Khoshaba v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0108

STEVAN KHOSHABA	Applicant
V
THE KING	Respondent

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JUDGES:	BEACH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2023
DATE OF JUDGMENT:	30 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 65
JUDGMENT APPEALED FROM:	[2022] VCC 697 (Judge Moglia)

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CRIMINAL LAW – Leave to appeal – Sentence – Principle of parity – Sentence for arson greater than for co-offender – Whether manifest disparity between sentences of applicant and co-offender – Judge wrongly sentenced co-offender by erroneously applying totality – Co-offender’s recently completed sentence for other offending did not justify extent of difference between sentences imposed – Leave to appeal allowed – Appeal granted – Applicant resentenced.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA:

The applicant pleaded guilty to one charge of arson and one summary charge of committing an indictable offence whilst on bail. On 18 May 2022, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Arson	15 years	3 years and 9 months	Base
2	Commit indictable offence whilst on bail (related summary offence)	3 months	1 month	—
Total Effective Sentence:		3 years and 9 months
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		276 days
Section 6AAA Statement:		Total Effective Sentence 5 years Non Parole-Period 3 years 3 months
Other Relevant Orders: 1. Compensation order under s 86(1) of the Sentencing Act 1991

The applicant’s co-offender, Mahmoud Saba (‘Saba’) pleaded guilty to a single charge of arson arising out of the same event and was sentenced at the same time as the applicant to 2 years and 9 months’ imprisonment, with a non-parole period of 11 months.
The applicant seeks leave to appeal against sentence on the following ground:
The sentence imposed infringes the principle of parity, as there is a manifest disparity between the sentence imposed upon the Applicant and that imposed upon his co-offender, Mahmoud Saba.

The facts

The charge related to a fire at a fruit and vegetable shop.
On 11 July 2019 at around 11:55 pm, the applicant, Saba and an unidentified man arrived at the shop in a car. The unidentified man, having failed to jemmy open the shop doors, drove the car into the doors, breaking them open and permitting access. In doing so, the car became wedged in the door frame preventing the driver from using the driver side door. The applicant and Saba immediately got out of the vehicle and entered the shop. The third man remained in the car, unable to open the driver side door.
Saba carried a plastic petrol container and poured the petrol over the shelves and the shop floor. The applicant pushed a cash register and a set of scales on to the floor. Having both returned to the vehicle, Saba replaced the plastic container into the car’s front footwell and the applicant fetched a cloth from the car, returned to just inside the shop, lit the cloth with a lighter and threw it onto a shelf covered in petrol. The shop quickly became engulfed in flames.
The applicant’s clothing caught alight and petrol vapours leading into the cabin of the vehicle also ignited, causing a large conflagration in the vehicle which remained wedged in the door frame. The applicant ran to a grassed area in front of the shop and threw himself onto the ground to douse the flames. Returning to the burning vehicle, the applicant then tried, without success, to open the driver’s door. The driver then climbed into the back and escaped through a rear door.
Saba exited through the rear cargo door, falling to the ground as he did so, losing his balaclava. All three men then fled the scene on foot towards Epping Road. They made no attempt to raise any alarm about the fire that they had just lit.
There were two eyewitnesses and CCTV footage from three cameras at the shop that revealed the offending.
As a result of the fire both the applicant and Saba suffered burns. The applicant and Saba left the scene and went to the applicant’s house. Police attended the house a short time later and saw that both offenders had been burnt. The applicant and Saba said that they were burnt as a result of a gas bottle exploding in the backyard. The two men were transferred to hospital. The applicant was discharged later that day. Saba was treated in hospital over eight days and then discharged.

The judge’s reasons

The judge accepted that the applicant’s and Saba’s actions entailed very serious offending.[1] The judge said the actions of the offenders were ‘outrageous, dangerous, brazen, and caused significant damage’.[2] The judge found that the applicant and Saba were both principal offenders in the arson.[3]
[1]DPP v Khoshaba & Anor [2022] VCC 697, [55(a)] (‘Reasons’).
[2]Ibid [27].
[3]Ibid [55(f)].
The applicant and Saba both received burns for the offending and while those injuries did not result in serious or ongoing permanent consequences, their suffering constituted a mild degree of extra curial punishment.[4]
[4]Ibid [55(g)].
The judge accepted that while both the applicant’s and Saba’s guilty pleas were not early, they still had significant utilitarian benefits and attracted increased weight as they were entered during the COVID-19 pandemic.[5] It was accepted the guilty pleas demonstrated remorse to some degree.[6] However, the judge said that the applicant’s and Saba’s explanations for their involvement were inadequate and did not lead to any mitigation of sentence.[7]
[5]Ibid [22], [55(d)].
[6]Ibid [55(e)].
[7]Ibid [55(c)].
Although, unlike Saba, the applicant had not been imprisoned before, the judge noted the applicant’s significant criminal history. The applicant was on bail and a community correction order (‘CCO’) at the time of the offending and had breached CCOs on three previous occasions. The judge assessed both the applicant and Saba has having guarded prospects of rehabilitation.[8]
[8]Ibid [56(b)], [57(b)].
The judge noted the applicant had committed no further offences since being granted bail in this matter and had seemingly made positive efforts towards rehabilitation.[9] The judge accepted that COVID-19 related restrictions made targeted psychological treatment for Saba’s mental health conditions more difficult.[10]
[9]Ibid [56(d)].
[10]Ibid [57(d)].
On 6 October 2019 (approximately three months after the arson) Saba committed firearms offences (theft of a firearm and prohibited person possess firearm). Saba was sentenced in the County Court on 31 July 2020 to 28 months’ imprisonment, with a non-parole period of 18 months. He served the entire term of 28 months’ imprisonment before being released from custody on 27 January 2022. We note that the plea in this matter, conducted in April 2022, occurred after Saba had been released from prison on the firearms offences.
In sentencing Saba, the judge took into account his sentence for the firearms offence in the following way:
Your sentence on 31 July 2020, namely the 28 months for subsequent offending was completed on 27 January this year. You have since remained on remand for this matter alone for 111 days. Had I sentenced you at the same time or close to the 2020 sentence I would have imposed the same sentence as that imposed on Mr Khoshaba and ordered a moderate degree of concurrency between the matters, both as to the total sentence and the non-parole period.
…
Mr Saba, I sentence you in the context of you having served the 28 months as of 27 January 2022 with which I am now unable to order any concurrency. Consequently whilst I intend that you should serve the same sentence as Mr Khoshaba for the arson, I will formally impose a lower sentence to reflect that some of that sentence would, had I sentenced you at an earlier date, have been served concurrently.[11]
[11]Ibid [60].

The parties’ submissions

The applicant submits that the sentence imposed on Saba was significantly less severe than the sentence imposed upon the applicant, appearing most starkly in the respective non-parole periods imposed.
The applicant submits that the judge was required to maintain appropriate relativity between the sentence imposed upon the applicant and Saba notwithstanding the relevance of totality to Saba’s sentence, because ‘[t]he parity principle between co- offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender’.[12]
[12]Postiglione v The Queen (1997) 189 CLR 295, 343 (Kirby J); [1997] HCA 26. See also Chatters v The Queen [2019] VSCA 309, [23] (Priest and T Forrest JJA) (‘Chatters’).
The applicant submits that the judge’s approach to totality in Saba’s case was guided by an assessment of what sentence Saba would have received had he been sentenced for the subsequent firearms offending and the arson at the same time, and therefore not lost the opportunity for sentences to be served concurrently.[13] However, as the sentence for the firearms offending had been fully served, the applicant submits that the judge’s treatment of the sentence and thus his approach to totality was erroneous (the correct approach was to take account of the fact that Saba had served 28 months in custody simply as part of his circumstances relevant to totality).[14] He says this error assists his argument that the disparity cannot legitimately be explained but, in any event, he contends that the principle of totality (applied in respect of Saba’s sentence) and the principle of parity both have work to do and the outcome in this case cannot be sustained.
[13]Ibid [57(e)], [60].
[14]Citing Sayer v The Queen [2018] VSCA 177, [71]–[76] (Whelan and McLeish JJA); Bidong v The Queen [2022] VSCA 33, [33] (Maxwell P and Kennedy JA).
The respondent accepts that the judge should only have considered the prior sentence imposed on Saba as part of the relevant circumstances, rather than hypothesise as to the degree of cumulation that would have been imposed if sentenced for the firearms and arson offending together.[15] Nevertheless, the weight given to totality, even in its misapplication by the judge, lends rational explanation to Saba’s reduced sentence had the totality principle been correctly applied. It is submitted that no different outcome would have resulted.
[15]Ibid [54], [57(e)], [60].
The respondent submits that when full consideration is given to the circumstances, the 12-month disparity between head sentences and the 13-month disparity between non-parole periods does not bespeak unfairness. The respondent submits that there are a number of differences between the applicant’s position and that of Saba, including Saba suffering somewhat worse extra-curial punishment than the applicant;[16] Saba having a more disadvantaged and traumatic upbringing than the applicant;[17] and Saba’s prospects of rehabilitation being somewhat better than the applicant.[18]
[16]Reasons, [15], [18], [30].
[17]Ibid [35].
[18]Ibid [38].

Conclusion

The principles that this Court must apply in order to resolve a complaint based on a differential or lack of parity in the sentence imposed on co-offenders are well established. The principle of parity is engaged where there is a differential treatment between co-offenders that gives rise to a justifiable sense of grievance (objectively determined).[19]
[19]Lowe v The Queen (1984) 154 CLR 606, 610–11 (Mason J); [1984] HCA 46 (‘Lowe’); R v Taudevin [1996] 2 VR 402; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 (‘Postiglione’); Green v the Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
The rationale for overturning a sentence on the basis of a marked and inexplicable discrepancy with a sentence imposed on a co-offender was explained by Mason J in Lowe in the following oft-cited passage:
Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[20]
[20](1984) 154 CLR 606, 610–11; [1984] HCA 46.
In Postiglione the High Court emphasised that the parity principle recognised that equal justice required that as between co-offenders, there should not be a marked disparity giving rise to a justifiable sense of grievance. As a reflection of this principle, a reduction by this Court of the sentence imposed upon one offender has the necessary consequence of reopening the sentencing discretion in relation to a co-offender.[21]
[21]R v Simmons [2008] VSCA 185, [21] (Weinberg JA, Nettle and Mandie JJA agreeing).
In Chatters this Court explained that while the application of the principle of totality in respect of one offender may be a relevant circumstance that explains a different sentence, the principle of parity may remain relevant. The Court said:
Depending on the circumstances, totality has the potential to lead to different results for co-offenders facing sentence for different offences. We consider the orders that his Honour made to be consistent with the proper application of the principle of totality, bearing steadily in mind that ‘[t]he parity principle between co-offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender’.[22]
[22]Chatters [2019] VSCA 309, [23] (Priest and T Forrest JJA), citing Postiglione (1997) 189 CLR 295, 304 (Dawson and Gaudron JJ); 306, 313 (McHugh J); 341–3 (Kirby J); [1997] HCA 26.
The applicant received a sentence that was 12 months longer than that imposed on Saba and the non-parole period set for the applicant was more than twice the length of that accorded to Saba. This was a significant difference given that they both fell to be sentenced for the same offence and had relevantly indistinguishable backgrounds. If anything Saba’s criminal history was worse; he had been imprisoned on four occasions and, as noted, this was the first time that the applicant was to serve a period in custody.[23] Further, the firearms offences for which Saba was sentenced occurred after the commission of the arson, whereas the applicant had no further offending.
[23]The applicant had previously been sentenced to a wholly suspended sentence on one occasion.
Further, and as already noted, the respondent concedes that, in sentencing Saba, the judge took a wrong approach. Understandably there is no complaint by Saba and his sentence stands. The judge wrongly sentenced Saba on the hypothetical basis that he fell to be sentenced for all of the offences (including the firearms offences) in order to gauge a hypothetical degree of concurrency and cumulation for those offences. In turn that reflected the relative position of the applicant.
Given that the judge accepted that each offender was equally culpable for the arson and that there was little in the personal circumstances that could justify a different sentence, totality, and the erroneous treatment of it when the judge came to sentence Saba, provides the only justification for the differential sentence. Indeed, the judge said that he would have imposed the same sentence on the arson offence.
It is not possible to say with any degree of precision the extent to which the error may have affected the sentence imposed on Saba. It may be accepted that the fact that Saba had recently completed a sentence for offending that occurred relatively close in time to the arson offence was a relevant factor for the judge to take into account and may have justified, at least to some extent, a difference in the sentences imposed. However, we are satisfied that totality did not justify the extent of the difference between the sentences imposed. The difference in both the head sentence and particularly the non-parole period cannot fairly be explained by acknowledging that totality required some moderation in the sentence imposed on Saba.
In our view ground 1 is made out. It is necessary to re-sentence the applicant. The sentence imposed on Saba is a relevant and, in this context, significant matter to take into account. We would observe that the sentence of 2 years and 9 months was, for this brazen and serious arson, a lenient sentence but it could not be said to be manifestly inadequate.
We agree with the judge’s assessment that this was serious offending. The applicant has a relevant criminal history. His prospects of rehabilitation are guarded. The applicant was born in Iraq in 1982. His family had fled Iraq in 1990 before the first Gulf War and his early life was associated with dislocation and the significant traumas of displacement. Although he found school difficult the applicant completed year 12 and he describes a stable and loving home environment. He has five children, but they were removed from his care as a result of drug use and mental health issues of the applicant and the mother of the children from whom he is now estranged. That history provides some context but does not provide a particularly powerful case for leniency.
In all of the circumstances we would resentence the applicant to a sentence of 3 years and 3 months’ imprisonment. We would set a non-parole period of 18 months.
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[2023] VSCA 65

30 March 2023