Rose v The King
[2024] VSCA 296
•3 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0101 |
| JUSTIN ROSE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 November 2024 |
| DATE OF JUDGMENT: | 3 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 296 |
| JUDGMENT APPEALED FROM: | DPP v Rose [2024] VCC 668 (Judge Marich) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Recklessly causing injury –Total effective sentence 2 years’ imprisonment – 12 month non-parole period – Applicant’s co-accused to aggravated burglary received 70-day imprisonment and 2-year CCO – Whether applicant’s sentence infringed parity principle – Whether sentence was manifestly excessive – Objectively similar gravity and moral culpability for both co-offenders – Similar circumstances for both co-offenders – Sentence disparity was manifestly excessive – Leave to appeal granted – Appeal allowed – Applicant resentenced to total effective sentence of 15 months’ imprisonment – 9 month non-parole period.
Crimes Act 1958, ss 18, 77; Control of Weapons Act 1990, s 5AA.
Galea v The Queen [2020] VSCA 69; Green v The Queen (2011) 244 CLR 462; Grey v The King [2024] VSCA 75; Hafner v The Queen [2012] VSCA 190; O’Loughlan v The Queen [2010] VSCA 175; Postiglione v The Queen (1997) 189 CLR 295, considered.
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| Counsel | |||
| Applicant: | Mr SJ Tovey | ||
| Respondent: | Mr JCJ McWilliams | ||
Solicitors | |||
| Applicant: | Melasecca Kelly & Zayler | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA
T FORREST JA:
On 13 May 2024 in the County Court at Melbourne, the applicant, Justin Rose, was sentenced to terms of imprisonment on one charge of aggravated burglary, one charge of recklessly causing injury, and one charge of possessing a prohibited weapon without exemption or approval (a related summary offence).
On the same day and in the same Court, the co-offender, Raylene Lagerwey, was sentenced on a charge of aggravated burglary to a composite sentence of a short-term imprisonment together with a 2-year Community Correction Order (‘CCO’). Ms Lagerwey is the applicant’s mother.
The details of the sentences imposed are as follows:
(a)Justin Rose
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Aggravated burglary[1] | 25 years’ imprisonment | 21 months’ imprisonment | Base |
| 2 | Causing injury recklessly[2] | 5 years’ imprisonment | 9 months’ imprisonment | 3 months |
| 3 | Possess prohibited weapon without exemption or approval[3] | 2 years’ imprisonment or 240 penalty units | 1 month imprisonment | - |
| Total Effective Sentence: | 2 years’ imprisonment | |||
| Non-Parole Period: | 12 months | |||
| Pre-sentence Detention Declared: | 50 days | |||
| Section 6AAA Statement: | Total Effective Sentence 3 years’ imprisonment | |||
| Other Relevant Orders: Nil | ||||
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to s 5AA of the Control of Weapons Act 1990.
(b)Raylene Lagerwey
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Aggravated burglary[4] | 25 years’ imprisonment | 70 days’ imprisonment with a CCO of 2 years | - |
| Total Effective Sentence: | 70 days’ imprisonment with a 2-year CCO | |||
| Non-Parole Period: | n/a | |||
| Pre-sentence Detention Declared: | 70 days | |||
| Section 6AAA Statement: | Total Effective Sentence 1 year 9 months’ imprisonment | |||
| Other Relevant Orders: Nil | ||||
[4]Contrary to s 77 of the Crimes Act 1958.
The applicant seeks leave to appeal against sentence on the following grounds:
(1)The sentence imposed on the applicant infringes the principle of parity;
(2)The individual sentences imposed, orders for cumulation, total effective sentence and non-parole period were manifestly too long.
For the reasons that follow, we would grant leave to appeal and allow the appeal on ground 1. We would set aside the sentence imposed on the applicant and re-sentence him as follows:
(a)The applicant is resentenced to 12 months’ imprisonment on charge 1.
(b)We will not disturb the sentences imposed for charges 2 and 3.
(c)We will order that 3 months’ imprisonment on charge 2 be served cumulatively upon the sentence imposed on charge 1.
(d)The total effective sentence is 15 months’ imprisonment.
(e)We will set a non-parole period of 9 months.
The sentence we will impose on the applicant for the offence of aggravated burglary should be understood as being of limited precedential value. That is because it is the result of appellate intervention to address a manifest disparity between the sentence imposed on the applicant and the extraordinarily lenient sentence imposed on his co‑offender. In our opinion, if viewed in isolation from the sentence imposed on the co‑offender, the applicant’s sentence was within range.
Summary of facts
At the plea hearing, a Summary of Prosecution Opening for Plea statement was tendered. It was agreed between the parties that the summary of the offending conduct was factually accurate. We shall reproduce its relevant parts.
The offenders have pleaded guilty to the following offences:
Rose:
(1)Charge 1 – Aggravated burglary
(2)Charge 2 – Reckless cause injury
(3)Summary charge – Possess prohibited weapon (crossbow)
Lagerwey:
(1)Charge 1 – Aggravated burglary
…
Circumstances of the offence
On 31 December 2020, the victims were celebrating New Year’s Eve at 1 Chaffey Square, Corio.
Rose had left his premises at around lunch time, telling his father he was going to a party. Lagerwey remained at home. Lagerwey made several phone calls to her son throughout the evening.
Between 12:30 AM and 12:40 AM on 1 January 2021, Lagerwey contacted her former partner Troy Murray, who lived at 16 Finch Street, Norlane.
Between 12:40 AM and 1:30 AM Lagerwey knocked on the front door of the victims’ residence. Kerrie Patmore answered the door. Lagerwey was very intoxicated. She asked Kerrie Patmore if a taxi had arrived for her. Kerrie Patmore told Lagerwey it had come earlier but had left. Kerrie Patmore then offered Lagerwey a lift to Norlane.
Kerrie Patmore drove Lagerwey to 16 Finch Street Norlane. Hills was also present and was seated in the back seat of the vehicle. They thought from their conversation with her during the trip that Lagerwey was going to her ex-partner’s house to use drugs.
Kerrie Patmore dropped Lagerwey off out the front of 16 Finch Street, Norlane and Lagerwey went inside leaving her handbag inside the vehicle. Lagerwey told Kerrie Patmore and Hills to wait for her.
However, Kerrie Patmore and Hills threw the bag onto the nature strip and drove back towards Chaffey Square.
A short time later, Lagerwey returned to Chaffey Square and was dropped off in an unknown vehicle. Lagerwey approached Kerrie Patmore out the front of the victim’s residence, pushed her and said, ‘Where’s my fucking bag?’
Lagerwey then said words to the effect of, ‘You’re all fucked’, and ‘I’m going to get my son and come back and smash up your house and cars,’ before leaving.
A short time later, a Holden Commodore Sedan arrived and parked outside the accused’s residence.
Lagerwey had left the premises prior to the arrival of the Commodore.
Several unidentified men got out of the car, walked over to the victim’s residence and began smashing windows down the side of the house. At some point, they entered the house via the side dining room door.
Rose arrived at the victim’s residence at approximately the same time as the unidentified men and entered the property. Lagerwey also arrived and entered the property at approximately the same time. It is not known who entered the property first, or the order in which Rose, Lagerwey and the unidentified men entered the property. (Charge 1 – Aggravated burglary – both accused)
Rose was seen inside the premises by Hayes. Hayes asked Rose, ‘What the fuck are you doing here? Get the fuck out of my house.’ Rose attacked Hayes using a baseball bat. Some of the unidentified males then joined the attack on Hayes, using bats and poles. (Charge 2 – Recklessly causing injury – accused Rose)
The prosecution does not allege that either Rose or Lagerwey was complicit with the actions of the unidentified offenders.
Lagerwey grabbed Tanya Patmore by the hair and tried to rip her phone from her hand as she tried to phone police. Tanya Patmore said, ‘Get out, I have six kids,’ several times. At some point thereafter, the accused persons left. The unknown males also left.
Hayes was conveyed to the Geelong Hospital for treatment. Hayes sustained bruising and swelling to the face and mouth region, a nasal bone fracture and bruising and swelling to his left wrist.
As a result of this incident, 13 panels of the living room and dining room windows were smashed. The passenger side window of Tanya Patmore’s vehicle was also smashed.
Investigation
On 1 January 2021 Police examined, photographed and seized items from the crime scene before executing a Section 465 Crimes Act 1958 search warrant at 4 Chaffey Square, Corio.
During the search police located a silver aluminium baseball bat and a crossbow. (Summary charge 3 – Possession of a prohibited weapon – accused Rose)
Lagerwey was arrested at the scene and conveyed to the Geelong Police Station for Interview. A Digitally recorded interview was conducted with Lagerwey at the Geelong Police Station.
Lagerwey said she was given a lift to her former boyfriend’s house by a dark-haired girl and another girl from across the road, she went inside briefly and when she came back out they were gone and so was her bag.
Lagerwey said she returned to 1 Chaffey Square and had a verbal dispute with the residents out the front about the bag and then went home.
Lagerwey denied pushing anyone or making any phone calls. Lagerwey said the alleged incident inside 1 Chaffey Square didn’t happen.
Rose attended at the Geelong Police Station on the evening of 1 January 2021. A Digitally recorded interview was conducted with Rose. He gave a largely ‘no comment’ interview and made no admissions.
The plea hearing
Both the applicant and his mother were separately represented at the plea hearings. The hearings took place over two days on 12 February 2024 and 27 March 2024.
The applicant’s submissions
The following matters were put on the applicant’s behalf:
(a)The applicant was still youthful, aged 24 years, at the time of the offending and 27 years at the time of the plea hearing.
(b)He had no prior convictions or pending charges at the time of sentence.
(c)He was not bailed for 49 days and when he was bailed, he was subject to very strict conditions including a curfew and a prohibition on contacting his mother.
(d)He suffered from a childhood that was ‘full of trauma and abuse’ and developed consequential alcohol and drug problems.
(e)He successfully completed the CISP[5] after being released on bail.
[5]Court Integrated Services Program (‘CISP’).
(f)He continued in his employment upon release from bail.
(g)His plea of guilty had a significant utilitarian value, evidenced remorse and ought to be treated as an early plea.
(h)The victims of the offending were not entirely blameless — much alcohol, noise and fighting were evident at the premises on this New Year’s Eve before the arrival of the applicant.
(i)No complicity is alleged with the unidentified men, who arrived with the applicant, but then acted on their own accord.
(j)The applicant intended to protect his mother and recover her bag.[6]
[6]However, see paragraph [33] of these reasons. If this were the applicant’s only intention, it traversed his plea of guilty to the aggravated burglary charge which alleged a specific intention to assault at the time of entry to the relevant premises.
(k)He has a good relationship with his mother and lived with her in housing commission houses all his life. She also was the victim of significant domestic violence. He would try, usually unsuccessfully, to intervene.
(l)His father left the family home when the applicant was 12 months old and lives in Queensland. He has seen very little of his father over the years.
(m)He has a good relationship with his sister and his maternal grandmother. Whilst on bail, he lived with his grandmother for 18 months.
(n)He is in a new and stable relationship.
(o)He moved to several primary schools and was bullied in secondary school. He left school part-way through year 11 and commenced an apprenticeship as a baker. He completed this; although he enjoyed it, he has also worked at other occupations including labouring and as a shipping container surveyor. At the time of the plea he was working as a concrete labourer and has a medium rigid truck licence.
(p)He started smoking marijuana when he was about 16 years of age. He commenced drinking alcohol at about the same age.
(q)A report from clinical psychologist, Mr Luke Armstrong, was tendered. Amongst other things, the psychologist opined that, as a consequence of observing his mother’s distress in response to domestic violence, the applicant became pre-occupied with ‘rescuing or attending to his mother’s needs’. The psychologist described this process as ‘parentification’. The psychologist’s view was that the applicant has a relatively low risk of similar offending.
(r)It was submitted that the principles in Bugmy v The Queen (‘Bugmy’) were engaged which mitigated moral culpability.[7]
(s)The applicant contended that a sentence of time served (49 days) together with a CCO was the correct disposition, having regard to his pleas of guilty, youth, delay, rehabilitation and Bugmy principles.
The co-offender’s submissions
[7](2013) 249 CLR 571; [2013] HCA 37.
The following matters were put on Ms Lagerwey’s behalf:
(a)She was aged 48 years at the time of offending and was 51 years at sentencing.
(b)It was submitted the principles of Worboyes v The Queen (‘Worboyes’) should apply.[8]
[8](2021) 96 MVR 344; [2021] VSCA 169.
(c)She found her 70 days in remand for this current offence ‘particularly difficult’, and this was supported by a psychological assessment from Ms Cara Lechner.
(d)It was submitted that she has ongoing anxiety, that her anxiety increased after her time in remand, and that this would enliven limbs 4 and 5 of Verdins.[9]
[9]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
(e)Her guilty plea had significant utilitarian value and ought to be treated as an early plea.
(f)She co-operated with police and abided by her bail conditions.
(g)She has two prior criminal charges of theft and possessing cannabis, both adjourned without conviction.
(h)At the time of the current offending, she was ‘extremely drunk’ and acted on the belief that her handbag had been stolen.
(i)She was subject to ‘serious family violence’ in ‘every relationship [she] has ever been in’.
(j)She has a ‘probable diagnosis’ of Attention Deficit Hyperactivity Disorder (ADHD).
(k)She is a carer for her mother.
(l)It was contended that a combination sentence of 70 days’ imprisonment (time served on remand) with a lengthy CCO would provide adequate specific and general deterrence for Ms Lagerwey.
The prosecution’s submissions
The prosecution contended that the appropriate sentence was a head sentence and a non-parole period for both co-offenders. The offending was submitted to be serious.
In relation to the aggravated burglary charge, the prosecution contended that Ms Lagerwey:
(a)Was the ‘primary agitator’, making direct threats to Ms Patmore by stating that ‘you’re all fucked’, and ‘I’m going to get my son and come back and smash up your house and cars’.
(b)Arrived a short time later with the applicant and entered the victim’s property as a trespasser.
(c)Was present while Mr Hayes was assaulted by the applicant and the unidentified men.
(d)Participated directly in the assault of Ms Patmore by ‘grabbing her by the hair’.
(e)Attempted to ‘rip the phone from [Ms Patmore’s] hand as she tried to phone police’.
(f)Was present when Ms Patmore stated several times, ‘Get out, I have six kids’.
For the applicant’s charges, the prosecution submitted that the applicant:
(a)Entered the victim’s property as a trespasser, in the presence of the unidentified males.
(b)Was seen by Mr Hayes and was told, ‘What the fuck are you doing here? Get the fuck out of my house’.
(c)Attacked Mr Hayes with a baseball bat, causing him injury.
(d)Was engaged in a physical altercation with Mr Hayes before the unidentified males began attacking Mr Hayes with bats and poles. (The prosecution did not allege the applicant is complicit with the attack on Mr Hayes by the unidentified males).
The prosecution further contended that:
(a)Aggravated burglaries involving confrontation and violence (or threats of violence) are very serious offences regardless of the setting in which they occur.[10]
(b)By their pleas, both offenders accepted that they intended to assault a person at the time they entered the premises.
(c)The applicant was carrying a weapon — a baseball bat — both before and at the point of entry.
(d)The applicant and Ms Lagerwey were acting in concert at the time of the aggravated burglary.
(e)The offending occurred at the early hours of the morning.
(f)The co-offenders knew (or were reckless as to the fact) that there were persons present at the property.
(g)The victim of the causing injury recklessly charge sustained a nasal bone fracture, swelling to the left wrist and bruising and swelling to the mouth region. The latter two injuries were alleged to have been caused by the applicant.
(h)Care must be taken to avoid doubly punishing the applicant by taking into account, on the aggravated burglary offence, conduct that occurred after entry into the premises had been effected. The offence was complete at that stage, and his causing injury charge must be considered separately.
[10]Counsel for the respondent referred to DPP v Meyers (2014) 44 VR 486, 489 [6] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314 and Hogarth v The Queen (2012) 37 VR 658, 673 [56] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 302.
On the aggravated burglary charges, we note that the prosecutor did not seek to distinguish between the applicant and his mother in questions of moral culpability and objective gravity of the offending. The ‘intention to assault’ component of the aggravated burglary was comprised of an intention held by both accused to place others in fear by their presence, together with the applicant’s obvious possession of the baseball bat.
The judge’s sentence
Her Honour sentenced the co-accused together. The circumstances of the offending were reviewed by the judge in accordance with the Summary of Prosecution Opening for Plea statement. We shall not repeat that material. It was observed at the time of his entry into the victim’s house, the applicant’s intention was to cause fear to a person inside and he knew or was reckless to the fact that a person was inside the house.[11] The judge drew no distinction between the applicant and his mother in this respect, by accompanying her son who was carrying the baseball bat:
Ms Lagerwey, you accompanied your son, and at the point of entry as a trespasser, you also intended to cause fear through those actions, and you knew that a person was present inside the house, or were reckless as to whether or not a person was so present.[12]
[11]On the plea, there was much debate about the mental state that accompanied the entry into the house of both the applicant and his co-accused. At the outset, the applicant’s solicitor contended that the intention to assault was conditional upon it becoming necessary to protect his mother. After it was pointed out that this traversed his plea, it was accepted that the assault was constituted by an intention to place persons in fear.
[12]DPP v Rose [2024] VCC 668, [18] (Judge Marich) (‘Reasons’).
Insofar as the causing injury recklessly charge was concerned, her Honour recited the injuries set out in the Summary of Prosecution Opening for Plea statement and could not identify which of those injuries were caused by the applicant, as opposed to those caused by the unknown assailants. Her Honour noted, however, that ‘[by] your plea, you do accept causing him injury with the bat, with the foresight of injury as being a probable consequence’.[13]
[13]Ibid [22].
The judge found that the pleas of guilty were entered by both of the accused at ‘mid-point’ in proceedings, well before any trial being listed, and there was utilitarian benefit that flowed from both pleas.[14] Her Honour concluded that both of the accused were also entitled to be considered remorseful as a consequence of their guilty pleas. Both accused were also entitled to Worboyes’ sentencing benefits.[15]
The judge’s sentencing remarks regarding the applicant
[14]Ibid [29].
[15](2021) 96 MVR 344, 356 [35] (Priest, Kaye and T Forrest JJA); [2021] VSCA 169 where this Court recognised the utilitarian benefit of a plea of guilty at a time when COVID-19 had resulted in significant and unacceptable delays in the administration of criminal justice in Victoria and held that persons who pleaded guilty during that time were entitled to an ‘actual and palpable amelioration of sentence’.
The applicant was aged 24 years at the time of offending, and 27 years at the date of sentence. His deprived early life, defined by poverty and limited opportunity was set out in the judge’s sentencing remarks.[16] The judge noted the applicant’s exposure to domestic violence that was inflicted upon his mother.[17] The judge rehearsed the applicant’s secondary schooling, his bakery apprenticeship and subsequent work history as it became progressively inhibited by polysubstance abuse.[18]
[16]Reasons, [33].
[17]Ibid [34].
[18]Ibid [35]–[41].
Her Honour noted that the applicant had a very limited prior criminal history, comprising only a single court appearance in Brisbane Magistrates’ Court which resulted in a good behaviour bond for a charge of unlawful possession.[19] A significant number of glowing character references were tendered, and the judged noted that the applicant had engaged positively with CISP.[20]
[19]Ibid [44].
[20]Ibid.
The psychological evidence was reviewed by the judge who concluded that the distorted mother/son relationship — ‘parentification’, as it was termed —provided some context for the applicant’s offending but was not necessarily a factor that mitigated the offending.[21] The judge stated that she took into account in the applicant’s favour his relative youth, the engagement of the Bugmy principles arising from his traumatic childhood and his limited criminal history.[22]
The judge’s sentencing remarks regarding Ms Lagerwey
[21]Ibid [52]–[53].
[22]Ibid [48].
Her Honour noted that Ms Lagerwey was aged 48 years at the time of the offending and 51 years at the time of sentencing.[23] Ms Lagerwey is the older of two children; the applicant is the younger of her two children. Ms Lagerwey was educated to year 9, although her studies were probably compromised by undiagnosed ADHD.[24] The judge noted that this condition, in the opinion of consulting psychologist, Ms Lechner, persisted into adulthood.[25]
[23]Ibid [51].
[24]Ibid [59].
[25]Ibid.
Ms Lagerwey’s early life was stable and enjoyable, although this stability concluded when her parents’ marriage collapsed at about the time she left school.[26] The judge reviewed Ms Lagerwey’s work history, and noted that she had had three significant romantic relationships, all of which were characterised by physical and emotional violence.[27] Ms Lagerwey has used illicit substances, albeit infrequently and drinks on weekends, although not to excess. The judge noted that Ms Lagerwey was intoxicated at the time of the current offending.[28]
[26]Ibid [61].
[27]Ibid [63].
[28]Ibid [64].
Ms Lagerwey, like the applicant, had a very limited criminal history. In 2013, she received a non-conviction bond for theft, and 10 years earlier she received a non-conviction bond for possession of cannabis and possession of a Category A longarm.[29] The judge stated, ‘At the time of your offending, you were largely of good character, and this offence represents a dramatic departure from a generally law-abiding life’.[30] We observe that these words, whilst said about the mother, could equally have been said about the son, albeit obviously over a lesser period. The judge accepted that Ms Lagerwey found her time on remand to be extremely challenging, involving isolation as a result of COVID-19 restrictions, and interactions with certain other prisoners.[31] The judge accepted that she suffers from ongoing anxiety, ‘and potential terror’ at the prospect of being returned to custody.[32] That anxiety also persisted until the time of her plea. The judge accepted the evidence of psychologist, Ms Lechner, that Ms Lagerwey’s time in remand had weighed heavily upon her; her Honour stated:
…I consider that your time on remand weighed heavily upon you, and I am prepared to infer that imprisonment will weigh more heavily upon you than it would on a person without your personal circumstances, including your psychological presentation.[33] I take this into account in mitigation of sentence, and as urged upon me, I have reflected carefully on whether there is another available sentence that satisfies all relevant purposes of sentencing aside from returning you to custody in respect of this offence.[34]
Factors common to both co-accused
[29]Ibid [65].
[30]Ibid.
[31]Ibid [68].
[32]Ibid.
[33]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[34]Reasons, [70].
The judge then turned to an evaluation of the subjective gravity of the offending. The judge said:
As I am obliged to do, I consider and have regard to the considerations relevant to determining the relative seriousness of the offence of aggravated burglary, as specified by the Victorian Court of Appeal in DPP v Meyers (2014) 44 VR 486 [48]. And as I have noted, your shared intention in company with one another was to assault an occupant of the home; you were acting in company with one another; the burglary took place in the early hours of the morning. That assault was reactive to a perceived grievance between you, Ms Lagerwey, and others in the house, over the missing handbag. Ms Lagerwey, you lured your son into your criminal act of aggravated burglary, and then he took the frightening situation even further by you, Mr Rose, causing injury to the occupant. I share the view of the prosecution that this is a serious example of aggravated burglary with an intention to assault.
Mr Rose, the injury that you caused in the circumstances of recklessness I have described, including the use of the weapon, the location of the offending, and in the presence of others also justify a conclusion that this is a serious example of that offence. When your premises were later searched, a crossbow was located.[35]
[35]Ibid [75]–[76].
Her Honour considered both offenders had good prospects for rehabilitation, and stated that she must pay ‘attention to the other purposes of sentencing including specific deterrence, a measure of which is needed in each of your cases’.[36] The judge observed that she must emphasise general deterrence, punishment and denunciation to be passed.[37]
[36]Ibid [82].
[37]Ibid [81].
At paragraph [78] of the sentencing remarks, the following passage can be found:
I am also obliged to apply the parity principle of sentencing in respect of the sentences imposed on each of you on the offence of aggravated burglary.[38]
Regrettably, her Honour did not expand on how that principle was applied in this case.
[38]Ibid [78].
Ground 1 - Analysis
The applicant was sentenced to 21 months’ imprisonment for the charge of aggravated burglary. For that same offence, his mother was sentenced to 70 days’ imprisonment (term already served) together with a 2-year CCO, which included a condition that she complete 200 hours of unpaid community work. The applicant now claims a legitimate sense of grievance at this apparent disparity.
The parity principle is founded on the principle of equal justice. Those who commit the same offence should be treated equally, save where differences in the role in the offence, or differences in age, background, prior criminal history and general character justify the imposition of different sentences.[39]
[39]Grey v The King [2024] VSCA 75, [62] (Walker and Boyce JJA).
Some disparity between sentences will be insufficient to justify intervention by an appellate court. The disparity must be manifestly excessive.[40] The appellate court will intervene in this case if the disparity engenders a justifiable sense of grievance in the person sentenced more heavily, or if the disparity gives the appearance that justice has not been done.[41] A justifiable sense of grievance is to be assessed objectively. The application of the parity principle will not concern itself with the subjective feelings of the disparity of the complainant.[42] Ultimately, the Court is concerned with the question of whether the disparity between sentences is unjustifiable.[43]
[40]Hafner v The Queen [2012] VSCA 190, [17] (Buchanan JA, Bongiorno JA agreeing at [26], Osborn JA agreeing at [27]).
[41]Green v The Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
[42]Ibid. See also Postiglione v The Queen (1997) 189 CLR 295, 323 (Gummow J), 338 (Kirby J); [1997] HCA 26.
[43]Galea v The Queen [2020] VSCA 69, [19] (T Forrest and Osborn JJA).
If an appellate court considers a sentence imposed on a co-offender to be inadequate or excessively lenient, this is not an insurmountable obstacle to an otherwise sound parity argument, as found in O’Loughlan v The Queen:[44]
Though [the co-offenders’] total effective sentence of 20 months’ imprisonment was undoubtedly lenient (some might say extremely so), it does not follow that this court should reject what seems to us to be an otherwise compelling parity argument put on behalf of the appellant. On any view, principles of parity must be taken into account, even in circumstances where the sentence imposed upon a co-offender is regarded as inadequate.
That does not mean that principles of parity require an appellate court to impose what is, in its view, a wholly inappropriate sentence. It might mean, however, that a sentence towards the very bottom of the range is called for, even if that sentence, when viewed objectively, is otherwise seen as being too low.[45]
[44][2010] VSCA 175.
[45]Ibid [31]–[32] (Weinberg and Bongiorno JJA) (citations omitted).
In Grey v The King, after citing the above passage, the Court said:[46]
Thus, even if this Court were to conclude that the sentence imposed on the applicant offended the principle of equal justice, this Court is not required to reduce the sentence imposed on the applicant to a point where that sentence becomes manifestly inadequate.[47]
[46][2024] VSCA 75.
[47]Ibid [66] (Walker and Boyce JJA) (citations omitted).
The confrontational aggravated burglary offence in the present appeal involved serious criminal misconduct on the part of both mother and son. Her Honour correctly characterised the objective gravity as a ‘serious example of aggravated burglary with an intention to assault’.[48] We consider that it was open to her Honour not to distinguish the moral culpability of either accused. Ms Lagerwey ‘provoked [her] son into this offending’.[49] He was ‘lured into acting in the unnecessary and disproportionate way…’.[50] Both entered the victim’s home with an intention to assault an occupant by creating fear. The applicant carried a baseball bat to effect this common intention.
[48]Reasons [75].
[49]Ibid [71].
[50]Ibid [72].
We agree that there is little to distinguish the objective gravity or the moral culpability of the two criminal participants in the aggravated burglary. If anything, in our view Ms Lagerwey is marginally more morally culpable than the applicant. She was, after all, the driving force behind the aggravated burglary.
Given this, we must then consider whether there are other reasons to explain the disparity between the sentences. And it is a wide disparity. The applicant’s term of imprisonment, of approximately 640 days, is more than nine times greater than the term imposed on his mother. True, it is, that Ms Lagerwey’s 2-year CCO with 200 hours’ community service must be taken into account in the comparison; however, all other things being equal, there is still a striking imbalance between the respective sentences. And nowhere can we find an explanation for this imbalance.
Apart from a fleeting reference to the obligation to apply the parity principle, in respect of the aggravated burglary, there is no explanation in the sentencing reasons as to why there is this sentencing disparity. We cannot discern any other difference in circumstances that can explain it. Ms Lagerwey had been a victim of domestic abuse. So had the applicant. Both had a solid work history. Both were drug users. Neither had any significant prior criminal offending. Both were generally of good character. Both had good prospects of rehabilitation. It seems that Ms Lagerwey was traumatised by the proposal of returning to custody; the applicant, apparently not so. However, the applicant, at 24 years of age was entitled to have his youth considered favourably,[51] and the judge acknowledged this.
[51]R v Mills [1998] 4 VR 235, 241–2 (Batt JA, Phillips CJ and Charles JA agreeing at 236); Azzopardiv The Queen (2011) 35 VR 43, 53–5 [34]–[37] (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372.
Conclusion
We have concluded that there is a disparity between the applicant’s sentence and that of Ms Lagerwey, that is unjustifiable and manifestly excessive. Put another way, we consider that an objective observer would form the view that equal justice had not been done in the case of the aggravated burglary charge. Thus, the sentencing discretion is re-opened. It is therefore unnecessary to consider ground 2, save to say that we consider the sentence imposed on charges 2 and 3 to be unremarkable, as is the order for cumulation.
We have observed earlier in these reasons that principles of parity must be given effect even where the sentence imposed upon a co-offender is regarded as inadequate.[52] It is unnecessary to determine whether the sentence imposed on Ms Lagerwey was manifestly inadequate; what can be said is that it is extraordinarily lenient for a serious example of a confrontational aggravated burglary committed with an intention to assault. We do not propose to reduce the applicant’s sentence for aggravated burglary to the level of the co-offender’s sentence; however, we will substitute a sentence towards the bottom of the range available to us.
[52]See paragraphs [31]–[32] of these reasons for judgment.
Re-sentence
The sentence imposed on charge 1 (aggravated burglary) is quashed and the applicant is resentenced to 12 months’ imprisonment.[53] Both other sentences remain intact — 9 months’ imprisonment for charge 2 and 1 month imprisonment for charge 3. We order that 3 months’ imprisonment on charge 2 be served cumulatively upon the sentence imposed on charge 1. The total effective sentence is 15 months. We set a minimum term before parole eligibility of 9 months.
[53]As we observed earlier, the sentence imposed on the applicant for the offence of aggravated burglary is to be understood as being of limited precedential value.
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