Savage v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0104

JOSHUA SAVAGE	Applicant
v
THE KING	Respondent

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JUDGES:	KENNY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 249
JUDGMENT APPEALED FROM:	[2024] VCC 687 (Judge Doyle)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Burglary and theft – Residential – Private homes – Co-offending – Serious offending – Early plea – Comparing moral culpability – Total effective sentence of 6 years and 3 months’ imprisonment with non-parole period of 3 years and 10 months – Whether sentence infringed principle of parity – Whether value of property stolen is relevant – Reasonably open to sentencing judge to impose the different sentences on the applicant and co-accused – Leave to appeal refused.

Criminal Procedure Act 2009, ss 278, 280, 315.

Kellway (a pseudonym) v The King [2023] VSCA 109, applied; Chamma v The Queen [2020] VSCA 232, considered; Barbaro v The Queen (2012) 226 A Crim R 354, referred to; Abdullahi v The King [2024] VSCA 156, referred to.

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Counsel for written submissions
Applicant:		Ms M Brown
Respondent:		Ms A Harrold
Solicitors
Applicant:	Ruffin Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNY JA:

Introduction and overview

On 8 June 2023, the applicant pleaded guilty in the County Court of Victoria to eight charges of burglary and eight charges of theft. On the same day, the applicant’s co-offender, Taylor Savage, pleaded guilty to five charges of burglary, five charges of theft and one charge of knowingly dealing with proceeds of crime. Taylor Savage is the applicant’s younger brother. The applicant and his brother were charged on the same indictment.
On 20 May 2024, the applicant and the co-offender were sentenced as follows:

Charge on indictment	Offence	Max Penalty	Applicant		Co-Offender
Charge on indictment	Offence	Max Penalty	Sentence	Cumulation	Sentence	Cumulation
1	Burglary	10 years’ imprisonment	24 months’ imprisonment (aggregate with Charge 2)	9 months (aggregate with Charge 2)	Not charged	n/a
2	Theft	10 years’ imprisonment	24 months’ imprisonment (aggregate with Charge 1)	9 months (aggregate with Charge 1)	Not charged	n/a
3	Burglary	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 4)	7 months (aggregate with Charge 4)	21 months’ imprisonment (aggregate with Charge 4)	7 months (aggregate with Charge 4)
4	Theft	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 3)	7 months (aggregate with Charge 3)	21 months’ imprisonment (aggregate with Charge 3)	7 months (aggregate with Charge 3)
5	Knowingly deal with proceeds of crime	15 years’ imprisonment	Not charged	n/a	8 months’ imprisonment	2 months
6	Burglary	10 years’ imprisonment	18 months’ imprisonment (aggregate with Charge 7)	6 months (aggregate with Charge 7)	Not charged	n/a
7	Theft	10 years’ imprisonment	18 months’ imprisonment (aggregate with Charge 6)	6 months (aggregate with Charge 6)	Not charged	n/a
8	Burglary	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 9)	7 months (aggregate with Charge 9)	21 months’ imprisonment (aggregate with Charge 9)	7 months (aggregate with Charge 9)
9	Theft	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 8)	7 months (aggregate with Charge 8)	21 months’ imprisonment (aggregate with Charge 8)	7 months (aggregate with Charge 8)
10	Burglary	10 years’ imprisonment	25 months’ imprisonment (aggregate with Charge 11)	8 months (aggregate with Charge 11)	24 months’ imprisonment (aggregate with Charge 11)	9 months (aggregate with Charge 11)
11	Theft	10 years’ imprisonment	25 months’ imprisonment (aggregate with Charge 10)	8 months (aggregate with Charge 10)	24 months’ imprisonment (aggregate with Charge 10)	9 months (aggregate with Charge 10)
12	Burglary	10 years’ imprisonment	18 months’ imprisonment (aggregate with Charge 13)	5 months (aggregate with Charge 13)	Not charged	n/a
13	Theft	10 years’ imprisonment	18 months’ imprisonment (aggregate with Charge 12)	5 months (aggregate with Charge 12)	Not charged	n/a
14	Burglary	10 years’ imprisonment	28 months’ imprisonment (aggregate with Charge 15)	Base	25 months’ imprisonment (aggregate with Charge 15)	9 months (aggregate with Charge 15)
15	Theft	10 years’ imprisonment	28 months’ imprisonment (aggregate with Charge 14)	Base	25 months’ imprisonment (aggregate with Charge 14)	9 months (aggregate with Charge 14)
16	Burglary	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 17)	5 months (aggregate with Charge 17)	Not charged	n/a
17	Theft	10 years’ imprisonment	22 months’ imprisonment (aggregate with Charge 16)	5 months (aggregate with Charge 16)	Not charged	n/a
18	Burglary	10 years’ imprisonment	Not charged	n/a	30 months’ imprisonment (aggregate with Charge 19)	Base
19	Theft	10 years’ imprisonment	Not charged	n/a	30 months’ imprisonment (aggregate with Charge 18)	Base
Total Effective Sentence:			6 years and 3 months’ imprisonment		5 years and 4 months' imprisonment
Non-Parole Period:			3 years and 10 months		3 years and 2 months
Pre-sentence Detention Declared:			67 days		67 days
Section 6AAA Statement:			9 years and 2 months’ imprisonment, with a non-parole period of 6 years		8 years' imprisonment, with a non-parole period of 5 years and 4 months
Other Relevant Orders:			Compensation Order, forfeiture order		Compensation Order, forfeiture order

The applicant now seeks leave to appeal against sentence. There is one proposed ground of appeal, namely:
Ground 1: the sentence imposed on the applicant gives rise to a justifiable sense of grievance when compared with the sentence imposed on the co-offender.
For the reasons stated below, leave to appeal is refused.

Circumstances of offending

The applicant and the co-offender committed a series of residential burglaries and thefts in Phillip Island, Leongatha and Inverloch. As the table at 2 records, some of the offences on the single indictment were committed jointly by the applicant and co-offender, some offences were committed solely by the applicant, and others solely by the co-offender. Since this application raises a question of parity, the factual background to the applicant’s and his co-offender’s offending is outlined further below.
The applicant was born on 23 March 1992. He was therefore 28 years of age at the time that most of the offending took place and 32 years of age at the time of sentence.
On 25 July 2018, the applicant committed a burglary and theft in Cowes where a safe containing $30,000 cash and $25,000 worth of jewellery was taken. The residents returned home at 4:30 pm to find a hole in the fly-wire security door (Charges 1 and 2). The applicant denied committing this offending when interviewed by police.
On 31 January 2020, the applicant and the co-offender committed a burglary and theft in Cowes where a safe containing $20,000 cash, some old Australian currency and some Australia Post collectible coins were taken (Charges 3 and 4). The applicant initially denied committing the offending when interviewed by police, but admitted the offending in a subsequent police interview. The co-offender admitted committing these offences when interviewed by police.
In early 2020, the applicant committed a burglary and theft in Ventnor when a shipping container was broken into and 19 quad motorcycles, a jet ski, power tools, quilts and linen were taken (Charges 6 and 7). The prosecution case was that the applicant was ‘involved’ in the theft of all 19 quad bikes in that his communications to others led to all the property being stolen. The prosecution accepted that the applicant profited ‘only to the extent of three’ of them.
On 23 March 2020, the applicant and co-offender committed a burglary and theft in Surf Beach where a safe containing $24,000 cash and $1,000 in international currency was taken (Charges 8 and 9). The applicant initially denied, but later admitted to this offending in a second police interview. The co-offender admitted committing these offences when first interviewed by police.
On 10 May 2020, the applicant and co-offender committed a burglary and theft in Leongatha where a safe containing between $20,000 and $30,000 cash, and $30,000 in jewellery was taken (Charges 10 and 11). Both the applicant and co-the offender denied committing this offending when interviewed by police.
Between 16 and 19 May 2020, the applicant committed a burglary and theft in Sunderland Bay where a safe containing a range of international currencies, personal papers, and a coin collection were taken. In addition, a Tissot brand watch, a bottle of whisky, some cash and a GoPro camera were taken (Charges 12 and 13).
On 22 May 2020, the applicant and co-offender committed a burglary and theft in Inverloch where a safe containing $80,000 cash was taken, along with some jewellery (Charges 14 and 15). The applicant initially denied committing this offending when interviewed by police but admitted the offending in a subsequent interview without being prompted by police. The applicant told police that he gave $10,000 to a person who tipped him off about the safe. The co-offender admitted committing this offending when interviewed by police.
On 1 July 2020, the applicant and the co-offender committed a burglary and theft in Cowes where a safety deposit box containing $15,000 cash and $4,528 US dollars was taken (Charges 16 and 17). The applicant denied committing this offending when interviewed by police.
In addition to the offending referred to above:
(a)On 25 February 2020, the co-offender received and knowingly dealt with $3,500. This was the proceeds of crime from the theft of a safe at a residential property in Cowes (Charge 5). The safe contained $47,000 cash and personal documents. The co-offender admitted to police that he received money from this theft.
(b)On 8 July 2020, the co-offender committed a burglary and theft in Wonthaggi where $300,000 in cash was taken from a safe (Charges 18 and 19). Following his arrest, the co-offender admitted to police that he took the cash and used a crowbar to do so.
The applicant and the co-offender were arrested on 13 August 2020.

Judge’s reasons for sentence

The charges on the single indictment resolved on 5 May 2023 following a case conference hearing in the County Court in April 2023. The applicant and the co-offender pleaded guilty on 8 June 2023. A plea hearing was held on 30 April 2024. The sentencing judge sentenced the applicant and the co-offender on 20 May 2024.
In his sentencing reasons, the judge noted that the adverse effect on the victims of the offending had been ‘substantial’ and that this was ‘hardly surprising given [the applicant’s and co-offender’s] incursions into their homes and the very high value of the thefts’.[1] His Honour characterised the co-offender’s plea as ‘an early plea of guilty’ since he had ‘made an offer at an early stage, pre-committal, which was close to the indictment to which [he had] pleaded’. In relation to the applicant, his Honour said:
[A]lthough you did not make an early plea offer, the number of charges is substantially less than you originally faced and I regard your plea as reasonably early given the resolution.[2]
[1]DPP v Savage & Anor [2024] VCC 687, [76] (‘Reasons’).
[2]Reasons, [77].
The sentencing judge recognised that there were a number of considerations applicable to both the applicant and the co-offender, including that they were held in custody from August 2020, when they were charged, until they were released on bail on 28 September 2020.[3] He took into account ‘in mitigation that this incarceration was during the pandemic when restrictive conditions were in place in the prison system including lockdowns’; and that they had ‘since been subject to stringent bail conditions including a curfew which seems to have been in place until the committal proceeding’.[4] His Honour also stated that both their sentences had been moderated on account of delay.[5] In relation to both the applicant and his brother, his Honour accepted that:
In the time the two of you have spent waiting to have this case finalised you have not reoffended and have otherwise demonstrated a capacity to rehabilitate. Moreover, throughout this period you have had the spectre of a substantial prison sentence hanging over your heads.[6]
[3]Reasons, [78].
[4]Reasons, [78].
[5]Reasons, [79].
[6]Reasons, [79].
In relation to them both, his Honour accepted that their guilty pleas were consistent with ‘a level of remorse for the offending and demonstrate a willingness to facilitate the course of justice’.[7] His Honour acknowledged the substantial ‘utilitarian value’ of their pleas.[8] This led the judge to affirm that he applied ‘the principles in the decision of Worboyes[9] and other cases and allowed an additional sentencing discount for [their] pleas’.[10]
[7]Reasons, [80].
[8]Reasons, [80].
[9]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
[10]Reasons, [81].
Turning to the applicant, his Honour noted various personal attributes, including his exposure to physical violence as a child and limited education; and his intermittent work as a labourer. The judge noted that he had been receiving Centrelink benefits and a Parenting Allowance since March 2023. His Honour also noted that the applicant had three children, including a young son for whom the applicant was the full-time carer, and accepted that ‘a period of imprisonment will weigh more heavily upon [him] knowing that [his] son will be without his father who has been in recent times his primary care giver’.[11] His Honour also noted that the applicant’s criminal history was limited, with only one prior instance of like offending from 2015 for which no conviction was recorded.[12]
[11]Reasons, [90].
[12]Reasons, [82]–[86].
His Honour’s reasons also recorded psychological assessments and medication to address assessed the applicant’s conditions,[13] and that it was not submitted that any of the principles in Verdins were applicable.[14] At this point, the judge concluded that ‘there are reasons to be optimistic [the applicant] will not reoffend’ despite his ‘serious, persistent and calculated offending’.[15]
[13]Reasons, [87].
[14]Reasons, [88]; R vVerdins (2007) 16 VR 240; [2007] VSCA 102.
[15]Reasons, [91].
Regarding the co-offender (and the applicant’s younger brother), his Honour noted that he was aged 31 at the time of sentence;[16] that he had a partner who relied on him for emotional support and two young children;[17] and that he was in full-time work in his painting business.[18] His Honour also noted that he had been a consistent drug user since leaving school and that at the time of the relevant offences, he was ‘using cocaine regularly and quite heavily’ but despite this he had no prior convictions.[19] His Honour further noted that he had ‘abstained from drugs since [he was] granted bail in 2020’.[20]
[16]Reasons, [92].
[17]Reasons, [92].
[18]Reasons, [92].
[19]Reasons, [98]–[99].
[20]Reasons, [98].
The judge referred to letters of support that, amongst other things, stated that since moving to country Victoria for a fresh start, he had demonstrated dedication as a father and employee, and earned respect in his community. His Honour concluded that ‘notwithstanding the gravity of the offending [he has] shown strong signs of rehabilitation over a lengthy period, and with a ‘stable family situation and employment’ he had ‘very good prospects of rehabilitation’.[21]
[21]Reasons, [101].
Leaving aside charge 5 (against the applicant) and charges 6 and 7 (against his co-offender), the sentencing judge stated that ‘the offences … involved targeted, calculated, planned intrusions into the residential homes of people [they] knew who lived in the same area as [they did]’. In his Honour’s assessment, the fact that the targeted premises were ‘mostly private homes’ was ‘a serious feature of these offences’.[22] His Honour added:
Not only did you steal high value amounts of cash and other property from the victims, but you also violated their privacy and sense of security by entering their homes to steal their property… Of course, underlining the callous nature of your offending was that the victims were people you knew.[23]
[22]Reasons, [102]–[104].
[23]Reasons, [106].
His Honour concluded that ‘the offending was premeditated and planned’;[24] as well as ‘persistent, [and] committed over an extended period’.[25] He noted the high value of the stolen property, most of which was unrecovered;[26] and that in some instances, there was consequential damage to the properties burgled in charges 1 and 2, 6 and 7 and 16 and 17 and in charges 8 and 9, 14 and 15.[27] He identified the applicant’s and his co-offender’s motive as greed.[28] His Honour noted that, in respect of the offences committed by the applicant alone, the total value of property stolen was $117,621.[29] In respect of the charges committed by the co-offender alone, his Honour noted that the $300,000 in cash ‘taken … in the final burglary’ was ‘the highest amount stolen in any [of] the burglaries’.[30] His Honour further noted that the co-offender had received $3,500 ‘in the proceeds of crime offence which was connected to the same type of burglary as the others on the indictment’ and that the ‘quantum stolen in [the co-offender’s] offences is therefore very high’.[31]
[24]Reasons, [107] and [110].
[25]Reasons, [108].
[26]Reasons, [110].
[27]Reasons, [109].
[28]Reasons, [113].
[29]Reasons, [111].
[30]Reasons, [112].
[31]Reasons, [112].
Although he assessed the moral culpability of both offenders as high, he did not assess their moral culpability as equal. Rather, his Honour assessed the applicant’s moral culpability as ‘marginally higher’ than that of his co-offender.[32] His Honour explained to the applicant:
You committed more offences. You have a prior conviction for burglary and theft, and you committed the first offence on the indictment back in 2018, a burglary where a safe was stolen. It was you who paid for the information … which activated the offending in charges 14 and 15, and you provided the information to others which facilitated the shipping container burglary. You seem to have been part of a network of dishonest people in your local area. You were particularly active in spending the proceeds of the crimes.[33]
[32]Reasons, [115].
[33]Reasons, [115].
As regards the applicant’s co-offender, his Honour said:
You … were more cooperative in your interviews with police. You told the psychologist Ms Lechner that you were influenced by your brother to join in with him in this offending. I accept this. However, once you commenced offending you were an enthusiastic participant. Further, I am a little more optimistic about your rehabilitative prospects. You have work and a long-term stable relationship and no relevant prior convictions.[34]
[34]Reasons, [116].
Accordingly, his Honour imposed ‘slightly lower sentences’ on the co-offender on the joint charges ‘to reflect these matters’.[35]
[35]Reasons, [117].

Having regard particularly to the calculated nature of the offending and the value of the property stolen, the sentencing judge considered that the objective gravity of the offending was higher than in most of the cases to which he referred in the sentencing reasons,[36] but that ‘in some respects the mitigating factors [were] stronger’ in the cases of the applicant and his co-offender.[37]
[36]Buovac v The Queen [2018] VSCA 302; Sweeney v The King [2023] VSCA 9; DPP v Bowd [2019] VSCA 246; Adams v The Queen [2011] VSCA 77; Gladigau v The Queen [2015] VSCA 204; DPP v Findlay [2017] VCC 1618.
[37]Reasons, [120].

His Honour’s statement of the relevant sentencing principles is not challenged on this application. In substance, his Honour held that the application of general, and to a lesser extent personal, deterrence meant that a significant prison sentence should be imposed.[38] His Honour was, however, mindful of the need to promote rehabilitation and avoid a crushing sentence.[39] His Honour referred to the totality principle and its consequential effects.[40] Relevantly here, his Honour specifically noted that he ‘must take care to impose a sentence which recognises the separate criminality involved in the separate incidents which combine to make up the sequence of offending in each of your cases’, noting that the offences were ‘separately planned and executed and therefore a level of cumulation is necessary to reflect the separate criminality involved’.[41]
[38]Reasons, [121].
[39]Reasons, [122].
[40]Reasons, [123].
[41]Reasons, [124].

Applicant’s submissions

In support of his proposed ground of appeal, the applicant submitted that there was no justification for the discrepancy between the sentences imposed on the applicant and his co-offender (even accepting his Honour’s findings in relation to the co-offender that resulted in the imposition of ‘slightly lower’ sentences on him for the joint charges, including that he was ‘more co-operative’ with the police and that his Honour was ‘a little more optimistic’ about his rehabilitation prospects). The applicant contrasted the aggregate sentences on charges 14 and 15 with the aggregate sentences imposed on the co-offender for charges 18 and 19, noting that charges 14 and 15 ‘involved $80,000 being taken whereas for charges 18 and 19 (for which the co-offender was solely charged) ‘involved $300,000 being taken’. The applicant submitted that other than the quantum, the objective characteristics of the offending were ‘largely the same’.
The applicant submitted that the following factors informed the application of the parity principle, with the consequence that the applicant’s sentence should be moderated. First, citing Chamma v The Queen[42] at [71], the applicant submitted that the objective gravity of the theft had to be considered by reference to, amongst other things, the value of the theft. The applicant submitted that, in this regard it was relevant that the total value of the property stolen in offences committed by the applicant alone was $117,621.50, whereas the total value of the property stolen in offences committed by the co-offender alone was $300,000; and the value of the property stolen in offences committed jointly was $178,299.
[42][2020] VSCA 232 (‘Chamma’).
Secondly, the applicant submitted that he made an offer to plead, pre-committal, in terms ‘close to the indictment to which (he) pleaded guilty’.[43] Whilst the co-offender also pleaded guilty, he did not make an offer to do so at an early stage.
[43]Reasons, [77].
Thirdly, the applicant submitted that he made a submission at the plea hearing, which the sentencing judge accepted, to the effect that his incarceration would weigh more heavily on him due to his role as the primary carer for his young son. He noted that material was tendered on the plea that indicated the applicant’s son had been in the applicant's full time care from 8 March 2023, when his son was about 22 months of age. Whilst this did not amount to exceptional circumstances, the judge accepted that this would ‘increase substantially the burden’ of his imprisonment.[44]
[44]Reasons, [90].
While the applicant accepted that he and the co-offender were not ‘identically positioned’ in every respect, the applicant submitted that ‘it was not reasonably open to the learned sentencing judge to differentiate between [him] and the co-offender to the extent that their sentences reflected’. In substance, the applicant argued that although he had committed more burglaries and thefts, the quantum involved in the co-offender’s offending was higher; and the factors personal to the applicant ‘called for appropriate moderation, where some of those factors were not available to be relied on by the co-offender’.

Respondent’s submissions

Citing Kellway (a pseudonym) v The King[45] the respondent submitted that an appeal on the basis of parity was similar to an argument of manifest excess, and was to be considered within the same analytical framework. The respondent submitted that the relevant question is whether it was reasonably open to the sentencing judge to differentiate between co-offenders in the way that the judge did.[46] Specific error need not be demonstrated; rather, it must be shown that the sentence imposed lay outside permissible grounds.[47]
[45][2023] VSCA 109, [125] (‘Kellway’), citing Barbaro v The Queen (2012) 226 A Crim R 354, 371 [63] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288 (‘Barbaro’).
[46]Barbaro, 371–2 [63].
[47]Abdullahi v The King [2024] VSCA 156, [51] (‘Abdullahi’).
The respondent’s principal submission was that his Honour’s sentencing reasons disclosed no apparent error. The respondent submitted that the difference was rational and justifiable, particularly bearing in mind the differences between the applicant and co-offender. The respondent acknowledged that the applicant and his co-offender ‘shared much in common for the purpose of sentencing’, but contended that there were some ‘critical differences between them that justified the disparity between each case’. I address these differences below.
The respondent submitted that many of the factors in the applicant’s favour (and referred to in the applicant’s submissions) were given substantial weight in the judge’s ‘instinctive synthesis’. The respondent drew attention to the fact that the highest sentence imposed was in relation to charges 18 and 19 and committed by the co-offender alone. The respondent submitted that ‘[a] higher sentence was justified in view of the quantum of the theft’ but that the sentence imposed reflected his Honour’s careful balancing of all the relevant factors, including the matters personal to the co-offender as well as the proper application of the totality principle. Citing Ah-Kau v The Queen[48] the respondent submitted that the fact that the overall quantum of the thefts was highest in the case of the co-offender did not, in and of itself, justify a higher total effective sentence for the co-offender.
[48][2018] VSCA 296, [51].

Consideration

In this case, the applicant complains of a difference of 11 months’ imprisonment between his total effective sentence and that of his co-offender, and a difference of eight months’ imprisonment between the non-parole periods of the applicant and his offender.
For an appellate court to intervene on the basis of disparity, the disparity must be one that was not open to the sentencing judge in the proper exercise of the sentencing discretion.[49] The question is therefore whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the applicant and his co-offender in the way that he did ‘if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances’.[50] Specific error need not be demonstrated; rather, it must be shown that the sentence imposed lay outside permissible grounds.[51]
[49]Kellway, [126]; Barbaro, [63].
[50]Kellway, [125], citing Barbaro, [63].
[51]Abdullahi, [51].
The offending in this case was undoubtedly serious. Although there were strong mitigating factors, the gravity of the offences was high, and the moral culpability of the applicant and his co-offender was properly assessed by the sentencing judge as ‘substantial’.[52]
[52]Reasons, [114].
One may accept, as the sentencing judge clearly did, that for sentencing purposes, the applicant and his co-offender had much in common. His Honour’s sentencing reasons disclose that the applicant and the co-offender were involved in four of the eight incidents involving the applicant; and that most of the offences were committed in a relatively similar way. Further, most of the offences were committed over a 5-month period in 2020, and both the applicant and his co-offender were motivated by greed.
There were also similarities in the applicant’s and the co-offender’s personal circumstances. The applicant was diagnosed with ADHD and bipolar disorder,[53] while the co-offender was diagnosed with ADHD.[54] Although not linked to the offending, the applicant had suffered from a gambling addiction, while the offender had suffered from a drug addiction.[55]
[53]Reasons, [87].
[54]Reasons, [100].
[55]Reasons, [84].
There were other similarities in the applicant’s and his co-offender’s positions relevant to sentencing. While they each made plea offers at different stages in the process, the sentencing judge accepted that both plea offers were early.[56] The sentencing judge accepted the utility of their pleas as significant, and the principles set out in Worboyes v The Queen[57] were applied in both cases.[58] His Honour also referred to the need to mitigate both their sentences to take account of the delay in waiting to have their cases finalised, the fact that neither had reoffended and both had shown signs of rehabilitation, and the fact that both had become reasonably settled in their lives following the offending.[59] His Honour recognised that the applicant and his co-offender had both spent 47 days in pre-sentence detention, which had involved restrictive conditions due to the COVID-19 pandemic; that both were subject to stringent bail conditions for the same relatively lengthy period; and that the burden of imprisonment was increased for both by reason of their familial responsibilities.[60]
[56]Reasons, [77].
[57](2021) 96 MVR 344; [2021] VSCA 169.
[58]Reasons, [80]–[81].
[59] Reasons, [89] and [93].
[60]Reasons, [92], [115]–[116].
There were, however, some significant differences between the applicant and the co-offender. On the one hand, the applicant was sentenced for 16 offences, representing eight incidents. Only four of these incidents were committed jointly with the co-offender. The remaining four incidents of burglary and theft (representing eight additional charges) were committed by the applicant alone. On the other hand, the co-offender was sentenced for 11 offences, involving five incidents and one separate offence of dealing with the proceeds of crime. Four of the five incidents committed by the co-offender were committed jointly with the applicant.
Further, as the sentencing judge noted, the applicant’s offending occurred over a broader date range.[61] The co-offender’s offending occurred entirely in 2020. This contrasted with the applicant’s offending, which commenced in 2018 with burglary and theft of a safe (Charges 1 and 2), although the remainder of his offences were in 2020.
[61]Reasons, [115].
It has also to be borne in mind that the applicant had a relevant prior court appearance for the offences of burglary and theft in 2015 (albeit relatively minor where he was ordered to pay a $1,000 fine with no conviction recorded), while the co-offender had no prior offending. The sentencing judge was, moreover, ‘a little more optimistic’ about the prospects of the co-offender’s rehabilitation than the applicant’s rehabilitative prospects, in view of the co-offender’s employment situation, absence of relevant prior convictions, and that he was in a long-term stable relationship.[62] This was so notwithstanding his Honour accepted that the applicant had ‘demonstrated a capacity to rehabilitate’.[63]
[62]Reasons, [101] and [116].
[63]Reasons, [79].
Further relevant considerations include the fact that the applicant had paid $10,000 for the information that led to the offending in charges 14 and 15 (committed jointly with the co-offender). Also, in committing charges 6 and 7 (offences not involving the co-offender), the applicant had provided information to others and this led to the theft of a substantial amount of property (ie, 19 quad bikes). Although the applicant only profited from this incident to the extent of three quad bikes, the sentencing judge found that his conduct demonstrated that the applicant was ‘part of a network of dishonest people in the local area’.[64]
[64]Reasons, [115].
The sentencing judge also found, as it was open to him to do, that the co-offender was more cooperative in his interviews with police than the applicant. This was because the co-offender admitted the allegations in relation to three of the incidents during his recorded interview with police. In contrast, the applicant denied the allegations in his first interview with police, admitting his conduct in relation to the same three incidents only in his subsequent interview. In light of this, the sentencing judge found that the co-offender was more cooperative in his interviews with police than the applicant.[65] Finally, the sentencing judge accepted that the co-offender was influenced by the applicant to join in the offending (although his Honour considered that the co-offender was an enthusiastic participant once the offending began).[66]
[65]Reasons, [116].
[66]Reasons, [116].
The applicant did not challenge these findings, which were, in any event, plainly open to the judge to make.
I accept that, as the respondent submitted, most of the factors relied on by the applicant as informing the application of the parity principle were in fact given appropriate weight in the judge’s instinctive synthesis.
As already noted, relying on Chamma, the applicant submitted that, amongst other considerations, the objective gravity of the theft was to be considered by reference to the value of the theft.[67] In this context, the applicant relied on the fact that the total value of the property stolen by the co-offender in offences committed by him alone was significantly higher ($300,000) than the total value of the property stolen in offences committed by the applicant alone ($117,621.50). The applicant’s submission was that the sentencing judge had not moderated the applicant’s sentence to take account of this as he should have done.
[67]Chamma, [71].
The applicant submitted that, as in Chamma, the objective gravity of any theft needs to be considered by reference to, amongst other things, the value of the theft. In Chamma, Priest, Beach and T Forrest JJA relevantly said:
The objective gravity of any theft needs to be considered by reference to what was taken (including its value), from whom it was taken, and all other relevant surrounding circumstances, including the purpose for which it was taken.[68]
[68]Chamma, [71].
The sentencing judge’s assessment was made in conformity with this statement. His Honour recognised that the objective gravity of the offences was high, and accurately assessed the moral culpability of both the applicant and the co-offender as ‘substantial’.[69] His Honour made this assessment having regard to all the relevant circumstances of the case, including that the offending mostly involved intrusions into the homes of people known to the applicant and the co-offender.[70] It was not unsophisticated but involved, in the case of three incidents, the entire removal of safes that had been fixed in position;[71] and damage was done to some of the victims’ properties in the course of the offending.[72] Relevantly too, his Honour took into account that the quantum of the thefts was high.[73]
[69]Reasons, [114].
[70]Reasons, [103].
[71]Reasons, [27].
[72]Reasons, [109].
[73]Reasons, [110].
Out of all the charges that fell for his consideration for sentencing purposes, the sentencing judge imposed the highest individual sentence in relation to charges 18 and 19. This was the final incident committed by the co-offender alone. The higher sentence was justified by reason of the value of what was taken, but the total effective sentence imposed by his Honour reflected his careful consideration of all factors, including matters personal to the co-offender and the proper application of the totality principle.[74]
[74]Reasons, [123]–[124].
It is clearly correct to say, as their Honours did in Ah-Kau v The Queen,[75] that there is no ‘scientifically precise answer to the quantification of disparities between offenders’. The fact that the overall quantum of the thefts was higher in the case of the co-offender than the applicant did not of itself require the imposition of a higher total effective sentence for the co-offender.
[75][2018] VSCA 296, [51] (McLeish and T Forrest JJA).
Considered as a whole, the differences between the applicant and the co-offender do not bespeak error on the part of the sentencing judge in applying principles of parity. The reasons for the moderate disparity between the sentences imposed on the applicant and the co-offender are apparent from the reasons of the sentencing judge; and are for the most part referable to the higher number of offences committed by the applicant and his Honour’s careful appraisal of the applicant’s moral culpability. Bearing this in mind, it was open to the sentencing judge to differentiate between the applicant and the co-offender as he did. Ground 1, which was the applicant’s sole ground, is not reasonably arguable.

Conclusion

For the reasons stated, leave to appeal is refused.
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[2024] VSCA 249

23 October 2024