Said Abdirahman v The Queen

[2020] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0048

SAID ABDIRAHMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2020
DATE OF JUDGMENT:	15 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 87
JUDGMENT APPEALED FROM:	[2018] VCC 1601 (Judge Dawes)

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CRIMINAL LAW – Appeal – Sentence – Co-offenders – Parity – Intentionally cause serious injury – Applicant sentenced to total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years and 6 months’ imprisonment – Co-offender sentenced to 9 months less on both total effective sentence and non-parole period – Whether disparity between sentences offended parity principle – Whether disparity manifestly excessive – Differences in personal circumstances – Age – Prior convictions – Co-offender youthful offender with no prior convictions – Disparity in sentences readily explicable  – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Poole	Giorgianni & Liang Lawyers
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA
OSBORN JA:

1. On 18 September 2018, in the County Court at Melbourne the applicant pleaded guilty to a single charge of intentionally cause serious injury.  He was sentenced by her Honour Judge Dawes on 3 October 2018 as follows: 

Charge on Indictment C1711200.1	Offence	Maximum	Sentence	Cumulation
Cause serious injury intentionally [s 16 of the Crimes Act 1958]	20 years	5 years 6 months’ imprisonment	N/A
Total Effective Sentence:		5 years 6 months’ imprisonment
Non-Parole Period:		3 years 6 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		215 days
6AAA Statement: 6 years 6 months’ imprisonment with a non-parole period of 4 years and 9 months imprisonment
Other relevant orders: Forfeiture order; forensic sample order under s464ZF of the Crimes Act 1958

1. On the same day, the applicant’s co-offender, Scek, who had also pleaded guilty to the same charge was sentenced as follows:

Charge on Indictment C1711200.1	Offence		Maximum	Sentence	Cumulation
Cause serious injury intentionally [s 16 of the Crimes Act 1958]		20 years	4 years 9 months’ imprisonment	N/A
Total Effective Sentence:		4 years 9 months’ imprisonment
Non-Parole Period:		2 years 9 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		266 days
6AAA Statement: 5 years 9 months’ imprisonment with a non-parole period of 4 years and 9 months imprisonment
Other relevant orders: Forfeiture order; forensic sample order under s464ZF of the Crimes Act 1958

1. The applicant now seeks leave to appeal on the single ground that the sentencing judge erred in imposing a sentence and a non-parole period that offended the principle of parity. 

1. It is submitted that the difference of nine months between both the total effective sentences and the non-parole periods imposed gives rise to a differential of respectively 15% and 27%. 

Circumstances of the offending

1. On the night of Saturday 17 March 2017, the applicant attended the 30^th birthday party of Jose Urbina in Mark Street, North Melbourne.  Scek accompanied him. 

1. The applicant was the older of the two, aged 27, and Scek was 24.  The applicant was an invited guest and arranged to bring Scek with him. 

1. The party continued into the early hours of the morning and at around 3:30 am there was a scuffle in the street outside the house involving a number of people.  It seems that this arose out of the behaviour of Scek and his girlfriend.  The applicant apologised to the host family for the behaviour of his friend.  The police attended and the party came to an end. 

1. The victim of the offences in issue, Nathan Brett, had also attended the party.  At around 4:45 am he walked to a 7-Eleven convenience store in North Melbourne with Jose Urbina.  At the store they found another acquaintance who had been injured as the result of an assault.  He was treated by paramedics at the scene. 

1. Brett and members of the Urbina family then commenced to walk back towards Mark Street. 

1. As they walked across a nearby oval, Brett saw a group of five men of African appearance moving towards them, holding machetes in the air and pointing towards them.  The members of the Urbina family fled in fear for their safety.  Brett did not. 

1. One of the men then said to Brett ‘why did you send him?’.  Brett replied that he did not understand what they were talking about and said ‘all I am trying to do is stop this shit’. 

1. The applicant who was one of the group of five, then struck Brett to the head with a machete and Scek struck Brett to the hand as he raised it to defend himself.  Brett then ran towards the house of the Urbina family but as he did so he was struck again to the head with a machete.  When Brett reached the house, the applicant and Scek fled the scene. 

1. Police and paramedics attended shortly afterwards.  As a result of the attack Brett suffered multiple serious injuries including a fractured skull; bleeding on the brain in two areas; a large laceration across the top of his head requiring 15 staples; another large laceration to his head requiring six staples; a large cut to the index finger on his left hand involving near amputation; and a large laceration near the right collarbone requiring sutures. 

1. The sentencing judge described the offending as a violent gratuitous attack.  She sentenced both offenders on the basis that they were equally culpable.[1]  In our view, this was generous to the applicant.  He was the first to strike the victim.  He struck him to the head with the machete and Scek could not be shown to have personally caused any of the head injuries. 

   [1]DPP v Abdirahman & Anor [2018] VCC 1601, [11], [52] (‘Reasons’).

1. Both offenders pleaded guilty shortly prior to trial and her Honour accepted that their pleas had significant utilitarian benefit and were consistent with some remorse for the offending. 

Personal circumstances

1. Both the applicant and Scek came to Australia with their families as refugees from Somalia.  Each experienced deprivations and violence in refugee camps in Kenya during their childhood. 

1. Both adapted well to schooling in Australia and both progressed to substantially complete training as tradesmen. 

1. Unfortunately, however, each lapsed into poly-substance abuse and on the night of the offending both were significantly substance-affected. 

1. The applicant had been the victim of an assault in 2008 in which he was struck to the head with a baseball bat requiring 32 sutures.  His use of alcohol and drugs, particularly Xanax and Valium, was said to date back to this time.  Scek was also thrown off course in 2012 when he was caught up in an altercation in the City of Melbourne.  He was stabbed seven times and hospitalised for a number of days.  His physical recovery was slow. 

1. The sentencing judge accepted that both had very good prospects of rehabilitation. 

1. After release on bail, the applicant had participated in programs to address issues of drug and alcohol addiction and anger management.  He also contributed as a volunteer with younger members of the Somalian community and acted as the primary carer on an ongoing basis for another man suffering from severe mental health difficulties. 

1. After his release on bail, Scek also worked hard to change a number of aspects of his life.  The prosecution accepted that the evidence confirmed that he also had very good prospects for rehabilitation.  He had succeeded in obtaining full-time work and was engaged in community activities.  He was married and, at the time of sentence, his wife was expecting their first child. 

1. Both men had supportive families. 

1. The sentencing judge identified two differences between the two offenders.  First, the difference in their ages.  The applicant was 27 and Scek was 24 at the time of the offending.  Secondly, the fact that the applicant had prior convictions for violence.  In 2010, he was found guilty of affray, intentionally causing injury and recklessly causing injury.  He was convicted and placed on a community-based order for a period of 12 months.  In contrast, the sentencing judge noted that Scek was someone of previous good character with no prior convictions and, accordingly, he was entitled to call upon that good character in his plea.

Analysis

1. Parity in the sentencing of co-offenders is an aspect of equal justice.  There should be no unjustifiable difference in the sentences imposed upon similar offenders for similar offending.  Like cases should be treated alike.  If the disparity between the sentence imposed on equivalent co-offenders is marked or manifestly excessive, then the Court will interfere.[2] 

   [2]Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295.

1. In a series of decisions Maxwell P has expressed the central issue from an appellate Court’s point of view as being whether it was reasonably open to the sentencing judge to differentiate between the offenders in the way that he or she did.[3] 

   [3]See R v Lewis [2008] VSCA 202, [15] (Maxwell P);  R v Wolfe [2008] VSCA 284, [9] (Maxwell P); Teng v The Queen (2009) 22 VR 706, 710 [17] (Maxwell P, Ashley JA and Lasry AJA).

1. In Green v The Queen, the High Court said: [4]

In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: ‘the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.’ The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[5]

[4](2011) 244 CLR 462 (citations in original).

[5]Ibid 474–5 [31] (citations omitted).

1. The applicant submits that the limited differences between the two offenders did not justify the disparity between the two sentences imposed and that too much weight has been given to specific deterrence in the case of the applicant. 

1. We do not agree.  First, although Scek was at the upper end of the range which may be regarded as youthful, nonetheless he fell within that range as it has been understood since the decision in R v Mills.[6] 

   [6][1998] 4 VR 235.

1. Although only three years older, the applicant could no longer be described as youthful. 

1. Secondly, Scek had no prior convictions and this factor was properly regarded as a matter to be combined with his relative youth in terms of the appropriate sentencing disposition.  Whilst it is true that the applicant’s prior conviction dated back to 2010, nonetheless he did not have the combined qualities of youthfulness and lack of prior convictions which Scek could call in aid.  Taken together, these matters reduced the need for specific deterrence in Scek’s case and amplified the importance of encouraging his rehabilitation. 

1. In the course of argument on the application for leave to appeal, the applicant’s counsel conceded that some disparity between the sentences imposed on the co-offenders was justified.  In these circumstances, the Court must be satisfied that the disparity was manifestly excessive. 

1. In our view, the disparity between the two sentences is readily explicable and could not be characterised as manifestly excessive.  Leave to appeal should be refused. 

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