with managing a sentence.[29] The sentencing judge said that there is no doubt that O’Neill suffers from some form of social anxiety and needs some form of treatment.[30]
[29]Ibid [62].
[30]Ibid.
The sentencing judge considered that the seriousness of O’Neill’s offending, and the fact that he was the instigator and recruiter, cannot be overlooked. Nor could the fact that ‘he did not withdraw before the aggravated burglary happened, but to his credit, did ultimately withdraw’.[31] The sentencing judge concluded:
No one likes to sentence a young man to gaol, however, where the young man commits offences of this type, there is unfortunately no alternative. I do not accept the plea put on behalf of Mr O’Neill that the 40 days is sufficient and I find, there should be a further period of immediate imprisonment …
The notation of the acceptance of Mr O’Neill of the need for such assistance, the recommendation made that there be community work involved, treatment rehabilitation by way of drugs and mental health, programs to reduce reoffending and that there be supervision. It was noted, the successful completion of the CISP Program that I have referred to, while he has been on bail and the change in his life as I have already described. I take into account all of those matters.
… As I have said, it is my view, given the seriousness of the crime that you committed, the manner in which it was carried out, albeit limited, insofar as your role is concerned and it being not to the extent that Mr Whelan has pleaded guilty to, however, its seriousness is such that I could not countenance the period of immediate imprisonment being only 40 days. It seems to me the community would be outraged as to such a sentence.
I do, however, accept that you are a different person to sentence than Mr Whelan. You have no convictions. You have one Children's Court plea of guilty, a finding of guilty for one offence and that is all. You showed fortunately on the night, that you had woken up at some stage to what you had instigated, so that your aggravated burglary is limited to that extent.
However, that does not excuse the circumstances that you were responsible for, which you jointly carried out …[32]
[31]Ibid [64].
[32]Ibid [65]–[69].
O’Neill was sentenced as follows:
Charge Offence Maximum penalty Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77] 25 years’ imprisonment 1 year imprisonment and 4 year community correction order Base 2 Possession of a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 73] 5 years’ imprisonment 3 months’ imprisonment Nil Total effective sentence: 1 year imprisonment and 4 year community correction order Non-parole period: N/A Pre-sentence detention declaration 40 days Other relevant orders Nil
After passing sentence on O’Neill, the sentencing judge said:
Mr O’Neill, it does not give me any joy to sentence a young man like you. You have had your positive CISP reports. You realise the effect of drugs and you have gone ahead to get counselling. You have got a good character reference and you have got potential and you have got family supporting you. All the things you no doubt wish, in reflection, had you taken advantage of before you committed this crime. But behaviour of that sort simply cannot be countenanced. It does not give me any joy to put you in gaol for a year, but you have got to realise that drugs and you do not mix. You are just unfortunately, another member of the community who I see all the time, whose life has been grossly impacted by drugs.
At least your background and your upbringing was enough to save you from getting involved in the more serious aspects of the aggression and the injuries that were inflicted on this poor victim. But your behaviour is such that, as I say, there was no alternative. It might be said all of those matters have been taken into your account …[33]
[33]Ibid [121]–[122].
The prosecutor asked the sentencing judge to record a declaration under s 6AAA of the Sentencing Act 1991. The sentencing judge responded: ‘I don’t know what I would’ve done, but I certainly would’ve given him a combined order. It’s about the best I can do for Parliament.’[34]
[34]Ibid [165].
Proposed grounds of appeal
The applicant seeks leave to appeal against sentence on the following grounds:
1.The individual sentences imposed, orders for cumulation, total effective sentence and non-parole period, are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
Particulars
(a)The sentence imposed is excessive in that the learned sentencing judge failed to take into account and/or give adequate weight to the relevant factors of mitigation in the applicant’s case, including the following:
(i)Early plea of guilty and associated remorse;
(ii) Youth …
(iii) Totality;
(iv)Significant period already served on remand (406 days as at the time of sentence), including more onerous prison conditions;
(v)Personal history, including a diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct and emotional immaturity as a result of witnessing extreme violence as a child;
(vi) Recent efforts towards rehabilitation;
(vii) Significant level of insight into offending;
(viii)Guardedly favourable prospects of rehabilitation in light of youth, family support and resolve to continue to remain drug free; and
(ix) Risk of institutionalisation.
2.The individual sentences imposed on charges 1 and 2 were excessive and/or demonstrate legal error.
Particulars
(a)The applicant was sentenced to 7 years imprisonment and 5 years imprisonment respectively with charge 1 as the base sentence as 2 years accumulated on charge 2.
(b)The learned sentencing judge appeared to increase the sentence on these charges for reasons that it was only good luck that meant the applicant was not facing a murder charge.
(c)The learned sentencing judge committed legal error by finding this to be an aggravating factor and gave this factor too much weight by increasing the sentence imposed.
(d)Further, the learned sentencing judge committed legal error by failing to give a sufficient discount for the appellant’s plea of guilty at the earliest possible opportunity.
3.The sentences imposed on charges 1 and 2 were excessive and failed to reflect a degree of disparity between the applicant and co-accused.
(a)The co-accused instigated the plan for the aggravated burglary and recruited the applicant to assist.
(b)Notwithstanding the different degree of criminality between the applicant and co-accused, the learned sentencing judge imposed the a significantly reduced sentence for the co-accused.
First proposed ground of appeal
The first proposed ground of appeal does more than simply contend that the sentence imposed is manifestly excessive. It provides particulars. It seems that the applicant, under the rubric of manifest excess, is also complaining that the sentencing judge made specific errors by failing to take into account or give adequate weight to certain relevant considerations.
In his written submissions on the first proposed ground, the applicant placed particular emphasis upon his early plea of guilty, which occurred before the first committal mention. The applicant argued that this entitled him to a discount in sentence. However, the applicant accepted that the sentencing judge took into account most of the matters in mitigation that were advanced on his behalf.
I will address first the allegations of specific error. It seems to me that there are a number of difficulties with the reasons for sentence in the present case. First, it is sometimes difficult to follow their structure. Secondly, in several parts they recite the submissions of counsel without appearing to come to a conclusion on the issue that is the subject of the particular submission. Thirdly, and possibly as a consequence of the first point, they raise considerations that are relevant to O’Neill in circumstances where the sentencing judge is directing his remarks to the applicant. Of course, none of these things, by itself, demonstrates error in the reasons for sentence or the final sentence that was imposed. However, each in combination makes it the more difficult to assess precisely which considerations the sentencing judge took into account before passing sentence.
The applicant contended that the sentencing judge failed to take into account his early plea of guilty. In his reasons for sentence, the sentencing judge said:
The plea submissions of [counsel for the applicant] were tendered as Exhibit W2. She also provided the Court with a most useful chronology. She referred to the time that Mr Whelan has been in custody. She emphasised the plea of guilty at an early stage and asked the Court to accept such is demonstrative of remorse in relation to the offending and asked me to note his expressions of remorse made to both Dr Cummins and Ms Gordon.[35]
The sentencing judge accepted that the applicant had expressed genuine remorse.[36] Moreover, after passing sentence, he explained to the applicant the effect of a plea of guilty and the discount in sentence that he had received as a result.[37] However, it is arguable that the sentencing judge did not take into account the timing of the plea of guilty, which was entered before the first committal mention. By contrast, the sentencing judge took into account the early plea of guilty entered by O’Neill.[38]
[35]Ibid [37].
[36]Ibid [40].
[37]Ibid [45].
[38]Ibid [55].
In my opinion, in so far as the first proposed ground alleges that the trial judge made a specific error by failing to take into account the applicant’s early plea of guilty, leave to appeal should be granted. I would restrict the grant of leave to that particular allegation of specific error.
Furthermore, I do not consider it reasonably arguable that the sentence is otherwise manifestly excessive. In order to succeed on the ground of manifest excess, the applicant must show that the sentence imposed by the sentencing judge was wholly outside the permissible ranges of reasonable sentences available to the judge.[39] The test is not whether some other sentence could have been imposed.[40] In my opinion, the sentence imposed on the applicant is within range. It reflects the objective gravity of the offending, the applicant’s high moral culpability, his extensive criminal history and the need for specific and general deterrence.
[39]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]; R v Boaza [1999] VSCA 126 [42]. See also DPP (Cth) v Brown [2017] VSCA 162 [54]–[56].
[40]R v Abbott (2007) 170 A Crim R 306.
In view of the unsatisfactory way in which the first proposed ground is framed, in that it appears to merge allegations of specific error with a ground of manifest excess, it will be necessary to recast the ground before the hearing of the appeal. It should be confined to the ground that the sentencing judge erred in so far as he failed to take into account or give any weight to the timing of the plea of guilty.
Second proposed ground of appeal
As to the second proposed ground, the applicant contended that the imposition of a sentence of seven years’ imprisonment on charge 1 as the base sentence and an order for cumulation of two years on charge 2 was excessive. The applicant also drew attention to the following remark of the sentencing judge:
It is simply by way of, no doubt, good luck of Andrew George and the skill of the surgeons, that Mr Whelan does not find himself across the road and indeed, Mr O’Neill, facing murder charges.[41]
The applicant contended that the sentencing judge ‘committed legal error by finding this to be an aggravating factor and gave this factor too much weight by increasing the sentence imposed’.
[41]Sentencing remarks [20].
It is necessary to place the above passage in its full context:
Without initial first aid, direct pressure to the stab wounds, the medical assistance and treatment by ambulance and in hospital, the subject would have deteriorated and have been dead. That is indicative of how serious this assault was. It is simply by way of, no doubt, good luck of Andrew George and the skill of the surgeons, that Mr Whelan does not find himself across the road and indeed, Mr O'Neill, facing murder charges.[42]
It seems to me that the sentencing judge’s remark about the ‘good luck of Andrew George’ and ‘the skill of the surgeons’ is merely an observation about the seriousness and gravity of the applicant’s attack upon Andrew George. Viewed in its context, the passage does not disclose the treatment of these matters as aggravating features. Moreover, the anterior finding with respect to the seriousness of the attack upon Andrew George (‘[t]hat is indicative of how serious this assault was’) was based on three medical reports that were tendered on the plea.[43] In my opinion, it is not reasonably arguable that the sentencing judge fell into the specific error alleged in the second proposed ground.
[42]Ibid.
[43]Ibid [17]–[23].
For completeness, I do not consider it reasonably arguable that the individual sentence on charge 1 and the order for cumulation on charge 2 were manifestly excessive.
I would refuse leave to appeal on the second proposed ground.
Third proposed ground of appeal
As to the third proposed ground, the applicant observed that the sentencing judge imposed a much lesser sentence on O’Neill than on the applicant in respect of charge 1. The applicant contended that the principle of parity had been ‘properly displaced’ and that the significant differences in role and criminality between the applicant and O’Neill should have been reflected in the sentences imposed.
In R v Hildebrandt,[44] Dodds-Streeton JA, with whom Ashley JA and Lasry AJA agreed, explained that the term ‘the parity principle’ is used in at least two senses in the relevant authorities:
First, to express the recognition that like cases should be treated alike (itself an emanation of equal justice). Secondly, the phrase is used to describe the requirement to consider the ‘appropriate comparability’ of co-offenders, and in that sense, comprehends the mirror propositions that like should be treated alike, and that disparate culpability or circumstances may mandate a different disposition.[45]
The second sense in which the term is used appears to be a subset of the first. However subtle the distinction, both are redolent of the notion of equal justice, which requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.[46]
[44](2008) 187 A Crim R 42.
[45]Ibid 47 [42].
[46]Postiglione v The Queen (1997) 189 CLR 295, 300–2 (Dawson and Gaudron JJ).
In order to succeed on this ground, an applicant must establish that the disparity between his or her sentence and that of a co-offender was manifestly excessive and that it engenders a justifiable sense of grievance and gives the appearance that justice has not been done.[47] In Kelly v The Queen,[48] Redlich and Weinberg JJA expressed the principle as follows:
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal.[49] This Court will interfere in such cases where it considers that the disparity between the co-offenders is ‘marked’[50] or, as Dawson J said in Lowe v R,[51] where the differences between the sentences are ‘manifestly excessive’.[52]
[47]Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ).
[48][2011] VSCA 10.
[49]Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ).
[50]Ibid 610 (Gibbs CJ), 611 (Mason J); Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
[51](1984) 154 CLR 606, 623.
[52]Kelly v The Queen [2011] VSCA 10 [5].
In Green v The Queen,[53] French CJ, Crennan and Kiefel JJ said the following with respect to the nature of the powers of an appellate court to reduce a sentence so that it reflects the principle of parity:
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:[54]
the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.[55]
[53](2011) 244 CLR 462.
[54]Lowe v The Queen (1984) 154 CLR 606, 610.
[55]Green v The Queen (2011) 244 CLR 462, 474–5 [31].
In my opinion, the applicant’s contention with respect to the application of the principle of parity is without substance.
The applicant and O’Neill were both the subject of one charge of aggravated burglary. As noted above, the applicant pleaded guilty to a rolled up charge that involved two entries into Andrew George’s home on the same day. O’Neill pleaded guilty to a single entry. While O’Neill was responsible for the initial planning and could be described as the instigator of the first entry, it is plain that the applicant was sentenced as the instigator of the second entry. On that occasion, the applicant inflicted serious and, based on the medical evidence, life-threatening injuries upon Andrew George. The objective gravity of the offending and the applicant’s moral culpability were high. Furthermore, the marked difference in the extent and nature of the criminal history of the applicant, as set out above, and that of O’Neill suggests that specific deterrence and community protection carried far greater weight in the applicant’s case. It seems to me that, in all the circumstances, the degree of disparity in sentence as between the applicant and O’Neill is justified.
I would refuse leave to appeal on the third proposed ground.
Conclusion
For these reasons, I would grant the applicant leave to appeal on the first proposed ground to the extent, and only to the extent, that it alleges that the sentencing judge erred in so far as he failed to take into account or give any weight to the timing of the applicant’s plea of guilty. I would refuse leave to appeal on each of the other proposed grounds.
2
6
0