Chloe Kakoschke v The Queen - [2020] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0065

CHLOE KAKOSCHKE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2020
DATE OF JUDGMENT:	3 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 182
JUDGMENT APPEALED FROM:	DPP v Kakoschke (Unreported, County Court of Victoria, Judge Saccardo, 15 May 2019)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Theft – Committing indictable offence while on bail – Guilty plea – Aggregate sentence of 3 years and 4 months’ imprisonment with non-parole period of 2 years and 6 months – Co-offenders sentenced, by different judge, to time served and 2 year community correction order – Whether material difference in prosecution summary tendered on co-offenders’ plea – Whether sentencing discretion miscarried – Whether disparity in sentences gave rise to justifiable sense of grievance – No error on part of either judge – No unjustifiable disparity in sentence – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr C K Wareham	Valos Black & Associates
For the Respondent:	Mr N Hutton	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON JA

WEINBERG JA:

On 7 May 2019, the applicant, Chloe Kakoschke, pleaded guilty in the County Court at Ballarat to one charge of aggravated burglary and one charge of theft. She also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.

The offending that gave rise to these charges was committed in company with three other offenders, Matthew Pring, Jessica Strebs, and Danielle Sultana. Their respective pleas of guilty were dealt with at later dates, and by a different judge.

On 15 May 2019, the applicant was sentenced by Judge Saccardo as follows:

Charge on Indictment Offence Maximum Sentence

1 Aggravated burglary [s 77 — Crimes Act1958] 25 years 3 years and 4 months
[Aggregate sentence]

2 Theft [s 74 — Crimes Act1958] 10 years

Related summary offence

7 Commit an indictable offence while on bail [s 30B — Bail Act 1977] 3 months 3 years and 4 months
[Aggregate sentence]

Total effective sentence: 3 years and 4 months’ imprisonment

Non-parole period: 2 years and 6 months’ imprisonment

Pre-sentence detention declared: 367 days

Section 6AAA statement: 4 years and 4 months’ imprisonment with a non‑parole period of 3 years and 4 months

On 9 October 2019, Pring was sentenced by Judge Allen as follows:

Charge on Indictment Offence Maximum Sentence

Indictment J10412431.2

1 Aggravated burglary [s 77 — Crimes Act1958] 25 years 604 days’ imprisonment and a 2 year community correction order with conditions [Aggregate sentence]

Indictment J10412431

1 Theft [s 74 — Crimes Act 1958] 10 years 2 year community correction order with conditions
(as above)

2 Theft [s 74 — Crimes Act 1958] 10 years

3 Obtain property by deception [s 81 — Crimes Act 1958] 10 years

Total effective sentence: 604 days’ imprisonment and a 2 year community…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] VSCA 182
Decision Date: 3 July 2020

CaseChat Overview and Summary

Chloe Kakoschke appealed against her sentence in the High Court of Australia, following her conviction for aggravated burglary, theft, and committing an indictable offence while on bail. The Court of Appeal had affirmed the sentence imposed by the trial judge, which was an aggregate of 3 years and 4 months’ imprisonment, with a non-parole period of 2 years and 6 months. In contrast, her co-offenders, who pleaded guilty, were sentenced by a different judge to time served and a 2-year community correction order. The appellant contended that the trial judge had erred in his sentencing, and the disparity in the sentences was unjustifiable.

The primary legal issue before the Court was whether the trial judge had miscarried in his exercise of sentencing discretion. The appellant argued that the trial judge had failed to take into account relevant mitigating factors, including her guilty plea and the fact that she was not the leader of the group. Furthermore, the appellant submitted that there was a material difference in the prosecution summary tendered on the co-offenders' plea, which should have resulted in a more lenient sentence for her. The Court was also required to determine whether the disparity in sentences gave rise to a justifiable sense of grievance.

The High Court found no error on the part of either judge. The Court noted that the trial judge had properly exercised his sentencing discretion, taking into account all relevant factors, including the appellant's guilty plea and the nature of her involvement in the offences. The Court found no material difference in the prosecution summary, and therefore, the appellant's argument regarding the co-offenders' plea was rejected. The Court also held that there was no unjustifiable disparity in the sentences, as each case was assessed on its own merits, and the trial judge had considered the appellant's role in the offences. Consequently, the Court dismissed the appeal and refused leave to appeal.

The Court's final orders were that the appellant's appeal against sentence be dismissed, and leave to appeal be refused. The original sentence imposed by the trial judge was upheld, and the appellant's contentions regarding the trial judge's exercise of sentencing discretion and the disparity in sentences were rejected. The Court found no error in the sentencing process and confirmed the validity of the trial judge's decision.

Orders