Najee Moussa v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0155

NAJEE MOUSSA	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2024
DATE OF JUDGMENT:	30 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 113
JUDGMENT APPEALED FROM:	[2023] VCC 1415 (Judge Syme)

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CRIMINAL LAW – Leave to appeal – Sentence – Attempted home invasion – Applicant pleaded guilty to one charge of attempted home invasion, one charge of commit indictable offence whilst on bail and one charge of contravene personal safety intervention order – Sentenced to 3 years and 9 months’ imprisonment in respect of attempted home invasion charge – Total effective sentence of 3 years and 11 months’ imprisonment with non-parole period of 2 years and 1 month – Whether judge erred in applying parity principle in respect of attempted home invasion charge – Not open to judge to find applicant’s role ‘as significant’ as that of co‑offenders – Judge incorrectly considered applicant’s markedly different prospects of rehabilitation and limited criminal history to be exclusively relevant to non-parole period – Leave to appeal granted – Appeal allowed – Applicant resentenced.

Markovic v The Queen (2010) 30 VR 589; Barbaro v The Queen (2012) 226 A Crim R 354; Kellway (a pseudonym) v The King [2023] VSCA 109, applied.

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Counsel
Applicant:		Mr M Reardon
Respondent:		Ms E Ramsay
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
T FORREST JA:

On 14 August 2023, following a plea of guilty on 2 May 2023, the applicant was relevantly sentenced by a County Court judge as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted home invasion[1]	20 years’ imprisonment	3 years and 9 months’ imprisonment	Base
Related Summary Offences
4	Commit indictable offence whilst on bail[2]	3 months’ imprisonment	1 months’ imprisonment	Nil
5	Contravene personal safety intervention order[3]	2 years’ imprisonment	3 months’ imprisonment	2 months
Total Effective Sentence:		3 years and 11 months’ imprisonment
Non-Parole Period:		2 years and 1 month
Pre-sentence Detention Declared:		378 days
Section 6AAA Statement:		Total Effective Sentence 5 years and 2 months’ imprisonment Non-Parole Period 3 years

[1]Contrary to Crimes Act 1958, s 321M.

[2]Contrary to Bail Act 1977, s 30B.

[3]Contrary to Personal Safety Intervention Orders Act 2010, s 100(2).

The applicant now seeks leave to appeal against sentence on the following proposed ground:
Ground 1. The sentencing judge misapplied the principle of parity.
Particulars[4]
a.The sentence imposed on Charge 1 gives rise to a justifiable sense of grievance in light of the sentences imposed on Georgiou, Jurjevic and Neyland on Charge 1;
b.That the same sentence was imposed on the applicant, Georgiou and Neyland for Charge 1 fails to reflect:
1.The distinction between the applicant’s role and culpability compared to those of Georgiou and Neyland;
2.The distinction between the applicant’s subjective circumstances and those of Georgiou, Jurjevic and Neyland.
[4]These particulars reflect the fact that leave was granted at the oral hearing to amend the particulars to include reference to the co-offender Jurjevic, who had been sentenced subsequent to the filing of the notice of application for leave to appeal against sentence.
For the reasons set out below, we would grant leave to appeal, allow the appeal and resentence the applicant so that his total effective sentence will be 3 years and 2 months’ imprisonment, with a non-parole period of 1 year and 9 months.

Circumstances of offending[5]

[5]DPP v Moussa [2023] VCC 1415, [3]–[18] (Judge Syme) (‘Sentencing Reasons’).

In the early hours of the morning on 27 May 2022, the applicant and his co-offenders attended an address in Sunshine West (‘the premises’). His co-offenders were Nicholas Georgiou, Drew Neyland and Mathew Jurjevic. The applicant was 31 years old, Georgiou 34 years, Neyland 35 years, and Jurjevic 30 years, at the time of the offending. The applicant was residing in St Albans.
At the time of the offending the applicant was on bail, was the subject of a personal safety intervention order, and also subject to a supervised community correction order (‘CCO’).
The victims of the offending were Noel Carroll and Jennifer Christov. At the time of the offending, Carroll knew Georgiou, Jurjevic and the applicant. Christov had no prior dealings with any of the offenders.
During the attempted home invasion, Georgiou discharged a firearm in the general direction of Carroll. The prosecution did not, however, allege that any of the other offenders were involved in the decision to discharge the firearm, or even knew that it was loaded, although all the offenders were aware that Georgiou was carrying that firearm.
On 27 May 2022, just after midnight, Georgiou and Neyland arrived at Jurjevic’s address (the ‘Jurjevic address’). The applicant was already present inside. The observations which form a part of the descriptions of the offending were captured on CCTV at the Jurjevic address and at the premises.
In relation to the Jurjevic address the CCTV showed the following:
•at 1:01 am, Neyland was in possession of a black jemmy bar which he wrapped in white tape whilst in the undercover area of the rear of the property;
•at 2:07 am, Jurjevic reversed his Audi which had been parked in the driveway;
•at 2:47 am, the applicant was in possession of the jemmy bar while talking to Neyland in the undercover area. The applicant left the garage with the jemmy bar and returned a short time later;
•at 2:58 am, Georgiou was in possession of a sawn-off rifle which he wrapped in an orange, fluorescent shirt;
•at 4:37 am, all four offenders were inside the undercover garage area together; and
•by 5:10 am, Neyland exited the premises carrying a fire extinguisher and a jemmy bar. Georgiou walked into the shed wearing a black face mask while holding a firearm and then walked out of the shed with the applicant and the other co-offenders. The firearm was still wrapped.
Georgiou and Jurjevic then got into the Audi, with Jurjevic driving. The applicant was responsible for driving Neyland’s Volkswagen. At 5:32 am, both vehicles were captured on CCTV travelling in convoy past the premises. The applicant drove west past that address three times.
At 5:39 am, Neyland and Georgiou approached the premises from the direction of the vehicle that the applicant was driving. Neyland was equipped with a jemmy bar with a curved end. Georgiou was armed with a dark coloured sawn-off rifle which was still wrapped. Neyland and Georgiou climbed over the front fence of the premises and walked towards the front door of the property. Neyland attempted to jemmy open the security door with Georgiou close behind. As these acts were occurring, the applicant remained inside the Volkswagen preparing for the others to return.
The noise being made at the front door alerted Christov, who was asleep in the front bedroom of the premises. She looked at the CCTV screens in the bedroom and observed the two offenders attempting to enter the premises. She screamed and woke up Carroll. Carroll picked up an axe and ran to the front of the house. Neyland made a second attempt to jemmy open the front security door but retreated when the front door light went on. Carroll then opened the front wooden door of the premises which caused Neyland and Georgiou to back away and jump over the front fence.
At 5:40 am, as those events occurred, the Volkswagen which the applicant was in control of travelled from the west of the street and waited in the street with its headlights turned off. Carroll then opened the security door of the premises to confront Georgiou and Neyland. Georgiou, at that point, was at the front of the premises with a fence in between himself and Carroll. He pointed the sawn-off rifle and discharged one round in Carroll’s direction. The bullet impacted the ceiling above the front door where Carroll was standing. Carroll immediately shut the security and the wooden doors.
Around nine seconds later, after the first shot was fired, Georgiou discharged a second round. Georgiou ran with Neyland onto the road where they entered the Volkswagen that the applicant was driving which was idle and waiting. The vehicle accelerated quickly away from the premises followed by the Jurjevic Audi.
Following that, Christov contacted Triple 0 and reported the incident to police.
On 7 June 2022, investigators arrested Neyland. Investigators also impounded the Volkswagen. The jemmy bar used in the offending was located in the driver’s door pocket and the applicant’s fingerprints were lifted from within the vehicle. On 22 June 2022, police arrested Jurjevic and Georgiou.
On 1 August 2022, investigators arrested the applicant at the St Albans address. At the time of the arrest, he was the subject of an interim intervention order which prevented him from attending or residing within 200 metres of that address. Investigators commenced a covert recording during which the applicant made certain admissions relevant to the charges. The applicant was later placed in a holding cell with a covert operative and, while in the cell, gave further relevant information. However, when the applicant was subsequently interviewed by police he denied all of the offending.

Judge’s sentencing remarks

After setting out the circumstances of the offending, the judge assessed the objective seriousness of the offending. She considered that the level of preparation for the home invasion was ‘significant’ and that there was no dispute that the applicant was aware of the weapons. In relation to the applicant’s role she stated:
The planning involved dividing you four offenders into to [sic] two-person teams with you acting as a driver to and from the target address. As a driver, you were to remain in the car which was left running in order to promptly allow the escape of your co-offenders. The plan was clearly thought out with consideration given to the number of people involved, and the tasks for each. This observation makes you all equally culpable for the events that then occurred — they were within your knowledge and contemplation. It is noted again that the charge is one of attempted home invasion.
It is accepted that you knew Georgiou had possession of a firearm and that Neyland had armed himself with a crowbar. It is accepted there is no proof to the requisite standard that you, or indeed, Neyland, knew that the firearm was loaded.[6]
[6]Ibid [19]–[22].
The judge did not consider that any ‘incompetence or lack of resolve’ reduced the objective seriousness of the offending behaviour, noting that the attempt was complete when the confrontation at the front door occurred. She emphasised that it was a well‑planned event, and the fact that the invasion itself was unsuccessful was acknowledged by the nature of the charges laid, which the applicant had accepted by his plea.[7]
[7]Ibid [23].
The judge also observed that, by the commission of the offence, the applicant had breached bail as well as a personal safety intervention order.[8] Although those matters would be sentenced separately, the judge considered that they were relevant for totality. She also noted that the applicant breached a supervised CCO by the offending. She considered that that breach was an aggravating factor and indicated that it would be taken into account in assessing the objective seriousness of his role.[9]
[8]The applicant’s submission was that this was not correct because the breach of the personal safety intervention order happened later and is therefore not an aggravating factor in relation to charge 1.
[9]Sentencing Reasons, [24].
The judge ultimately concluded that the applicant was involved in a ‘substantial, planned attempt for a confrontational home invasion’. In her view, it could not be disputed that this was a serious offence and that his involvement in it was ‘significant’.[10]
[10]Ibid [25].
In terms of the applicant’s criminal record, the judge had earlier observed that the applicant had limited prior convictions which did not include any matters of violence beyond disorderly behaviour. In fact, that history was limited to a single appearance for offences including drug possession, and driving offences, with no conviction recorded. The judge considered that the lack of prior record would allow him ‘some consideration of leniency’.[11]
[11]Ibid [3].
Turning to other matters in mitigation, the judge recorded that the applicant pleaded guilty at the first available opportunity, which must be reflected in a significant reduction in the sentence. However, the judge did not consider that the plea necessarily indicated evidence of remorse, given the ‘very strong’ Crown case. She considered that the applicant had demonstrated in his interview with the CCO assessment report writers, ‘the beginnings’ of insight into the offending and ‘some movement towards remorse’. She accepted that the applicant was significantly drug affected at the time of the offence which gave some context and underlay the need for that issue to be addressed as part of his rehabilitation. She noted that he is apparently now drug free and that is a ‘good start’.[12]
[12]Ibid [26]–[29].
As to the applicant’s personal circumstances and background, the judge recorded that the applicant is one of four children. He is an auto electrician by trade who had completed an apprenticeship and worked until the loss of his driver’s licence in 2021. He had instructed his counsel that his drug use had escalated from the age of about 28.[13]
[13]Ibid [32]–[33].
The judge noted that the applicant’s counsel had stressed the difficulty that the applicant was having in custody due to his father’s ill health and that his father had died. She observed that ‘to some extent’ he was able to see his father before his death to ‘hopefully make some peace.’ She did not accept the oral submission made by the applicant’s counsel, ‘indirectly’, that he blamed his substance abuse on his father’s attitude. She did accept that there was family tension which the applicant now regrets, and that his father was very ill. However, this did not appear to be ‘particularly relevant’ to his substance abuse, nor his offending. She ultimately found that the applicant’s family and their prosocial influence was a protective factor against further substance abuse and offending.[14]
[14]Ibid [31], [33]–[34], [36].
The judge referred to the applicant’s submission that his role in the offending was ‘limited’, and stated:
In relation to your role in the offending, it was submitted again today that your role in the offending was limited. Your role, I find, was as significant as the other offenders. The home invasion was planned as above and it was only at the final hurdle that it failed to eventuate. The charge is one again I point out of attempted home invasion. The attempt was complete at the approach by your co-offenders to the front door.
You are not charged with firearm offences but there is ample evidence by your plea and by other evidence that you knew Georgiou had the firearm with him. The presence of weapons which you knew about underlines the objective seriousness of the offence itself and your role in it. The prosecution concedes that there is insufficient evidence to show that the gun was loaded. You are equally culpable with your co-offenders of the charge that you are facing.[15]
[15]Ibid [37]–[38].
The judge acknowledged that the applicant had been in custody on remand during much of the COVID restrictions which were more restrictive than usual, and that this was a relevant factor.[16]
[16]Ibid [39].
Next, she considered the applicant’s prospects of rehabilitation. She noted that the applicant reported regret for his offending. She also noted that he is ‘possibly, hopefully, currently’ substance abuse free while he is in custody and that he reported that he can see a way to remain so in the community. Further, that he has a limited criminal record and was currently assessed as presenting a ‘low risk of reoffending’. She stated that this would be taken into account when considering the non-parole to total term ratio.[17]
[17]Ibid [40].
The judge then recorded that she was required to give consideration to the sentencing purposes under the Sentencing Act 1991 of punishment, deterrence, rehabilitation, denunciation and community protection.[18] She also recorded that the maximum penalty for attempted home invasion was 20 years’ imprisonment. She considered that a term of imprisonment, rather than a combined sentence including a CCO, would usually be the appropriate disposition. She further acknowledged that denunciation, punishment and deterrence are relevant and important considerations for confrontational offences.[19]
[18]Ibid [41].
[19]Ibid [42], [46].
The judge also had regard to Georgiou and Neyland’s sentences in respect of the offending. She noted that each of them had significant criminal records. Georgiou was also sentenced for firearms offending as part of his involvement in the attempted home invasion and he was also sentenced for other offending. Neyland had a prior criminal record, not as extensive as Georgiou’s, but he was not subject to supervision as the applicant was. She considered that both Neyland and the applicant were ‘integral parts’ of the offence and stated:
I am not convinced that it is in any way in the interests of justice, nor will it properly address the sentencing principles I am required to consider, to sentence you in an entirely different way to the way that Neyland was sentenced. While the purposes of sentencing often pull in different directions, all purposes are, to a greater or lesser extent, relevant to you. I repeat, however, that just punishment, deterrence and denunciation, are paramount considerations when sentencing for offending such as this and I accept that.[20]
[20]Ibid [47]–[49].
The judge considered that the ‘serious nature’ of the offending warranted a term of imprisonment. She did not accept that a combined sentence with a further year to serve was appropriate. However, she considered that the applicant was entitled to a real consideration of a ‘generous’ non-parole period to total term ratio, noting that it was in the community’s best interests for the applicant to resolve his substance abuse issues. She thereby allowed the applicant the opportunity of a ‘relatively early release on parole’.[21]
[21]Ibid [50]–[51].

Co-offenders’ sentences

On 29 May 2023, Georgiou was relevantly sentenced by the same County Court judge,[22] following an earlier plea of guilty, as follows:
[22]DPP v Georgiou & Neyland [2023] VCC 885.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted home invasion[23]	20 years’ imprisonment	3 years and 9 months’ imprisonment	Base
2	Prohibited person use a firearm[24]	10 years’ imprisonment	2 years’ imprisonment	3 months
3	Reckless conduct endangering life[25]	10 years’ imprisonment	2 years and 6 months’ imprisonment	15 months
4	Possession of a drug of dependence[26]	1 year imprisonment	1 month imprisonment	Nil
Total Effective Sentence:		5 years and 3 months’ imprisonment
Non-Parole Period:		3 years and 6 months
Pre-sentence Detention Declared:		140 days
Section 6AAA Statement:		Total Effective Sentence 7 years and 4 months’ imprisonment Non Parole-Period 4 years and 9 months

[23]Contrary to Crimes Act 1958, s 321M.

[24]Contrary to Firearms Act 1996, s 5.

[25]Contrary to Crimes Act 1958, s 22.

[26]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 73.

In sentencing Georgiou, the judge’s findings included that:
(a)he had a ‘significant and relevant criminal history’ mostly related to illicit drug use though he had been previously dealt with in a ‘relatively lenient way’ and had not previously been sentenced to a term of imprisonment;[27]
(b)he was a prohibited person for the purposes of the Firearms Act 1996 and subject to a supervised CCO at the time of the offending;[28]
(c)his prospects of rehabilitation were ‘no more hopeful than “possible”’;[29]
(d)limbs 5 and 6 of R v Verdins (‘Verdins’)[30] would ‘somewhat moderate’ the sentence;[31] and
(e)he pleaded guilty at the first available opportunity.[32]
[27]DPP v Georgiou & Neyland [2023] VCC 885, [35]–[36] (Judge Syme).
[28]Ibid [5].
[29]Ibid [70].
[30](2007) 16 VR 269; [2007] VSCA 102.
[31]DPP v Georgiou & Neyland [2023] VCC 885, [57]–[59].
[32]Ibid [30].
On 29 May 2023, Neyland was relevantly sentenced by the same County Court judge,[33] following an earlier plea of guilty, as follows:
[33]DPP v Georgiou & Neyland [2023] VCC 885.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted home invasion[34]	20 years’ imprisonment	3 years and 9 months’ imprisonment	Base
Related Summary Offences
4	Commit indictable offence whilst on bail[35]	3 months’ imprisonment	3 months’ imprisonment	Nil
5	Contravene a conduct condition of bail[36]	3 months’ imprisonment	3 months’ imprisonment	Nil
Total Effective Sentence:		3 years and 9 months’ imprisonment
Non-Parole Period:		2 years and 6 months
Pre-sentence Detention Declared:		314 days
Section 6AAA Statement:		Total Effective Sentence 5 years’ imprisonment Non Parole-Period 3 years and 4 months’ imprisonment

[34]Contrary to Crimes Act 1958, s 321M.

[35]Contrary to Bail Act 1977, s 30B.

[36]Contrary to ibid s 30A(1).

In sentencing Neyland, the judge’s findings included that:
(a)he had admitted a prior criminal history which commenced in 2006, and included a 2012 conviction of intentionally causing serious injury while armed with a weapon. He was sentenced to a term of imprisonment of 3 years with a non‑parole period of 18 months in respect of this offending.[37] The judge observed that his justification for the current offending (to help an acquaintance) was ‘remarkably similar’ to the justification for the 2012 offending;[38]
(b)his offending meant that he also breached a curfew condition of his bail, as well as committing an indictable offence whilst on bail;[39]
(c)his prospects of rehabilitation were ‘guarded’;[40]
(d)there was ‘no acceptable evidence’ on which to invoke limbs 1, 3, 5 and 6 of the Verdins principles (as counsel had submitted);[41] and
(e)he pleaded guilty at the first available opportunity.[42]
[37]DPP v Georgiou & Neyland [2023] VCC 885, [75], [117].
[38]Ibid [142].
[39]Ibid [6], [166].
[40]Ibid [143].
[41]Ibid [127]–[135].
[42]Ibid [30].
On 15 September 2023, Jurjevic was relevantly sentenced by the same County Court judge,[43] following an earlier plea of guilty, as follows:
[43]DPP v Jurjevic (County Court of Victoria, Judge Syme, 15 September 2023).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted home invasion[44]	20 years’ imprisonment	3 years and 2 months’ imprisonment	Base
Total Effective Sentence:		3 years and 2 months’ imprisonment
Non-Parole Period:		1 year and 8 months
Pre-sentence Detention Declared:		85 days
Section 6AAA Statement:		Total Effective Sentence 4 years and 6 months’ imprisonment Non Parole-Period 2 years and 6 months

[44]Contrary to Crimes Act 1958, s 321M.

At the time of sentencing Jurjevic, the Magistrates’ Court had imposed a 1 year term of imprisonment in respect of a number of offences in respect of which time had been served. The judge was of the view that she should consider a total sentence that would have been imposed if she had been considering a total effective sentence for all matters. She considered that the reduction of the head sentence (to 3 years and 2 months) as compared with the sentence in respect of the other co-offenders (of 3 years and 9 months) was the only fair and practical way of achieving a head sentence to reflect totality and parity principles.[45]
[45]DPP v Jurjevic (County Court of Victoria, Judge Syme, 15 September 2023), [68]–[76].

Proposed ground 1 — Misapplication of the parity principle

Applicant’s submissions

In written submissions, the applicant contended that it was not open to the judge to make findings that the applicant’s culpability was equal to that of Georgiou and Neyland, having regard to their respective roles and culpability, for three reasons:
(a)First, that his role as driver was not as a ‘principal offender’. There was no suggestion that either driver contemplated joining in any assault; he was not armed; nor did he attempt to assist with entry into the premises;
(b)Second, that the absence of knowledge that Georgiou’s firearm was loaded was a significant point of distinction in assessing culpability. Although there was some overlap between this factor and Georgiou’s separate firearm offences, that overlap was not complete; and
(c)Third, that the judge treated the fact of being armed to be relevant for parity purposes as between Neyland and Georgiou, but did not take the same consideration into account when considering the relative culpability of the applicant. If it had been considered, it necessarily would have led to a conclusion that the applicant’s culpability was lower than that of Georgiou and Neyland.
The applicant further submitted that his subjective circumstances also called for a lower sentence than that imposed on Georgiou and Neyland, for the following reasons:
(a)That his criminal history, although relevant, was limited to a single appearance with no conviction recorded. In contrast, Georgiou’s prior offending was found by the judge to be ‘significant and relevant’, and Neyland had a significant history that included a 3 year term of imprisonment for intentionally causing serious injury;
(b)That he was assessed as presenting a low risk of reoffending. In contrast, Georgiou was assessed as having prospects that are ‘no more hopeful than “possible”’, and Neyland as having ‘guarded’ prospects;
(c)That neither Georgiou nor Neyland could rely on the principles in Markovic v The Queen (‘Markovic’),[46] that an offender’s anguish at being unable to care for a family member can be taken into account as a mitigating factor. The applicant contended that he could rely on Markovic due to his father having become ill and dying during the period of remand. He highlighted that the Sentencing Reasons do not detail any of the considerations outlined in Markovic and whether this impacted the assessment of the question of parity;
(d)That it appears that any reflection of the distinction between the subjective cases of the applicant and his co-offenders was limited to the determination of each offender’s non-parole periods. However, this does not answer the parity ground. Rather, in fixing a non-parole period, a court must have regard to the fact that an offender may have to serve every day of the head sentence.[47] He contended that to the extent that the differences in non-parole periods reflected an acknowledgment of more favourable prospects of rehabilitation, it was erroneous to confine that consideration to the non-parole period only; and
(e)That the subjective matters relied on by Georgiou and Neyland did not justify them receiving the same sentence as the applicant for charge 1. The judge held that Georgiou’s reliance on Verdins would only ‘somewhat moderate’ the sentence. The consideration of the plea and avoidance of double punishment for Neyland did not provide a point of distinction calling for the imposition of equal sentences for charge 1 between Neyland and the applicant.
[46](2010) 30 VR 589, 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.
[47]Citing R v Kasulaitis [1998] 4 VR 224, 232 (Batt JA, Phillips CJ and Callaway JA agreeing at 224).
In oral submissions counsel made reference to the other offences which were considered in sentencing Jurjevic, which included, ‘alarmingly’ an offence of dangerous driving and reckless conduct endangering serious injury. However, in the result, counsel did not pursue a parity argument in relation to Jurjevic given the difficulty in comparison having regard to totality considerations.
In terms of each of Georgiou and Neyland, counsel highlighted that each had a different role in the offending, a more serious prior history, and worse prospects of rehabilitation.
In terms of their greater role counsel highlighted that both Neyland and Georgiou were armed and attended at the front door such that they actually engaged in an overt act of aggression, while both were armed.
In the case of Neyland, his prior convictions not only included the jail time for intentionally causing serious injury, but also included a separate (concurrent) sentence of 3 months’ imprisonment for a threat to kill offence and intentional criminal damage offence.
Counsel also highlighted that Georgiou knew that the gun was loaded, which was still relevant notwithstanding the separate charges. He cited the case of Salapura v The Queen (‘Salapura’)[48] in support of this proposition. The carrying of a loaded gun indicated a preparedness and willingness to use force which was separate to, and independent of, the subsequent offences.
[48][2018] VSCA 255.
Insofar as the judge justified her sentence by granting the applicant a lower non-parole period, counsel reiterated his written submission that a court is required to assume that a person may have to serve their entire sentence. Further, that factors of mitigation or aggravation should impact both the head sentence and non-parole period.[49] Finally, that even where there is a grant of parole, a person continues to serve a sentence with significant impositions on liberty.

Respondent’s submissions

[49]Citing Postiglione v The Queen (1997) 189 CLR 295, 302 (Dawson and Gaudron JJ); [1997] HCA 26.

The respondent submitted that the different sentences imposed on the co-offenders reflect a careful weighing up by the judge of all the relevant factors applying to each offender.
In relation to the role and culpability of the offenders, the respondent highlighted that the judge imposed the same sentence in relation to the offence of attempted home invasion, which offence was complete prior to the door being opened by the victim. The judge explicitly stated that she found each offender to be equally culpable for that offence due to the level of joint planning, with each offender being aware of the role the others were to play. The graver criminality of Georgiou, in discharging the firearm and carrying a loaded firearm, was reflected in the additional charges he faced, which resulted in him receiving a substantially higher head sentence and non-parole period than the other co-offenders.
In relation to the subjective circumstances of the offenders, the respondent submitted that the differing subjective factors for each offender, were reflected in the setting of the non-parole period of each offender, which the judge was permitted to do.
The respondent accepted that the applicant had comparatively minor priors and better prospects of rehabilitation than Georgiou and Neyland. Further, that the issue of hardship in custody was raised due to his father’s illness and death. However, the applicant was the only offender to have breached three different court orders by his offending. In any event, the respondent highlighted that the applicant received the earliest parole eligibility date for the offending (except for Jurjevic, whose sentence was impacted by unique totality considerations).
The respondent therefore submitted that the differing sentences for each co-offender are ‘rationally explicable’ and do not give rise to a justifiable sense of grievance.[50] That is, that there was equal culpability, but that the applicant was ‘set apart’ to give him greater parole eligibility, consistent with his better prospects of rehabilitation and other matters personal to him.
[50]Citing R v Tien [1998] VSCA 6, [40] (Tadgell JA, Charles JA agreeing at [43]).
In oral submissions, counsel fairly accepted that, consistent with Postiglione v The Queen,[51] parity considerations are relevant to the head sentence as well as the non‑parole period. She further accepted that, if the judge had considered rehabilitation as relevant only in relation to the non-parole period, then this would be an error. However, the judge correctly regarded general deterrence, denunciation and just punishment as paramount in setting the head sentence, with rehabilitation to play a more minor role.
[51](1997) 189 CLR 295; [1997] HCA 26.
In relation to the possession of the loaded firearm by Georgiou, counsel submitted that the separate offences entirely covered what happened after completion of the attempted home invasion. Counsel emphasised that Georgiou had not in fact used the firearm to try to effect entry, but only afterwards as a ‘parting shot’. She did accept that there was a distinction insofar as Georgiou had knowledge that the gun was loaded, but that his greater culpability was not ‘significant’, and not such as to warrant the imposition of further imprisonment.
Counsel also attempted to distinguish the decision in Salapura which concerned a charge of possession of a firearm, as well as charges of aggravated burglary and recklessly cause serious injury. Although it was appropriate for the court to consider that the offence of possession of a firearm continued both before and after the presence in the home in Salapura,[52] the present case is distinguishable. In this case, the other charges in respect of Georgiou separately involved the use of the firearm such that the extra charges entirely covered what happened after the completion of the attempted home invasion.
[52][2018] VSCA 255, [59] (Whelan and Kyrou JJA).
The respondent maintained that, given the level of planning and knowledge that two men would be armed, the roles of Neyland and Georgiou were otherwise indistinguishable from the applicant (leaving aside the loaded firearm issue). Counsel fairly conceded that his different role might be relevant to protection of the community, the risk of reoffending and prospects of rehabilitation. However, general deterrence, just punishment and denunciation were paramount, such that any such differences did not warrant a different head sentence.
In relation to Markovic, counsel submitted that the court should infer that the judge did take into account the effect on the applicant of his father’s death (at para [31] of the Sentencing Reasons). However, even if this was not the case, it was not a material consideration.

Consideration

In Kellway (a pseudonym) v The King,[53] this Court summarised the parity principle as follows:
The purpose of parity in sentencing is to ensure consistency in punishment.[54] As Kaye AJA (as his Honour then was) said in Dawid v Director of Public Prosecutions, ‘the principle of parity is based on the broad principle of equal justice’.[55] Significant disparities in sentences ‘should be capable of a rational explanation’.[56] However, that is not to say that there will be a ‘scientifically precise answer to the quantification of disparities between offenders’.[57] The assessment of the amount of disparity between offenders is ‘[u]ltimately … an evaluation based on impression’.[58]
A ground of appeal complaining about disparity should be approached within the same analytical framework as the ground of manifest excess.[59] As this Court said in Barbaro v The Queen:
[T]he question for consideration is whether it was reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co‑offenders in the way he/she did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances.[60]
For an appellate court to intervene on the basis of disparity, the disparity must be ‘“marked” or “manifest” and such as to produce a legitimate and justifiable sense of grievance in the objective observer’.[61] The question whether there is such a sense of grievance depends on whether there were reasonable grounds for differentiation (or lack thereof) between the co-offenders.[62] As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: ‘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.’[63]
One differentiating factor may be the role the co-offenders played in the offending. A co-offender who is the principal offender may receive a heavier sentence than another co-offender.[64] Another differentiating factor is remorse. A co-offender who displays no remorse may receive a heavier sentence than a co-offender who demonstrates some remorse.[65]
[53][2023] VSCA 109, [124]–[127] (Emerton P, Niall and Kaye JJA) (citations in original). Also cited in Minutolo v The King [2023] VSCA 300, [53] (Kennedy JA and Kidd AJA).
[54]Abdou v The Queen [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA) (‘Abdou’). See also Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; Nipoe v The Queen [2020] VSCA 137, [38] (Maxwell P, Niall and Emerton JJA).
[55][2013] VSCA 64, [43] (‘Dawid’).
[56]R v Tien [1998] VSCA 6, [40] (Tadgell JA).
[57]Ah-Kau v The Queen [2018] VSCA 296, [51] (McLeish and T Forrest JJA).
[58]Ibid.
[59]Barbaro v The Queen (2012) 226 A Crim R 354, 371 [63] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
[60]Ibid 371–2 [63] (Maxwell P, Harper JA and T Forrest JA).
[61]R v Mercieca [2004] VSCA 170, [17] (Winneke P).
[62]Abdou [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA).
[63](2001) 207 CLR 584, 608 [65] (emphasis in original); [2001] HCA 64.
[64]See, eg, Dawid [2013] VSCA 64, [64] (Kaye AJA); Marku v The Queen [2012] VSCA 51, [48]–[49] (Williams AJA).
[65]See, eg, Case (a pseudonym) v The King [2023] VSCA 12, [150]–[154] (Emerton P, McLeish and Taylor JJA).
In the present case, it is undisputed that Georgiou knew that he was carrying a loaded weapon to the premises. It is also undisputed that he discharged a round while still at the front of the premises and that, only nine seconds later, he discharged a second round.
The fact that Georgiou armed himself with a loaded gun in travelling to the premises revealed premeditation on his part, and shed light on his intentions. It strongly suggested that he had an intention to use the gun, and greatly increased the danger associated with the act of attempted entry.[66] Even though the gun was not ultimately used so as to effect entry, Georgiou’s actions in discharging that gun (twice), shortly after the attempted entry, confirmed such earlier intention. The fact that both Georgiou and Neyland engaged in overt acts of confrontation, while both were armed, further distinguished their role from that of the applicant.
[66]And see Clark v the Queen [2020] VSCA 125, [23] (Maxwell P and T Forrest JA).
In all the circumstances, we therefore do not consider it was open for the judge to find that the applicant’s role was just ‘as significant’ as that of the other offenders.

As Barbaro v The Queen,[67] above, makes clear, the judge was also required to give proper weight to any differences between the offenders as regards culpability, criminal record, and personal circumstances.
[67](2012) 226 A Crim R 354; [2012] VSCA 288.
In this case, although we consider, below, that Markovic[68] warrants some moderation of sentence, we accept that there may be room for differing views on this matter. However, there were other striking differences between the applicant, as compared with both Neyland and Georgiou. Neyland, in particular, had a very serious criminal record of direct relevance to the offending in this case. Georgiou’s record was also very serious in circumstances where both had poor prospects of rehabilitation. This is to be compared with the applicant, who had never had a conviction recorded against him, and who had a low risk of reoffending.
[68](2010) 30 VR 589; [2010] VSCA 105.
We accept that the judge was entitled to give significant weight to factors of denunciation and general deterrence. However, considerations of specific deterrence and rehabilitation were also of some relevance. The judge appears to have accepted this to be the case given she made provision for a ‘generous’ non-parole period in respect of the applicant. However, any proper comparison involved a consideration of all components of the sentence — which included the head sentence.[69] The judge appears to have incorrectly considered the applicant’s markedly different prospects of rehabilitation and limited criminal history to be exclusively relevant to the non-parole period.
[69]Postiglione v The Queen (1997) 189 CLR 295, 302 (Dawson and Gaudron JJ); [1997] HCA 26.
We therefore consider that there is a marked disparity between the applicant and his co‑offenders having regard to all the circumstances, including both his different role and much better prospects of rehabilitation. It was not reasonably open for the judge to fail to differentiate the applicant from both Georgiou and Neyland.
The misapplication of the parity principle means that the sentencing discretion should thereby be reopened and that the applicant should be resentenced.

Resentencing of the applicant

The judge was correct to characterise the offence as serious, even though the applicant had a less significant role. Members of the community have a right to expect that they are safe in their own homes. The principles of denunciation, general deterrence and just punishment were rightly cited by the judge.
Nevertheless, for reasons given already, the matters in mitigation include the applicant’s very limited criminal record and generally good prospects. We also consider that the fact that the applicant’s father died while he was on remand added to the burden of his imprisonment, consistent with Markovic.[70]
[70](2010) 30 VR 589; [2010] VSCA 105.
In all of the circumstances, we would therefore resentence the applicant to 3 years’ imprisonment in respect of the attempted home invasion. We would not interfere with the other charges such that the total effective sentence will be 3 years and 2 months’ imprisonment.
We will set the non-parole period at 1 year and 9 months.
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[2024] VSCA 113

30 May 2024