Lucas v The Queen
[2021] VSCA 314
•17 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0082
| JAKE LUCAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2021 |
| DATE OF JUDGMENT: | 17 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 314 |
| JUDGMENT APPEALED FROM: | DPP v Lucas (Unreported, County Court of Victoria, Judge Fox, 28 May 2021) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, common assault and armed robbery – Whether total effective sentence of two years and six months’ imprisonment with a non-parole period of sixteen months manifestly excessive – Whether principle of parity breached – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr M Keks | Bramham Lawyers |
| For the Respondent: | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
Jake Lucas, the applicant, aged 32 years,[1] seeks leave to appeal against a sentence of two years and six months’ imprisonment, with a non-parole period of sixteen months, imposed on him by a judge of the County Court on 28 May 2021.
[1]His date of birth is 17 January 1989.
The sentence relates to an aggravated burglary and other offences committed on 4 September 2017, when the applicant was aged 28 years. He, in company with Tayler Hazell, then aged 24 years,[2] and Jazmine Young, aged 18,[3] committed the offences at premises occupied by the victim, Peter Bell, at the Log Cabin Caravan Park in Langwarrin, in circumstances set out below.[4]
[2]His date of birth is 6 May 1993.
[3]Her date of birth is 9 November 1998.
[4]See [9] below.
There are two grounds of appeal upon which the applicant relies:
1. The individual sentence on charge 1, the total effective sentence and the non-parole period are, in all the circumstances, manifestly excessive.
2. The learned sentencing judge erred in her application of the principle of parity, because the applicant’s sentence is:
a.unduly disparate from that imposed on Jazmine Young; and
b.insufficiently disparate from that imposed on Tayler Hazell.
In our view, there is no substance in either ground. We would therefore refuse leave to appeal. Our reasons follow.
Sentences
Given that ground 2 asserts a breach of the parity principle, it is necessary to set out the sentences imposed both upon the applicant and upon his co-offenders.
The applicant pleaded guilty to aggravated burglary,[5] common assault[6] and armed robbery.[7] Following a plea, on 28 May 2021 Judge Fox sentenced the applicant in accordance with the following table:
[5]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[6]Common assault is a crime at common law. The maximum penalty is five years’ imprisonment. See Crimes Act 1958, s 320.
[7]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.
Charge Offence Sentence Cumulation 1 Aggravated burglary 2 years and 3 months Base 2 Common assault 12 months 2 months 3 Armed robbery 4 months 1 month Total effective sentence 2 years and 6 months’ imprisonment Non-parole period 16 months Pre-sentence detention 142 days Section 6AAA declaration 4 years and 3 months’ imprisonment, with 2 years and 6 months non-parole
Jazmine Young had been sentenced by Judge Wilmoth on 15 February 2019 as follows:
Charge Offence Sentence Cumulation 1 Aggravated burglary 12 months Base 2 Armed robbery 12 months 2 months 3 False imprisonment 3 months — 4 Theft 2 months — Total effective sentence 14 months’ imprisonment with a community correction order of 12 months’ duration Non-parole period NA Pre-sentence detention 221 days Section 6AAA declaration 18 months’ imprisonment
A year after Young was sentenced, on 14 February 2020, Judge Tinney sentenced Tayler Hazell as follows:
Indictment J13201971 Charge Offence Sentence Cumulation 1 Theft 2 months — 2 Aggravated burglary 3 years and 6 months Base 3 Armed robbery 3 years and 6 months 9 months 4 Recklessly causing injury 10 months 3 months 5 Making a threat to kill 8 months 2 months 6 Theft 2 days — Total effective sentence 4 years and 8 months’ imprisonment Indictment J13196518 Charge Offence Sentence Cumulation 1 Armed robbery 3 years and 6 months Base 2 Robbery 14 months 4 months 3 Robbery 14 months 4 months 4 Robbery 14 months 4 months Total effective sentence 4 years and 6 months’ imprisonment Order for cumulation on the indictments 2 years of the sentence on Indictment J13196518 ordered to be served cumulatively upon the sentence imposed on Indictment J13201971 Global total effective sentence 6 years and 8 months’ imprisonment Non-parole period 3 years and 10 months’ imprisonment Pre-sentence detention 431 days Section 6AAA declaration 10 years’ imprisonment, with 7 years non-parole The offending
It is convenient to set out Judge Fox’s description of the offending, contained in her reasons for sentence:
[2] All of your offending arises out of an incident that occurred on 4 September 2017. The victim Mr Bell was alone in his own studio at the Log Cabin Caravan Park in Langwarrin. He was 48 years old at the time. Mr Bell had been helping you out by driving you to and from work. At this point, you were both casual workers at Bay Sea Farms in Mornington.
[3] Mr Bell’s circumstances changed and he was required to care for his mother, meaning he was unable to drive you to work anymore. You did not own a car. On 3 September, you telephoned Mr Bell asking whether he could drive you to work and he told you that he could not because he was looking after his mother and he would not be able to drive you to work anymore because he had to spend more time with his mum.
[4] On 4 September, the manager of Bay Sea Farms telephoned both you and Mr Bell, asking you to come into work. Mr Bell attended. You did not answer the call and so another worker took your shift. At about 6.15 pm, you telephoned the manager, complaining that Mr Bell had not picked you up and taken you to work. The manager formed the view that you were angry and drunk. You told him that you were going to ‘Peter’s (Mr Bell) to beat him up’.
[5] At about 7.00 pm, you went around to the victim’s home, together with co-accused Mr Hazell and Ms Young. You banged on the front door and the victim, at this point, could only see you. He unlocked the security door to talk to you and you grabbed the door and forced it open. You then forced your way inside, followed by your two co-offenders. You grabbed the victim by the shoulders, pushed him down onto the couch and berated him for not driving you to work.
[6] Your co-offender Hazell produced a taser. It is accepted that, up until this point, you did not know that he had a weapon. Hazell commenced to behave very violently. He threatened Mr Bell with the taser, repeatedly physically assaulted him, demanded he hand over his wallet and said that he was taking his car and cigarettes.
[7] Whilst you did not instigate the armed robbery, you joined in once it commenced. You, together with Hazell, searched the unit by opening drawers and cupboards. At one point, you wanted the victim to drive you to get ‘pot’, but he refused. At another point, when you and Hazell went outside, Young was given the taser to keep an eye on the victim. She threatened the victim and activated the taser so that sparks were visible, as well as verbally abusing the victim.
[8] During these events, Mr Bell told you that you were an ‘idiot’, and when he then refused to look at you, you punched him to the head. This is the charge of common assault.
[9] After about 25 minutes, you and your two co-offenders left Mr Bell’s unit. Hazell drove the stolen Mazda, which belonged to Mr Bell. You also took with you the victim’s mobile phone, cigarettes, some paperwork, and his car keys.
[10] On 9 September 2017, you were arrested at your residential address. You made a largely no comment record of interview and denied any involvement in the offending. The next day, Hazell and Young were arrested in New South Wales in relation to other unrelated matters.
[11] On 16 October, the victim’s car was located in poor condition in a vacant lot. It was unlocked and the plates had been removed.
The applicant’s personal circumstances
It is also convenient to set out Judge Fox’s description of the applicant’s personal circumstances:
[18] … Your mother died when you were just five years old, and since that point your background can be fairly described as one of trauma and disadvantage. At the time of your mother’s death, your father had been having an affair and within a couple of weeks, he had moved his new partner and her children into the house. Your father erased any memories or belongings of your mother and you were not allowed to speak of her.
[19] Your stepmother’s children were about 13 years old and you were only five. You were repeatedly abused, including being sexually assaulted, by your stepbrother and stepsister. Your father was an alcoholic and was often violent, both towards you and your stepmother. He favoured his stepchildren and left you unprotected and unloved. You have an older sister who is five years older and she left home at a young age.
[20] You struggled at school and were required to repeat prep. You were ultimately expelled from school halfway through year 8, as your behaviour had become increasingly problematic and oppositional. You struggled academically and were reportedly diagnosed with dyslexia. I note that you excelled at sport during your early years and you were a promising runner. In your teenage years you gravitated towards older, antisocial peers and used drugs and alcohol. You formally moved out of home at age 16 and other than a two-month period living with your athletics coach, you experienced unstable accommodation and generally couch surfed or slept rough.
[21] You do have a reasonably good work ethic and employment history. You commenced working at age 15, first at an abattoir and then as a casual bricklayer. You worked in fencing for a six-month period when you were 20 and then as a deck hand on prawn and fishing charter vessels in Queensland. You had been working for about one year at Bay Sea Farms at the time of this incident. Whilst on bail, you then worked for about seven months at a chicken farm until your position was discontinued due to COVID. It seems you enjoy employment and it provides you with structure and routine.
[22] A report of Dr Treeby was tendered on the plea. He assessed you as having a full-scale IQ of 67 and therefore a mild intellectual disability. He also agreed with the opinion of Mr Simmons, whose report was also tendered, that you appear to have evidence of post-traumatic stress disorder and meet the criteria for alcohol use disorder and cannabis use disorder.
[23] With respect to your intellectual disability, in his opinion it is near global, long-standing and will be permanent. You have broad difficulties with comprehension, reasoning, judgment, planning and organisation which impact your day-to-day functioning. You rely on your cousin, Tessa, to organise appointments and similar. You struggle with consequential thinking and, due to the severity of your cognitive impairment, your ability to make reasoned and appropriate judgments in situations can be doubtful. On the plea and, again, on the return date, your counsel did not rely on any of the limbs of Verdins. On the plea, he relied on your intellectual disability as part of your overall background and conceded you were also affected by alcohol and drugs at the time of the offending.
Judge Fox observed that whilst the applicant’s criminal history is ‘not terrible’, it is ‘not insignificant’. In 2010, the applicant was sentenced to a community based order for aggravated burglary — he subsequently breached it — and in 2014 he received a suspended sentence of five months’ imprisonment for robbery. He also has a conviction in May 2015 for unlawful assault, and another later that year for resisting a protective services officer.
Ground 1: A manifestly excessive sentence?
Counsel for the applicant submitted that the circumstances of the applicant’s entry into the victim’s premises ‘were relatively benign’. Whilst counsel acknowledged that ‘some force was used’, counsel submitted that ‘there was no property damage or violence in entering’. The applicant did not know that Hazell had the taser, whose use of it was ‘unforeseen’. Thus, counsel submitted, Hazell’s production and use of the taser cannot have been an aggravating feature of the applicant’s aggravated burglary. Indeed, so counsel submitted, the applicant’s aggravated burglary — ‘which had few features in aggravation and involved a limited intent to assault’ — should properly have been considered to be towards the ‘lower end’ of objective seriousness for this kind of offending.
Further, the applicant’s counsel contended that the mitigating factors relied upon by the applicant should have resulted in a significantly lesser total sentence than that which was imposed. The applicant has a mild intellectual disability, with a full scale IQ of 67, and had a ‘disadvantaged background’. Verdins[8] principles were enlivened, yet the sentence imposed suggests that there was insufficient moderation of both specific and general deterrence. The sentence imposed for aggravated burglary was not open, counsel submitted, when proper regard is had to those matters, together with other mitigating features such as the plea of guilty; some remorse and insight; reasonable prospects of rehabilitation; and the additional burden of imprisonment flowing from the current pandemic. Indeed, the applicant had been found suitable for a community correction order (‘CCO’), and a Justice Plan had been prepared by Forensic Disability Services. A CCO in combination with a term of imprisonment, counsel submitted, would have satisfied all purposes of sentencing.
[8]R v Verdins (2007) 16 VR 269 (‘Verdins’).
These submissions cannot be accepted. In our view, the sentence imposed for aggravated burglary, the total effective sentence and non-parole period, are well within the range of sentences open in the sound exercise of the sentencing discretion.
Once more to traverse well-trodden turf, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Ordinarily, it is a conclusion that does not admit of much in the way of elaboration or sustained argument,[9] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[10] This Court must approach the task of assessing whether a sentence is manifestly — as opposed to arguably — excessive, by instinctively synthesising all relevant factors in order to determine whether we consider the impugned sentence to be just and appropriate.[11] Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[12] It is not warranted simply because the judges of this Court regard the impugned sentence as stern, or because we would not ourselves have passed the same sentence.
[9]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12] (Priest JA); Allen v R (2013) 36 VR 565, 573 [51]-[52] (Priest JA).
[10]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[11]Ibid.
[12]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
Judge Fox was satisfied that the aggravated burglary was instigated by the applicant, and that it was a confrontational aggravated burglary committed in company.[13] Counsel for the applicant did not dispute these findings. Judge Fox also made the following findings, which the applicant’s counsel did not seek to challenge:
[36] The aggravated burglary in particular is a serious offence with a 25-year maximum penalty and you were the one with the grievance. Your anger toward the victim was completely unjustified. Denunciation and general deterrence do still have a role to play, despite your disability. People have a right to feel safe in their own homes. Entering another person’s home intending to assault them is rightly seen as serious criminal conduct which must be punished, and here, you went on to actually punch the victim in the head.
[13]See [23] below (para 15).
We agree with these observations.
Balancing for ourselves the circumstances of the applicant’s offending against the mitigating features — including the respondent’s: plea of guilty; remorse; mild intellectual disability (and Verdins considerations); dysfunctional childhood; and reasonable prospects of rehabilitation — we are far from persuaded that the sentence imposed is beyond the appropriate range.
The first ground cannot be upheld.
Ground 2: Does the sentence breach the principle of parity?
In support of the second ground, counsel for the applicant drew attention to the fact that Jazmine Young was sentenced for two offences in common with the applicant — aggravated burglary and armed robbery — and was sentenced separately for false imprisonment. The sentence imposed on Young for the aggravated burglary was 12 months’ imprisonment. Whilst counsel acknowledged that the applicant’s offending on this offence was more serious than Young’s, counsel submitted that ‘it was not so much more serious as to justify a sentence so disparate on this common charge’. Although Young received a sentence of 12 months’ imprisonment for the armed robbery — significantly greater than the sentence that the applicant received for that offence — Young received an entirely concurrent sentence of three months’ imprisonment for the false imprisonment charge, notwithstanding that her use of the taser to threaten the victim was, as Judge Wilmoth observed in her reasons for sentence, ‘the most serious aspect of [her] participation’. Counsel for the applicant contended that, despite Young being able to call in aid significant mitigating factors, given the additional criminality represented by her use of the taser to threaten and falsely imprison the victim, the difference in the total sentence imposed on her and that imposed on the applicant ‘is incapable of explanation by the differences in the objective gravity of their offending and between their subjective circumstances’.
The applicant’s counsel also drew attention to the fact that the applicant and Tayler Hazell were charged in common with aggravated burglary and armed robbery. Counsel submitted that, as Judge Fox recognised, the gravity of Hazell’s armed robbery was far more serious than the applicant’s. The seriousness of Hazell’s aggravated burglary, counsel submitted, was much higher than in the applicant’s case. Thus, Hazell entered the premises with a weapon and, unlike the applicant, entered with the intention of showing the victim serious violence. Notwithstanding that this is so, the applicant’s sentence for aggravated burglary was only one year and three months less than that imposed on Hazell. Given the applicant’s lesser culpability and his far more compelling subjective circumstances, counsel submitted, greater disparity was required.
These submissions are not persuasive.
Much of the plea of the applicant’s counsel before Judge Fox was concerned with the issue of parity, and her Honour’s reasons for sentence demonstrate that she was astute to address that issue. Once more, it is convenient to resort to those reasons. She said:
[12] Both Young and Hazell have been dealt with by different Judges of this Court. Both pleaded guilty at an earlier stage than you. Young was sentenced on 15 February 2019. She was 18 years old at the time with no prior convictions. She had a background of profound disadvantage. She had spent about four months in Odyssey House, participated in Koori Court and was pregnant at the time of sentencing. She pleaded guilty to aggravated burglary, armed robbery, false imprisonment and theft of petrol. She received an overall term of imprisonment of 14 months, followed by a Community Corrections Order of 12 months.
[13] Hazell was sentenced on 14 February 2020. He was dealt with for two indictments. Relevant to these matters, he pleaded to aggravated burglary, two charges of theft, armed robbery, threat to kill and recklessly causing injury. It was accepted that he played very much the lead role in the armed robbery and assault in the victim’s house. He was aged 24 at the time of the offending and also had a background of significant disadvantage, as well as a lengthy criminal history. He received a sentence of three years six months for the aggravated burglary, three years and three months for the armed robbery, ten months for recklessly causing injury and eight months for threat to kill. He received a total effective sentence on the indictment relevant to these matters of four years and eight months’ imprisonment.
[14] Your counsel submitted, and I accept, that Hazell was the most significant participant in the armed robbery. On the plea, he submitted that, on the aggravated burglary, Hazell’s criminality is probably not that different to yours but he did have a weapon. … [Y]our counsel argued that your criminality on the aggravated burglary was more on par with Ms Young. With respect to Ms Young, your counsel submitted that she played a more serious role in the armed robbery, as she had physical possession of the taser for a period.
[15] The aggravated burglary was instigated by you. You had the grievance with Mr Bell and you knew him and you knew where he lived. It was a confrontational aggravated burglary and it was committed in company, as you took Hazell and Young with you. In my view, your role in the aggravated burglary was central and more serious than that played by Young, but you did not have a weapon. Hazell, unbeknownst to you, did have a weapon with him at the time of entry. He pleaded guilty on the basis that he had an intention to assault and had with him an offensive weapon. I accept that you did not know that Hazell had the weapon until he produced it once inside the unit. I also accept that once inside the unit, Hazell was the most serious and violent participant, and you were not expecting anything like the level of violence that Hazell engaged in.
The notion of equal justice as reflected in the principle of parity was discussed by French CJ, Crennan and Kiefel JJ in Green:[14]
‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’.[15] It is an aspect of the rule of law.[16] It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order’.[17] It has been called ‘the starting point of all other liberties’.[18] ... It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:[19]
‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’
(Emphasis in original.)
Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’.[20] It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner.[21] As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.[22]
[14]Green v The Queen (2011) 244 CLR 462, 472–3 [28] (citations as in original).
[15]A norm said to be traceable to Solon’s ‘isonomia’ transported to England in the sixteenth century as ‘isonomy’ and displaced in the seventeenth century by ‘equality before the law’, ‘government of laws’ and ‘rule of law’: Hayek, The Constitution of Liberty: The Definitive Edition (2011), p 238.
[16]Dicey, Introduction to the Study of the Law of the Constitution, 7th ed (1908), p 198; Holdsworth, A History of English Law (1938), vol X, p 649.
[17]Kelsen, What is Justice? (1971), p 15, cited in Sadurski, ‘Equality Before the Law: A Conceptual Analysis’, Australian Law Journal, vol 60 (1986) 131, at p 132. The distinction between ‘equality before the law’ and the substantive ‘equality in the law’ is usefully described in that article. See also Bailey, The Human Rights Enterprise in Australia and Internationally (2009), pp 400-423; Bingham, The Rule of Law (2010), pp 55-59.
[18]Lauterpacht, An International Bill of the Rights of Man (1945), p 115.
[19](2001) 207 CLR 584 at 608 [65].
[20]Lowe v The Queen (1984) 154 CLR 606 at 610 per Mason J.
[21]Leeth v The Commonwealth (1992) 174 CLR 455 at 470 per Mason CJ, Dawson and McHugh JJ.
[22]Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.
It is plain to us that Judge Fox properly applied those principles. As she pointed out in her reasons for sentence, the applicant’s and co-offenders’ culpability for the relevant offending differed, and their circumstances were different. Thus, for example, Young and Hazell both pleaded guilty at an early stage, the applicant’s plea of guilty being anything but early (having been entered only on the first day of a listed trial).
Other points of distinction between the applicant and Young included that Young was much younger than the applicant — she attracted the sentencing principles that apply to youthful offenders — and was pregnant at the time of sentencing. Moreover, she had a lesser role in the aggravated burglary. These factors justified a more moderate sentence being imposed upon her for the aggravated burglary, and a lesser total effective sentence.
On the other hand, Hazell played a greater role than the applicant in the armed robbery. Judge Fox accepted that, once inside the unit, Hazell ‘was the most serious and violent participant’, and that the applicant was ‘not expecting anything like the level of violence that Hazell engaged in’. So much justified the sentence of three years and six months’ imprisonment imposed on Hazell for armed robbery — compared to the individual sentence of four months’ imprisonment imposed upon the applicant — and the heavier sentence imposed for aggravated burglary.
These factors and others illustrate Judge Fox was astute to apply the parity principle. In our opinion, the contention that she ‘erred in her application of the principle of parity’ is wholly without merit. To the contrary, we regard her application of the principle in the circumstances of this case to be flawless, and the different sentence imposed on the applicant compared to those imposed on his co-offenders to be beyond legitimate criticism.
Ground 2 must fail.
Conclusion
For the foregoing reasons, leave to appeal against sentence must be refused.
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