Kayha v The Queen

[2012] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0107

SERKAN KAHYA
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2012
DATE OF JUDGMENT:	19 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 67
JUDGMENT APPEALED FROM:	DPP v Kahya & Lauina (Unreported, County Court of Victoria, Judge Hicks, 29 April 2011)

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CRIMINAL LAW – Sentence – Parity principle – Whether disparity between co-offenders’ sentences sufficiently explained – No error in sentencing discretion – Appeal dismissed – No point of principle

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L R Gwynn	Galbally & O’Bryan
For the Respondent	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

Background

1. The appellant appeals against a total effective sentence of 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 6 months, which was imposed on him by Judge Hicks on 29 April 2011, following his plea of guilty to the following offences:

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary	25 years’ imprisonment	3 years’ imprisonment	6 months
2	Theft	10 years’ imprisonment	15 months’  imprisonment	3 months
3	Common assault	5 years’ imprisonment	8 months’ imprisonment
4	Aggravated burglary	25 years’ imprisonment	39 months’ imprisonment	6 months
5	False imprisonment	10 years’ imprisonment	1 month’s imprisonment
6	Theft	10 years’ imprisonment	1 day’s imprisonment
7	Causing serious injury intentionally	20 years’ imprisonment	4 years’ imprisonment	Base sentence
8	Possession of drug of dependence (Alprazolam)	5 years’ imprisonment	Fine of $400
Total effective sentence			5 years and 3 months’ imprisonment
Non-parole period			3 years and 6 months’ imprisonment

1. There were two co-offenders in relation to the conduct the subject of these charges, although some of their offences were different. 

1. The principal co-offender, Sam Abdifar, pleaded guilty to 12 charges (including two summary offences), and was sentenced by Judge Pilgrim on 18 October 2010 to a total effective sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 5 years and 9 months.  Abdifar was also ordered to pay compensation to the principal victim of $61,880.  The appeal against Abdifar’s sentence was heard and determined at the same time as this appeal.[1]  Although we allowed the Abdifar appeal in part and reduced the sentence in relation to the second charge of aggravated burglary, due to an increase in the sentence for intentionally causing serious injury Abdifar’s total effective sentence and non-parole period remained the same.

   [1]Abdifar v The Queen [2012] VSCA 66 (‘the Abdifar appeal’).

1. The other co-offender, Niko Lauina, pleaded guilty to two charges of aggravated burglary, one charge of theft, one of common assault and one of intentionally causing serious injury.  On 29 April 2011, he was sentenced by Judge Hicks to a total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 8 months.

1. On 2 November 2011, Neave JA granted the appellant leave to appeal against sentence on the sole ground that the sentence imposed failed to adequately reflect matters of disparity between Kahya and Abdifar.[2]

   [2]The other proposed ground of appeal (which alleged that the sentencing judge erred in his findings concerning the appellant’s medical condition) was abandoned prior to the leave application.

The offences

1. Details of the events giving rise to these offences are set out in paragraphs [3] to [24] inclusive of the reasons for decision in the Abdifar appeal, which are incorporated by reference into these reasons.

Relevant parity principles

1. The principle of parity requires that persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence.  But factors such as age, background, previous criminal history and general character, as well as the role played in the commission of the offence, may reveal that other things are not equal.[3]

   [3]Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ).

1. As this court observed in The Queen v Schaefer and Tran[4]:

True parity of treatment is often not to be achieved by the imposition of the same sentence on co-offenders; but through the making of appropriate distinctions between them and bearing in mind that more often than not there can be no precision in the weighting process or the relative significance to be attributed to the quite different factors that may bear upon the determination of appropriate sentences in the separate cases.[5]

[4][2007] VSCA 36.

[5][33] (Vincent JA, with whom Redlich JA and Kellam AJA agreed).

1. In order to succeed on the ground of disparity, the appellant must persuade the court that there is a difference (or lack of difference) between the two sentences that is manifestly excessive, and such as to engender a justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.[6]

   [6]Lowe 610 (Gibbs CJ), 611 (Mason J); Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Kelly v R [2011] VSCA 10, [5]-[6] (Redlich and Weinberg JJA).

The sentence

Mitigating factors 

1. In his very careful and considered sentencing remarks, the sentencing judge accepted the following matters, which had been put forward on behalf of the appellant in mitigation:

(a)       He had pleaded guilty at the earliest possible stage;
           (b)      He had demonstrated genuine remorse;

(c)He was 24 years old at the time of the offending.  The well-known sentencing principles relating to young offenders should still have some impact, although moderated to some extent by the appellant’s prior convictions, including for violence;

(d)He had a strong work history, and family and social support;

(e)Although the appellant had become involved in the recreational use of cocaine and amphetamine in his early twenties, he had ceased using drugs since the offending;

(f)He was a follower, not a leader;

(g)Since the offending, he had been diagnosed with a serious medical condition, aplastic anaemia.  Although the condition did not require any current treatment, in perhaps two or three years’ time the appellant may require a bone marrow transplant or chemotherapy.  Imprisonment may have a gravely adverse impact on his health, as well as being more burdensome;

(h)He had good prospects of rehabilitation, and had already started undertaking counselling; and

(i)He had not previously been incarcerated.

1. Applying the principle in R v Renzella,[7] the sentencing judge also reduced the total effective sentence and non-parole period which he otherwise would have imposed by eight months, to take into account that the appellant had been in custody for approximately eight months on unrelated charges.[8]

Parity considerations

[7][1997] 2 VR 88.

[8]On 12 October 2011, Judge O’Neill sentenced the appellant in relation to those charges.

1. During the plea hearing, the sentencing judge discussed at length with counsel the circumstances that bore on the question of parity.  The transcript discloses that his Honour was fully aware of the relevant legal and factual issues, and gave detailed consideration to them. 

1. His Honour expressed difficulty in understanding the sentences handed down by Judge Pilgrim in relation to some of the Abdifar charges, particularly the very light sentence for Abdifar charge 8 (intentionally causing serious injury).  His Honour observed that assessing parity on a charge by charge basis would present real difficulties, as he did not accept the basis upon which Judge Pilgrim had sentenced, in terms of specific charges.  In the circumstances, his Honour acceded to the submission by all counsel that he should look at the total effective sentence imposed on Abdifar.  He also noted that no counsel had submitted that Abdifar’s overall sentence was inappropriate.

1. His Honour specifically considered the co-offenders’ different ages, personal circumstances, antecedents, prospects of rehabilitation, and roles played in the offending.  In particular, he noted the following matters relevant to parity:

(a)The leading role played by Abdifar in the offending: as ringleader and organiser; as the person with the motive to commit the offences; as the person who procured the involvement of the other two co-offenders; as the person who retained for his own use the majority of the stolen property.  His Honour found that the appellant played a considerably lesser role than Abdifar, although a greater role than that of Lauina;

(b)The differences in the charges faced by, and the seriousness of the offending of, the respective co-offenders;

(c)At the time of the offending, Abdifar was 30 years old, whereas the appellant was 24;

(d)The differences in antecedents, with Abdifar having ‘by far the worst prior criminal history’ of the co-accused; and

(e)Although the principles in Verdins had been found to be applicable to Abdifar, who suffered from bipolar disorder, they did not apply to the appellant.  However, the appellant had been diagnosed with aplastic anaemia.

The arguments on appeal

1. The appellant does not allege that the sentencing judge made any specific legal or factual error in considering parity.  Nor could such an argument have succeeded; his Honour was clearly aware of the relevant legal principles and was keen to ensure that he understood how the parties said that parity applied to the particular offences and offenders.

1. Rather, the appellant relies on what he says is an obvious overall disparity.  He says that in order to properly compare his and Abdifar’s total effective sentences and non-parole periods, it is necessary to have regard to the eight month Renzella period in his case.  He says that if Judge Hicks had not given him credit for the eight months spent in custody on unrelated charges, the difference between the two sentences would only have been 12 months on the head sentence, and 7 months on the non-parole period.  Unfortunately, that is incorrect as a matter of simple mathematics.

1. Had he not received eight months’ credit, the appellant would have received a total effective sentence of 5 years and 11 months’ imprisonment, with a non-parole period of 4 years and 2 months.  That may be compared with Abdifar’s sentence, which was a total effective sentence of 7 years and 6 months, with a non-parole period of 5 years and 2 months.  Using that analysis, the appellant’s head sentence was 19 months less, and his non-parole period was 12 months less, than Abdifar’s.

1. I am not satisfied that the difference between the appellant’s and Abdifar’s total effective sentences and non-parole periods is manifestly inappropriate, and such as to engender a justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. 

1. It follows that the appeal should be dismissed.

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