Grey v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0049
S EAPCR 2023 0245

DREW GREY	Applicant
v
THE KING	Respondent

---

JUDGES:	WALKER and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2024
DATE OF ORDERS:	18 April 2024
DATE OF REASONS:	26 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 75
JUDGMENT APPEALED FROM:	DPP v Grey (County Court of Victoria, Judge Dempsey, 3 March 2023)

---

CRIMINAL LAW – Appeal – Sentence – Whether parity principle breached – Aggravated burglary – Recklessly cause injury – Theft – False imprisonment – Appeal allowed – Applicant re-sentenced – Sentence turns on unique circumstances and provides no future guidance.

PRACTICE AND PROCEDURE – Appeal – Sentence – Applicant filed notice of abandonment – Applicant later sought to withdraw notice of abandonment after sentencing of co-offender – Inherent jurisdiction to grant leave to withdraw notice of abandonment – Leave granted.

Sentencing Act 1991, ss 5(1)(a), 5(2)(c) & 5(2)(d).

Wong v The Queen(2001) 207 CLR 584; Hafner v The Queen[2012] VSCA 190; Tognolini v The Queen (No 2) [2012] VSCA 311, applied – Green v R (2011) 244 CLR 462; Taleb v The Queen(2014) 42 VR 666; Hogarth v The Queen (2012) 37 VR 658; R v Meyers (2014) 44 VR 486; R v Bowden [2016] VSCA 283; O’Loughlan v The Queen [2010] VSCA 175; Anthony v The Queen [2016] VSCA 22, discussed.

---

Counsel
Applicant:		Ms G F Connelly
Respondent:		Ms D I Piekusis KC
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Solicitor for Public Prosecutions

WALKER JA
BOYCE JA:

Introduction

The applicant[1] was arraigned and pleaded guilty in the County Court to offences of aggravated burglary, recklessly causing injury, theft and false imprisonment. He was sentenced on 3 March 2023 as follows:
[1]The applicant’s surname is correctly spelt ‘Gray’. Nevertheless, the spelling ‘Grey’ was used to identify the applicant in the indictment, in the sentencing judge’s reasons and in the orders made by the sentencing judge. In these circumstances, and upon the matter having been raised with the parties, the spelling ‘Grey’ is used in this judgment and in the orders that disposed of this appeal.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[2]	25 years	16 months	Base
2	Causing injury recklessly[3]	5 years	14 months	6 months
3	Theft[4]	10 years	4 months	1 month
4	False imprisonment[5]	10 years	10 months	3 months
Total Effective Sentence:		2 years and 2 months’ imprisonment
Non-Parole Period:		1 year and 4 months
Pre-sentence Detention Declared:		33 days
Section 6AAA Statement:		Total Effective Sentence: 4 years imprisonment Non Parole-Period: 3 years
Other Relevant Orders: N/A

[2]Contrary to s 77 of the Crimes Act 1958.

[3]Contrary to s 18 of the Crimes Act 1958.

[4]Contrary to s 74(1) of the Crimes Act 1958.

[5]Contrary to common law.

In March 2023 the applicant filed an application for leave to appeal against sentence, alleging manifest excess and specific error. However, in July 2023 he filed a notice of abandonment.
In August 2023 the applicant’s co-offender, ‘AC’, was sentenced to an aggregate sentence of 6 months with a 2 year community correction order (‘CCO’). In December 2023 the applicant filed an application to withdraw his notice of abandonment. At the hearing of the appeal he sought leave to amend his notice of appeal so as to rely upon a single ground of appeal, as follows:
The sentence imposed offends the principle of parity.
On 18 April 2024 we made orders granting the applicant leave to withdraw his notice of abandonment, reinstating the application for leave to appeal, granting leave to amend the notice of appeal, granting leave to appeal and allowing the appeal. We re-sentenced the applicant to a total effective sentence of 21 months’ imprisonment, with a non-parole period of 13 months. These are our reasons for making those orders.
We wish to emphasise that our upholding of the applicant’s ground of appeal, and the sentence we have then imposed upon him, should be seen to be the product of the unique circumstances attending this case. The applicant’s success in this regard, and the sentences which we imposed in consequence, should not be viewed as setting a benchmark, let alone providing guidance more generally as to sentencing practice for similar offending.

The application to withdraw the notice of abandonment

The applicant had filed an application for leave to appeal against sentence on 31 March 2023 (the ‘first application’). That application was filed within time. In July 2023 he filed a notice of abandonment whereby the first application for leave was abandoned with effect from 14 July 2023 and it was ordered that his application for leave to appeal against sentence was dismissed.[6]
[6]This was the effect of Rule 2.41 of the Supreme Court (Criminal Procedure) Rules2017.
Upon becoming aware of the sentence imposed on AC, the applicant instructed his solicitors that he wished to appeal after all. On 21 December 2023 the applicant applied for leave to withdraw the earlier notice of abandonment and sought a reinstatement of the original application for leave. The applicant also filed a further application for leave to appeal (the ‘second application’) and sought an extension of time in relation to that application. This was styled as a new proceeding, with a new file number.
The applicant’s first application for leave to appeal contained two grounds of appeal, namely manifest excess and specific error. The second application contained three grounds — the same two grounds as the first application and an additional ground, Ground 3, which was as follows:
The sentence imposed on the co-offender Chapman offends the principle of parity.
On the assumption that leave to withdraw the notice of abandonment would be granted, prior to the hearing the applicant sought leave to amend his proposed grounds of appeal by substituting the single proposed ground of appeal directed to parity, and set out in paragraph 3, above. At the hearing it became apparent that the appropriate course was to regard the application to amend as directed to the original application for leave to appeal, rather than to the second application.
This Court has an inherent power to permit a person who has abandoned their application for leave to appeal to withdraw the notice of abandonment.[7] At the time that he withdrew his application for leave to appeal, the applicant was not aware of the sentence that would later be imposed upon AC. The respondent submitted that the applicant was aware that AC was yet to be sentenced. So much may be accepted. However, both offenders had been the subject of a sentence indication by Judge Dempsey. That indication was identical for each of them: 2 years and 9 months’ imprisonment. In those circumstances, we consider that the applicant could not have expected that the sentence imposed on AC would be so significantly different from his sentence as to provide a basis to appeal on the ground of disparity in the two sentences.
[7]Tognolini v The Queen (No 2) [2012] VSCA 311, [11]–[21] (Maxwell P, Buchanan and Redlich JJA).
For these reasons we will grant the applicant leave to withdraw his notice of abandonment and treat the original application for leave to appeal against sentence as reinstated.
Because we have granted the application to withdraw the notice of abandonment, so that the first application is reinstated, the second application falls away. In that proceeding we simply ordered that the application for an extension of time was refused.

Summary of key facts

The applicant and AC were in a domestic relationship. AC and the victim of the applicant’s offending had known each other for a number of years. AC had previously lived with the victim, although she had no further contact with the victim after that co‑habitation had ended. It seems that in the days leading up to the offending AC was told that the victim had a video on his mobile phone which depicted AC in a drug affected and sexually explicit state. AC became angry at this and so she uploaded a ‘Facebook message’ making reference to the victim and other persons by whom she felt aggrieved. A few days later AC left a threatening message on the victim’s phone stating:
[Y]ou want to stop showing the people the video of me or we will be coming through your house ten deep, we will tie your grandma up and rape and teach you a real lesson, call me back.[8]
[8]The reasons for sentence in relation to the applicant, delivered by Judge Dempsey on 3 March 2023 (‘Reasons’).
The victim was at home alone in his bungalow the following evening. At 11:00 pm he answered a knock on his front door to find AC, the applicant and two unidentified males. The applicant and the males had their faces partially covered. AC was not disguised and was recognised by the victim. The two unidentified males were each armed, one with a rubber mallet and the other with a pole.[9]
[9]Reasons, [12].
Upon the victim opening the front door, AC pushed her way into the bungalow along with the applicant and the two unidentified males.[10] These acts constituted the charge of aggravated burglary — charge 1. The charge of aggravated burglary particularised an intention to steal on the applicant’s part.
[10]Reasons, [13].
The sentencing judge summarised the events that followed:
The group then commenced assaulting [the victim] as he walked backwards towards his bedroom, hitting him on the head causing a large gash that later required nine staples. [The victim] was also poked to the head with a fire poker by [the applicant]. As a result of the attack, [the victim] fell on the floor and ended up lying on his back. By this time, [AC] had located a knife from within [the victim’s] residence. As [the victim] lay on the ground, [AC] leaned over [the victim] and lunged at him with the knife. [The victim] raised his arms to defend himself, and as a result, the knife struck his left thumb, causing a damaged tendon that later required surgery.[11]
[11]Reasons, [14].
These acts constituted charge 2 — recklessly causing injury. Insofar as this charge was concerned, the applicant was liable for his own acts and was complicit in the acts of the others.
Whilst the assault upon the victim was continuing, AC demanded to know where the victim’s money and drugs were. The group took the victim’s wallet which contained $1,200.00 and several grams of methylamphetamine. The group also demanded the PIN code to the victim’s mobile phone and login password to his Westpac bank account. AC transferred $4,000.00 from the victim’s bank account into her own account. The group also stole the victim’s two iPhones, a box of security cameras, a set of keys and a trail bike.[12] These acts — apart from AC’s transferral of the $4,000.00 — made up the charge of theft alleged against the applicant (charge 3).
[12]Reasons, [16]–[17].
The judge’s summary continued:
[AC] then taped [the victim’s] mouth and hands with duct tape. The tape on the wrists was temporarily removed and he was made to sign a blank A4 piece of paper. This was done with the intention of fabricating a purchase receipt for [the victim’s] vehicle. The group then forced [the victim] into the boot of his car, saying they were going to dump him in the bush. Two of the offenders … then drove towards Warragul with [the victim] still restrained in the boot.[13]
[13]Reasons, [18].
These were the facts that gave rise to the charge of false imprisonment — charge 4. It was accepted that the prosecution could not prove which two of the offenders drove the victim towards Warragul. The false imprisonment charge was alleged against the applicant on a complicity basis as described by the judge:
[A]fter attending [the victim’s] residence, [the applicant] came to an understanding with [AC] that [AC] was going to tie up [the victim] and put him in the boot. This understanding was arrived at by [the applicant] once observing [AC] tying the complainant up.[14]
[14]Reasons, [18]–[19].
The prosecution case against the applicant in respect of charge 4 did not extend beyond the point at which the restrained victim was placed in the boot of the car, and thus did not include driving the victim away.
During the journey, the victim was able to escape from the vehicle. He was offered assistance by a passing motorist who came across the victim covered in blood and with duct tape still attached to his mouth. The victim was driven to the Warragul police station where the matter was reported. The following day police arrested the applicant and AC at their residence. Police located property that had been stolen from the victim and a hand-drawn map depicting the route to the victim’s residence. During interviews with police the applicant denied the offending and gave a false story concerning possession of the victim’s property.[15]
[15]Reasons, [20]–[25], [28]–[33].
The victim suffered a deep cut to his left thumb resulting in tendon laceration. He experienced blunt force trauma to the back of the head resulting in a cut on the scalp. A victim impact statement tendered on behalf of the victim outlined the effect of the offending upon him. He was no longer able to work at his preferred occupation and he felt ‘scared, worthless and unhappy’ and had experienced short-term memory loss. He suffered nerve damage to his thumb which now has limited use. The judge observed that:
It seems to me to be a gross understatement that [the victim’s] life has changed quite significantly since this offence, considerably for the worse. The after effects on him resonate years after the crimes.[16]
[16]Reasons, [41], [50].

The applicant

The applicant was 32 at the time of sentence. His father had been in gaol since he was a child. His relationship with AC was described as ‘toxic’. Nevertheless, the applicant had re-kindled a relationship with another woman with whom he had a five-year-old child. The applicant had left school at Year 7 and been employed at various jobs since that time. The applicant had a drug and alcohol history that the judge described as ‘troubling’. This history consisted in the occasional abuse of alcohol, cannabis and amphetamines.[17]
[17]Reasons, [52]–[57].
The applicant had been diagnosed with High Functioning Autism Spectrum Disorder. This manifested itself in impairments in social interaction and emotional regulation. The applicant had ongoing diagnoses of Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Depression, Tourette’s and Obsessive Compulsive Disorder.[18]
[18]Reasons, [58], [62].
The applicant had prior convictions for violence. In the view of the judge ‘specific deterrence and protection of the community [were] significant sentencing considerations’.[19]
[19]Reasons, [68].
Since the present offending the applicant had been convicted of an assault on AC resulting in him being placed on a combined gaol/CCO. That offending had also breached an adjourned undertaking earlier imposed in the Magistrates’ Court. The applicant had successfully completed this CCO and had not offended again ‘in more than 2 years’. The present offending had, at the time of sentence, occurred over three years earlier.[20]
[20]Reasons, [83]–[85].

The Reasons

The sentencing judge considered that the prosecution case against the applicant was a strong one, but observed that the original indictment had contained ‘demonstrably more serious’ charges, which were withdrawn in favour of the present resolution. The judge considered that the applicant’s ‘desire to resolve the matter in the fashion he has is of real utilitarian value’.[21]
[21]Reasons, [36]–[39].
The judge thought that it was ‘inconceivable’ that the applicant would have offended in the way that he did but for his connection with AC. The judge considered that the applicant’s offending was ‘serious’.[22]
[22]Reasons, [70], [82].
The judge took account of the applicant’s plea of guilty and observed that it was of real utilitarian benefit to the court: a trial had been avoided and witnesses had been saved the inconvenience of giving evidence. Further, the applicant was entitled to a significant moderation and reduction of his sentence because his plea was offered at a time of congested court lists caused by the COVID–19 pandemic. Additionally, the applicant had acknowledged his wrongdoing and had demonstrated a willingness to facilitate the course of justice.[23]
[23]Reasons, [91]–[95].
The judge accepted that COVID–19 would impact negatively upon the applicant’s experience in custody, creating an increased burden upon him.[24]
[24]Reasons, [96]–[99].
The judge accepted that there ought be a modest reduction in penalty on the basis that the applicant’s suffering from High Functioning Autism Spectrum Disorder would make service of his sentence more burdensome. As the judge put it:
[T]here is some degree of difficulty that will be experienced by [the applicant] that would not be experienced by others who are not on the spectrum as he is.
…
[The applicant] is likely to find prison much more burdensome than others because of the lack of ability to pick up social cues in the prison system when dealing with other prisoners.[25]
[25]Reasons, [64], [100].
The judge considered it ‘remarkable’ that the applicant had not offended for more than two years given the lack of formal support that the applicant had received. The applicant’s prospects were ‘reasonably positive’. He had ceased contact with AC, had reunited with his child and enjoyed strong family support.[26]
[26]Reasons, [102], [104].
The judge considered that the only appropriate sentence was a head sentence with a non-parole period. Nevertheless, the judge thought it ‘appropriate to allow for a long parole component to the sentence’.[27]
[27]Reasons, [116].
The judge ultimately imposed the sentences referred to above.

The sentence imposed on AC[28]

[28]Reasons for sentence in relation to AC, delivered by Judge Smallwood on 8 August 2023 (‘AC Reasons’).

On 8 August 2023, some five months after sentence was imposed on the applicant, AC was sentenced by a different judge in respect of the same offending.
AC pleaded guilty, like the applicant, to aggravated burglary (intention to steal), recklessly causing injury, theft and false imprisonment.
AC was 39 when sentenced and the judge who sentenced her was persuaded that her pleas were accompanied by ‘appropriate remorse’. AC received a utilitarian benefit for her pleas including a significant additional utilitarian benefit arising out of the fact that the pleas had been entered during the time of the COVID–19 pandemic when court lists were congested.[29]
[29]AC Reasons, [2].
The judge who sentenced AC took into account that it had been nearly four years since the offending and, in his Honour’s words, ‘nothing of this nature at least has occurred since’. He also noted that AC had a number of prior convictions for assault ‘all dating back to around about 2017 or thereabouts’. It was acknowledged that AC had never been in custody before other than for 18 days on the present matters.[30]
[30]AC Reasons, [2]–[3].
The judge who sentenced AC then summarised the offending. When it came to AC’s motive for having offended in the manner that she did — and the significance of the video that the victim allegedly had on his mobile phone which depicted AC in a ‘drug affected and sexually explicit state’ — the judge paid particular attention to the fact that AC believed that the victim had a prior history of sexual offending and had been to gaol for aggravated burglary ‘with weapons and the like’. As the judge observed:
For somebody with your background, which I will refer to in a moment, that is an extremely strong trigger and you were extremely angry as a result of finding that out.[31]
[31]AC Reasons, [6]–[7].

The judge’s summary largely matched the summary that was relied on in the instance of the applicant save that there was no mention of AC’s transferral of $4,000.00. When it came to the false imprisonment charge the facts were essentially the same as those in the applicant’s case, but, as in the case of the applicant, when it came to the victim being driven away the judge observed:
The Crown cannot prove whether you were in that vehicle or not after it left but you were certainly an instigator in that act of false imprisonment.[32]
[32]AC Reasons, [11].
AC denied the offending when she was interviewed by police.[33]
[33]AC Reasons, [13].
When it came to the victim impact statement, the judge who sentenced AC considered that ‘95 percent of it is probably inadmissible against you … but be that as it may … it did have consequences for him and unfortunately there are going to be consequences for you as well’.[34]
[34]AC Reasons, [14].
The judge made reference to the sentence that had been imposed on the applicant and remarked that:
Insofar as parity is concerned it was put by the Crown this was your grievance, effectively, but on the other hand if one looks as this [the applicant], what might euphemistically be described as for the fun of it. He at the time of the committal was in fact undergoing a sentence for belting you, strangling, as I understand it, and he has very significant priors. In 2014 he received four months for an assault, intentionally cause serious injury. In 2014 earlier he also received a 33 month sentence for aggravated burglary, possessed a prohibited weapon and unlawful assault, with the end result being a total of three years with a non‑parole period of one year and nine months.[35]
[35]AC Reasons, [15].
The judge who sentenced AC continued his consideration of parity as between the applicant and AC:
Insofar as parity is concerned, whilst you both committed the same offence in these circumstances it is my view that because of the nature of [the applicant’s] prior convictions and the fact that he has done a very significant gaol sentence for this type of offending before, I think that the differences between you are very distinct indeed. Obviously parity has to play some part in all this but not anywhere near to the extent that it normally would. In the end, as I have indicated already, and to your credit, you have turned up each time knowing that incarceration was going to occur effectively, that you simply cannot do it and there has to be a custodial element to the punishment.[36]
[36]AC Reasons, [16].
Concerning matters personal to AC, the judge considered that she had a ‘sad history indeed … a very sad history’. AC was put in foster care at the age of four. She then had ‘all sorts of family violence perpetrated upon [her]’. AC was moved between foster care and her mother ‘for years with many placements’. She was ‘raped by [her] father from the age of 10 to 15’ when she would go to visit him in South Australia. AC lost contact with her mother from the age of 15. She had her first child at 17 and was physically abused by her first partner, who was a heavy heroin addict, for around 10 years causing her significant injuries. She then formed a relationship with the applicant. The applicant had served a sentence for assaulting her.[37]
[37]AC Reasons, [17]–[19].
AC’s relationship with the applicant was characterised by drug use. AC started using ‘ice’ some six or seven years prior to sentence. AC had abused alcohol previously (from the age of 11) but her ‘ice’ usage became ‘quite serious’.[38]
[38]AC Reasons, [20].
AC had received an ADHD diagnosis when she was in primary school and had previously been diagnosed with depression. She had been on antidepressants since she was 18. At 13 she was gang-raped by a group of men in their 20s over a period of several hours.[39]
[39]AC Reasons, [20].
The judge who sentenced AC observed that AC had been trying to get assistance from CASA House (Centre Against Sexual Assault) for a long time. AC had chronic post-traumatic stress symptoms. The judge considered that:
This is an extremely difficult situation, particularly for a woman of your age to deal with and all the difficulties that come with that, the paranoia, the trauma, mood alterations and the like. In any event, taking into account your background, Bugmy clearly plays a significant factor here, and virtually all the principles of Verdins are in place. Gaol will be harder for you on the simple basis you were diagnosed, and I accept all these, with a major depressive disorder, post-traumatic stress disorder, attention deficit hyperactivity disorder, and a substance use disorder, which it would appear that you are hopefully in remission at the present time and hopefully you can stay that way.[40]
[40]AC Reasons, [21].
The judge quoted from an expert report authored by Dr Cidoni concerning the issue of AC’s moral culpability. The report stated:
The consequences of [AC’s] traumatic history presenting psychological illness led to a drug addiction. Her mental illness impacts severely upon her functional abilities. The distribution of a sexualised video of herself likely triggered her earlier victimisation where she was raped and sexually assaulted by her father as well as a group of men in her teens. The effect of her drug taking would have exacerbated impulsivity and reactivity and also contributed to the offending.[41]
[41]AC Reasons, [22].
The judge referred to Dr Cidoni’s opinion which was to the effect that if AC was gaoled this would cause undue stress and problems for AC.
The judge who sentenced AC considered that AC had to go to gaol for this offending. His Honour said that he would give AC ‘as short a sentence as I can in all these circumstances’.[42]
[42]AC Reasons, [24].
Thus the judge sentenced AC on all four charges to an aggregate sentence of 6 months’ imprisonment followed by a two-year CCO containing conditions that AC undergo treatment and rehabilitation with respect to drugs, her mental health and the need to reduce her reoffending. It was also ordered that there be supervision. The judge indicated that but for AC’s plea of guilty he would have imposed a sentence of 2 years’ imprisonment with a non-parole period of 1 year.

Submissions

The applicant contended that the sentence imposed offended the principle of parity and engendered a ‘justifiable sense of grievance’ on the applicant’s part.
The applicant submitted that when the sentences imposed on each of the applicant and AC are examined, and due allowance is made for the circumstances of each offender’s role in the offending, as well their personal circumstances, it is apparent that the parity principle has been infringed. It was put that the difference in sentencing outcome in the instance of each offender was so great as to be not reasonably open.
The main differentiating features, as between the applicant and AC, which the applicant relied upon, were the various indicia or constitutive parts of the sentences imposed on each offender where it was said to be obvious that the sentences imposed on the applicant were significantly heavier than those imposed on AC thus revealing a ‘very marked disparity’. The applicant submitted that:
(a)AC’s role in the offending overall was significantly greater than the applicant’s;
(b)AC had instigated and directed the offending;
(c)AC had recruited the applicant;
(d)AC had engaged in premeditated vigilantism, whereas there was no evidence of pre-meditation on the part of the applicant;
(e)it was AC who had actually used the knife and thus caused the serious injury the subject of charge 2;
(f)it was AC who had taken the lion’s share of the property and money that was stolen that was the subject of charge 3; and
(g)it was AC who had physically bound the victim, giving rise to the false imprisonment that was the subject of charge 4.
The applicant submitted that the offenders’ different prior convictions operated equally to deprive them of a plea in mitigation based on good character. Similarly, the effect of delay was equal as between them.
The applicant further submitted that the sentence imposed on AC was not manifestly inadequate, and that this Court ought impose a sentence on the applicant that is less than or equal to AC’s sentence (and that such sentence would not be manifestly inadequate). In the alternative he submitted that, even if the Court thought that a reduction to the applicant’s sentence would result in his sentence becoming manifestly inadequate, then such a sentence should nonetheless be imposed. He submitted that the provisions of the Sentencing Act 1991 did not preclude a reduction to the applicant’s sentence to the point of manifest inadequacy.[43] He accepted, however, that this Court was not required to impose a sentence that is manifestly inadequate.
[43]The applicant submitted that ss 5(1)(a), 5(2)(c) & 5(2)(d) of the Sentencing Act 1991 carried with them the need for a sentencing court to have regard to parity and, to this end, empowered such a court to impose a disproportionally low sentence in consequence. Reference was made in argument to the observations of French CJ, Crennan and Kiefel JJ in Green v The Queen (2011) 244 CLR 462 at 475–6, [33]; [2011] HCA 49 (‘Green’). The applicant also submitted that the statement by Kyrou and T Forrest JJA in Farrugiav The Queen [2022] VSCA 104, at [22], that it is ‘well established that the application of the parity principle cannot result in a sentence which is manifestly inadequate’ is wrong, that it was an obiter remark, and that this issue has not yet been determined.
In contrast, the respondent submitted that the differences between the sentences imposed on the applicant and his co-offender are explicable by reference to matters personal to each individual. The distinguishing matters of mitigation were as follows:
(a)AC was able to rely upon all limbs of Verdins[44] and Bugmy.[45] Significantly, AC had an appalling history as a victim of sexual abuse and was alcohol dependent by the age of 11. The video the victim had allegedly taken of AC was particularly triggering for her and included the possibility that she had been raped whilst asleep. This was a matter AC did not feel capable of pursuing by way of police complaint. AC’s response to learning of this video was to be considered in the context of her long history of abuse commencing when aged 10 years. By contrast, the applicant had no reason to be involved in this offending other than to assist AC. It was open to the sentencing judge to assess each offender’s moral culpability on this basis.
(b)The applicant had prior convictions for affray, unlawful assault, aggravated burglary, intentionally cause serious injury and recklessly cause injury. The sentences imposed on the applicant were CCOs, terms of imprisonment and an adjourned undertaking.
(c)AC had prior convictions for recklessly cause injury, assault in company and unlawful assault. The sentences imposed on AC were adjourned undertakings, fines and one CCO.
[44]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[45]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
In relation to the issue of manifest inadequacy, the respondent submitted that there was no power entitling this Court to impose a manifestly inadequate sentence and, alternatively, the Court ought not do so even if there was. However, the respondent did not submit that the sentence imposed on AC was manifestly inadequate, nor that the total effective sentence or any individual sentences imposed on the applicant were inadequate.

Consideration

The question for this Court is whether, having regard to the reasons for sentence in the instance of AC and the sentence ultimately imposed upon her, the sentence imposed on the applicant offends equal justice. In Wong v The Queen, Gaudron, Gummow and Hayne JJ observed:
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.[46]
[46]Wong v The Queen(2001) 207 CLR 584, 608 [65] (emphasis in original); [2001] HCA 64. See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); [1997] HCA 26; Green (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
The parity principle reflects the notion that those who commit the same or similar offences should be treated equally, save where differences in the respective offenders’ age, background, previous criminal history and general character, and the part which he or she played in the commission of the offence, justify the imposition of different sentences. As Buchanan JA said in Hafner v The Queen:
While it is obviously desirable that persons who are parties to the commission of the same offence should receive the same sentence, matters such as age, background, previous criminal history, character and the role played in the commission of the offence have to be taken into account. Some disparity between sentences imposed on co-offenders is not in itself a ground for intervention by an appellate court. The difference between sentences must be manifestly excessive. The Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the party of the accused on whom the heavier sentence is imposed or on the ground the disparity gives the appearance that justice has not been done.[47]
[47]Hafner v The Queen[2012] VSCA 190, [17]. See also Lowe v The Queen (1984) 154 CLR 606, 613–14 (Mason J); [1984] HCA 46.
As French CJ, Crennan and Kiefel JJ observed in Green, the ‘sense of grievance’ referred to is to be assessed objectively. ‘The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity’.[48]
[48]Green (2011) 244 CLR 462, 474–5 [31]; [2011] HCA 49.
Furthermore, as this Court observed in Anthony v The Queen, ‘no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did’. When an appellate court is considering whether it was open to the sentencing judge to differentiate, or not, ‘the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive’.[49]
[49][2016] VSCA 22, [12] (Redlich and Beach JJA).
In considering whether, and if so how, to intervene in the context of a manifest disparity between sentences on co-offenders, it may be that the appellate court considers that the sentence imposed on the co-offender is inadequate or excessively lenient. In O’Loughlan v The Queen, this Court observed as follows:
Though [the co-offender’s] total effective sentence of 20 months’ imprisonment was undoubtedly lenient (some might say extremely so), it does not follow that this Court should reject what seems to us to be an otherwise compelling parity argument put on behalf of the appellant. On any view, principles of parity must be taken into account, even in circumstances where the sentence imposed upon a co-offender is regarded as inadequate.
That does not mean that principles of parity require an appellate court to impose what is, in its view, a wholly inappropriate sentence. It might mean, however, that a sentence towards the very bottom of the range is called for, even if that sentence, when viewed objectively, is otherwise seen as being too low.[50]
[50][2010] VSCA 175, [31] (Weinberg and Bongiorno JJA) (emphasis added). See also Taleb v The Queen (2014) 42 VR 666, 677–8 [48]–[49] (Neave and Weinberg JJA); [2014] VSCA 96 (‘Taleb’).
Thus, even if this Court were to conclude that the sentence imposed on the applicant offended the principle of equal justice, this Court is not required to reduce the sentence imposed on the applicant to a point where that sentence becomes manifestly inadequate.[51]
[51]Green (2011) 244 CLR 462, 475–6 [33] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; Taleb (2014) 42 VR 666, 677–9 [48]–[51] (Neave and Weinberg JJA); [2014] VSCA 96.
As noted above, the applicant submitted that this Court is permitted to impose a manifestly inadequate sentence, and should do so. It is unnecessary for us to decide whether the provisions of the Sentencing Act 1991 permit such a course. That is because, even if they did, we would decline to impose such a sentence.[52] Nevertheless, we note and endorse the observations of Neave and Weinberg JJA in Taleb concerning the words of section 5(2)(c) of the Sentencing Act 1991 which require a sentencing court to have regard to ‘the nature and gravity of the offence’. Their Honours considered that:
In our view those words may well prevent the imposition of a manifestly inadequate sentence in order to give effect to parity.[53]
[52]In R v Wilson (2000) 116 A Crim R 90; [2000] VSCA 202 at 96 [19] Chernov JA agreed with the observations of King CJ expressed in MacGowan (1986) 42 SASR 580 at 583 to the effect that ‘where the lower sentence is clearly inadequate, yet the sentence under attack is appropriate and within range, to reduce it to the lower sentence to establish parity may amount to compounding a sentencing error which would be unacceptable to the public conscience’.
[53]Taleb (2014) 42 VR 666, 679 [51]; [2014] VSCA 96.
In the present case, there is in our view a great deal of force in the applicant’s submission that, solely as between the applicant and AC, the principle of equal justice has been infringed. This is so largely because of the matters that were relied upon by the applicant and are referred to above. That is, we have had regard to the differences between the two offenders’ antecedents, their personal circumstances, the mitigating factors they were able to call in aid, and the part played by each in the relevant criminal conduct. Accepting that those differences form the basis of qualitative and discretionary judgments made as part of the sentencing process, we nonetheless consider that the disparity between their sentences is such as to mean that, in the mind of an objective observer, equal justice has not been done. We regard the disparity between the sentences imposed on the applicant and his co-offender as so marked as to be manifestly excessive.
In light of that conclusion, the sentencing discretion is reopened. However, a difficulty confronting the applicant is that to reduce his penalty any lower risks the imposition of a manifestly inadequate sentence on him — a step that we do not consider it appropriate to take.
In particular that is so in relation to the sentence imposed on charge 1 (aggravated burglary). It is apparent, since the cases of Hogarth v The Queen[54] and R v Meyers[55] in this Court, that it has been felt ‘necessary to re-emphasise’[56] that sentences for the type of aggravated burglary committed in this case — sometimes described as a ‘confrontational aggravated burglary’[57] — ‘must properly reflect the increase in sentencing practice which Hogarth said was necessary’.[58] In the light of cases such as Hogarth, Meyers and Bowden the 16-month term imposed upon the applicant for aggravated burglary looks very lenient indeed.
[54]Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302 (‘Hogarth’).
[55]R v Meyers (2014) 44 VR 486; [2014] VSCA 314 (‘Meyers’).
[56]R v Bowden [2016] VSCA 283, [49] (Maxwell P, Redlich and Kyrou JJA) (‘Bowden’).
[57]See, for instance, Hogarth (2012) 37 VR 658, 672 [54] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 302.
[58]Bowden [2016] VSCA 283, [49] (Maxwell P, Redlich and Kyrou JJA).
However, as noted above, the respondent did not submit that the sentence imposed on the applicant for the charge of aggravated burglary is manifestly inadequate, and did not lodge an appeal against his sentence on that basis. Indeed, no such claim by the respondent has been made in connection with any aspect of the applicant’s sentence. Nor did the respondent make such a submission concerning the sentence imposed upon AC.

Bearing these matters in mind, we consider that any further reduction of the 16-month term imposed by the sentencing judge for the offence of aggravated burglary would reduce that particular term to the level of manifest inadequacy given, in particular, the ‘confrontational’ nature of the applicant’s commission of this offence. As such, we decline to give effect to any such reduction.
We consider, however, that the same does not hold for all the individual sentences imposed on the other charges and need not hold for the total effective sentence. There is some scope for reduction, in our view, to the sentence imposed on charge 2 and the total effective sentence. We wish to emphasise, however, that given the leniency afforded the applicant already, there is limited scope for further reduction of the total effective sentence without that sentence falling into manifest inadequacy.

Conclusion

In light of the above, we would grant the applicant leave to withdraw the notice of abandonment, reinstate the application for leave, grant the amendment of grounds sought, grant leave to appeal, allow the appeal and resentence the applicant as follows:
Charge 1 (aggravated burglary) — 16 months’ imprisonment;
Charge 2 (recklessly cause injury) — 10 months’ imprisonment;
Charge 3 (theft) — 3 months’ imprisonment;
Charge 4 (false imprisonment) — 10 months’ imprisonment.
The sentence on charge 1 will form the base sentence. Two months of the sentence imposed on charge 2, and three months of the sentence imposed on charge 4, are to be served cumulatively upon the sentence imposed on charge 1 and upon each other making a total effective sentence of 21 months’ imprisonment. The sentence on charge 3 is to run concurrently with the sentence imposed on charge 1.
It is directed that the applicant serve 13 months before becoming eligible for parole.
But for the applicant’s pleas of guilty we would have sentenced the applicant to a total effective sentence of 3 years and 4 months’ imprisonment with a non-parole period of 2 years and 2 months.
---

[2024] VSCA 75

26 April 2024