Kelly v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0053

JADYN KELLY	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2024
DATE OF JUDGMENT:	29 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 185
JUDGMENT APPEALED FROM:	[2023] VCC 1788 (Judge Hassan)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated Burglary – Common Assault – Theft – Whether sentencing judge erred when assessing the role of the applicant and co-offender – Whether principle of parity infringed – Application for an extension of time refused.

Anthony v The Queen [2016] VSCA 22; DPP v Aydin and Kirsch [2005] VSCA 86; Markarian v The Queen (2005) 228 CLR 357.

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Counsel
Applicant:		Ms J Poole
Respondent:		Mr J McWillams
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Officer of Public Prosecutions

BOYCE JA:

On 13 September 2023, the applicant pleaded guilty in the County Court at Melbourne to single charges each of aggravated burglary,[1] common assault[2] and theft[3] (rolled up). On 3 October 2023, Judge Hassan sentenced the applicant as follows:
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to common law.
[3]Contrary to s 74 of the Crimes Act 1958.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	4 years and 9 months	Base
2	Common assault	5 years	1 year	4 months
3	Theft	10 years	9 months	2 months
Total Effective Sentence:		5 years and 3 months’ imprisonment
Non-Parole Period:		3 years and 3 months’ imprisonment
Pre-sentence Detention Declared:		122 days
Section 6AAA Statement:		Total Effective Sentence: 7 years and 6 months Non Parole-Period: 5 years and 6 months
Other Relevant Orders: 1. Forfeiture order

On 28 October 2022, a co-offender of the applicant, Sadlier-O’Connor (‘the co-offender’) pleaded guilty. He was sentenced on 11 November 2022 by Judge Hassan in the following manner:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Causing injury intentionally	10 years	2 years	6 months
3	Theft	10 years	9 months	2 months
4	Possession of a drug of dependence	1 year	Convicted and discharged	N/A
Total Effective Sentence:		5 years and 9 months’ imprisonment
Non-Parole Period:		4 years imprisonment
Pre-sentence Detention Declared:		460 days
Section 6AAA Statement:		Total Effective Sentence: 8 years Non Parole-Period: 6 years
Other Relevant Orders: 2. Forfeiture and Disposal orders

The applicant seeks an extension of time within which to file a notice seeking leave to appeal against sentence. The applicant’s proposed ground of appeal is in the following terms:
The sentencing judge erred in failing to impose sentences on charges 1 and 2, and a resulting total effective sentence, which adequately differentiated between the lesser role and more significant matters in mitigation which were available to the Applicant when compared to the [co-offender], Sadlier-O’Connor, such as to produce a legitimate and justifiable sense of grievance in the objective observer.
The application to extend time is supported by an affidavit sworn by the applicant’s solicitor. The application for leave is some four months and 20 days out of time. The respondent submits that the reasons for the delay are not ‘entirely satisfactory’, but submits — further — that as the proposed ground of appeal is without merit there is no utility in granting an extension of time.
I will consider the merits of the applicant’s proposed ground of appeal. It will only be if this proposed ground possesses sufficient merit that it may become necessary to consider the reasons proffered for why the present notice of appeal has been filed out of time.
For the reasons that follow, I consider that the applicant’s proposed ground of appeal is without merit. There is, therefore, no utility in granting the applicant an extension of time.

Summary of key facts

On the night of 7 January 2021, at around 11:50 pm, the applicant, the co-offender, and three other men (unidentified) broke into the home of an adult couple. The couple — a male and female — were at home with two of their children, aged 15 and nine as well as two grandchildren, aged nine and five. The female grandparent was in a bedroom with one of the children when she heard strange noises and then male voices coming from a shed outside. She woke her partner who told her to run and she locked herself and the children in an upstairs bedroom, using a piece of furniture to barricade the door. The male then called 000.
At about this time the applicant, the co-offender and the other men gained entry via the front door. The applicant was armed with a flick knife. He managed to kick the door in. All five men entered the house (charge 1 – aggravated burglary). The applicant searched the property and found an imitation firearm in the garage. He put it down the front of his pants. One of the unidentified men located alcohol in the fridge and took it out.
At some point shortly after entering, the three unidentified men left the property. The applicant and the co-offender remained. The male occupant saw the applicant and the co-offender. The applicant passed the imitation weapon to the co-offender and then walked to another part of the house. The co-offender punched the male occupant in the face. This caused the male to fall backwards.
The applicant and the co-offender kept asking the male where the money was. The male had a gold chain ripped off from around his neck. The applicant and the co-offender then demanded the male’s gold bracelet. The co-offender punched the male to the right side of his face some four or five times (charge 2 – common assault).
The male occupant was able to get his bracelet off and he threw it at both offenders. He was still lying on the bottom of the stairs at this point. His intent was to block the offenders from going upstairs to where his young family was hiding.
The male occupant became angry when one of the males tried to hit him again, so he started throwing punches at both men. This caused the applicant and the co-offender to run off, taking the victim’s necklace and bracelet (valued at $3,000) with them (charge 3 – theft).
The male occupant was taken to the Sunshine Hospital so that his injuries could be treated. As a result of the assault, the male required stitches to a cut above his eyebrow. He also sustained a fractured eye socket.

The plea

The applicant relied on his plea of guilty and the fact this was entered during a period when COVID–19 was of relevance. The applicant relied on his lack of criminal history and his prospects of rehabilitation. He relied on his relative youth (25 at the time of offence, 27 at the time of the plea). The applicant also sought to rely on the fifth and sixth Verdins principles.[4] The applicant also faced the prospect of deportation to New Zealand.
[4]R v Verdins (2007) 16 VR 269, 276 [32]; [2007] VSCA 102 (‘Verdins’). The fifth principle relates to impaired mental functioning causing a term of imprisonment to ‘weigh more heavily on [an] offender than it would on a person in normal health’. The sixth arises where there is a ‘serious risk of imprisonment having a significant adverse effect on [an] offender’s mental health’.
The applicant was born and raised in New Zealand. He had been brought up predominately by his grandmother. The applicant was estranged from his father. He struggled at school and ‘dropped out’ at 14. He then worked as a labourer and at other low–paying jobs. As a teenager he started using cannabis; he later graduated to methamphetamine use. In 2014 the applicant fathered a daughter with his then partner. That relationship broke down and the mother of the child moved to Australia with the daughter. The applicant was initially unaware that this had occurred. The applicant later moved to Australia. He wanted to maintain a relationship with his daughter and the daughter’s mother. The applicant enjoyed limited success in this regard: a relationship of sorts developed, but it later fell apart. At the time of the plea the applicant had only limited contact with his daughter.
At the time of the present offending the applicant lacked support; he had lost his job and had fallen back into drug use. This combination of factors caused the applicant to become depressed. His drinking increased.
The applicant relied on a report authored by psychologist Carla Lechner. Ms Lechner opined that the applicant presented with symptoms of alcohol use disorder which was in partial remission. Ms Lechner considered that the applicant had a likely diagnosis of adult ADHD; he was reporting an ‘extreme’ level of depression and ‘severe’ psychological distress. The applicant presented as psychologically fragile.
On 5 July 2021, the applicant was granted bail and was placed on the Court Integrated Service Program (‘CISP’). In October 2022, the applicant was permitted to move to Sydney and live with his uncle. Whilst in Sydney, he was able to secure employment and remain abstinent from drugs.
The applicant relied on various character references.

The reasons for sentence

The sentencing judge noted that the aggravated burglary was ‘committed at night, in company, on a family home in which there were children’. Her Honour considered that the offending was characterised ‘by many of the well-recognised aggravating features’ and that the applicant’s moral culpability was high.[5]
[5]DPP v Jadyn Kelly [2023] VCC 1788, [57] (‘Reasons’).
The judge considered that general deterrence, denunciation and community protection were all relevant considerations. Specific deterrence was also relevant; the applicant had to ‘understand the consequences of taking part in such disgraceful behaviour’.[6]
[6]Reasons, [59].
The judge took into account the applicant’s plea of guilty, the increased utility of the plea in a COVID–19 setting[7] as well as delay. Her Honour accepted that the applicant’s prospect of deportation was a mitigatory matter. The judge observed that the applicant’s risk of deportation ‘renders a term of imprisonment more onerous’ and ‘particularly difficult for [the applicant] because [his] daughter lives here’.[8]
[7]Worboyes v The Queen [2021] VSCA 169.
[8]Reasons, [62].
Nevertheless, the judge rejected the applicant’s submission that Verdins principles were engaged.[9] In her Honour’s view:
[T]he evidence upon which [the applicant] sought to rely was inadequate. It was dated and [the applicant’s] mental health assessment was dependent largely on self-reporting. Having said that I do nevertheless accept prison will be a very difficult place for [the applicant] given that [he is] young and being sentenced to custody for the first time.[10]
[9]Reasons, [60]–[62].
[10]Reasons, [61].
The judge noted the applicant’s relative youth and assessed the applicant’s prospects of rehabilitation as reasonable.[11]
[11]Reasons, [63].
The judge paid particular regard to the parity principle as it related to the sentence imposed on the co-offender. The judge considered that parity was an ‘important consideration’.[12] As to parity, the judge observed as follows:
[The applicant] pleaded guilty to the lesser charge of common assault carrying a lower maximum penalty and [the applicant does] not fall to be sentenced for causing the injuries suffered to [the male occupant], only for participating in the assault. This is the most significant area of disparity between [the applicant] and [the co-offender].
Apart from this [the applicant has] no criminal history whereas [the co-offender] did have one relevant although much less serious prior conviction. He was and is five years older than [the applicant]. As has been discussed he was remanded in custody from the time of his arrest and therefore was not able to put before the court any evidence of demonstrable rehabilitation in the community, but on the other hand his plea was an early one. Like [the applicant] he was a citizen of New Zealand facing deportation leaving a son here in Australia in his case. I accepted, as I do in [the applicant’s] case the prospect of deportation was particularly difficult even momentous for him.[13]
[12]Reasons, [65].
[13]Reasons, [66].
The judge considered that there was room for some differentiation in penalty on charges 1 and 3, but noted that this could occur only ‘to a very modest degree’.[14]
[14]Reasons, [67].
The judge ultimately sentenced the applicant in the manner described above.

The co-offender’s reasons for sentence[15]

[15]DPP v Sadlier-O’Connor [2022] VCC 1960 (‘Co-offender’s Reasons’).

As is evident, by the time the applicant came to be sentenced, Judge Hassan had already sentenced the co-offender.
There were many similarities between the applicant’s case and the co-offender’s. For instance, there was close similarity in role when it came to the commission of the aggravated burglary and the theft. The objective gravity of these two offences was the same as between each offender. Like the applicant, the co-offender’s moral culpability was ‘high’ when it came to the commission of the aggravated burglary. The co-offender, like the applicant, faced the threat of deportation. The co-offender could not rely upon any Verdins considerations albeit he was ‘chronically depressed and anxious’. The effect upon the victims of the offending was the same in each case. Like the applicant, the co-offender had abused alcohol and methamphetamines.[16]
[16]Co-offender’s Reasons, [21]–[23], [28]–[30].
The judge noted that the co-offender had pleaded guilty prior to committal in early December 2021. The judge found that he had pleaded guilty at the ‘earliest opportunity’. The co-offender’s plea had ‘significant utilitarian value’ in light of the effect of Covid–19 upon the administration of criminal justice. The judge considered that the co-offender’s plea was indicative of ‘some remorse’.[17]
[17]Co-offender’s Reasons, [13]–[15].
The co-offender was 32 years of age at the time of sentence, 30 at the time of offence. The co-offender’s father had abused alcohol and been violent when the co-offender was young. His parents separated when he was 10 and he left school in Year 7. He had a son.[18]
[18]Co-offender’s Reasons, [25]–[27].
The co-offender had accumulated prior convictions. He had received a bond for criminal damage and unlawful assault in 2019 in Victoria. He had, in 2016, received a six month period of imprisonment in Queensland for the offence of ‘enter premises and commit indictable offence’ to be released immediately on parole. He did not actually serve any time in custody for this particular offending. He also had prior convictions in Queensland for criminal damage, nuisance and possession of drugs.[19]
[19]Co-offender’s Reasons, [31]–[32].

Applicant’s submissions

The applicant submitted that the sentences imposed on charges 1 and 2, and the resulting total effective sentence, when compared to the sentences imposed on the co-offender, do not adequately reflect the applicant’s lesser role in the overall offending and the more significant matters in mitigation which were available to him. The same submission was made in respect of the applicant’s non–parole period when compared to the non–parole period imposed on the co-offender.
The applicant contended that, in particular, the judge had failed adequately to reflect his much lesser role in the violent acts perpetrated upon the male occupant. The applicant was, it was submitted, ‘not present’ during part of the violence. The applicant was only ever complicit in the actions of the co-offender; he at no stage actually struck the male occupant.
It was emphasised that, unlike the co-offender, the applicant had no prior convictions. The applicant was 25 at the time of the offending whereas the co-offender was 30.
It was submitted that in respect of charge 2 it was evident that the judge had misapplied parity because the applicant’s individual sentence on the charge of common law assault stood at 20% of the applicable maximum (5 years) whereas the co-offender’s individual sentence on charge 2 (intentionally cause injury) also constituted 20% of its applicable maximum (10 years). It was submitted that a similar percentage analysis could be applied to the order of cumulation made in respect of the applicant’s charge 2 sentence when compared to the co-offender’s charge 2 cumulation order. In this regard, it was argued that it could be seen that parity had been breached because the 4–month cumulation order in the case of the applicant’s charge 2 sentence stood at 40% of the length of that particular sentence. In the co-offender’s case the order for cumulation on the charge 2 sentence stood at only 25% of that term’s individual length.

Respondent submissions

The respondent submitted that the sentences imposed on charges 1 and 2 adequately differentiate between the circumstances of the applicant and the co-offender and it was reasonably open to her Honour to sentence the applicant as she did. Neither the differences in role or mitigating factors, particularly the applicant’s youth and lack of criminal history, required a more marked differentiation in sentence.
The respondent reminded the Court that in respect of charge 2 the applicant pleaded guilty on the basis that he was complicit in all of the assaults committed upon the male occupant.
The respondent submitted that simply because the applicant and the co-offender both received 20% of the respective maximum penalties for each of their charge 2 sentences does not mean that the applicant’s more limited role was not adequately accounted for. While the applicant may have had a more limited role in the commission of charge 2, the co-offender’s plea of guilty had greater value.
The respondent characterised the assault as serious. It occurred in company, in the middle of the night, and in the male occupant’s own home. The male was repeatedly punched in the face. A sentence of imprisonment for one year for an assault of this kind was well-justified.
The respondent submitted that even if the judge had erred in the imposition of the parity principle, leave to appeal against sentence should still be refused. It was submitted that any reduction in penalty would lower the applicant’s sentence to the point of manifest inadequacy.
The respondent submitted that there was no basis for differentiation in role in respect of the commission of charge 1.
The respondent contended that the difference in criminal history between the two offenders was a ‘minor point of difference’. Similarly, it was argued that there was no great difference in age between the two offenders. At age 25 the applicant was at the outer limits of youth and it was well–accepted that youth was required to take a ‘back seat’ in the instance of serious offending like the present.
Finally, the respondent emphasised the much earlier plea (at the ‘earliest opportunity’) that had been entered by the co-offender — a plea that, unlike in the applicant’s case, was indicative of ‘some remorse’.

Consideration

I am unpersuaded that it is reasonably arguable that there has been a breach of the parity principle in this case.
The principle of parity was summarised by this Court in Anthony v The Queen:[20]
As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, 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. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[21]
[20][2016] VSCA 22 (‘Anthony’).
[21]Ibid [12] (citation omitted).

It is not, and nor could it be, contended that the learned judge overlooked parity. It is plain that the sentencing judge took parity into account.
The essence of the applicant’s case centres, primarily, on considerations that are personal to each offender, although the argument does extend to role when it comes to the commission of charge 2.
It is convenient to commence with matters personal. In essence the applicant argues that because of his lesser age, and his lack of prior convictions, the sentencing judge was required to further reduce his sentence in comparison with the sentence imposed on the co-offender.
The difficulty with that particular submission is that despite what could be made of the differences that are relied on by the applicant, there were relevant matters that pulled in the opposite direction. The five–year difference in age and co-offender’s possession of at least one relevant prior conviction had to be offset by the co-offender’s much earlier plea as well his remorse. Pleading at the ‘earliest opportunity’ and in circumstances of remorse were open to be considered, in my view, as weighty matters.[22] There is a sense in which, in my view, the differences in personal circumstances tend to cancel each other out.
[22]Counsel for the applicant contended that there had been some utility in the applicant not pleading guilty earlier. It was contended that by this means the applicant had succeeded in having charge 2 downgraded to a common law assault. Nevertheless, it was not submitted that the sentencing judge was wrong to take into account, as a matter of distinction, that the co-offender had pleaded guilty at a significantly earlier time.
But the applicant did not restrict his submissions to matters personal. Although he conceded that there was no real distinction that could be drawn between each offender when it came to the role played by each in respect of the aggravated burglary (charge 1) and the theft (charge 3), the applicant did place significant emphasis on role when it came to the applicant’s charge 2 — the charge that related to the violence perpetrated upon the male occupier of the dwelling.
A clear distinction had to be made in this respect when it came to charge 2. The applicant was complicit in all the co-offender’s assaults. He was not the primary actor. He did not do any actual striking of the male occupant.
The applicant’s submission acknowledged that the applicant pleaded guilty to a lesser offence and, in substance, received half the penalty imposed on the co-offender. Thus the argument — as summarised above[23] — became one that concerned relative proportions, or percentages, of (a) the relevant maximum penalty applicable in each case, and (b) the amount of each individual sentence that — in each case — was ordered to be cumulative.
[23]See paragraph 36 above.
In my opinion the submissions based on relative percentages and/or proportions are unpersuasive.
Whilst parity has a role to play when co-offenders are charged with different offences, ‘significant practical difficulties’ can arise in such a situation.[24] But the focus must be on ‘substance rather than form’.[25] Here, the substance reveals — as already indicated — that the applicant received half the penalty imposed on the co-offender for the applicant’s complicity in the co-offender’s assaults. The substance reveals, also, that the applicant received a lesser order for cumulation in respect of his charge 2 sentence than did the co-offender.
[24]Green v R(2011) 244 CLR 462, 473–474 [30] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
[25]Ibid.
To place great emphasis on the differing percentages or proportions of each applicable maximum penalty, in the case of each offender’s individual charge 2 sentence, tends — in my view — to favour form over substance. Doing so, it seems to me, posits a certain ‘arithmetical progression’[26] into the sentencing equation that is artificial. Using the maximum as a ‘yardstick’,[27] and appropriately ‘steering’[28] by it, need not — I consider — have resulted in the kind of formal equivalence that is contended for in this case when it comes to each offender’s charge 2 sentence.
[26]See DPP v Aydin and Kirsch [2005] VSCA 86, [11] (Callaway JA; Buchanan JA agreeing at [24]; Eames JA agreeing at [25]) (‘Aydin and Kirsch’).
[27]Markarian v The Queen (2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25.
[28]Aydin and Kirsch [2005] VSCA 86, [12] (Callaway JA; Buchanan JA agreeing at [24]; Eames JA agreeing at [25]) (citations omitted).
When it comes to the orders for cumulation made in respect of each offender’s charge 2 sentence, I consider — again — that the applicant’s submissions tend overly to invoke structure, or form, over substance.
I consider it artificial to expect that the judge would — in the case of each offender’s charge 2 sentence — make orders for cumulation that were of the same precise proportion of each individual charge 2 penalty. Perhaps the main reason why this is so is that those particular orders for cumulation take their place as part of a broader total effective sentence; and — when it comes to totality — it might be thought that it is the total effective sentence that must at least primarily be brought to bear on the process of comparison, rather any of total sentence’s individual constituent cumulative elements. That the relevant proportions may differ may not be unexpected given the ‘significant practical difficulties’ that are apt to arise when different offences are compared.
There was, in the end and when all matters are balanced out, little to differentiate the applicant from his co-offender when it came to the sentence imposed on the most important charge forming part of this sentencing equation — the aggravated burglary. In that context, the scope for discrimination between the applicant and his co-offender as a result of their different roles concerning charge 2 was necessarily limited. In all the circumstances, I consider that the respective situations of each offender roughly balanced themselves out.
Thus, I do not consider it reasonably arguable that the parity principle has been breached in this case. I do not consider that the applicant’s proposed ground of appeal is reasonably arguable.

Conclusion

In view of my conclusion concerning the merit of the applicant’s proposed ground of appeal, it is inutile to grant the extension of time sought.
The formal order of the Court is that the application to extend time is refused.

[2024] VSCA 185

29 August 2024