Farrugia v The Queen

[2022] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0030

DYLAN FARRUGIA	Applicant
v
THE QUEEN	Respondent

S EAPCR 2022 0035

ABDULAHI ALI	Applicant
v
THE QUEEN	Respondent

S EAPCR 2022 0047

DAMIEN MONRO	Applicant
v
THE QUEEN	Respondent

S EAPCR 2022 0048

JAKE SYNAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2022
DATE OF JUDGMENT:	2 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 104
JUDGMENT APPEALED FROM:	[2020] VCC 1387; [2020] VCC 1457 (Judge Gwynn)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, theft, attempted aggravated burglary and related offences – Seven offenders – Three offenders resentenced to lower sentences following successful appeals – Applicants (remaining four offenders) sought leave to appeal against their sentences based on parity principle – Crown concession that leave to appeal be granted, appeals allowed and applicants resentenced to lower sentences – Common ground that applicants’ new sentences and new sentences for other three offenders should restore relativities in original sentences by County Court – Appeals allowed and applicants resentenced accordingly.

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Counsel
Applicant (Farrugia):		Mr P Smallwood
Applicant (Ali):		Mr D J Carolan
Applicant (Monro):		Mr T R Marsh
Applicant (Synan):		Mr C K Wareham
Respondent:		Mr J C J McWilliams
Solicitors
Applicant (Farrugia):	Leanne Warren & Associates
Applicant (Ali):	James Dowsley & Associates
Applicant (Monro):	Pica Criminal Lawyers
Applicant (Synan):	Theo Magazis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

Introduction and summary

1. On 15 June 2020, the applicants (Dylan Farrugia, Abdulahi Ali, Damien Monro and Jake Synan) and two other co-offenders (Rhys Abela-Rogers and Charlie Farrugia) pleaded guilty to a number of housebreaking offences involving eight incidents. Those six offenders were jointly indicted on Indictment C1912402 (‘joint indictment’). On 28 July 2020, a seventh co-offender, Jackson Balshaw, pleaded guilty to related charges on a separate indictment numbered K10159294.1 (‘Balshaw indictment’).[1]

   [1]In these reasons, references to charges are to charges on the joint indictment, unless stated otherwise.

2. Dylan and Charlie Farrugia are brothers. Monro is their cousin and Abela-Roger’s half‑brother.

3. All seven offenders were sentenced by the same County Court judge. Monro and Synan were sentenced on 1 September 2020,[2] Ali and Dylan Farrugia were sentenced on 2 September 2020,[3] Abela-Rogers and Charlie Farrugia were sentenced on 3 September 2020,[4] and Balshaw was sentenced on 18 November 2020.[5]

   [2]DPP vMonro & Synan [2020] VCC 1387 (‘Monro and Synan sentencing remarks’).

   [3]DPP vAli & Farrugia [2020] VCC 1457 (‘Ali and Dylan Farrugia sentencing remarks’).

   [4]DPP vAbela-Rogers & Farrugia [2020] VCC 1412.

   [5]DPP v Balshaw [2020] VCC 1837.

4. Balshaw successfully appealed against his sentence and was resentenced by this Court on 26 March 2021.[6] Abela‑Rogers and Charlie Farrugia also successfully appealed against their sentences — on the basis of disparity between their sentences and the new sentence for Balshaw — and were resentenced by this Court on 18 March 2022.[7]

   [6]Balshaw v The Queen [2021] VSCA 78 (‘Balshaw resentencing remarks’).

   [7]Abela-Rogers & Farrugia v The Queen [2022] VSCA 34 (‘Abela-Rogers and Charlie Farrugia resentencing remarks’).

5. The charges and sentences (at first instance and on appeal) for each offender are set out in full in the annexed table.

6. The applicants have each sought leave to appeal against their sentences on the ground of parity.[8] Dylan Farrugia, Ali and Monro have expressed their ground of appeal in identical terms, as follows:

   [8]In these reasons, the proposed grounds of appeal are referred to as grounds of appeal.

   The individual sentences imposed, the orders for cumulation made, and the consequent total effective sentence do not comply with the principle of parity when considered against the sentences now being served by Jackson Balshaw, Rhys Abela-Rogers, and Charlie Farrugia.

   Synan has expressed his ground of appeal in the following terms:

   In all the circumstances

   (a)the sentence imposed on the applicant for the offences the subject of [the joint indictment]; and

   (b)the sentence imposed on his co-offenders Charlie FARRUGIA, Dylan FARRUGIA, Rhys ABELA-ROGERS, and Abdulahi ALI

   gives rise to a justifiable sense of grievance.

7. Each applicant has also sought an extension of time within which to file his notice of application for leave to appeal.

8. The Crown did not oppose the applications for an extension of time and conceded that the applications for leave to appeal should be granted, the appeals allowed and the applicants resentenced.[9] The Crown submitted that the new sentences for the applicants and the sentences imposed on Balshaw, Abela-Rogers and Charlie Farrugia by this Court upon resentence should restore the relativities in the sentences originally imposed by the judge. Counsel for each of the applicants agreed that this approach was appropriate.

   [9]The Crown previously made similar concessions in the Abela-Rogers and Charlie Farrugia appeal: Abela‑Rogers and Charlie Farrugia resentencing remarks, [10].

9. The Crown’s concessions and submission on resentence are appropriate in the particular circumstances of the present applications. Accordingly, the applications for an extension of time and leave to appeal will be granted, the appeals will be allowed and the applicants will be resentenced as set out at [55] below.

Circumstances of the offending

1. The seven offenders were involved in eight incidents in which they committed housebreaking offences in various Melbourne suburbs. All of the offenders were involved in the last two incidents, but the combination of offenders involved in the other incidents varied. None of the applicants were involved in the first incident.

2. All of the incidents occurred in the early hours of the morning on six separate days between 10 September 2018 and 17 January 2019. In total, seven houses were entered and an attempt was made to enter a further home.

3. The offenders’ primary aim was to identify crop houses and to steal cannabis plants from them, in the belief that the victims were unlikely to complain to police. The offending was well-organised and used a sophisticated methodology, which the judge described as follows:

   [F]irstly, houses were identified prior to the morning of the actual house break in. A FLIR, which is a Forward Looking Infrared Radar was used. This device can identify areas of higher temperature in which cannabis plants thrive and indoor plantations are often heated. The FLIR was used by the group to identify homes likely to be growing cannabis. Once the target was identified, members of the group would travel to the address in the early morning. False number plates were fixed to the vehicles used in the offending. A getaway driver would be nominated and remain with the vehicle. The other participants would then enter the target premises with their faces covered and equipped with crowbars, garden shears and poles used to gain entry and collect any cannabis crop located. Items other than cannabis would also be taken if readily available and/or there was no cannabis located.[10]

   [10]Ali and Dylan Farrugia sentencing remarks, [5].

4. The police investigation was assisted by telephone intercepts that were instigated from December 2018 in relation to telephones linked to Abela-Rogers and Charlie Farrugia. Listening and tracking devices were installed in Abela-Rogers’ car shortly prior to the final day of the offending, namely, 17 January 2019. The police were also able to utilise CCTV footage from the targeted properties or nearby locations, information from traffic cameras and telephone records.

5. As the applicants were not involved in incident 1, which occurred on 10 September 2018 and is the subject of charge 1, it is not necessary for us to describe it in detail. The aggravated burglary the subject of charge 1 involved entering a premises in Mulgrave with intent to steal, knowing or being reckless as to a person’s presence. Charlie Farrugia and two unknown offenders entered the premises, while Abela-Rogers remained in a vehicle. The offenders were inside the premises for less than 10 seconds before they were chased out and drove away.

6. The circumstances of the offending relating to incidents 2 to 8, which are the subject of charges 2 to 11, were relevantly summarised by the judge in her sentencing remarks for Ali and Dylan Farrugia as follows:

   [Incident 2, charges 2 and 3: Kings Park property; Abela-Rogers, Charlie Farrugia, Dylan Farrugia]

   Charges 2 and 3 on the [joint] indictment, burglary and theft, occurred on 26 September 2018 at 578 Main Road West, Kings Park. …

   … At 00:34 am on 26 September 2018, an external CCTV camera of a house in the street recorded a Commodore parked at the front of 578 Main Road West, Kings Park. False number plates were fixed to the vehicle.

   Three persons left the vehicle and entered the premises whilst one remained with the car. A cyclist riding home observed a male in the driver’s seat and another male to run from the address carrying a large television as he passed by the Commodore.

   CCTV footage records two persons leave the premises carrying bags that were put into the boot of the vehicle. The three identified offenders, being Rhys Abela-Rogers, Charlie Farrugia and … Dylan Farrugia, are each charged with the theft of cannabis and of the television. At 00:42 am, the vehicle drove off.

   The cyclist called ‘000’ soon after he made his observations and police attended at the house, finding damage to the doorframe. They also found a room containing seven cannabis plants and cultivation equipment. No one was identified as being present at the time of the entry, hence the charge of burglary.

[Incidents 3 and 4, charges 4 to 6: Sunshine North properties; Abela-Rogers, Dylan Farrugia, Ali, Balshaw]

Charges 4, 5 and 6 occur on 3 October 2018 at two separate addresses being 45A Ferndale Road, Sunshine North, and 22 Meadowbank Drive, Sunshine North. I accept it was part of the intention at the outset of 3 October 2018 that two addresses be approached, marking an increased determination to [the offenders’] endeavours.

…

Each of [the offenders were] charged with the offences of burglary of 45A Ferndale Road and all but Jackson Balshaw with the aggravated home invasion of 22 Meadowbank Drive, from which a television, iPhone and handbag was stolen and theft is charged. In relation to this event, Jackson Balshaw is charged with aggravated burglary.

At 2.30 am on 3 October 2018, CCTV footage from external cameras at residences in Ferndale Road show a light coloured vehicle driving in the street, park and persons from that vehicle to walk towards a townhouse at 45A Ferndale Road. The resident was not home, hence the charge of burglary.

A neighbour heard loud noises and banging from the inside of 45A and contacted ‘000’. He observed multiple torchlights within the residence and a number of persons to leave.

Police attended and observed that 45A appeared to have been broken into as the front security door had been removed and the door was damaged. They located seven cannabis plants in the garage.

22 Meadowbank Drive, Sunshine North is approximately two kilometres from Ferndale Road, Sunshine North and had internal and external CCTV cameras fitted. The CCTV footage records that at 2:45 am, Rhys Abela-Rogers, … Dylan Farrugia, … Mr Ali, and another male approached the house, masked and wearing gloves. … Dylan Farrugia, and Jackson Balshaw were carrying garden shears and Rhys Abela-Rogers was carrying a crowbar that had a [torch] attached to it. Entry was forced through the front door.

This was the home of Linh Nguyen. Also in the house at that time were his partner, Phuong Doan and two others. They were all in bed sleeping at the time of [the offenders’] entry. Nguyen heard a noise and got up. He found intruders inside the house and confronted them. They pushed Nguyen away and ordered him to lie [on] the floor. They then searched the house but there was no cannabis.

Internal CCTV footage records Rhys Abela-Rogers standing close to Nguyen when speaking to him with a crowbar pointed at his chest. At one point, Jackson Balshaw was searching through his jacket. Nguyen walked towards Balshaw who faced Nguyen, raised his garden shears above his head and pointed them at Nguyen. Jackson Balshaw is charged with assault on separate indictment.

Rhys Abela-Rogers used the crowbar to hook Nguyen by the back of the neck and pulled him back before then raising the crowbar above his head and poking Nguyen in the chest.

…

[A] large television, an Apple iPhone and a purse was stolen.

[Incident 5, charge 7: Balwyn North property; Abela-Rogers, Ali]

Charge 7 occurred on 13 November 2018 at 16 Gardenia Road, Balwyn North and is one of aggravated burglary. Rhys Abela-Rogers and … Abdulahi Ali, are charged with aggravated burglary, which is particularised as entering with an intent to steal, knowing or being reckless as to the persons [present] at those premises. …

On 6 November 2018, 13 Gardenia Road, Balwyn North, was pinpoint marked on the map on [Ali’s] phone, … reflective of the general research employed prior to the offences taking place. It was on 13 November between 1:52 and 1:56 am that an external CCTV camera at a residence in Gardenia Road, Balwyn North, recorded a Toyota Aurion driving in the street. Mr Abela-Rogers had purchased that vehicle on 2 October 2018.

Hope Windon and Samuel Wilkinson resided at 16 Gardenia Road. There was no cannabis plantation at the house. Like Linh Nguyen and his household, they were innocent victims. At about 1:57 am, Windon awoke when she heard noise at the front door. She got up to check. Wilkinson got up shortly thereafter. He saw a torch light reflecting off a wall near the front door. Windon found offenders forcing open the front door. The door was damaged and Windon and Wilkinson attempted to keep that door closed. They were unable to do so. Two intruders entered. They had face coverings. One was carrying a crowbar and the other was carrying some sort of implement. Wilkinson yelled at the offenders to get out, the intruders responded with ‘Back off.’ There was a short standoff. The intruders then left and drove away in the Aurion.

Whilst the physical entry was limited in the extent of that entry, this incident lasted about one minute and left the occupants terrified. Wilkinson immediately called ‘000’ and police arrived shortly thereafter.

[Incident 6, charge 8: Deer Park property; Abela-Rogers, Charlie Farrugia, Dylan Farrugia]

Charge 8 occurred on 10 December 2018 at an address at 38 Jonah Parade, Deer Park. … Dylan Farrugia, Rhys Abela-Rogers and Charlie Farrugia are charged with this aggravated burglary which is particularised as entering with an offensive weapon and an intent to steal, knowing or being reckless as to persons present at that premises.

Anh Tuan Vo resided at 38 Jonah Parade, Deer Park. Several rooms in his house were set up for cannabis cultivation. Some houses in Jonah Parade had external CCTV cameras. At 3:12 am on 10 December 2018, CCTV footage recorded the Aurion in Jonah Parade. It backed into the driveway of No.38 with the rear boot against the garage roller door. As was well-established, the driver remained in the vehicle. Three masked offenders then exited that vehicle and forced entry to the house through the front door.

Not surprisingly, Vo was in bed. Two offenders entered his bedroom, an offender threatened Vo with a stick or similar and demanded to know ‘Where is the money?’ Vo said there was no money. One of the offenders remained with Vo most of the time, whilst the others searched through the house. Vo remembers that offender had a stick or a hammer or something similar.

Approximately 20 cannabis plants were cut and removed. The offenders demanded Vo’s car keys which he gave them. The offenders loaded the cannabis into the Aurion. Two offenders got back into the Aurion which left the scene, whilst another offender drove away in Vo’s vehicle.

It was a neighbour who called ‘000’. Police arrived soon after and observed there were cannabis plants in the house. Vo’s vehicle was found abandoned the following day.

Neither the theft of the motor vehicle or theft of cannabis is charged. [The offenders] will therefore not be punished for those events. …

[Incidents 7 and 8, charges 9 to 11: Keysborough and Chadstone properties; all 7 offenders]

Charges 9, 10 and 11 occurred on 17 January 2019 and also involved two premises, one at 14 Thurbro Drive, Keysborough and the other at 15 Aloomba Street, Chadstone. All offenders are [charged] with aggravated burglary, particularised as entering with an intent to [steal], knowing or being reckless as to a person’s presence of 14 Thurbro Drive and with theft of cannabis plants from that address. All seven offenders are also charged with the attempted aggravated burglary of 15 Aloomba Street.

…

At about 2:55 am, … Abdulahi Ali, Jake Synan, Rhys Abela-Rogers, Charlie Farrugia and … Dylan Farrugia, broke into a house at 14 Thurbro Drive, Keysborough. It was the role of Damien Monro and Jackson Balshaw to stay with the two vehicles used to travel [to] that location. Loud banging could be heard on the listening device. Cannabis plants were taken and put into the Camry.

Charlie Farrugia returned to the Aurion with … Dylan Farrugia, and Rhys Abela-Rogers returned to the Aurion a short time later when a discussion took place from which it would appear that Rhys Abela‑Rogers had again been involved in an exchange of some [sort] with an occupant. The Asian female at that house declined to provide any information to the police.

A police unit later attended at the address and observed that the front door had signs of forced entry with a trail of cannabis leaves from the front door down the driveway. Cannabis was located inside the premises. [The offenders] are all charged with and have pleaded guilty to the theft of cannabis from that residence in Charge 10.

At around 3.25 am, the Aurion parked near 15 Aloomba Street, Chadstone. Rhys Abela-Rogers, Charlie Farrugia, Damien Monro and … Dylan Farrugia, had checked that house earlier that morning from which strong readings on a FLIR had been obtained. … Abdulahi Ali [was] also in the vicinity in [his] Camry but [was] not part of the group to enter. This was not one of the premises allocated to [his] group.

Rhys Abela-Rogers and the Farrugias left the Aurion. Damien Monro remained in his assigned task as the driver. Loud banging and a male yelling could be heard in a listening device with a return to the Aurion soon thereafter. There was discussion about being confronted at the front door of the house by a large Aussie bloke — not a ‘nip’ — and then to leaving.

When police attended the address, they observed that the front door had signs of attempted forced entry and 51 cannabis plants were in the garage and rear shed. The male resident would not provide information to the police.[11]

[11]Ali and Dylan Farrugia sentencing remarks, [12]–[17], [19]–[26], [29]–[33], [38]–[43], [48], [53]–[58].

1. Dylan Farrugia, Ali, Monro, Abela-Rogers, Charlie Farrugia and Balshaw were arrested on 17 January 2019. Synan was arrested on 7 May 2019.

2. The involvement of the offenders in the eight incidents may be summarised as follows:

   (a)Abela-Rogers: All eight incidents (8/8).

   (b)Dylan Farrugia: Incidents 2, 3, 4, 6, 7 and 8 (6/8).

   (c)Charlie Farrugia: Incidents 1, 2, 6, 7 and 8 (5/8).

   (d)Ali: Incidents 3, 4, 5, 7 and 8 (5/8).

   (e)Balshaw: Incidents 3, 4, 7 and 8 (4/8).

   (f)Monro: Incidents 7 and 8 (2/8).

   (g)Synan: Incidents 7 and 8 (2/8).

1. At the time of the current offending, Monro was on bail (related summary offence — commit indictable offence whilst on bail).

2. During the search of Ali’s property on the date of his arrest, police located $750 in cash suspected to be proceeds of crime (related summary offence — deal with property suspected to be proceeds of crime).

3. After his arrest, Synan was informed that, pursuant to a search warrant, he was required to assist police to access his mobile phone, which was password protected. Synan read the search warrant and refused to provide the password (related summary offence — fail to provide access code to data device under warrant).

Parity principle

1. For the purposes of the present applications, we gratefully adopt the following summary of the parity principle in this Court’s Abela-Rogers and Charlie Farrugia resentencing remarks:

   The rationale underpinning the parity principle is the need for consistency in the application of the law, which is a fundamental aspect of the rule of law. While disparity in the sentences of co-offenders for which there is no ready explanation in the reasons for sentence may bespeak error justifying appellate intervention, it must be borne in mind that consistency in the law also at times requires some disparity: ‘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.’

   In considering a parity argument this Court must recognise the ‘qualitative and discretionary judgments’ involved in the primary judge’s task in discerning these relevant differences and similarities between co-offenders. As was said in Nipoe, ‘[t]he real issue is whether it was reasonably open to the sentencing judge to differentiate … between the co-offenders, having regard to the “qualitative and discretionary judgments required” to arrive at the sentence imposed’. This Court has explained the task presented to appellate courts in determining grounds of appeal that complain of unjustifiable disparity:

   Parity is an aspect of equal justice that requires like to be alike. What will constitute ‘like’ as between co-offenders will ultimately require an evaluation based on impression. What will constitute a departure from like and the extent of that departure will require a similarly impressionistic evaluation. Reasonable minds will inevitably differ on these sorts of evaluations. On appeal, disparity in treatment of co-offenders, or its unwarranted absence, is treated within the same analytical framework as manifest excess.

   Consequently,

   [a]n appellate court will rarely resentence based on disparity (or impugned parity) because sentencing, by nature, is imprecise and involves an exercise of judicial discretion. The disparity (or lack of it) must be so ‘marked’ or ‘manifest’ as to not be reasonably open to the sentencing judge.

   The standard of marked or manifest disparity adheres in cases such as the present where this Court has already reduced the sentence of a co-offender, however, such a circumstance requires us to consider the disparity between the … sentences [of Abela-Rogers and Charlie Farrugia] and the new sentence imposed on Balshaw by this Court.[12]

   [12]Abela-Rogers and Charlie Farrugia resentencing remarks, [15]–[17] (emphasis in original) (citations omitted).

2. We would add that it is well established that the application of the parity principle cannot result in a sentence which is manifestly inadequate.[13]

   [13]Green v The Queen (2011) 244 CLR 462, 475–6 [33]; Taleb v The Queen (2014) 42 VR 666, 677–9 [48]–[51].

Personal circumstances of the applicants and the other offenders

1. The brief overview of the offenders’ personal circumstances that follows should be read in conjunction with the notes at the end of the annexed table.

Dylan Farrugia’s personal circumstances

1. Dylan Farrugia was aged 22 at the time of the offending and 24 at the date of sentencing. His upbringing and family life were characterised by fear and domestic violence at the hands of his father. He also witnessed drug and alcohol abuse by his father. He enjoys a close relationship with his mother and five siblings.

2. Dylan Farrugia completed an equivalent of Year 11 at a technical college. He worked in a factory for some time but was unemployed at the time of the offending.

3. Dylan Farrugia has a limited criminal history for reckless conduct endangering serious injury, as well as driving and bail offences. He was subject to an adjourned undertaking (with conviction) throughout the period of the current offending. He has regularly abused drugs since the age of 17, commencing with cannabis before being introduced to methylamphetamine. While on remand, Dylan Farrugia remained abstinent from drugs, completed a number of vocational certificates and other programs, and obtained a billet position.

Ali’s personal circumstances

1. Ali was aged 20 at the time of the offending and 22 at the date of sentencing. He was born in New Zealand to a Somalian father and Kenyan mother, and moved to Australia when he was 2 years old. He became an Australian citizen in 2001. He has one older brother and four younger siblings. His family lived in government housing before purchasing a house in 2009. In 2015, Ali’s mother and his younger siblings returned to Kenya to care for her sick mother. Ali has not had any further physical contact with them. Since that time, his father travelled between Australia and Kenya on a regular basis, before moving to Kenya in 2018. He returned to Australia in January 2019 upon becoming aware of Ali’s offending.

2. Ali has a history of cannabis abuse and an extensive criminal history relating to matters dealt with in the Children’s Court. His previous offences include armed robbery, robbery, going equipped to steal, theft of a motor vehicle, recklessly causing injury, reckless conduct endangering serious injury, intentionally damaging property and affray, as well as drug, driving and bail offences. He has been subject to probation orders, a youth supervision order, an accountable undertaking and good behaviour bonds. He breached his probation orders on a number of occasions.

Monro’s personal circumstances

1. Monro was aged 25 at the time of the offending and 26 at the date of sentencing. He was raised by his mother and stepfather. His stepfather was violent towards him, his mother and his siblings. He ran away from home as a child and spent some time in residential care in his teens. His mother is now separated from his stepfather. Monro has had very minimal contact with his biological father. He experienced learning difficulties and behavioural problems at school and stopped attending in about Year 8.

2. Monro has an extensive criminal history commencing when he was approximately 15 years old. He appeared in the Children’s Court on at least three occasions for wide‑ranging offending which included armed robbery, attempted armed robbery, robbery, thefts, handling stolen goods, assaults, threat to inflict serious injury and breaches of probation and youth supervision orders. On 10 October 2012, he was sentenced to 74 days’ detention in a Youth Justice Centre for breaching a youth supervision order imposed in April 2011. There was a break in his offending before he appeared at the Melbourne Magistrates’ Court on 20 November 2015 in relation to charges of unlawful assault, threat to kill, threat to inflict serious injury, criminal damage, failing to answer bail and other offences. He was sentenced to 43 days’ imprisonment in combination with a 12-month community correction order (‘CCO’). He contravened that CCO. At the time of the current offending, he was on bail for offences of unlawful assault, intentionally causing injury and criminal damage.

3. During his early teens, Monro started smoking cannabis and drinking alcohol. Later in his teens, he started abusing methamphetamine with increasing frequency until he ceased at around the age of 20. He continued to heavily abuse cannabis and alcohol, as well as prescription medication, until the time of his arrest. While on remand, Monro has worked in several jobs, undertaken a construction and landscaping course and ceased using drugs.

Synan’s personal circumstances

1. Synan was aged 22 at the time of the offending and 23 at the date of sentencing. His early childhood was marred by severe domestic violence and constant fear. His parents separated when he was 7 years old and he lived with his mother. All contact with his father ceased when he was aged 10. His mother re-partnered and he is close with his stepfather. He had a disrupted education, attending a number of schools before leaving in Year 11.

2. Synan has one previous appearance on 2 July 2018 in the Melbourne Magistrates’ Court for charges of going equipped to steal, carrying a prohibited weapon without exemption and possessing cannabis. He was convicted and fined $750.

3. Synan commenced consuming alcohol and smoking tobacco when he was 12, and abusing cannabis when he was 15. He was a habitual cannabis abuser at 21. At the time of his offending in January 2019, he was abusing ice, cocaine and amphetamines. He had ceased abusing drugs by the time of his arrest on 7 May 2019. After being granted bail on 26 June 2019, he engaged with the Court Integrated Services Program and continued to work on a casual basis as a landscaper.

Abela-Rogers and Charlie Farrugia’s personal circumstances

1. In the Abela-Rogers and Charlie Farrugia resentencing remarks, this Court summarised those offenders’ personal circumstances as follows:

   [Abela-Rogers]

   [Abela-Rogers] was 18, turning 19 years old, at the time of offending and 20 at the time of sentence. During his formative years he witnessed frequent domestic violence. He remains close to his mother and has enduring family support. Conflicting evidence was put before the judge on the plea as to whether or not Mr Abela-Rogers suffers from an intellectual disability — a recent report of a neuropsychologist, Dr Linda Borg, noted that he performed disingenuously in testing and there was no psychological or psychiatric basis to mitigate his moral culpability.

   …

   Mr Abela-Rogers had no prior convictions, a consideration that was moderated by the period over which the instant offending extended and its confronting nature. He abused drugs and alcohol for a relatively short time before imprisonment.

   [Charlie Farrugia]

   At the time of [his offending, Charlie Farrugia] was the subject of a [CCO] imposed in Melbourne Magistrates’ Court on 21 June 2018. … The charges were possession of cannabis, unlawful assault, theft and common law assault. …

   Mr Farrugia developed a cannabis dependency in his early teens and subsequently cocaine and methamphetamine addictions. He also abused alcohol from an early age.

   At the time of the offending he was aged 20, and 21 at the date of sentence. His other prior criminal history was relatively limited, but included affray and handling stolen goods. He also had suffered from an unstable early life with a violent, drug-abusing father who was the subject of a number of intervention orders during Charlie Farrugia’s early life. …

   The judge also noted that [Charlie Farrugia] was in a stable relationship before his arrest, with a baby born while he was on remand. The relationship, unsurprisingly, is now strained.

   Neither [Abela-Rogers nor Charlie Farrugia] claimed any academic distinction, although both were apparently competent junior sportsmen.[14]

Balshaw’s personal circumstances

[14]Abela-Rogers and Charlie Farrugia resentencing remarks, [25], [28], [30]–[34].

1. Balshaw was 18 years old at the time of offending and 20 at the time of sentencing in the County Court. He had a difficult early life. His mother suffered from depression and abused drugs. When he was 15 years old, he discovered his mother in her car attempting to commit suicide. He commenced abusing drugs at about the age of 15. He had limited prior convictions which were not relevant to the current offending. However, he was subject to a good behaviour bond when he committed the current offences. While on bail for the current offences, Balshaw successfully participated in rehabilitation therapy, reconciled with his family and obtained and maintained gainful employment.

Monro and Synan sentencing remarks

1. The judge described the offending as extremely serious, premediated, well-organised and sophisticated. She said that those involved in each incident had a ‘role to play’.[15] She accepted that there was no identifiable instigator or leader.

   [15]Monro and Synan sentencing remarks, [4].

2. The judge stated that it would have been apparent to both Monro and Synan that this was serious and well‑orchestrated offending, and they were clearly prepared to participate. She found that both Synan — who was involved in actual entry — and Monro — who waited with the vehicle — were involved in objectively serious offending by performing their respective roles, although she accepted that Synan’s involvement was ‘somewhat more limited’.[16] She held that their moral culpability was high. She assessed the gravity of the aggravated burglary and attempted aggravated burglary the subject of charges 9 and 11 as being ‘at the mid and moving towards the high range for offences of their type’.[17]

   [16]Monro and Synan sentencing remarks, [37].

   [17]Monro and Synan sentencing remarks, [33].

3. The judge accepted that Monro and Synan’s guilty pleas were made at early stages, had utilitarian value and indicated remorse. She took into account the COVID-19 pandemic in a general sense in relation to them both. She concluded that Synan’s prospects of rehabilitation were ‘favourable’ and ‘good’,[18] and Monro’s were ‘somewhat guarded’.[19]

   [18]Monro and Synan sentencing remarks, [54], [99].

   [19]Monro and Synan sentencing remarks, [80].

4. In relation to parity, the judge relevantly stated as follows:

   I accept in broad terms the submission that for those involved in the offending of 17 January 2019, each and every one of [the offenders] played equal roles in the careful design and then implementation of the agreed offending. Everyone had an allocated task.

   However, the true application of the parity principle has greater application in terms of the sentences to be imposed between [Synan and Monro] as opposed to that between each of [them] and the other five offenders on 17 January 2019. What cannot and should not be lost from the equation is that each of [Synan and Monro] were only involved in the final day. This has to be reflected in the sentences imposed. Neither of [them] have the increased moral culpability associated with repeated offending of the same nature.

   As between [Synan and Monro], there are immediate points of difference. In terms of the actual offending, Mr Monro was involved in planning discussions immediately prior to the events of 17 January 2019 and he was involved in the reconnoitre of the premises at 15 Aloomba Street, Chadstone. There is no evidence that Mr Synan was so involved.

   In terms of personal circumstances there are also points for distinction in Mr Synan’s favour in relation to him being younger, his less serious prior criminal history and his less relevant prior criminal history, and my assessment as to [Synan and Monro’s] respective prospects for rehabilitation. However, the need for general deterrence and denunciation [remains].[20]

   [20]Monro and Synan sentencing remarks, [86]–[89].

Ali and Dylan Farrugia sentencing remarks

1. In her sentencing remarks for Ali and Dylan Farrugia, the judge repeated the remarks set out at [37] above.[21]

   [21]Ali and Dylan Farrugia sentencing remarks, [5]–[6].

2. The judge stated that the burglaries (including the aggravated burglaries and the aggravated home invasion) were more serious charges than the thefts. She said that the burglaries the subject of charges 2 and 4 were similar in their objective circumstances and seriousness. She assessed the gravity of the aggravated burglaries to be ‘at least at the midrange but moving towards the high range for offences of their type’.[22] She remarked that, of the aggravated burglaries, charges 7 and 8 were the most concerning because they involved a direct confrontation with the victim. She observed that charge 8 was particularised as including the presence of an offensive weapon, which elevated the seriousness of that offence. She described the objective gravity of the aggravated home invasion as high and Dylan Farrugia and Ali’s moral culpability to be high.

   [22]Ali and Dylan Farrugia sentencing remarks, [76].

3. The judge accepted that Dylan Farrugia and Ali’s guilty pleas were made at early stages, had utilitarian value and indicated remorse; and took into account the COVID-19 pandemic in a general sense in relation to them both. She concluded that Dylan Farrugia’s prospects of rehabilitation were ‘good’[23] and Ali’s were ‘more guarded’.[24]

   [23]Ali and Dylan Farrugia sentencing remarks, [113], [122], [124].

   [24]Ali and Dylan Farrugia sentencing remarks, [154].

4. In relation to parity, the judge relevantly stated as follows:

   Each of [the offenders] have contributed to different offences which have occurred over the defined period. [Dylan Farrugia] had an equal role in the offending with that where [he does] have co-offenders, save [he is] not said to have been involved in the direct confrontation with the victim of Charge 5, the aggravated home invasion, as were Rhys Abela-Rogers and Jackson Balshaw.

   In a general sense [Dylan Farrugia’s] personal circumstances have some commonality in being brought up in an environment where domestic violence was rife, an unfortunate personal circumstance faced by at least four others of [his] co‑accused. The youngest offender was Rhys Abela-Rogers at 18 years of age at the relevant time and the oldest [his] cousin, Damien Monro, who was 25 years at the time of [the] offending. [Dylan Farrugia’s] age is otherwise somewhat in common with the majority of [his] co-offenders. [His] criminal history … is relatively limited and [his] prospects of rehabilitation I have assessed as being good if [he] can avoid the use of drugs. The prospects of Mr Monro and Mr Ali are not so assessed, and the sheer level of Mr Abela‑Rogers’ criminality also raises concern. Otherwise there is little to distinguish between offenders, noting that [Dylan Farrugia was] involved in six of the eight events committed over a period of some four months.

   …

   [Ali has] been involved in different offending in the sense that no one was involved in exactly the same range of offending. Otherwise there is little to distinguish [him] from that of [his] co-accused in terms of [his] role. I accept that, in relation to the charge of aggravated home invasion, [he was] not involved in the physical confrontation that occurred with the victim as [were] Mr Abela-Rogers and Mr Balshaw. However, [he was] involved in five of the eight incidents and [his] age at the time is relative to that of [his] co-offenders. In terms of [his] personal circumstances, [his] criminal history is of concern when compared to that of [his] co-offenders and [his] prospects of rehabilitation are, in my assessment, more guarded. This will feed into the period of transition when [he returns] to the community.[25]

   [25]Ali and Dylan Farrugia sentencing remarks, [123]–[124], [154].

Balshaw resentencing remarks

1. This Court stated that the judge was correct in charactering the offending by the offenders as particularly serious. However, in respect of Balshaw, it emphasised the following mitigating circumstances and sentencing considerations:

   (a)Balshaw’s youth and immaturity were considerations of particular importance as mitigating factors. He was ‘substantially on the road to reform and rehabilitation’ because, at the date of sentencing, he had successfully participated in rehabilitation therapy provided by the Bendigo Bridge Centre, reconciled with his family, and obtained and maintained gainful employment.[26]

   (b)Balshaw’s immaturity and impressionable nature meant that a term of imprisonment in an adult prison was potentially detrimental to him because it might expose him to further antisocial behaviours and attitudes. In that way, a term of imprisonment, as distinct from detention in a Youth Justice Centre, might be counterproductive to the capacity of the sentence to act as a specific deterrent.

   (c)Balshaw’s guilty pleas were entitled to be accorded significant weight because they were of particular utilitarian value, having been made during the COVID‑19 pandemic, and the judge recognised they were accompanied by remorse.

   (d)At the time of sentencing, Balshaw had been in custody in an adult prison as a young and immature offender for 213 days, 37 of which did not qualify as pre‑sentence detention in the present case. Those 37 days were to be taken into account in mitigation in accordance with the principles discussed in R v Renzella.[27]

   [26]Balshaw resentencing remarks, [57].

   [27][1997] 2 VR 88, 96–7.

1. In view of the above mitigating circumstances, this Court found that the judge was in error in considering that a custodial sentence of 4 years or less would not have been sufficient — such that it was necessary to impose a term of imprisonment to be served in an adult jail — in order to vindicate the sentencing purposes of general deterrence, denunciation and specific deterrence. This Court also found that, due to the mitigating factors upon which Balshaw relied, the sentence imposed on charge 2 of the Balshaw indictment (charge 5 of the joint indictment) was in all the circumstances manifestly excessive.

Abela-Rogers and Charlie Farrugia resentencing remarks

1. This Court concluded that, in respect of Abela-Rogers and Charlie Farrugia, the individual sentences imposed, the orders for cumulation and the consequent total effective sentences did not comply with the principle of parity when considered against the Balshaw resentence. This Court’s reasons for allowing the appeals of Abela-Rogers and Charlie Farrugia on the parity ground and for resentencing them to lower sentences, were as follows:[28]

   In short compass, while Balshaw was a youthful offender, so too were [Abela‑Rogers and Charlie Farrugia]. All had suffered difficult upbringings, and none had reams of devastating prior convictions, although Charlie Farrugia was the subject of court supervision (via a CCO) at the time of offending. There was no leadership figure, although Balshaw and Abela-Rogers were certainly active participants in the nasty incident 4. Balshaw probably had better prospects for rehabilitation than [Abela-Rogers and Charlie Farrugia], and it seems Charlie Farrugia’s prospects are perhaps a little better than those of Abela-Rogers.

   It is unfortunate that a direct comparison cannot be made of the sentences imposed upon Balshaw and Abela-Rogers on the charges comprising incident 4 as Abela-Rogers pleaded guilty to aggravated home invasion (charge 5 [of the joint indictment]) and Balshaw (charge 2 [of the Balshaw indictment]) to aggravated burglary (thus avoiding the operation of s 10AC of the Sentencing Act). Notwithstanding this, ‘there is a clear relationship between the elements’ of both offences, and they carry the same maximum penalty. It must be observed that the difference between Abela-Rogers’ head sentence on his charge 5 of five years and eight months’ adult imprisonment, and Balshaw’s head sentence on effectively the same offending (his charge 2) of three years and six months’ Youth Justice detention is a great disparity indeed. Similarly, from a broader perspective, the disparity between (on the one hand) the very lengthy total effective sentences imposed upon [Abela-Rogers and Charlie Farrugia] and (on the other hand) Balshaw’s total effective sentence is also very great.

   In truth, the single most important distinguishing factor between [Abela-Rogers and Charlie Farrugia] themselves, and between them and Balshaw, is the degree of participation in this continuing, highly criminal enterprise. Abela-Rogers participated in every incident and trafficked some of the product of his endeavours. He is, by some margin, the most criminally culpable. Charlie Farrugia participated in five of the eight incidents and also trafficked in cannabis. All at a time when he was subject to a CCO — a substantial aggravating feature. Balshaw was an active participant in four incidents, but had made real steps towards rehabilitation by the time of sentence.

   There are similarities and differences between all three young men, however, after some deliberation, we have concluded that the parity grounds must succeed. The marked disparity between the sentences imposed on [Abela‑Rogers and Charlie Farrugia] as compared to Balshaw is manifestly excessive. [The ground of appeal based on the parity ground for both Abela‑Rogers and Charlie Farrugia is] established, and in both cases the sentencing discretion is reopened.

   …

   We are told, and accept, that both [Abela-Rogers and Charlie Farrugia] have been adversely affected by various COVID-19-related impacts on their custodial conditions. Family visits have been largely replaced by electronic contact and various rehabilitative programs have been suspended. We understand that administrative decisions may soften the impact of days spent in lockdown,[29] although it is undoubted that the general burden of imprisonment (leaving aside lockdown days) has been increased by measures necessary to deal with the pandemic. We take this into account, and also take into account all the mitigating factors so conscientiously explored by the sentencing judge …

   In resentencing the applicants we do not lose sight of the fact that this was serious, grown-up offending, albeit committed by youths barely out of the Children’s Court jurisdiction. The principles of general and specific deterrence, denunciation, just punishment and, particularly in Abela-Rogers’ case, protection of the community, all must be given some emphasis in the resentencing exercise. The sentencing exercise required of the sentencing judge was a very difficult one, with factors pulling in many directions over seven different young offenders with different stories to tell.

   [28]Abela-Rogers and Charlie Farrugia resentencing remarks, [36]–[39], [41]–[42] (citation in original).

   [29]Victorian prisoners are eligible to receive up to four days’ reduction in their sentences for each day spent in lockdown: Corrections Act 1986, s 58E(1)(a); Corrections Regulations 2019, reg 100(a).

Parties’ submissions

1. In the light of the Crown’s concessions that leave to appeal should be granted and the appeals of all four applicants should be allowed on the basis of the parity principle, which we have accepted as being appropriate, the parties’ submissions focused on resentence and were of very short compass.

2. As we have already stated at [8] above, the Crown submitted that the new sentences for the applicants and the sentences imposed on Balshaw, Abela-Rogers and Charlie Farrugia by this Court upon resentence should restore the relativities in the sentences originally imposed by the judge.

3. Counsel for each of the applicants agreed that the Crown’s approach was appropriate in all the circumstances. They also agreed that the key change in circumstances for each of the applicants since they were sentenced by the judge — namely, the impact upon them of the restrictions imposed by prison authorities consequent upon the COVID-19 pandemic — was fully considered by this Court in the Balshaw resentencing remarks and the Abela-Rogers and Charlie Farrugia resentencing remarks. Counsel for each of the applicants conceded that, if the Court applied the Crown’s relativities approach in resentencing the applicants, the new sentences would appropriately take into account the impact of the COVID‑19 pandemic restrictions.

4. Counsel for each of the applicants provided an update to the Court regarding the circumstances of each applicant since they were sentenced by the judge. Those circumstances included work performed by the applicants in prison, programs undertaken by them, continuing family support, emergency management days credited due to COVID-19 pandemic restrictions[30] and, in the case of Synan, an offer of employment upon release from prison. It is not necessary for us to set out these matters, as counsel for each of the applicants conceded that there was nothing in any of the applicants’ circumstances since they were sentenced by the judge that required moderation in sentence beyond that resulting from the application of the Crown’s relativities approach.

   [30]See n 29 above. As at 30 May 2022, the emergency management days credited to the applicants were: 89 (Dylan Farrugia), 140 (Ali), 89 (Monro), 82 (Synan).

Decision

1. We agree with this Court’s observation in the Abela-Rogers and Charlie Farrugia resentencing remarks that the judge faced a very difficult sentencing exercise.[31] The judge’s sentencing remarks for the four applicants were comprehensive and unimpeachable in terms of the judge’s assessment of the gravity of the offending, the offenders’ moral culpability and the weight to be given to the mitigating factors upon which they relied. The sentences for the applicants were carefully calibrated and well within range, if not generous. Had it not been for the engagement of the parity principle resulting from the resentencing of Balshaw, Abela-Rogers and Charlie Farrugia, the applicants could not have any legitimate complaint about their sentences.

   [31]Abela-Rogers and Charlie Farrugia resentencing remarks, [42].

2. Nevertheless, as accepted by the Crown, the parity principle has been engaged by virtue of the resentencing of Balshaw, Abela-Rogers and Charlie Farrugia. In order to give effect to that principle, we will grant the applicants’ applications for an extension of time within which to file their notices of application for leave to appeal, grant leave to appeal and allow the appeals.

3. The result is that the sentencing discretion is reopened for each applicant. In the special circumstances of the present applications, we agree with the parties that, subject to one qualification, the most appropriate manner to resentence the applicants is to adopt the Crown’s relativities approach. The qualification is that, in order to avoid a manifestly inadequate sentence, the non-parole period for the lowest of the total effective sentences — that of Synan — should not be less than two years’ imprisonment. We regard two years’ imprisonment to be the minimum period of imprisonment that justice requires Synan to serve.[32]

   [32]Kumova v The Queen (2012) 37 VR 538, 545 [27].

Resentence

1. Having regard to the above, we will resentence the applicants as follows:

Charge and offence	Max Penalty	Offender	Sentence	Cumulation
2, Burglary	10 years	Dylan Farrugia	1 year, 3 months	—
3, Theft	10 years	Dylan Farrugia	1 year	—
4, Burglary	10 years	Dylan Farrugia	1 year, 3 months	—
		Ali	1 year	—
5, Aggravated home invasion	25 years	Dylan Farrugia	4 years, 1 month	3 months
		Ali	4 years, 1 month	3 months
6, Theft	10 years	Dylan Farrugia	1 year, 3 months	—
		Ali	1 year, 3 months	—
7, Aggravated burglary	25 years	Ali	4 years, 4 months	Base
8, Aggravated burglary	25 years	Dylan Farrugia	4 years, 2 months	4 months
9, Aggravated burglary	25 years	Dylan Farrugia	4 years, 4 months	Base
		Ali	4 years, 4 months	4 months
		Monro	2 years, 10 months	Base
		Synan	2 years, 10 months	Base
10, Theft	10 years	Dylan Farrugia	1 year	—
		Ali	1 year	—
		Monro	1 year	—
		Synan	1 year	—
11, Attempted aggravated burglary	20 years	Dylan Farrugia	2 years, 6 months	2 months
		Ali	2 years, 6 months	2 months
		Monro	2 years	2 months
		Synan	1 year, 10 months	1 month
Related summary offences
Deal with property suspected to be proceeds of crime	2 years	Ali	$500 fine	—
Commit indictable offence whilst on bail	3 months	Monro	1 month	—
Fail to provide access code to data device under warrant	2 years	Synan	6 months	—
Total Effective Sentence:		Dylan Farrugia: 5 years, 1 month Ali: 5 years, 1 month Monro: 3 years Synan: 2 years, 11 months
Non-Parole Period:		Dylan Farrugia: 3 years, 5 months Ali: 3 years, 5 months Monro: 2 years, 1 month Synan: 2 years

1. We will declare that, but for their pleas of guilty, we would have imposed the following total effective sentences (‘TES’) and fixed the following non-parole periods (‘NPP’):

   (a)Dylan Farrugia: 7 years (TES); 5 years (NPP).

   (b)Ali: 7 years (TES); 5 years (NPP).

   (c)Monro: 4 years (TES); 2 years, 6 months (NPP).

   (d)Synan: 4 years (TES); 2 years, 5 months (NPP).

   ---

Annexure: Table of sentences for all offenders prior to resentencing of applicants

Offender	Charge on joint indictment	Offence	Max Penalty	Incident	Role	Sentence	Cumulation	Resentence on appeal	Cumulation on appeal	Total effective sentence	Non-parole period
Applicants (Dylan Farrugia, Ali, Monro, Synan)
Dylan Farrugia	2	Burglary [Crimes Act 1958, s 76]	10 years	(2) Kings Park, 26/09/2018	Unknown	1 year, 6 months	—	N/A	N/A	6 years, 9 months	4 years, 4 months
	3	Theft [Crimes Act, s 74]	10 years			1 year	—
	4	Burglary	10 years	(3) Ferndale Rd, Sunshine Nth, 3/10/2018	Unknown	2 years	2 months
	5	Aggravated home invasion [Crimes Act, s 77B]	25 years	(4) Meadowbank Dr, Sunshine Nth, 3/10/2018	Intruder; carried garden shears	5 years, 4 months	Base
	6	Theft	10 years			1 year, 6 months	—
	8	Aggravated burglary [Crimes Act, s 77]	25 years	(6) Deer Park, 10/12/2018	Unknown	5 years, 2 months	6 months
	9	Aggravated burglary	25 years	(7) Keysborough, 17/01/2019	Intruder	5 years	6 months
	10	Theft	10 years			1 year	—
	11	Attempted aggravated burglary [Crimes Act, ss 77, 321M]	20 years	(8) Chadstone, 17/01/2019	Intruder	3 years	3 months
Ali	4	Burglary	10 years	(3) Ferndale Rd, Sunshine Nth, 3/10/2018	Unknown	1 year, 6 months	—	N/A	N/A	6 years, 7 months	4 years, 4 months
	5	Aggravated home invasion	25 years	(4) Meadowbank Dr, Sunshine Nth, 3/10/2018	Intruder	5 years, 4 months	Base
	6	Theft	10 years			1 year, 6 months	—
	7	Aggravated burglary	25 years	(5) Balwyn Nth, 13/11/2018	Unknown	5 years	6 months
	9	Aggravated burglary	25 years	(7) Keysborough, 17/01/2019	Intruder	5 years	6 months
	10	Theft	10 years			1 year	—
	11	Attempted aggravated burglary	20 years	(8) Chadstone, 17/01/2019	Getaway driver	3 years	3 months
	Summary offence	Deal with property suspected of being proceeds of crime [Crimes Act, s 195]	2 years	Arrest, 17/01/2019	Sole offender	$500 fine	—
Monro	9	Aggravated burglary	25 years	(7) Keysborough, 17/01/2019	Getaway driver	3 years, 8 months	Base	N/A	N/A	4 years	2 years, 8 months
	10	Theft	10 years			1 year	—
	11	Attempted aggravated burglary	20 years	(8) Chadstone, 17/01/2019	Getaway driver	2 years, 4 months	4 months
	Summary offence	Commit indictable offence whilst on bail [Bail Act 1977, s 30B]	3 months	(7) Keysborough, 17/01/2019	Sole offender	1 month	—
Synan	9	Aggravated burglary	25 years	(7) Keysborough, 17/01/2019	Intruder	3 years, 4 months	Base	N/A	N/A	3 years, 7 months	2 years, 2 months
	10	Theft	10 years			1 year	—
	11	Attempted aggravated burglary	20 years	(8) Chadstone, 17/01/2019	Intruder	2 years, 2 months	3 months
	Summary offence	Fail to provide access code to data device under warrant [Crimes Act, s 465AAA]	2 years	Arrest, 7/05/2019	Sole offender	6 months	—
Applicants’ co-offenders (Abela-Rogers, Charlie Farrugia, Balshaw)
Abela-Rogers	1	Aggravated burglary	25 years	(1) Mulgrave, 10/09/2018	Getaway driver	3 years	—	3 years	1 month	County Court: 7 years, 11 months On appeal: 6 years	County Court: 5 years On appeal: 4 years
	2	Burglary	10 years	(2) Kings Park, 26/09/2018	Unknown	1 year, 6 months	2 months	1 year, 3 months	1 month
	3	Theft	10 years			1 year	—	1 year	—
	4	Burglary	10 years	(3) Ferndale Rd, Sunshine Nth, 3/10/2018	Unknown	2 years	2 months	1 year, 3 months	—
	5	Aggravated home invasion	25 years	(4) Meadowbank Dr, Sunshine Nth, 3/10/2018	Intruder; carried crowbar with torch attached; confronted resident	5 years, 8 months	Base	4 years	4 months
	6	Theft	10 years			1 year, 6 months	—	1 year, 3 months	—
	7	Aggravated burglary	25 years	(5) Balwyn Nth, 13/11/2018	Unknown	5 years	6 months	4 years, 4 months	4 months
	8	Aggravated burglary	25 years	(6) Deer Park, 10/12/2018	Unknown	5 years, 2 months	6 months	4 years, 6 months	4 months
	9	Aggravated burglary	25 years	(7) Keysborough, 17/01/2019	Intruder; had an exchange with resident	5 years, 2 months	7 months	4 years, 8 months	Base
	10	Theft	10 years			1 year	—	1 year	—
	11	Attempted aggravated burglary	20 years	(8) Chadstone, 17/01/2019	Intruder	3 years	4 months	2 years, 6 months	2 months
	13	Traffick cannabis [Drugs, Poisons and Controlled Substances Act 1981, s 71AC]	15 years	26/12/2018 to 9/01/2019	Sole offender	4 months	—	3 months	—
Charlie Farrugia	1	Aggravated burglary	25 years	(1) Mulgrave, 10/09/2018	Intruder	3 years	—	3 years	1 month	County Court: 5 years, 11 months On appeal: 5 years	County Court: 3 years, 10 months On appeal: 3 years
	2	Burglary	10 years	(2) Kings Park, 26/09/2018	Unknown	1 year, 6 months	2 months	1 years, 3 months	1 month
	3	Theft	10 years			1 year	—	1 year	—
	8	Aggravated burglary	25 years	(6) Deer Park, 10/12/2018	Unknown	5 years	Base	4 years	4 months
	9	Aggravated burglary	25 years	(7) Keysborough, 17/01/2019	Intruder	5 years	6 months	4 years, 4 months	Base
	10	Theft	10 years			1 year	—	1 year	—
	11	Attempted aggravated burglary	20 years	(8) Chadstone, 17/01/2019	Intruder	3 years	3 months	2 years, 6 months	2 months
	12	Traffick cannabis	15 years	22/12/2018	Sole offender	2 months	—	1 month	—
Balshaw (Balshaw indictment charge in brackets)	4 (1)	Burglary	10 years	(3) Ferndale Rd, Sunshine Nth, 3/10/2018	Intruder	1 year, 3 months	—	1 year	—	County Court: 5 years On appeal: 3 years, 10 months in a Youth Justice Centre	County Court: 2 years, 10 months On appeal: No NPP
	5 (2)	Aggravated burglary	25 years	(4) Meadowbank Dr, Sunshine Nth, 3/10/2018	Intruder; carried garden shears; confronted resident	4 years, 8 months	Base	3 years, 6 months	Base
	— (3)	Common law assault [Crimes Act, s 320]	5 years			4 months	—	4 months	—
	6 (4)	Theft	10 years			1 year	—	1 year	—
	9 (5)	Aggravated burglary	25 years	(7) Keysborough, 17/01/2019	Getaway driver	3 years, 8 months	3 months	2 years	3 months
	10 (6)	Theft	10 years			1 year	—	9 months	—
	11 (7)	Attempted aggravated burglary	20 years	(8) Chadstone, 17/01/2019	Intruder	2 years, 6 months	1 month	2 years	1 month
Notes: 1.   With respect to charge 5 on the joint indictment (charge 2 on the Balshaw indictment), Balshaw pleaded guilty to aggravated burglary and his co‑offenders pleaded guilty to aggravated home invasion. 2.   The judge found that there was no identifiable instigator or leader of the offending: Ali and Dylan Farrugia sentencing remarks, [6]; Monro and Synan sentencing remarks, [4]. 3.   All offenders pleaded guilty and displayed remorse. 4.   All offenders but Ali had a difficult upbringing. 5.   Age at time of offending: Dylan Farrugia (22); Ali (20); Monro (25); Synan (22); Abela-Rogers (18); Charlie Farrugia (20); Balshaw (18). 6.   Prospects of rehabilitation: Dylan Farrugia (good); Ali (more guarded); Monro (somewhat guarded); Synan (favourable/good); Abela-Rogers (guarded); Charlie Farrugia (good); Balshaw (positive). 7.   Relevant criminal history: Dylan Farrugia (no); Ali (yes); Monro (yes); Synan (yes); Abela-Rogers (no); Charlie Farrugia (yes); Balshaw (no). 8.   On bail, CCO, adjourned undertaking or good behaviour bond at time of offending: Dylan Farrugia (adjourned undertaking); Ali (no); Monro (bail); Synan (no); Abela-Rogers (no); Charlie Farrugia (CCO); Balshaw (good behaviour bond). 9.   R v Verdins (2007) 16 VR 269 principles were not applicable to any of the offenders.