Chloe Kakoschke v The Queen
[2020] VSCA 182
•3 July 2020
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 correction order with conditions Pre-sentence detention declared: 604 days
On 17 October 2019, Strebs was sentenced by Judge Allen as follows:
Charge on Indictment Offence Maximum Sentence 1 Aggravated burglary [s 77 — Crimes Act1958] 25 years 590 days’ imprisonment and a 2 year community correction order with conditions [Aggregate sentence] 2 Theft [s 74 — Crimes Act1958] 10 years 3 Assaulting a custodial officer on duty [s 31(b) — Crimes Act 1958] 5 years Related summary offence 7 Commit an indictable offence while on bail [s 30B — Bail Act 1977] 3 months 1 month Total effective sentence: 590 days’ imprisonment and a 2 year community correction order with conditions Pre-sentence detention declared: 590 days Section 6AAA statement: 3 years’ imprisonment with a non‑parole period of 2 years
Finally, on 22 January 2020, Sultana was sentenced by Judge Allen as follows:
Charge on Indictment Offence Maximum Sentence 1 Aggravated burglary [s 77 — Crimes Act1958] 25 years 614 days’ imprisonment and a 2 year community correction order with conditions [ Aggregate sentence] 2 Theft [s 74 — Crimes Act1958] 10 years Total effective sentence: 614 days’ imprisonment and a 2 year community correction order with conditions Pre-sentence detention declared: 614 days Section 6AAA statement: 4 years’ imprisonment with a non‑parole period of 2 years
By notice dated 20 April 2020, the applicant seeks leave to appeal against sentence. She does so on the following two grounds:
Ground 1:The sentencing discretion miscarried, in circumstances where the prosecution presented — before two different judges of the County Court of Victoria — the applicant’s and co-offenders[’] offending in materially different terms.
Ground 2:In all the circumstances:
a)the sentence imposed on the applicant for the offences the subject of indictment J10412340; and
b)the sentence imposed on her co-offenders Danielle Sultana, Jessica Strebs and Matthew Pring
gives rise to a justifiable sense of grievance.
For the reasons that follow, we would refuse leave to appeal.
Circumstances surrounding the commission of the offences
The victims of the aggravated burglary, to whom we will refer as the ‘husband’ and the ‘wife’, lived at an address in Wendouree, near Ballarat. Their friend, to whom we will refer as ‘David’, also lived with them at that address.
On the afternoon of 12 February 2018, the husband and wife were at home. David was elsewhere at the time. At about 2:10 pm, the wife heard someone trying to open the front door. She thought it was David, returning home. She went to the front door in order to let him in. That door was made of glass. It was protected from the outside by a screen door.
The wife unlocked both doors and looked up to see Pring and Strebs standing in front of her. The applicant and Sultana were standing behind them. Both the applicant and Strebs were brandishing knives. The wife attempted to close the screen door and lock it, but Pring and Strebs forced it open.
The wife ran to the kitchen, closing the wooden door to that room behind her. She held it shut and yelled out to her husband, ‘they’ve got knives, come and help me’. While this was happening, she saw a knife blade repeatedly penetrating the kitchen door. There were at least four separate such acts of penetration.
It is not known, and cannot be ascertained with any certainty, which of the offenders was responsible for the damage to the kitchen door. In the summary of prosecution opening on the applicant’s plea, the prosecution specifically disavowed any suggestion that it was the applicant who was responsible for piercing the kitchen door with a knife.
The husband came into the kitchen and helped his wife to hold the kitchen door shut. The knife blade continued to pierce the door a number of times. Pring and Strebs next sought access to the kitchen through the lounge room. The husband said that he could hear the sounds of what he believed to be a Taser. He told his wife to run. She fled the house through one of the bedrooms, climbing over two fences and seeking the assistance of a neighbour. That neighbour called 000.
Meanwhile, Pring, Strebs, and Sultana went through the house, seizing a number of valuable items. The applicant remained near the front door. Strebs handed her two electric guitars. She was also given the wife’s handbag, a quantity of prescribed methadone, and a coin and stamp collection. All four offenders then left the premises.
The offenders were all arrested later that day. At the time of their arrest, police found, among other things, the guitars, the coin collection, the wife’s methadone, and a Taser in their possession.
At the time of the offending, both the applicant and Strebs had been on bail.
Sentencing remarks — Judge Saccardo
After briefly setting out the background facts, Judge Saccardo turned to the objective gravity of the offending. He characterised the aggravated burglary as ‘falling within the highest end of the mid-range’ for that offence.[1] He also noted that the circumstances of the offending were all the more serious as the applicant had been on bail at the time.
[1]DPP v Kakoschke (Unreported, County Court of Victoria, Judge Saccardo, 15 May 2019), [3].
Judge Saccardo observed that the applicant had an extensive criminal history, which dated back to 2005. Her record included crimes of violence and dishonesty.
His Honour then turned to the applicant’s personal circumstances. She was aged 31 at the time of sentence. She had had a dysfunctional upbringing. Her father had been physically abusive towards her and had frequently used drugs. She had also suffered sexual abuse at the hands of a member of the church that she had attended with her family. As a result, she had been removed from home, and placed into foster care. There, she had suffered further sexual abuse.
The applicant had also had difficulty with schooling. She had been diagnosed, at an early age, with a learning difficulty. Over a four year period, she had changed schools four times. She had left school shortly after Grade 6.
With regard to these personal circumstances, the judge said:
The totality of the evidence satisfies me that you had an upbringing [devoid] of positive role models, in which as an innocent child, you were exposed to dysfunctional behaviour by your father and sexual crimes committed against you. The combined effect of which is relevant to your repeated engagement in the criminal offending, [for] which you have appeared before this court and other courts [on] numerous occasions.[2]
[2]Ibid [7].
His Honour then referred to a report prepared by a neuropsychologist, Ms Laura Scott. She reported that the applicant was now able to identify future goals, and had come to recognise the harm that drugs had wrought upon her. She described the applicant’s situation as ‘highly problematic’[3] and requiring further intervention. That included secure housing, and drug treatment, once she is eventually released.
[3]Ibid [8].
Judge Saccardo accepted that the applicant’s moral culpability was reduced by virtue of her mental health issues. He said that the need for general deterrence was also, to some extent, thereby reduced. He acknowledged, however, that specific deterrence, and community protection, were both highly relevant sentencing considerations in her case.
With regard to the applicant’s plea, the judge was satisfied that it had been entered at an early stage and had utilitarian value. It therefore entitled her to a significant discount on the sentence to be imposed. However, he expressed reservations as to whether the plea had been ‘a true indicator of remorse for [her] offending’[4] given her inconsistent, and conflicting, accounts to the various experts who gave evidence on the plea.
[4]Ibid [10].
Finally, with regard to rehabilitation, the judge acknowledged that there were ‘some prospects’.[5] However, he expressed that opinion with reservations. He then sentenced the applicant as set out in [3].
[5]Ibid [16].
The plea hearing for Pring, Strebs, and Sultana
The three remaining offenders’ plea hearings were heard together by Judge Allen some time after the applicant had been sentenced. In that regard, a single prosecution summary was tendered and read into evidence. Annexed to that summary was a copy of Judge Saccardo’s sentencing remarks in dealing with the applicant.
That prosecution summary differed, in certain respects, from the summary that had been tendered in the course of the applicant’s plea hearing. The passages said to give rise to concern are as follows:
Standing right behind Pring and Strebs were Kakoschke and Sultana. Kakoschke was holding a knife. Sultana was also seen holding a knife.
…
Note: The Aggravated Burglary charge against Sultana is on the basis that she was in possession of an offensive weapon.[6]
The Aggravated Burglary charge against Strebs and Pring is on the basis that they were aware that a person was present inside the address. It is not alleged that either Strebs or Pring were armed, nor is it alleged that either Strebs or Pring were aware that the co-accused Kakoschke and Sultana were armed.
…
As [the wife] was screaming, knife blades were coming through the kitchen door … It is not alleged that Ms Sultana caused any of the damage to this door.
[6]It was conceded, in the respondent’s written case, that the references to Sultana as the second armed offender were incorrect. It was, in fact, Strebs, who was the second armed offender. As elaborated upon later in these reasons, the respondent submitted that this was an immaterial error.
On behalf of the applicant, it was submitted that the plain implication of the prosecution summary tendered before Judge Allen was that it was the applicant who wielded the knife, damaging the kitchen door. That was said to stand in stark contrast to the prosecution’s specific disavowal of that allegation in the prosecution summary tendered before Judge Saccardo.
Sentencing remarks — Judge Allen
Relevantly for the purpose of this application, Judge Allen indicated in his sentencing remarks relating to Pring that the applicant was to be viewed as the ‘principal offender’.[7]
[7]DPP v Pring [2019] VCC 1632, [7].
As indicated earlier, his Honour sentenced each of Pring, Strebs, and Sultana to what was, in effect, time served combined with a 2 year community correction order (CCO), with conditions.
Applicant’s submissions
At the outset of his submissions, counsel for the applicant acknowledged that the two proposed grounds of appeal were ‘inextricably linked’. He submitted that if one ground were to fail, so too would the other.
As will be seen, the linkage between the two proposed grounds is clear. It is less certain that the failure of one would necessarily mean the failure of the other.
Counsel noted that the prosecution had never, in the summary of opening on the applicant’s plea, contended that she should be regarded as the principal offender. Nor, he submitted, was there any basis upon which such a submission could be advanced. He submitted that, on a fair reading of both prosecution summaries, it was reasonably open to conclude that, for example, Strebs was the principal offender.
It was submitted, on the basis of Judge Allen’s sentencing remarks, and the sentences which he actually imposed, that he must have done so on the basis that it was the applicant who had done the damage to the door by piercing it with her knife. Counsel submitted that this would have been an ‘irresistible inference’. This was because all four offenders had pleaded guilty, and Judge Saccardo’s sentencing remarks had been annexed to the summary of prosecution opening on the plea before Judge Allen.
It was further submitted that when Judge Allen said that the applicant’s offending, and that of Sultana, had been more serious than that of Pring and Strebs, his Honour could ‘only have been commenting on the relative seriousness of the circumstances of the offending simpliciter’, and that this had to include, as a significant aggravating factor, the terrifying act of stabbing through the kitchen door.
Counsel accepted that the applicant made no complaint about how Judge Saccardo had approached the sentencing task in her case. Nor did he have any particular criticism to make of Judge Allen’s approach to that task in the case of the remaining offenders. Counsel conceded that each judge had acted properly on the material before them.
The applicant’s grievance stemmed from the prosecutor’s conduct in allowing a ‘material change’ to be made to the way in which the case against the three other offenders was presented before Judge Allen, as compared with the way in which the prosecutor put the case against the applicant before Judge Saccardo.
In addition, it was noted that Judge Allen did not have the benefit of the summary of prosecution opening that had been placed before Judge Saccardo on the applicant’s plea, only his Honour’s sentencing remarks. It was submitted that this made Judge Allen’s task almost untenable, as the agreed facts on the plea for the remaining offenders were presented in a manner that was almost oblivious to what had occurred in the presentation of the applicant’s case. Counsel submitted that this shift in position must have had an adverse impact on the application of the principle of parity. It had resulted in a fundamental unfairness to the applicant and should be regarded, on its own, as vitiating the exercise of the sentencing discretion.
Counsel readily acknowledged that he could not submit that the applicant ought to have received the same sentence as the remaining offenders. Her prior convictions, and criminal history, were far worse than theirs. Counsel noted, however, that the degree of legitimate disparity that ought to have operated in this case had been widened by the materially different, and inconsistent, position taken by the prosecution in the way the plea was conducted before Judge Allen.
Respondent’s submissions
In the respondent’s written case, it was first acknowledged that there had been an error in the prosecution summary on the plea before Judge Allen. That summary had mistakenly named Sultana as the other offender, apart from the applicant, who was in possession of a knife. It was submitted that it was Strebs who was the other armed offender, and not Sultana. Nonetheless, it was submitted that this error was immaterial, so far as the proposed grounds of appeal were concerned. This was because Judge Saccardo had been made aware that the applicant was one of the armed offenders, and it was submitted that the nomination of the other armed offender was immaterial, so far as the sentence imposed on the applicant was concerned.
The respondent then turned to the applicant’s assertion that Judge Allen must have concluded, without any basis for doing so, that it was the applicant, and not one of the other offenders, who repeatedly stabbed the kitchen door. It was submitted that this assertion was unwarranted. Neither summary positively identified the applicant as the offender who had wielded the knife in that way. The summary presented before Judge Allen merely asserted that it was not alleged that Sultana was the offender in that regard. Nor could it be, since there was no evidence to enable that conclusion to be drawn to the requisite criminal standard.
Nothing was said about whether Pring or Strebs had carried out the stabbing of the kitchen door. Once again, no conclusion to that effect could be drawn.
With regard to Judge Allen’s observation that the applicant was the principal offender, it was submitted that this conclusion did not necessarily flow from any finding as to who wielded the knife. It could, for example, have been based upon other factors, such as the applicant’s extensive criminal history, as compared with those of the remaining offenders.
The respondent rejected the applicant’s argument that the summary tendered before Judge Allen was relevantly inconsistent with that tendered on the applicant’s plea. It was submitted that the conclusions arrived at by both judges were open on the evidence before them, and that no error had been demonstrated. The sentencing discretion had not miscarried in either case.
With regard to the disparity between the sentence imposed on the applicant and the sentences imposed on the remaining offenders, it was emphasised that the applicant’s situation was very different from that of the others. She was significantly older than the other female co-offenders. Plainly, along with Strebs, she had been one of the two offenders armed with knives. Importantly, she had an extensive criminal history, having served no fewer than 13 previous terms of imprisonment, totalling an extraordinary nine years (two of which were served at a Youth Training Centre). Her co-offenders had also served a number of terms of imprisonment, but nowhere near the length of the terms imposed upon the applicant.
The respondent submitted that the difference between the sentence imposed on the applicant, and those imposed on the remaining offenders, did not give rise to a justifiable sense of grievance.[8] It was further submitted that in the event that this Court found to the contrary, the application should still be dismissed because the sentence imposed upon the applicant was moderate. It was submitted that any reduction in that sentence would mean that the applicant had been given a term of imprisonment that would be regarded as manifestly inadequate. In other words, leave to appeal should be refused because, even if the proposed grounds were made good, there was no reasonable prospect that a lesser sentence would be imposed.
[8]Postiglione v The Queen (1997) 189 CLR 295, 314; [1997] HCA 26 (McHugh J) (‘Postiglione’).
Consideration
It is unusual, to say the least, for an applicant for leave to appeal against sentence to make no criticism whatsoever of the sentencing judge’s reasons, or to fail to contend that the sentence imposed was, when viewed alone, excessive.
Occasionally, the principle of parity is invoked on an appeal. When a number of offenders have been dealt with at the same time, or at least by the same judge, it is possible to reflect upon whether, in all the circumstances, the applicant has a justifiable sense of grievance. Sometimes, a sentence that is within range is, nonetheless, reduced on appeal in order to ameliorate that sense of grievance. There are limits, however, to when, and how, this can be done. It is clearly established that no sentence should be reduced to the point where it is manifestly inadequate merely to accommodate parity with other offenders whose own sentences are, themselves, wholly inadequate.[9]
[9]See generally, Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 445–7 and the cases discussed therein. See also, DPP v Jovicic (2001) 121 A Crim R 497; [2001] VSCA 43.
The problem in this case lies in the fact that, for whatever reason, the four offenders were not dealt with at the same time, and by the same judge. On occasion, this cannot be avoided. The decision to plead guilty is an individual matter and may not be arrived at by all offenders at the same time. A particular offender may offer to plead guilty and agree to give evidence against his or her co-accused, necessitating different proceedings, and outcomes, which can give rise to parity issues at a later stage.
The starting point in this application must be that the sentence imposed by Judge Saccardo was well within range. An aggravated burglary of this kind, in which the occupants of a house are terrorised by armed intruders, must surely warrant severe punishment. An aggregate sentence of 3 years and 4 months for the aggravated burglary, the theft of a number of valuable items, and the commission of an indictable offence whilst on bail would be regarded by most thoughtful commentators as lenient. That is all the more so when one considers the applicant’s appalling criminal record.
As indicated, she has spent about nine years in all in custody since 2009. These terms of imprisonment were imposed through some 13 separate court appearances. The offences of which she was convicted include aggravated burglary, armed robbery and attempted armed robbery, numerous thefts and assaults (including assaults on police), intentionally and recklessly causing injury, and obtaining property by deception.
It might fairly be said that the applicant has turned to crime as a way of life, and is increasingly in danger of becoming institutionalised as a career criminal. For a person who is still only aged 31, she has built up an extraordinary list of previous convictions for offences of different kinds, many of them extremely serious.
The point is that one might have expected the applicant to receive a significantly heavier sentence from Judge Saccardo than the aggregate sentence that was imposed. The non-parole period of 2 years and 6 months seems also to be extremely lenient when one has regard to the objective gravity of her offending and her criminal record. The judge’s conclusion that she had ‘some prospects’ of rehabilitation would also have to be regarded as generous in the extreme.
That takes us to Ground 1. In reality, the point being made here is that the prosecution has, somehow, treated the applicant unfairly by making the concession before Judge Allen that it was not alleged that Sultana had wielded the knife, when one of the offenders thrust it repeatedly through the kitchen door.
Yet, in the plea involving the applicant, Judge Saccardo was told that the prosecution did not assert that the applicant was responsible for that particular conduct. In other words, she received the full benefit, from his Honour, of no finding being made against her that she engaged in that particular aggravating behaviour, and it was not suggested that she was the principal offender amongst the four who carried out this serious crime.
When the remaining offenders were dealt with by Judge Allen, the prosecution was compelled, because there was no evidence to suggest that Sultana (nor, Strebs, for that matter) was responsible for the stabbing of the door, to acknowledge that fact. Nothing was said to his Honour to suggest that it was, in fact, the applicant, who had carried out that particular act. Contrary to what is impliedly suggested in Ground 1, the prosecution did not act improperly, or inconsistently, in amending the summary of prosecution opening. The fact that Judge Allen concluded, for whatever reason, that the applicant was likely to have been the principal behind the plan to carry out the aggravated burglary was not the result of any submission to that effect put forward by the prosecution.
To the extent that the applicant complains that Judge Allen was not provided with the original, unamended version of the summary of prosecution opening that was used before Judge Saccardo, but only with Judge Saccardo’s sentencing remarks, we reject that complaint. There was nothing about the amended version of the summary, which was directed specifically to the position of the three remaining co-offenders, which constituted a breach of the prosecutor’s duty to assist the sentencing judge in dealing with questions of parity.
For these reasons, there is no substance to Ground 1.
Notwithstanding counsel’s submission that Grounds 1 and 2 must stand or fall together, we see them as separate and distinct. The question raised under Ground 2 is whether the disparity between the aggregate sentence imposed upon the applicant, and the various sentences imposed upon her co-offenders, is such as to warrant the intervention of this Court on the ground of parity.
In that regard, it will be recalled that Pring received a sentence of 604 days’ imprisonment combined with a 2 year CCO, with treatment and rehabilitation conditions. Strebs was sentenced to 590 days’ imprisonment, also combined with a 2 year CCO, also with treatment and rehabilitation conditions. Sultana was imprisoned for 614 days, and given a similar CCO. The periods of imprisonment all equated to ‘time served’.
In each case, therefore, the co-offenders were sentenced to roughly 20 months’ imprisonment, but a further 2 years of a punitive CCO was to be added to that. Of course, it is always difficult to compare two terms of imprisonment, one of which is combined with a CCO, and the other has no such additional component.
The principles governing unjustifiable disparity as a ground of appeal are well established. Differences between sentences imposed upon co-offenders will be justifiable where there are marked differences in the roles played by each of them in the commission of the offence, or significant variations in their antecedents. Age, mental capacity, and potential for rehabilitation are also relevant matters to be considered. So, too, are particular mitigating factors unique to individual offenders. In order for an apparent disparity to be unjustifiable, it must be such as to be incapable of explanation by reference to differences between the co-offenders, or the nature of their offending.
We recognise that, on occasion, this Court has intervened on the ground of disparity, even though the challenged sentence, standing alone, would ordinarily be regarded as appropriate. That is so where the disproportion between the sentences imposed is so great as to give rise to a legitimate or justifiable sense of grievance.[10] The disparity must be marked, or clearly unjustifiable. Another way of putting it is that the difference between the two sentences must be manifestly excessive. It must be so great ‘as to engender an [objectively] justifiable sense of grievance.’[11] At the very least, it must give the appearance, in the mind of an objective observer, that justice has not been done.
[10]Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 and Postiglione (1997) 189 CLR 295.
[11]R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing at 405).
In the present case, these stringent requirements have not been met. Clearly, the applicant has received a heavier sentence than the sentences imposed upon her co-offenders (though the extent of that difference must be viewed as somewhat uncertain). Even so, to reduce the applicant’s sentence to give effect to parity would be to impose a sentence that would be wholly inadequate in the circumstances. That, the authorities say, should not be done.
For these reasons, we would also refuse leave to appeal in relation to Ground 2.
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