Hi v The Queen
[2017] VSCA 315
•1 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0013
| CHARLES HI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 October 2017 |
| DATE OF JUDGMENT: | 1 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 315 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1976 (Judge Maidment) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Armed robbery – Causing serious injury in circumstances of gross violence – Ten years’ imprisonment – Non-parole period of seven years – Parity – Whether sentence imposed on individual charge demonstrated unacceptable disparity with co-offender – Whether sentence manifestly excessive – Whether sentence ‘wholly outside the range of sentencing options’ – No error – Appeal dismissed – DPP v Dalgliesh [2017] HCA 41 – Lowe v The Queen (1984) 154 CLR 606.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Mandy | Doogue & George Criminal Lawyers |
| For the Crown | Ms D I Piekusis | Office of Public Prosecutions |
KAYE JA
BEALE AJA:
The appellant, with his co-offender James Till (‘Till’), pleaded guilty before the County Court to one charge of aggravated burglary (charge 1), one charge of armed robbery (charge 2) and one charge of causing serious injury in circumstances of gross violence (charge 3). The appellant was sentenced to a total effective sentence of 10 years’ imprisonment with a non-parole period of 7 years, and his co-offender, Till, was sentenced to a total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years.[1]
[1]DPP v Till [2016] VCC 1976 (‘Reasons’).
The charges on the Indictment, to which the appellant and Till pleaded guilty, alleged as follows:
Particulars and Statement of Offence
Charge 1: The Director of Public Prosecutions charges that James Till & Charles Hi at Richmond in Victoria on the 26th day of August 2015 entered as a trespasser a building at 53/139 Highett Street with intent to steal therein and at the time had with them an offensive weapon namely a metal bar.
Statement of Offence: Aggravated burglary contrary to s 77(1) of the Crimes Act 1958 (Vic).
Charge 2: The Director of Public Prosecutions charges that James Till & Charles Hi at Richmond in Victoria on the 26th day of August 2015 robbed Sabiha Temiz of money, a wallet, a suitcase, towels, bedding sheets and jewellery, and at the time had with them an offensive weapon namely a metal bar and a Stanley knife.
Statement of Offence: Armed robbery contrary to s 75A of the Crimes Act 1958 (Vic).
Charge 3: The Director of Public Prosecutions charges that James Till & Charles Hi at Richmond in Victoria on the 26th day of August 2015 recklessly caused serious injury to Sabiha Temiz in circumstances of gross violence, namely James Till & Charles Hi continued to cause injury to Sabiha Temiz after Sabiha Temiz was incapacitated.
Statement of Offence: Causing serious injury recklessly in circumstances of gross violence contrary to s 15B of the Crimes Act 1958 (Vic).
The appellant, pursuant to leave, appeals the sentence on two grounds:
(1)The sentence imposed on the appellant for the offence of aggravated burglary (charge 1) is manifestly excessive.
(2)The individual sentences, the total effective sentence and the non-parole period imposed on the appellant, relative to his co-offender, do not adequately reflect the differences between them.
The appellant’s sentence was composed as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Aggravated burglary [Crimes Act 1958 s 77(1)] | 25 years’ imprisonment | 7y | Base |
| 2 | Armed robbery [Crimes Act 1958 s 75A] | 25 years’ imprisonment | 6y | 1y |
| 3 | Recklessly cause serious injury in circumstances of gross violence [Crimes Act 1958 s 15B] | 15 years’ imprisonment | 6y | 2y |
| Total Effective Sentence: | 10 years’ imprisonment | |||
| Non-Parole Period: | 7 years | |||
| Pre-sentence Detention Declared: | Nil | |||
| 6AAA Statement: | 13 years’ imprisonment with a non-parole period of 10 years | |||
| Other orders: Disposal order | ||||
The co-offender, Till’s sentence was composed as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Aggravated burglary [Crimes Act 1958 s 77(1)] | 25 years’ imprisonment | 8y | Base |
| 2 | Armed robbery [Crimes Act 1958 s 75A] | 25 years’ imprisonment | 7y | 1y |
| 3 | Recklessly cause serious injury in circumstances of gross violence [Crimes Act 1958 s 15B] | 15 years’ imprisonment | 7y | 3y |
| Total Effective Sentence: | 12 years’ imprisonment | |||
| Non-Parole Period: | 9 years | |||
| Pre-sentence Detention Declared: | 476 days | |||
| 6AAA Statement: | 16 years’ imprisonment with a non-parole period of 13 years | |||
| Other orders: Disposal order | ||||
Circumstances of the offending
At the time of the offending, the appellant, who was then 32 years of age, was residing in community housing in Elizabeth Street, Richmond. However, he also regularly stayed with an aunt who was living in a unit in Highett Street, Richmond. The victim, Mrs Sabiha Temiz, who was then 74 years of age, was residing in a unit in the same building in Highett Street. Mrs Temiz had originally lived there with her children, and she had continued to do so, on her own, after they had moved out a number of years previously. Mrs Temiz’s main language is Turkish and she only speaks limited English. She has a heart condition that required her to carry a medical alarm known as a ‘MePACS’, which must be pressed before 9:00 am each day, otherwise MePACS would place a call to her daughter to advise her that the alarm had not been pressed. There were three keys to Mrs Temiz’s flat. One of them was contained in a locked key box outside the front door of her flat.
On Wednesday 26 September 2015, sometime after 5:00 am, Mrs Temiz was woken by a banging on her front security door and window. She could hear a man’s voice yelling, ‘open the door, open the door!’. In response, Mrs Temiz went to the telephone intercom near the front door, and called the building’s security guards. The guard, Mr Ishaq, told Mrs Temiz he could not come, but that he would send someone else to attend.
Before Mrs Temiz was able to hang up the telephone intercom, her front door opened, and the appellant and Till rushed into her flat. They had used the key from the locked key box outside in order to gain entry. The appellant was wearing a mask that was like a balaclava with holes in it for his eyes and nose. Till was wearing a hoodie that he removed after entering the unit.
Immediately after they had entered the unit, Till attacked Mrs Temiz, grabbing her by the arms, and swinging her into the living room. He then pushed her onto the floor in front of the sofa, fracturing her left hip. The appellant and Till then closed the front door. Till punched Mrs Temiz to the face with his fists, fracturing her cheekbone. During that assault, Till struck Mrs Temiz to the body with a metal bar that he had brought into the flat. At the same time, he was yelling at Mrs Temiz asking her where her money was and where the ‘Ice’ was.
Having pushed Mrs Temiz to the ground, Till sat on top of her, grabbed her by the throat and choked her. At the same time, he grabbed one of the pillows in the room and held it over her face so that she could not see or breathe. She felt that she was suffocating. While that assault was being inflicted on Mrs Temiz, the appellant proceeded to ransack her flat. Mrs Temiz saw him walk into her bedroom and remove two bags that he filled with her valuables.
In the meantime, Mr Ishaq had organised two security guards to attend Mrs Temiz’s flat. He telephoned her flat to advise that the guards were on their way. The appellant answered the telephone. When Ishaq asked to speak to Mrs Temiz, the appellant told him, ‘It was my mother. She went to sleep. Do not call us again. Everything is okay’.
At about 6:30 am, while Mrs Temiz was lying on the floor, the security guards came to the door to ask if she was alright. At that stage, Till was still sitting on top of her. He punched Mrs Temiz several times and put the pillow back over her face. At that stage, he had his hand around her neck choking her, so that she was unable to call out for help. Both Till and the appellant remained quiet while the security guards were outside, with Till telling Mrs Temiz that she must not talk, otherwise he would kill her. The guards remained at the door for about two minutes, and then they departed.
Till then commenced looking around her flat in a manner that Mrs Temiz described as ‘like a dog sort of crawling around and looking everywhere’. Mrs Temiz could not move from the floor because her hip was too painful. From time to time, Till returned to where she was lying, swore at her, and threatened he would kill her if she did not tell him where the ‘Ice’ was. During that time, Till had taken out a knife, and he waved it around pointing it at Mrs Temiz. At one stage, he threw the knife towards her on the floor, saying, ’I’ll kill you, I’ll kill you’.
Ultimately, approximately half an hour after they had broken into the premises, the appellant told Till that they should leave. Till said, ‘You go, you go’. The appellant then left, taking with him the two handbags that he had filled with Mrs Temiz’s valuables. Till, however, remained in the flat.
Subsequently, when Mrs Temiz’s MePAC alarm went off at 9:00 am, Till pressed it. During that time, he continued to search the whole flat, causing extensive damage to most of it. Mrs Temiz described his actions in doing so as like a ‘bull in a rodeo ring’, smashing everything. At one stage he used a hammer to bash open the lock on the electrical box in the kitchen, and he used his knife to slash the furniture open. He was acting in an angry manner, and he kept asking Mrs Temiz ‘where is the Ice?’. While she lay on the floor, Mrs Temiz could hear him in the bathroom smashing tiles with the hammer. He kept returning to where she was, threatening to kill her by pointing the knife at her. He also sat on her again and bashed her. Unsurprisingly, when Till hit Mrs Temiz and threatened that he would kill her, she was convinced that she would die. She remained on the floor, helpless, and unable to move due to the pain in her hip.
Till finally departed from the flat sometime after 11:00 am, carrying with him two suitcases that he had filled with her personal possessions while ransacking her flat. Mrs Temiz continued to remain lying on the floor, helplessly. Eventually, at approximately 11:30 am, she heard someone walking past the flat, and she called for help. As a result, a cleaner found her, and organised for the police and an ambulance to attend.
When the paramedics arrived, they observed that Mrs Temiz had dry blood to her face, with black bruising around her left eye, cheeks, upper right arm, left index finger, left hip, upper leg area and buttocks. She was treated for the pain and then conveyed to the Alfred Hospital.
After Mrs Temiz arrived at the Alfred Hospital, she was found to have sustained a closed fracture to her left hip and injuries to her left femur, requiring a half joint replacement. She had also suffered a fracture sustained to her left cheekbone, but that injury did not require surgery. In his medical report, the treating doctor stated that, if she had not received treatment, it was probable that the injuries to Mrs Temiz would have been fatal.
As a result of her injuries, Mrs Temiz’s has not regained any significant mobility. As a consequence, she has been unable to return to her home or to live unassisted and in an independent manner in her own home. Accordingly, since the incident, and as a result of it, she has been residing in a nursing home. She needs to rely on a walker to be able to ambulate, and she requires a recliner and a special bed. As a result, she lives amongst people who she has not known before, some distance away from the friends who were her neighbours. In her victim impact statement, she described that she had become so incapacitated that she was unable to lift her leg to get into bed on her own, she required assistance to be put to bed, and she could not turn while in bed.
Understandably, Mrs Temiz has also suffered a profound emotional reaction to the trauma to which she was exposed as a consequence of the offending of the appellant and Till. In her victim impact statement, she described her emotional pain as follows:
Until this day I am still having horror nightmares of the incident. My emotions are a wreck and I have no joy in life.
Since the incident I have been on sleeping tablets because I am unable to sleep as each time I close my eyes I see the offender running around breaking things in the house.
The offender ran up to me and pointed a knife a couple of times during the intrusion and asked me ‘Where is the heroin? Where is the ice? Tell me or I will kill you’.
I was terrified that he was going to stab and kill me. I continued to hear his voice repeatedly over and again in my head.
I wished I had died during the incident because I have not experienced at once — but I am in fact experiencing the same moment over and over again every day in my life now.
I have been seeing a psychologist as the trauma I have experienced has had a major impact on the state of my mind. The emotional pain is as worse as the physical pain.
I just cannot express the fear, the anger and the hurt that I had to endure that day.
The appellant was arrested by police later on the same day as the burglary. He initially gave police a false name, and he told arresting officers that he had been visiting his aunt, who had been burgled on the previous night. He was subsequently conveyed to Richmond Police Station, where he was interviewed. Initially, when interviewed, he persisted with the same false story, claiming to have been visiting his aunt’s place, and that he knew nothing about the burglary in question. After the interview was suspended, and it re-commenced, the appellant gave a different account to the police. He stated that his mate ‘James’ knew that there was a drug dealer living in Mrs Temiz’s premises, and he wanted Hi to give him a hand. The appellant claimed that when ‘James’ commenced to assault Mrs Temiz, he intervened in order to prevent her being hit, and then he left the premises, because he could not stand there and watch. He said that he punched ‘James’ and tried to drag him outside, but ‘James’ would not leave. He said that when the intercom was buzzed by the security guards, he picked it up hoping that they would come inside. The appellant claimed that he then left the premises.
Previous convictions
The appellant has a number of previous convictions, from nine separate court appearances. Most of his convictions were for offences of dishonesty, including burglary, and for drug related matters. In June 2010, he had been sentenced to an aggregate term of 7 months’ imprisonment (with a non-parole period of 4 months) for offences of burglary and theft. In February 2015, he was convicted and placed on a community corrections order for a number of offences including burglary, assault with intent to rob, and possession of a controlled weapon without excuse. He was subject to that order at the time that he committed the offences in the present case.
The plea
The appellant pleaded guilty, after the committal proceeding, to the charges on the Indictment. The only issue at the committal proceeding was whether the fracture to Mrs Temiz’s left hip had been caused by, or in the course of, the commission of the offences. As a result of negotiations between the parties, it was agreed that the appellant pleaded guilty to the third charge on the Indictment (causing serious injury recklessly in circumstances of gross violence) on the basis that he was complicit in the commission of that offence under s 323(1)(b) of the Crimes Act 1958, in that he had intentionally assisted, encouraged or directed the commission of the aggravated burglary, in circumstances in which he was aware that it was probable that the offence, alleged in the third charge, would be committed.
The appellant was born in East Timor in February 1983. During his childhood, he witnessed the traumatic circumstances of the conflict that was then occurring in that country. Both of his parents died in the course of that conflict when the appellant was young, and he was brought up by an unmarried aunt, who he came to regard as his mother. The appellant came to Australia, with his aunt, when he was 10 years of age.
After arriving in Australia, the appellant attended primary school in Richmond, and subsequently he attended Simmons Catholic College. He progressed well at school and completed Year 12 level.
After leaving school, the appellant commenced a landscaping apprenticeship, but he did not complete it. At about the age of 18 years, he was introduced to cannabis by friends. Subsequently, he graduated to the use of methamphetamines at the age of 24 years. His consumption of that substance escalated, so that, after a short time, he used it on a daily basis, peaking at one and a half grams per day. In addition, at the same time, he abused prescription medication including Xanax and Valium. In the period after he commenced to use drugs, the appellant only had an intermittent history of employment, and he had not worked during the last four or five years before the plea. In early 2015, he spent three months at Odyssey House, during which he had been abstinent from the consumption of illicit drugs.
The appellant was examined by Mr Warren Simmons, a psychologist, in July 2016. Mr Simmons’ report was tendered on the plea. He noted that the appellant’s history of substance abuse had seemed to have developed in the context of his relationship with his peers. Mr Simmons considered that the appellant had experienced symptoms of post-traumatic stress disorder over the years, which had developed in East Timor and which had subsequently persisted, and that the appellant’s symptoms met the DSM-V criteria for that disorder. Mr Simmons considered that the appellant would struggle in a prison environment where there are often issues of aggression and violence, so that his time in custody would be more onerous for him. Mr Simmons also noted that the appellant appeared to be ‘extremely remorseful’ for his actions and quite distressed that Mrs Temiz had not been able to return home and was now living in care.
Based on Mr Simmons’ report, counsel for the appellant submitted that the fifth and sixth propositions, described in R v Verdins,[2] applied, so that the sentence should be moderated because, as a consequence of his post-traumatic stress disorder, the sentence would weigh more heavily on the appellant, and there was a risk that imprisonment would have a significant adverse effect on his mental health. Counsel also submitted that the appellant’s plea of guilty had significant utilitarian value and that it was evidence of his remorse.
[2](2007) 16 VR 269, 276 [32] (‘Verdins’).
At the time of the plea, the appellant was already serving a sentence of 20 months’ imprisonment imposed by the Magistrates’ Court in early 2016. It was contended that that sentence was relevant to the principle of totality. Initially, the appellant had been detained in the mainstream prison population, but in October 2015 he had been moved to protection, after other prisoners had learnt that his offending had involved an attack on a female.
Counsel accepted that the appellant’s offending, particularly the recklessly causing serious injury, was at the upper end of the scale of seriousness for that offence. Counsel provided to the judge a table of sentences that had been considered by the Court of Appeal in cases involving charges of aggravated burglary, where the offender’s intention on entry was to steal, but where a confrontation had taken place after entry into the premises in question.
In response, counsel for the prosecution, on the plea, submitted that there was no established current sentencing practice for the offence of recklessly causing serious injury in circumstances of gross violence. He noted that the appellant was charged with that offence on a complicity basis, so that he was not liable to be sentenced to the mandatory four year minimum non-parole period applicable to that charge. Counsel also noted that Till had previously come before the Court on 25 separate occasions, and that he had a relevant history of violent offending, while the appellant had been before the courts on nine previous occasions, primarily for offences of dishonesty. Counsel also noted that the appellant had committed the offences in the present case in contravention of a corrections order. He contended that, in a case such as this, denunciation and general deterrence were important sentencing considerations.
Reasons for sentence
Having described the circumstances of the offending, and the background of the appellant, the judge expressed the view that his prospects for rehabilitation were no better than ‘poor’. The judge accepted the submission by the appellant’s counsel that his post-traumatic stress disorder condition would cause his sentence to be more onerous for him, and that a period of incarceration would involve a substantial risk that his symptoms of that disorder might be aggravated.[3] The judge observed that both the appellant and Till were entitled to credit for their pleas of guilty, which had significant utilitarian value, and which were consistent with remorse and acceptance of criminal responsibility.
[3]Reasons [49].
The judge noted that the appellant’s counsel had relied on a number of further mitigating factors relating to the offending, including that, at the time the appellant entered the flat, his intention was to steal, that he was not personally armed at any stage, that he pleaded guilty to the offence of recklessly causing serious injury on the basis of his participation in a joint criminal enterprise, and that he ceased his involvement after about half an hour, well before Till.[4] The judge then stated:
That said, I note that you did not intervene, physically or orally, to prevent Till continuing his assaults upon Ms Temiz. Nor did you offer her any comfort, assistance or treatment. Nor did you do anything to relieve her plight after you left her home. What you did was to participate in the offending by entering the home of Temiz with intent to steal, knowing that Till was armed with an iron bar and knowing that it was probable Till would inflict serious injury upon Temiz recklessly. Once inside, seeing the assaults by Till upon Temiz, you continued to encourage his conduct by your voluntary presence and lack of dissent, you participated in an extended armed robbery upon Temiz, taking advantage of her incapacity to steal her valuables. You remained at the premises for about half an hour. You had plenty of opportunity to react with disgust at the conduct of Till towards Temiz. You continued with your participation and, when security guards telephoned to check on Temiz, you wilfully deceived them into believing you were her son and that all was well. You participated in ensuring that security guards who came to the door were not alerted to her plight. Your conduct towards Temiz was callous, cowardly and deplorable. It demands a high level of denunciation.[5]
[4]Reasons [51].
[5]Reasons [52].
The judge further noted that the appellant had a significant criminal record, dating back to 2003, which consisted of offences that were typical of persons who have substance abuse issues. The judge also noted that the appellant had been given opportunities to rehabilitate himself, and that, by engaging in the present offending, he had breached the community corrections order, to which he was then subject. The judge also noted that, in February 2016, the appellant had been sentenced to 20 months’ imprisonment for other offences, and that he was currently serving that sentence, so that there was a need to apply the totality principle.[6] Finally, the judge accepted that the appellant was now remorseful and ashamed of his offending conduct.[7]
[6]Reasons [53].
[7]Reasons [54].
The judge then turned to matters that were personal to Till. The judge noted that Till had a long history of substance abuse, and that he had a long and ‘bad criminal record’, including a conviction for aggravated burglary. The judge accepted that Till had a history of moderately severe depression, which had commenced in his early teens, and that he also had a history of alcohol and drug abuse, that had resulted in episodes of drug induced psychosis. The judge considered that, in light of Till’s history of relapse into drug abuse following genuine attempts at rehabilitation, his long term prospects of rehabilitation were no better than poor.
The judge accepted that Till was remorseful and ashamed of his offending conduct. He noted that Till was the principal offender in relation to charge 3, and that it was he who carried out the physical assaults and inflicted serious injuries upon Mrs Temiz. He also noted that Till had remained in Mrs Temiz’s house for several hours in pursuit of the objectives of the burglary. The judge stated:
It will therefore be necessary for me to reflect those facts in sentences which are more severe than those imposed upon your co-offender.[8]
[8]Reasons [60].
The judge accepted that, since the offence, Till recognised that his conduct was despicable, cowardly and brutal, particularly in that he had continued his assaults on Mrs Temiz, notwithstanding that she was helpless and completely at his mercy. The judge stated that Till’s moral culpability for the offending, that was the subject of charge 3, was ‘of a particularly high order’.[9]
[9]Reasons [61].
The judge then expressed the following views concerning the moral culpability of both Till and the appellant in relation to charges 1 and 2:
I regard the moral culpability of each of you as very high in relation to Charges 1 and 2. Your planning may not have been careful, sophisticated or of long duration. It was no doubt drug-fuelled, ill-informed and ill-considered. But you each set out deliberately to enter the home of an elderly and vulnerable woman to steal from her in circumstances that were calculated to terrify her. You Till were armed with a weapon, and you both anticipated the probability that serious injury would be inflicted upon your primary victim. These were callous and shocking crimes. Although in your case Hi, your moral culpability in respect of Charge 3 is less than that of Till, it still remains high. Again, in relation to Charges 1 and 2 in your case Hi, your moral culpability is very high, though less than that of Till, in that you left the scene considerably earlier than he did and did not persist with your offending with to the same extent as Till.[10]
[10]Reasons [62].
The judge noted that he was required to consider parity of sentencing between the two offenders, and that the totality principle was to be applied to moderate the degree of cumulation between the sentences, and to take into account the sentence that the appellant was currently serving.[11] His Honour also noted that he must be astute to avoid double punishment arising from overlap of the three offences on the Indictment.
[11]Reasons [64].
Ground 1
In support of ground 1, counsel for the appellant referred to the table of ‘comparable sentences’ for aggravated burglary which was provided to the judge by counsel for the appellant. Counsel noted that there had been very few sentences for aggravated burglary that have come before the Court of Appeal since 2009, and ,in only one of those cases was the intention of the offender to steal.
In that respect, counsel referred to the view, expressed by the Court in Hogarth v R[12], that current sentencing practices in cases of aggravated burglary that were ‘confrontational’ were inadequate. Counsel contended that that dictum did not apply to the present case, because, in Hogarth, the Court stated that the ‘defining characteristic’ of offences, that constituted that category, was entry by the offender into premises in the context of a dispute with or a grievance against someone in the premises.[13] Counsel further submitted that, in any event, the current sentencing practice, that was considered in Hogarth, indicated that ordinarily, at that time, sentences in the order of 2 years’ imprisonment, for such instances of aggravated burglary, were the norm. Accordingly, counsel submitted that the sentence imposed on the appellant, of 7 years’ imprisonment, was grossly in excess of that practice, even taking into account the ‘uplift’ that the Court, in Hogarth, considered should apply in respect of such sentences.
[12](2012) 37 VR 658.
[13]Ibid 672 [54].
Counsel submitted that the fact, that Till and the appellant were drug affected at the time of the offending, provided a ‘context’ for the offending. He further submitted that there was an absence of potential aggravating factors that often attach to aggravated burglary offences. In particular, it was submitted, the intention of the appellant and his co-offender was to steal from the premises of a ‘Turkish drug dealer’, which was consistent with the type of previous convictions of both offenders. It was further contended that the offence was complete at the time at which the appellant and Till crossed the threshold into the premises. In those circumstances, it was submitted that the sentence imposed on charge 1 on the Indictment (aggravated burglary) was manifestly excessive.
In response, counsel for the respondent noted that a ground based on manifest excess is often difficult to sustain. In the present case, the offending was serious, and the maximum penalty prescribed for the offence was 25 years’ imprisonment. The Indictment particularised the aggravated burglary as having occurred with an intention to steal, but the offenders had in their possession an offensive weapon, namely, a metal bar. The appellant, with his co-offender, had entered a residential unit, shortly after 5:00 am, armed with that metal bar, intending to steal from those premises. Their possession of the bar evidenced an intention to use the weapon, if needed, to assist in the commission of the aggravated burglary.
Counsel for the respondent further noted that, during the plea, when the appellant’s counsel provided the table of comparable cases to the judge, she had accepted that the offending in respect of each charge was ‘at the upper end’ of the scale of gravity for the offence. In addition, counsel for the appellant, on the plea, had also conceded that the table provided to the sentencing judge was of very limited utility, given that the offending was of that seriousness. Counsel for the respondent also noted that, on the plea, the prosecutor had referred the judge to the decision of this Court in Hogarth v The Queen,[14] in which the Court expressed the view that current sentencing practices, for an offence involving a confrontational aggravated burglary, had failed to properly reflect the objective seriousness of that form of offending.[15]
[14](2012) 37 VR 658 (‘Hogarth’).
[15]Ibid, [58]–[62].
Counsel for the respondent contended that the sentence imposed on charge 1 was not manifestly excessive, given the maximum prescribed sentence for the offence, the circumstance that this was an example of an aggravated burglary committed by the appellant who had a significant criminal history, and that, at the time of the offence, the appellant was subject to a Community Correction Order, so that specific deterrence, general deterrence and denunciation were each important sentencing considerations.
In order to establish the first ground of appeal, that the sentence imposed on the appellant, in respect of the first charge, was manifestly excessive, the appellant must demonstrate that that sentence was ‘wholly outside the range of sentencing options’ available to the judge in all the circumstances of the case.[16] In effect, in order to establish that the sentence imposed on him was manifestly excessive, the appellant must demonstrate that that sentence was so excessive that it must have been the product of some error in the exercise by the judge of the sentencing discretion, notwithstanding that he has not been able to identify any specific error contained in the reasons for sentence given by the judge.[17] As such, manifest excess is a stringent ground, that is difficult to make good.
[16]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[17]House v The King (1936) 55 CLR 499, 505; McPhee v The Queen [2014] VSCA 156, [9]–[11] (Redlich and Priest JJA).
As mentioned, in support of that ground, counsel for the appellant relied on the circumstance that very few individual sentences of 6 years’ imprisonment or more for aggravated burglary have come before the Court of Appeal during the last seven years. While recognising the limitations attached to reliance on such ‘comparable’ cases, counsel nevertheless contended that that consideration was important in demonstrating that the sentence in this case was manifestly excessive in the sense that we have defined.
There are, we consider, a number of matters relating to that proposition that significantly reduce its relevance for the purposes of determining ground 1 of the appeal.
First, as the recent decision of the High Court in DPP v Dalgliesh[18] has emphasised, while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are relevant to the determination of a sentence in each individual case, nevertheless that factor is but one matter that must be taken into account in determining the appropriate sentence to be imposed on an offender.[19] In each case, in determining the appropriate sentence, the court must assess, and take into account, a range of factors, including the judge’s assessment of the gravity of the offending and the culpability of the offender, the offender’s remorse, and the personal factors relating to the particular offender. All of those matters, together with current sentencing practices, inform the sentencing discretion in the determination of the appropriate sentence in a particular case. As the High Court has made clear, the current sentencing practice in respect of a particular offence, while relevant, is only one factor to be taken into account in the process of the instinctive synthesis by which the sentencing judge’s discretionary judgment is determined.
[18][2017] HCA 41.
[19]Ibid, [5]–[9] (Kiefel CJ, Bell and Keane JJ), [82] (Gageler and Gordon JJ).
Certainly, a determination, in a particular case, of the relevant current sentencing practice is relevant in order to promote consistency of sentences. However, as noted in the authorities, the consistency that is sought for does not require numerical equivalence with past sentences, but, rather, consistency in the application of relevant legal principles. The relevance of current sentencing practices was adequately summarised, for the purpose of this appeal, by the Court in Lieu v The Queen[20] in the following terms:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[21]
[20][2016] VSCA 277.
[21]Ibid [46] (Beach and Kaye JJA); see also Hili v The Queen (2010) 242 CLR 520, 534 [44], 535 [48]–[49]; Hudson v The Queen (2010) 30 VR 610, 617–8 [28]–[34] (Ashley, Redlich and Harper JJA) (‘Hudson’); Wong v The Queen (2001) 207 CLR 584, 591 [6] (Gleeson CJ); Zirilli v The Queen (2014) 253 CLR 58, 74 [40]–[41].
For that reason, the question on appeal is not whether the sentence is more severe than other sentences that have been imposed for the particular offence, but, rather, whether, taking into account all the relevant circumstances relating to the offence, and the offender, the sentence in question falls wholly outside the range of sentences that would be appropriate taking those matters into account and giving them appropriate weight.[22]
[22]Hudson (2010) 30 VR 610, 618 [35] (Ashley, Redlich and Harper JJA).
Further, the present case involved an aggravated burglary that was, by its nature, confrontational. The weight to be given to current sentencing practices, as revealed by previous sentences for that offence, has been significantly diminished by the conclusion by the court, in Hogarth, that current sentencing practices, for such an offence, have been inadequate, and that sentencing judges should no longer regard themselves as being constrained by those practices.[23]
[23]Hogarth (2012) 37 VR 658, 674 [62] (Maxwell P, Neave JA and Coghlan AJA).
As we have mentioned, counsel for the appellant contended that that conclusion by the Court, in Hogarth, did not apply to the present case, since the offending by the appellant and Till did not involve what was described in Hogarth as a ‘defining characteristic’ of confrontational aggravated burglaries, namely, entry into the premises in the context of a dispute with or a grievance against some in the premises. We disagree with that submission. It is, we consider, clear that both in Hogarth, and in subsequent decisions of the Court,[24] that the Court was concerned with serious instances of aggravated burglary which, of their nature, are confrontational in design and in effect. As the discussion by the Court in Hogarth reveals, quite commonly confrontational aggravated burglaries take place in the context of a dispute or grievance. However, it is clear that the Court did not contend to restrict its observations, about current sentencing practices, to that subset of aggravated burglaries that involved confrontation with the occupant of the premises in question. Rather, we consider, it is clear that the Court in Hogarth, and in its subsequent decisions, were concerned with forms of aggravated burglary that, as an inherent part of them, involved a confrontation, whether for the purposes of redressing a grievance, or for some other purpose.
[24]DPP v Meyers [2014] VSCA 314; DPP v Bowden [2016] VSCA 283.
That proposition was subsequently made plain by the Court in DPP v Meyers,[25] in which the Court stated:
With great respect to the sentencing judge, it was not correct to treat what was said in Hogarth as confined to a particular subset of offending. As recent decisions of this Court have confirmed, Hogarth is not to be viewed as if it established a carefully-defined zone of ‘exemption’ from current sentencing practices, such that a judge imposing sentence for aggravated burglary would have to decide whether the particular case fell within the scope of ‘confrontational aggravated burglary’ as defined by the SAC.
Rather, the decision in Hogarth should be viewed as having removed the constraint of CSP for aggravated burglary in all of its more serious forms. As can be seen from the SAC definitions set out above, there is a very great degree of overlap between the essential features of ‘confrontational’ aggravated burglary, on the one hand, and ‘intimate relationship’ aggravated burglary on the other. Properly analysed, the latter is a subset of the former. Both are essentially grievance-driven; both involve confronting the person against whom the grievance is held; and, in both cases, the aggravated burglary is typically accompanied by violence or threats of violence.[26]
[25][2014] VSCA 314.
[26]Ibid [36]–[37] (Maxwell P, Redlich and Osborn JJA).
In this case, as we have noted, the aggravated burglary perpetrated by the appellant and Till was by its very nature confrontational. In his interview with the police, the appellant stated that he knew that the ‘old lady’ who lived in Mrs Temiz’s apartment was a ‘big time drug dealer’. The appellant himself had regularly resided with his aunt who lived in a flat in the same set of apartments. It was not a matter of happenstance that, in those circumstances, the appellant and Till presented themselves at the door of Mrs Temiz’s apartment at 5:00 am, in circumstances in which they would have been well aware that she would have been home at that time. They were wearing disguises, and, in particular, the appellant was wearing a balaclava that covered the whole of his face except for his eyes and his nose. The two offenders called out for the occupant of the premises to open the door. Immediately after they effected entry into the premises, they confronted Mrs Temiz. In the course of the ensuing incident, Till made threats to Mrs Temiz in order to ascertain the whereabouts of the drugs which he, quite erroneously, thought were secreted there. All of those circumstances eloquently bespeak a serious instance of the kind of confrontational aggravated burglary that was considered by this Court in Hogarth, and in respect of which this Court has expressed the clear view that current sentencing practices were quite inadequate, so that they should not constrain the imposition of appropriate sentences for such forms of aggravated burglary in the future.
Accordingly, the fact, that only a limited number of cases have come before this Court in which a sentence of 6 years’ imprisonment or more has been imposed for the offence of aggravated burglary, is of only limited relevance in the determination of the issue raised by ground 1, namely, whether the sentence imposed for that offence in this case, of 7 years’ imprisonment, was wholly outside the range of sentences available to the judge.
On this appeal, counsel for the appellant referred to the circumstance that, at the time of the offending, the appellant was affected by the consumption of drugs, as part of the relevant context to the offence. It is of course trite that intoxication is not a mitigating circumstance. Certainly, the fact that, an offender has been affected by the consumption of alcohol or drugs, may reveal something about the mental state of the offender, and the degree of planning and premeditation that preceded the commission of the offence. However, in this case clearly the commission of the aggravated burglary in question had been planned and premeditated by both Till and the appellant. As the judge noted, they chose to break into Mrs Temiz’s apartment, because they held the misguided and baseless belief that there were quantities of methylamphetamine contained in it. For that purpose, Till, to the knowledge of the appellant, was armed with a metal bar, the appellant wore a balaclava, and Till had a hood, in order to disguise their appearances. In that way, they planned to intimidate and frighten their victim. As we have noted, they specifically chose a time at which to commit the burglary in order to ensure that the occupant of the house was home. While it might be accepted that both the appellant and Till were affected by drugs at the time at which they committed the aggravated burglary, nevertheless they were capable of sufficiently formulating plans that were necessary to enable the burglary to be effected.
The judge was plainly correct in describing the culpability of the appellant, in respect of the aggravated burglary, as being very high. While the intention of the appellant and his co-accused was to enter the premises in order to steal, they deliberately set about committing the burglary in a manner which was designed to terrify and thus intimidate the occupant of the premises. The burglary was intended to be, and was, effected by confronting and overbearing the occupant of the premises. There were clearly a number of aggravating features about the burglary itself. The appellant and Till had with them an iron bar. They were disguised on entry to the premises. The intended victim was an elderly lady who lived on her own. She had a limited command of the English language. The burglary was committed in circumstances which must have been entirely terrifying for her, being confronted by two men, who were then disguised, and the other was holding an iron bar.
The events, that occurred after the appellant and Till entered the apartment, are the subject of charges 2 and 3. Thus, it was not permissible for the judge to take those circumstances into account in determining the sentence to be imposed in respect of charge 1. Nevertheless, as accepted by counsel for the appellant, those circumstances were relevant because they revealed the intentions of the two offenders as they entered the premises. In her statement to the police, Mrs Temiz described how, after the appellant and Till broke into the apartment, she was immediately attacked by Till. On any view, the appellant and his co-offender broke into the premises in a manner which was aggressive, confronting and most frightening for the elderly female occupant of the apartment.
In his reasons for sentence, the judge, twice, expressed the conclusion that the appellant participated in the offending by entering Mrs Temiz’s home with intent to steal, knowing that Till was armed with an iron bar, and knowing that it was probable that Till would inflict serious injury upon Mrs Temiz recklessly.[27] Counsel for the appellant correctly accepted that, notwithstanding that the Indictment did not allege that either offender entered the premises with the intention of assaulting Mrs Temiz, nevertheless the judge was entitled to regard, as a relevant factor affecting the gravity of the aggravated burglary, that the appellant entered the premises knowing it was probable that Till would inflict serious injury upon Mrs Temiz recklessly.
[27]Reasons [52], [62].
In those circumstances, as we have stated, the judge was entirely correct to describe the culpability of the appellant, in respect of the aggravated burglary committed by him, as being ‘very high’.
As mentioned, the appellant has a number of previous convictions. They include four different convictions for burglary. While he did not have a history of violent offending, it is relevant that the offences, for which he was convicted in February 2015, included assault with intention to rob. It is also significant that, on that occasion, he was convicted and placed on a community corrections order for 15 months, and that, at the time of the offending in this case, he had only served some seven months of that order.
In sentencing the appellant, the judge accepted that there were some mitigating circumstances, including that, as a result of his stress disorder, the sentence imposed on the appellant would be more onerous, and that a period of imprisonment would involve a risk that his symptoms might be aggravated.[28] The judge also accepted that the appellant was remorseful and ashamed of his conduct.[29] Nevertheless, those factors needed to be weighed against the particularly serious nature of the offending in this case, and the correct finding by the judge that the appellant’s moral culpability, in respect of the aggravated burglary that was the subject of charge 1, was very high.
[28]Reasons [49].
[29]Reasons [54].
Taking those matters into account, and giving full weight to the mitigating circumstances relied on, in our view it could not be maintained that the sentence imposed on the appellant, on charge 1, was wholly outside the range of sentences available to the judge in the circumstances of the case.
The maximum sentence for the offence was 25 years’ imprisonment. While the maximum sentence is reserved for the worst possible example of an offence,[30] nevertheless it does provide an important indication as to the seriousness with which Parliament has intended that such offences be regarded by the courts. As this Court has noted in Hogarth, burglaries that involve an element of confrontation are, of themselves, serious. In the present case, as we have stated, there were a number of circumstances attaching to the offending by virtue of which the judge correctly determined that the appellant’s moral culpability for the offending was very high.
[30]R v Mallinder (1986) 23 A Crim R 179, 180 (Murray J), 187 (Vincent J); Markarian v The Queen (2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
In cases of this nature, it is important that the sentence imposed on the offender is sufficient to adequately fulfil the requirements of denunciation, general deterrence and specific deterrence. In particular, in a case in which the appellant and his co-offender deliberately chose to break into the home of a defenceless elderly woman, armed with an iron bar, in circumstances designed to terrify her, the sentence must adequately reflect the condemnation by this Court, and the community, of the appalling conduct of both the appellant and his co-offender. It is equally important that the sentence be of sufficient severity to serve as a lesson to others, who might be minded to engage in the type of offending committed by the appellant, and to constitute a message to the community, that persons who engage in such conduct should be expected to be deprived of their liberty to live within society for a substantial period of time. Further, given the appellant’s previous criminal history, and the fact that he committed the present offence while subject to a community corrections order, the requirement of specific deterrence was of some significance. In addition, given the appellant’s previous history, and, in particular, the circumstances of his offending in this case, the protection of the community was a relevant sentencing consideration.
Taking those matters into consideration, in our view the judge was well justified in imposing a sentence of 7 years’ imprisonment on the appellant in respect of charge 1. For those reasons, we reject the submission that the sentence was manifestly excessive.
Ground 2: parity
Ground 2 is directed to the differences in the total effective sentences, and non-parole periods, respectively imposed by the judge on Till and the appellant. Counsel for the appellant submitted that, while the judge accepted that that principle should apply, his Honour erred in failing to provide for a greater disparity between the sentences imposed on the appellant and his co-offender Till.
In support of that submission, counsel noted, first, that Till’s offending was far more serious and protracted, and his moral culpability was thus much higher, than that of the appellant. In addition, the criminal histories of the two offenders were significantly different. The appellant had only one previous conviction for an offence of violence, while Till had a far more extensive criminal history, which included a number of offences of violence and property damage. It was further contended that the appellant had made some, albeit limited, admissions to the police. In addition, the judge accepted that the principles stated in Verdins[31] applied, in that the appellant’s post-traumatic stress disorder would render his term of imprisonment more onerous, and that it might be exacerbated by such a custodial sentence. Finally, it was contended that, as the appellant was already serving a sentence, he was not entitled to any credit for pre-sentence detention, so that the principle of totality applied to his sentence. Taking those matters into account, it was submitted that the differences between the total effective sentence and non-parole period imposed on Till on the one hand, and on the appellant on the other hand, were inadequate, so as to give rise to a justifiable sense of grievance on behalf of the appellant.
[31](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
In response, counsel for the respondent noted that the judge, in his sentencing reasons, expressly had regard to the matters relied on by the appellant. In particular, the judge specifically recognised that Till had a longer and more relevant previous criminal history, that Till’s offending was more serious than that of the appellant, that the post-traumatic stress disorder suffered by the appellant was a mitigating circumstance in that it would render his sentence of imprisonment more onerous and might be exacerbated by it, that the appellant was not a principal offender in relation to charge 3, and that the appellant was already serving a sentence of imprisonment. Further, it was pointed out, the judge specifically mentioned the need to apply the principle of parity of sentencing. It was contended that that principle was properly applied by the judge differentiating between Till and the appellant in the sentences in respect of each of the three charges to which they pleaded guilty, and in respect of the total effective sentence and non-parole period imposed on each of them respectively.
The principle of parity of sentence is based on the proposition that equal justice requires that, all things being equal, like offenders should be treated in the same way, subject to the qualification that relevant differences between the culpability of the offenders, and matters personal to them that are relevant to their sentences, should be properly accommodated in the sentencing synthesis.[32] Sentencing error, on the basis of disparity, occurs where, taking into account any relevant differences between the involvement of the offenders in the particular offences, and their personal circumstances, nevertheless there is such a manifest discrepancy between the sentences imposed on them, as to give rise to a justifiable sense of grievance on the part of the particular appellant and the objective bystander. In applying that principle, the law recognises that the imprecise nature of sentencing in each case, and the discretionary nature of sentencing, are such that it may only be concluded that sentencing error has occurred, where the appellate court considers that it was not open to the sentencing judge to differentiate in the sentences of the relevant offenders in the way in which that judge did.[33]
[32]Lowe v The Queen (1984) 154 CLR 606 (‘Lowe’).
[33]Lowe (1984) 154 CLR 606, 610 (Gibbs CJ), 613–4 (Mason J), 623–624 (Dawson J); Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J); R v Mercieca [2004] VSCA 170, [17] (Winneke P); Kelly v The Queen [2011] VSCA 10, [5] (Redlich and Weinberg JJA); Gianello v The Queen [2015] VSCA 205 [29]–[32] (Beach JA); Shahbazi v The Queen [2016] VSCA 270, [31] (Kaye and McLeish JJA).
The stringency of that test has been emphasised in successive decisions of appellate courts. In Lowe, Gibbs CJ stated that the appellate court should only interfere if the disparity is such ‘as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done’.[34] Mason J described the test in similar terms, namely, that the court should only intervene where ‘… that disparity engenders a justifiable sense of grievance in the appellant and an appearance of injustice to that impassive representative of the community, the objective bystander’.[35] Dawson J expressed the test in equally stringent terms, namely, that ‘… the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice … ‘.[36]
[34]Ibid, 610.
[35]Ibid, 613.
[36]Ibid, 623–4.
Before considering the application of those principles to this case, it is necessary, first, to dispose of one point raised on behalf of the appellant. It was contended that, unlike Till, the appellant did make some limited admissions when interviewed by the police.
On analysis, that point is of little moment as a mitigating factor on behalf of the appellant. First, as noted, the appellant initially lied to the police when he was interviewed by them. Secondly, when the appellant recanted from that position, he nevertheless sought to shift the blame for the offences almost entirely onto his co-offender, and in doing so he minimised his role in a manner which plainly did not reflect the true facts. In doing so, he went so far as to falsely claim that he assaulted his co-offender, in order to protect Mrs Temiz, and to persuade him to leave the premises. In our view, the judge correctly discarded the limited nature of the admissions made by the appellant as a mitigating factor in his favour.[37]
[37]Reasons [42].
As mentioned, in sentencing the appellant and Till, the judge specifically addressed the differences in the moral culpability of each of them,[38] and took into account the principles of parity and totality, as applying to the sentence to be imposed on the appellant.[39] The judge’s assessment of the differences between the moral culpability of Till and that of the offender is contained in the passage we have already quoted from his Honour’s reasons.[40] Counsel for the appellant did not take issue with that assessment of the differences between the moral culpability of each of the two offenders, and, in our view, that assessment by the judge was entirely correct.
[38]Reasons [64].
[39]Reasons [64].
[40]Above, [37].
In particular, it is clear that the appellant and Till jointly planned and executed the aggravated burglary that was the subject of charge 1. They broke into Mrs Temiz’s premises together, and jointly confronted her together. The appellant was then disguised for that purpose. While Till was holding the metal bar, the appellant was aware of it, and plainly understood that Till had it in his possession for the purpose of effectuating the entry into the premises, and the offences that were to be committed on the premises. In short, the judge was, probably, somewhat generous to the appellant in determining that his moral culpability for the offending in charge 1 was less than that of Till.
The same observation might fairly apply also to the moral culpability of both Till and the appellant in the commission of the armed robbery that was the basis of charge 2. While Till had possession of the knife and the metal bar, his possession of those weapons enabled the appellant to proceed to take hold of and remove Mrs Temiz’s property from the apartment. In her statement to the police, Mrs Temiz stated that it was the appellant who took the valuable items from her bedroom, including her money and gold jewellery. She saw him holding her handbag, which had in it the $1,000 that she had kept in the top drawer of her bedroom. At the same time the appellant stole Mrs Temiz’s gold jewellery and rings which she kept in her bedroom. On the other hand, although Till carried out a more thorough and extensive search of the premises, he ultimately stole from Mrs Temiz clothing, towels and bed sheets, which he removed in two of her suitcases and which he took from the premises.
Certainly, the moral culpability of the appellant, in respect of charge 3, was less than that of Till. It was Till who inflicted the severe violence to Mrs Temiz which resulted in the serious injuries that are the subject of charge 3, whereas the appellant pleaded guilty to that charge under s 323(1)(b) of the Crimes Act 1958, on the basis that he had intentionally assisted, encouraged or directed the commission of the aggravated burglary, in circumstances in which he was aware that it was probable that the offence of causing serious injury recklessly in circumstances of gross violence, that is the subject of charge 3, would be committed.
Nevertheless, the judge was clearly correct in considering that the moral culpability of the appellant in respect of charge 3, while less than that of Till, was ‘high’.[41] The appellant knew that Till was in possession of the iron bar. On the basis of his plea, he was aware that it was probable that Till would recklessly cause serious injury to Mrs Temiz with it. The vicious assaults inflicted by Till on Mrs Temiz enabled the appellant to enter her bedroom, to steal her cash and valuables, and to make his escape with them from the apartment. The serious injuries sustained by Mrs Temiz, namely, her fractured hip and femur, and the fracture to her cheekbone, were all inflicted while the appellant was still in the apartment for that purpose. Thus, while the appellant was not present for the whole of the assaults on Mrs Temiz, and he did not physically inflict any of those assaults on her, nevertheless the judge was plainly correct in determining that his moral culpability for that offence was high.
[41]Reasons [62].
Pausing there, while, as recognised by the judge, the culpability of each of the two offenders was different, nevertheless, taking into account the matters to which we have just referred, that difference was a matter of degree, rather than any particular substance. Those differences were more than adequately reflected by the lower sentences imposed on the appellant than on Till on each of the three charges.
The judge was certainly conscious that Till had a more significant, and longer, criminal history than the appellant, and his Honour specifically noted that Till’s history included a conviction for aggravated burglary.[42] The judge also accepted, in the appellant’s favour, that, because of his post-traumatic stress disorder, the mitigating factors described as ‘factors 5 and 6’ in Verdins were relevant to the determination of his sentence. The judge also took into account that the principle of totality, relevant to the appellant’s sentence, included a requirement to make allowance for the unrelated sentence being served by the appellant.[43] On the other hand, as already noted, the appellant himself did have a substantial criminal history, including four previous convictions for burglary. Further, as noted, the appellant, at the time of the offending, was subject to a community corrections order that had been imposed for offences of burglary, assault with intent to rob, theft, obtain property by deception and fail to answer bail.
[42]Reasons [56].
[43]Cf R v Renzella [1997] 2 VR 88; El-Waly v R [2012] VSCA 184, [110]–[111] (Neave and Weinberg JJA, Bell AJA).
Notwithstanding those circumstances, the fact remained that the appellant was a significant participant in offences that were properly described by the judge as ‘callous and shocking crimes’. His moral culpability was high. He had a substantial previous criminal history. In our view, the differences in the roles between the appellant and Till, and their personal circumstances, were plainly such as to justify the disparity in the head sentence, and in the minimum non-parole periods, determined by the sentencing judge in respect of each co-offender. Taking into account the gravity of the offending by the appellant and his co-offender, and those other matters, we do not consider that the difference of two years, between the total effective sentences imposed respectively on the appellant and Till, and the difference of two years in their non-parole periods, could be considered such as to constitute an unjustifiable difference, so as to engender a justifiable sense of grievance on behalf of the appellant or an objective bystander. On the contrary, in our view, it was plainly open to the judge to impose the sentences in the manner in which he did. We consider that the judge adequately and properly applied the principles of parity of sentencing and totality in determining the sentences that he imposed on the appellant.
Accordingly, the appellant has not made out ground 2.
Conclusion
For the foregoing reasons, we have concluded that both grounds of appeal, relied on by the appellant, should fail. Accordingly, the appeal must be dismissed.
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