SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2023 0183	

Carter Minutolo	Applicant	
		
v		
		
The King	Respondent	

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JUDGES:	KENNEDY JA and KIDD AJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	28 November 2023 	
DATE OF JUDGMENT:	7 December 2023	
MEDIUM NEUTRAL CITATION:	[2023] VSCA 300	
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Carter Minutolo‑Smith (County Court of Victoria, Judge Gaynor, 12 September 2023)	

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence –– Third contravention of community corrections order – Applicant resentenced on original charges together with contravention offence – Original charges including theft, criminal damage and go equipped to steal/cheat –– Total effective sentence of 6 months’ imprisonment – Whether applicant resentenced on incorrect factual basis – Whether sentencing judge failed to take into account extent of compliance – Whether sentencing judge misapplied parity principle – Whether sentence manifestly excessive – No error – No reasonable prospect of reduction in sentence – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1).

Kellway v The Queen [2023] VSCA 109, applied.
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Counsel	
Applicant:		Ms E Strugnell	
Respondent:		Mr G Buchhorn	
	
Solicitors	
Applicant:		James Dowsley & Associates	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

KENNEDY JA
KIDD AJA:
1	On 12 September 2023 the applicant pleaded guilty to one charge of contravening a community corrections order (‘CCO’) (‘the Order’). Following a plea hearing, the applicant was sentenced on that charge and, after cancelling the Order, was also resentenced in relation to the original charges for which the Order was made, as follows:
	Charge		Offence		Max Penalty		Sentence		Cumulation	
	1		Contravention of a CCO		3 months		2 months		1 month	
	9		Go equipped to steal/cheat		2 years		5 months (aggregate sentence)		Base	
	10		Criminal damage		10 years					
	11		Theft		10 years					
	12		Criminal damage		10 years					
	13		Theft		10 years					
	14		Criminal damage		10 years					
	15		Theft		10 years					
	16		Criminal damage		10 years					
	17		Theft		10 years					
	18		Criminal damage		10 years					
	Total Effective Sentence:		6 months’ imprisonment	
	Section 6AAA Statement:		Total Effective Sentence 12 months’ imprisonment	
2	The applicant now seeks leave to appeal against sentence on the following grounds:
Ground 1.	The sentencing judge erred in resentencing the applicant on an incorrect factual basis, in that the incorrect summary for the breaching offence was read by the prosecution into the court record.
Ground 2.	The sentencing judge erred by resentencing the applicant on an incorrect factual basis, namely by having regard to the incorrect charge and offence.
Ground 3.	The sentencing judge erred by failing to take into account the extent of compliance as required by s 83AS of the Sentencing Act 1991.
Ground 4.	The sentencing judge erred in misapplying the parity principle on the resentence, such that a legitimate and justifiable sense of grievance is produced in an objective observer.
Ground 5.	In all the circumstances of the case, the sentence imposed is manifestly excessive.
3	For the reasons that follow, leave to appeal will be refused. 
Circumstances of original offending 
4	In June 2019 the applicant and his co-offender, Jarrad Morton, attended various railway stations in the outer eastern suburbs of Melbourne, broke into and damaged multiple Myki machines, and stole money from within the machines (the ‘original offending’).
5	The thefts on the above dates all occurred in the early hours of the morning. In order to facilitate the thefts, the applicant and/or Mr Morton utilised a blowtorch, portable grinders and jemmy bars to force the vending machines open and remove the Myki machines’ ‘bank note acceptors’, thus gaining access to the drop safe containing bank notes. During these thefts, they also both used balaclavas and ‘hoodies’ to disguise themselves and wore gloves to evade forensic identification.
6	The applicant was on a CCO at the time of the original offending in respect of charges of receiving stolen goods, possessing a prohibited weapon without exemption and possessing ammunition without a licence. He also had a reasonably extensive criminal record, which included offences involving dishonesty, possession of drugs and other firearm offences. 
7	On 12 June 2019 the applicant was arrested and interviewed by police, and subsequently was charged. 
8	A plea hearing was conducted on 10 August 2020, at which time the sentencing judge deferred the applicant’s sentence for a period of 12 months to give him an opportunity for rehabilitation.
9	On 9 August 2021 the applicant was then sentenced to an 18-month CCO (until 8 February 2023) including 100 hours of unpaid community work, treatment, supervision and judicial monitoring (‘the Order’). He was aged 30 at that time. 
Breach proceedings and contraventions 
10	On 10 May 2022 the applicant pleaded guilty before the sentencing judge to one charge of contravening the Order (‘first contravention hearing’). It was contravened by way of non-attendance and further offending (being a prohibited person in possession of an imitation firearm and fraudulently using a registration label).
11	The sentencing judge dealt with the first contravention, finding the breach proven, but varied and extended the Order to 8 August 2023.
12	On 12 July 2022 the applicant pleaded guilty before the sentencing judge to another charge of contravening the Order, occasioned by non-compliance and further offending (shop theft and commit indictable offence on bail).
13	The Order was again varied and further extended to 8 December 2023 (‘second contravention hearing’). A mental health treatment condition was added to the Order.
14	Following the second contravention hearing, the applicant committed further offending (‘the breach offending’). He was charged with one charge of possessing a traffickable quantity of firearms; one charge of possessing firearm parts for manufacturing a firearm; one charge of being a prohibited person possessing an imitation firearm; one charge of disposing of a handgun when not a licensed firearm dealer; one charge of being an unlicensed person storing a firearm in an insecure manner; two charges of committing an indictable offence on bail; one charge of possessing cartridge ammunition and one charge of possessing a drug of dependence.
15	On 15 March 2023 the applicant pleaded guilty to the breach offending and was sentenced in the Frankston Magistrates’ Court to a total effective sentence of 14 months’ imprisonment, with a non-parole period of 8 months’ imprisonment and fined $1,600. There were 210 days declared by way of pre-sentence detention.
16	On 12 September 2023 the applicant came before the sentencing judge for contravention of the Order occasioned by non-compliance with the Order (failure to attend supervision appointments on two occasions) as well as the breach offending (‘third contravention hearing’).
Third contravention hearing
17	At the third contravention hearing the parties were in agreement that the Order should be cancelled and the applicant resentenced on the original offending. As indicated already, he was resentenced on the original offending to an aggregate sentence of 5 months’ imprisonment. He was also sentenced in relation to the contravention offence to 2 months’ imprisonment, with 1 month cumulation. The total effective sentence was 6 months’ imprisonment.
18	During the course of the hearing, the sentencing judge noted that she had been dealing with the applicant for ‘several years’, had given him ‘opportunity after opportunity’ and understood that this was his ‘third outing on a breach’.
19	During the submissions of the respondent, the sentencing judge enquired whether there was a police summary in relation to the original offending. Counsel for the respondent then read a statement of informant Senior Constable Godsmark into court.
20	After counsel for the applicant conceded that it was appropriate for the Order to be cancelled and the applicant to be resentenced on the original offending, the sentencing judge expressed disappointment that the applicant was now ‘manufacturing guns’ despite ‘dealing’ with him for ‘several years now’. The sentencing judge observed that, while the applicant had a very difficult background and was young, the offending was ‘serious’, highlighting that he was manufacturing firearms, such that nothing other than cancellation of the Order and resentencing was appropriate. Counsel for the applicant accepted this position. After the applicant’s counsel noted that the applicant’s current release date was 10 days after the hearing, the sentencing judge stated that he would be ‘getting more than 10 days’ imprisonment. This was also accepted by the applicant’s counsel. 
21	Following further submissions from counsel for the applicant, the sentencing judge reiterated her ‘serious’ concern that the offending had occurred despite ‘all the input’. In the sentencing judge’s view, the offending was ‘serious’ notwithstanding that it was dealt with in the Magistrates’ Court. As noted above, she observed that this was the applicant’s ‘third outing on a breach’.
22	The sentencing judge then announced her intention to sentence the applicant to 2 months’ imprisonment for the breach of the Order, noting that the maximum was 3 months. The sentencing judge then considered the appropriate sentence for the original offending, stating: 
	And he would have got a lot more at the time because it was an armed - I’ve forgotten. It was an armed robbery at a boarding house. Yes, and I’ll make one month of it cumulative. That’s another seven months, and it will go from today. Pursuant to s6AAA, I declare had he not pleaded guilty, I would have given him 12 months all up. I am so disappointed in you, really.
23	Shortly thereafter, counsel for the respondent corrected the sentencing judge’s misapprehension and clarified that the original offending concerned theft and criminal damage charges (not armed robbery).
24	The sentencing judge thereafter acknowledged the misapprehension and clarified the disposition as follows:
	I’m sorry, I’m getting my offenders mixed up.
	…
	I have got you mixed up - yes, I do apologise - because the offender I was thinking of is quite a lot younger than you. Look on that - - -
	...
	Look, I’ll make it five months because I thought it was initially an armed robbery. So it will be five months resentence, and then there’s two months for breaching, one month cumulative, and that makes a total of six months.
	…
	Well, look, I’m so sorry for mixing you up with another offender. That’s terrible. But of course, I recall the case, and I dealt with both your co-accused in relation to that, all right. Well, look, there you are. You had a go on the CCO. It didn’t work. I’m glad that gaol has had the effect on you that it has had. You’ve got another six-month stint to go, which probably, given your state of mind, isn’t a bad thing at this point in time, and I wish you well when you get out.
Proposed ground 2 — Specific error by reason of incorrect charge and offence
25	It is convenient to commence with proposed ground 2, which was the applicant’s primary ground. 
Submissions
26	The applicant highlighted the short duration of the third contravention hearing and the timing. He submitted that the sentencing judge could not have entirely disavowed herself of the notion that she was resentencing for an armed robbery offence. 
27	In oral submissions, counsel suggested that the applicant was sentenced in the context of a level of ‘chaos’. She submitted that it was only some 8 seconds after the correction was drawn to her attention that the sentencing judge sentenced the applicant — without standing the matter down. In all the circumstances, the Court should therefore infer that the applicant was sentenced for the wrong offence. Further, that the sentencing judge had misidentified the applicant.
28	The respondent submitted that the sentencing judge accepted that her initial belief was mistaken and, having identified this, resentenced the applicant on a correct factual basis. Her disavowal of that mistaken belief is evidenced by three matters. First, she could recall the ‘quite a lot younger’ offender who had committed the armed robbery. Second, she accurately recalled having sentenced two other offenders involved in the original offending. Finally, the sentencing judge was very familiar with the applicant’s personal circumstances and the background to his case given her ongoing involvement over ‘several years’. 
29	In oral submissions counsel emphasised that the mistake was corrected. It was irrelevant to highlight the timing and alleged ‘chaos’. The real point was that the applicant had not shown that he was sentenced for the wrong offence. Counsel also made a general submission that no different sentence would be imposed. 
Consideration
30	Hearings for contraventions of orders such as the one in this case often need to be conducted expeditiously, bearing in mind that the judge will usually be familiar with the offender. It is neither fair nor helpful to suggest that the applicant was sentenced in a context of ‘chaos’ simply because the matter was managed expeditiously by an experienced criminal judge.
31	It is unfortunate that the sentencing judge was initially under a misapprehension as to the nature of the original offending. However, she expressly accepted and acknowledged that she should not sentence the applicant on the basis that he had committed an armed robbery. Having particular regard to the three matters identified by the respondent — including that the sentencing judge had dealt with the applicant for ‘several years’ — there is no reason to reject the sentencing judge’s statements to the effect that she did recall his case. The sentencing judge imposed a different (and lower) sentence.
32	The applicant has not established that the sentencing judge sentenced the applicant for the ‘incorrect’ offence, or that she misidentified the applicant as at the time of sentencing him. 
33	Proposed ground 2 must fail.
Proposed ground 1 — Specific error by virtue of incorrect summary
Submissions
34	The applicant submitted that the incorrect summary of the breach offences was read by counsel for the respondent into the court record. He acknowledged that his own counsel did not correct this during the hearing. Nonetheless, he submitted that there was an error because the sentencing judge was appraised of additional aggravating matters that ‘went above and beyond’ the summary which had been agreed (the ‘applicant’s summary’). In written submissions, he set out ten ‘crucial’ differences between the applicant’s summary and the summary read to the sentencing judge. In particular, he highlighted that the sentencing judge was misinformed about the number of firearms in the applicant’s possession.
35	The respondent disputed that the applicant’s summary truly represented an agreed summary, as there was limited evidence confirming this to be the case. Given the lack of any objection at the hearing by the applicant’s counsel to the summary being read aloud, it should instead be inferred that the correct summary was relied on.
36	The respondent further submitted that, even if the applicant’s summary represented the agreed facts, the applicant had not established that any differences had any material effect on the resentencing process. The summary of the breach offending also had limited relevance to the sentencing judge’s overall task. The sentencing judge only needed to have a high level understanding in making a general assessment of the breach offending in circumstances where the gravity of that offending was not in issue.
Consideration
37	Even presuming that the applicant’s summary had been agreed, there is no merit in this ground.
38	First, we do not accept that any of the differences were significant. The main differences were concerned with the precise numbers of firearms and handgun parts. However, the references in the applicant’s summary to ‘4 firearms’, ‘4 imitations firearms’ and ‘numerous miscellaneous handgun parts’ were in some ways more aggravating than the reference to the ‘5 x 3D printed handguns’ and ‘a black handgun’ contained in the summary read to the sentencing judge. The reference to further communications with potential customers was also of little consequence in circumstances where the applicant had pleaded guilty to possession of a traffickable quantity of firearms and (as conceded) was manufacturing firearms. 
39	Second, there is nothing to suggest that any of the differences had a material effect on the sentencing judge. As she expressly stated, she was interested in the ‘illicit material’, not superfluous detail. Her key concern was that the applicant was ‘manufacturing firearms’ — a matter apparent on the applicant’s (own) summary.
40	Finally, and in any event, the sentencing judge was not required to understand the fine details of the breach offending, for which the applicant had already been sentenced. She was clearly well aware of, and took into account, the general nature and seriousness of that offending in circumstances where the applicant’s own counsel (properly) accepted that the offending was serious. 
Proposed ground 3 — Failure to take into account extent of compliance
Submissions
41	The applicant submitted that the sentencing judge failed to have regard to the positive steps taken by the applicant towards completion of the Order, as required by s 83AS(2) of the Sentencing Act 1991. Those steps include attendance at supervision appointments across the lifespan of the orders, participation in assessment and treatment for substance abuse and completion of 65 of 100 hours of unpaid community work.
42	In oral submissions counsel also suggested that the applicant had completed an additional 12 hours of work, although this had not been able to be verified given he was placed into custody.
43	The respondent contended that this ground has no merit. It pointed to the fact that the 12 September 2023 contravention hearing was the applicant’s third such proceeding in relation to the same CCO. On both previous occasions, he pleaded guilty to contravening the Order and the sentencing judge extended the Order. It could be inferred that the applicant’s level of compliance had been taken into account in determining to deal with the applicant as she did.
44	The respondent also highlighted that, after the second contravention hearing, the applicant’s degree of compliance with the Order ‘became negligible’. Further, he became engaged in ‘really serious’ breach offending which largely overshadowed his very limited engagement with the Order after the second contravention hearing.
Consideration
45	There is no ‘failure’ to take into account the extent of the applicant’s compliance with the CCO. To the contrary, the sentencing judge clearly took into account that compliance by extending the opportunities to the applicant she did and by extending the Order twice. 
46	Insofar as the third contravention hearing is concerned, there was limited further engagement to take into account. Even if the further 12 hours was completed, the applicant’s counsel did not put this matter before the sentencing judge. This was no doubt because the seriousness of the breach offending was the paramount consideration in resentencing and given that the applicant’s counsel (properly) accepted that a substantive prison sentence was warranted.
47	The applicant has not demonstrated that the sentencing judge ‘failed’ to take into account the extent of the applicant’s compliance with the CCO. 
Proposed ground 4 — Misapplication of the parity principle
Submissions
48	The applicant highlighted that Mr Morton’s offending was more extensive and occurred over a broader period (between May and August 2019). On 18 August 2020 Mr Morton was sentenced to a total effective sentence of 11 months and 21 days’ imprisonment in combination with a CCO for a period of 30 months. 
49	The applicant submitted that the sentence imposed on him, when compared to that of Mr Morton, does not adequately distinguish between the role, period and volume of the original offending committed. He submitted that this leads to a justifiable sense of grievance on his part. 
50	In oral submissions, counsel focused on the relevant values of thefts and damage perpetrated by Mr Morton. She alleged that Mr Morton was responsible for 85 per cent of the total value of the damage caused. 
51	The respondent, on the other hand, submitted that the disparity in sentences imposed on the applicant and Mr Morton can be rationally explained even when the differences in the role, period and extent of their offending is accounted for. The disparity is not so marked to produce a justifiable sense of grievance warranting appellate intervention.
52	The respondent accepted that the applicant’s role in the original offending was less involved than that of Mr Morton. However, the applicant had a ‘reasonably extensive’ prior criminal history, including for dishonesty offences. Although the applicant could call in aid some matters in mitigation, Mr Morton had other mitigating factors, including profound childhood disadvantage, as well as a strong case of family hardship (he was a very young father with children with extreme difficulties). The applicant also fell to be resentenced based on his circumstances as at the time of the third contravention. Notwithstanding three opportunities (including the initial deferral of his sentence), he was engaged in serious offending. His prospects of rehabilitation and specific deterrence were hence of different weight in 2023. A term of imprisonment, (as conceded) was also the only available disposition.
Consideration
53	In Kellway (a pseudonym) v The King, this Court summarised the parity principle as follows:
	The purpose of parity in sentencing is to ensure consistency in punishment. 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’. Significant disparities in sentences ‘should be capable of a rational explanation’. However, that is not to say that there will be a ‘scientifically precise answer to the quantification of disparities between offenders’. The assessment of the amount of disparity between offenders is ‘[u]ltimately … an evaluation based on impression’.
	A ground of appeal complaining about disparity should be approached within the same analytical framework as the ground of manifest excess. 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.
	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’. 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. 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.’
54	There is also no merit in this ground in circumstances where the applicant was given a much more lenient, ‘different’ sentence than Mr Morton — at all times — in recognition of Mr Morton’s different, more extensive offending. 
55	Thus, as at the time of the original sentence of both Mr Morton and the applicant, the sentencing judge clearly afforded weight to the parity principle. Notwithstanding the mitigating features available to Mr Morton, (which included a diagnosis of ADHD, major depressive disorder and an extremely difficult family situation) she imposed a sentence of 11 months and 3 weeks’ imprisonment together with a CCO (which also was punitive) in recognition of his more extensive offending. By way of comparison, the applicant was afforded the opportunity of a 12 month deferral and then placed on a CCO (which was subsequently extended twice).
56	As at the time of the third contravention hearing, the applicant had not only breached two earlier orders, but had engaged in serious re-offending. Even then, the sentence imposed of 6 months’ imprisonment was still well below that imposed on Mr Morton. 
57	No justifiable sense of grievance is demonstrated and proposed ground 4 is rejected.
Proposed ground 5 — Manifest excess
Submissions
58	Finally, the applicant submitted that the sentence imposed on the resentence was manifestly excessive having regard to his prior criminal history, the application of the Bugmy v The Queen (‘Bugmy’) principles, as well as the matters raised already under proposed grounds 1–4.
59	In oral submissions counsel emphasised family issues, highlighting that the applicant had witnessed his mother’s overdose. She also sought to raise issues of family hardship, suggesting that his father needed support. 
60	The respondent submitted that, after giving all relevant circumstances proper weight, the sentence imposed upon resentencing for the original offending was well open to the sentencing judge to impose. It was submitted that the applicant’s offending was brazen and carefully planned. Both the value of the money and damage caused were considerable. Aggravating matters also included that the applicant was on a CCO at the time of the original offending for dishonesty offences.
61	The respondent further submitted that the applicant had limited mitigating factors to draw on. To the extent that the Bugmy principles might have been relevant in a general sense, this factor needed to yield to sentencing purposes such as community protection, general deterrence, specific deterrence and denunciation. The report of psychologist Sandra Cokorilo also suggested that the applicant had an inability to address factors causative of his criminal behaviour. There was also no evidence demonstrating a nexus between the original offending and the applicant’s upbringing. In any event, the applicant had failed to establish that the aggregate sentence was wholly outside the range of reasonably available sentences.
Consideration
62	The ground of manifest excess is only established where the sentence imposed was ‘wholly outside the range of sentencing options available’ to the sentencing judge. It must be shown that ‘something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion’.
63	Although family hardship was raised before this Court, it was not suggested that the issue was raised with the sentencing judge. It therefore could play no part in the judge’s sentencing task.
64	There were nevertheless some factors in mitigation, including the applicant’s difficult childhood, and early plea of guilty, which were taken into account at the time of the applicant’s original sentence.
65	However, by the time of the third contravention hearing, the sentencing judge had already provided extensive opportunity for the applicant to rehabilitate. Not only did she defer his original sentence, she then extended the CCO twice notwithstanding his further breaches. The contravention of a CCO can be a significant factor in an assessment of an offender’s prospects of rehabilitation. The principles of specific deterrence and denunciation also became significant in this context. 
66	Having regard to the extent of the applicant’s contraventions, as well as his serious criminal history and further offending, we consider that the sentence of 6 months’ imprisonment was not only well open — but in fact lenient. It was certainly not ‘manifestly excessive’.
Other basis to reject leave
67	It is unnecessary to consider the matter further given no error has been established.
68	Nevertheless, the matters we have already highlighted, including the serious nature of the breach offending, mean that there is no reasonable prospect that we would reduce the total effective sentence and impose a less severe sentence.
69	In such circumstances, even if, contrary to the above, one of the errors alleged were established, we would refuse the application for leave to appeal. 
Conclusion
70	Leave to appeal will be refused. 
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