SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0222

JARRED LEE SIMPSON	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	PRIEST, NIALL and T FORREST JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	10 April 2019	
DATE OF JUDGMENT:	10 April 2019	
MEDIUM NEUTRAL CITATION:	[2019] VSCA 82	
JUDGMENT APPEALED FROM:	DPP v Simpson (Unreported, County Court of Victoria,
Judge Saccardo, 7 September 2018)	

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CRIMINAL LAW – Appeal – Sentence – Burglary – Attempted theft of firearm – Parity – Whether reasonably open to differentiate between co-offenders – Whether disparity gave rise to justifiable sense of grievance – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr J D Kantor	Kerry R Clancy Solicitors	
			
For the Respondent	Mr J McWilliams	Mr John Cain, Solicitor for Public Prosecutions	

priest ja
Niall JA
T Forrest JA:
Introduction
1	As part of a drunken escapade in the company of Justin Austin (‘Austin’) during the early hours of 30 November 2017, the applicant committed a burglary on a hardware store and attempted to steal firearms.  Whilst attempting to remove a gun safe from the premises, the two were confronted by police.  They fled.  Shortly afterward, the applicant was found hiding in a yard and was arrested.  Austin handed himself in to police at about noon that same day.
2	On 31 August 2018, the applicant pleaded guilty in the County Court to burglary and attempted theft of a firearm.
3	Following a plea conducted on 31 August 2018, the judge sentenced the applicant on 7 September 2018 to an aggregate sentence of 14 months’ imprisonment, to be followed by a community correction order (‘CCO’) of 30 months’ duration.  The CCO had treatment and rehabilitation conditions with respect to drugs, alcohol and to reduce re-offending, and a condition that the applicant undertake 200 hours’ community work (time spent undertaking programs counting towards that work).  Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to 20 months’ imprisonment, with a non-parole period of 14 months.
4	Austin had earlier pleaded guilty to burglary and attempted theft of a firearm before another judge of the County Court, and on 14 May 2018 had been sentenced to an aggregate 10 months’ imprisonment, to be followed by a conditioned CCO of 36 months’ duration.  That judge declared that, but for Austin’s plea of guilty, he would also have sentenced Austin to be imprisoned for 20 months, with a non-parole period of 14 months. 
5	The applicant seeks leave to appeal against his sentence on two grounds as follows:
  1. 	The Learned Judge failed to apply principles of parity in sentencing the [applicant] to an additional 4 months imprisonment for identical offending.
2. 	The Learned Judge failed to apply principles of parity in sentencing the [applicant] to a Community Corrections [sic] Order with 200 hours of community work in circumstances where the co-accused received no community work.
6	For the reasons that follow, we would refuse leave to appeal.
The offending
7	Before turning to consideration of the grounds of appeal, it is necessary to say something of the offending.  
8	On the plea hearing, the prosecutor opened the facts in conformity with the filed Summary of Prosecution Opening, which (so far as relevant) was in the following terms:
Overview of Offending
1. 	[The applicant] has pleaded guilty to one charge of Burglary and one charge of Attempted Theft of Firearm.
...
3. 	[The applicant] was born on 19 April 1982 and is currently 36 years old.  At the time of the offences, he was 35 years old.  The offending was committed with a co-accused, [Austin].  [Austin] and [the applicant] have known each other since 2006.  [The applicant] has children with [Austin’s] sister.
Details of the Offending
4. 	On 29 November 2017 at approximately 10.00 am, [Austin] and [the applicant] commenced consuming alcohol at [Austin’s] home in Wodonga.  [Austin] and [the applicant] departed [Austin’s] home and attended [the applicant’s] partner’s premises in West Wodonga.  [Austin] was in possession of a Mobile Phone Taser.
5. 	[Austin] and [the applicant] left the premises in West Wodonga and walked to the Elgin’s Hotel located in Elgin Boulevard Wodonga.  [Austin] withdrew money from the ATM, and [Austin] and [the applicant] consumed alcohol and gambled on poker machines.
6. 	On 30 November 2017 at approximately 3.00 am, [Austin and the applicant] departed the Elgin Hotel and walked north along Melbourne Road.  Kelly’s Mitre is located at 88 Elgin Boulevard, Wodonga.
7. 	[Austin] and [the applicant] gained access to the property by climbing over the perimeter fence in order to gain access to the rear yard of the premises.
8. 	At approximately 3.30 am, [Austin] and [the applicant] located an angle grinder at the rear door which was plugged in.  They proceeded to use it to cut the door handle off.  This attempt was unsuccessful and [the applicant] located a nearby screw driver and used it to jimmy the door off.
[9][] 	[Austin] and [the applicant] went upstairs to the office area and gained entry to the office area by breaking the office door window.  While inside the office, [Austin] and [the applicant] looked through a number of cupboards and doors.  They discovered a tall gun safe.
[10] 	[Austin] squeezed 3-4 gun cases located next to the safe and found that they were empty.  [Austin] and [the applicant] proceeded to drag the gun safe across the carpet and slide it down a set of stairs.  The victim had five riffles stored in the gun safe totalling approximately $12,000.
[11] 	[Austin] and [the applicant] used a trolley found on the premises to wheel the safe to the western fence line leaving the safe near a locked gate.  While attempting to locate something to open the gate with, Sergeant Larry Goldsmith arrived at the premises.
[12] 	[Austin] and [the applicant] attempted to flee while getting over the fence.  While attempting to flee [Austin] produced the Mobile Phone Taser and activated it causing a burst of electricity.  [Austin] said ‘if you come near me I’ll give you fucken some of this cunt’.  [The applicant] and [Austin] did not leave the premises with the safe.  [Austin] and [the applicant] fled the area and [the applicant] was found hiding in a nearby yard.  He was arrested.
[13] 	On 30 November 2017 at approximately 12.00 pm, [Austin] presented himself at the Wodonga Police Station.
Record of Interview
[14]	On 30 November 2017, at approximately 8.19 am, [the applicant] participated in a recorded interview at Wodonga Police Station.  He made partial admissions.
[15] 	[The applicant]  stated:
- 	He will not say names, but he was with someone else during the evening (Q&A 14);
- 	Agrees that earlier during the evening he was at his girlfriend Stacey Selby’s home and she lives in Wodonga (Q&A 15 - 19);
- 	He had a few beers and the person he was with was ‘pissed’, ‘pretty intoxicated’ and irritating the entire neighbourhood’ (Q&A 20 - 23);
- 	That he owns a silver commodore which is parked in the driveway of his sister in laws home, and that on the night of the offending he had an argument with his girlfriend and went from his girlfriends to his sister in laws and then walked back to his girlfriend’s home with his friend (Q&A 24, 33 - 46);
- 	Left his girlfriends with his friend and ended up at the Pokies at Elgin’s and they remained at Elgin’s until just after close at approximately 2.30 am (Q&A 60, 74);
- 	It was not a planned job (Q&A 79);
- 	He and his friend left Elgin’s on foot and ‘one thing led to another’ and they ‘ended up doing the hardware store’ (Q&A 86);
- 	He and his friend jumped the fence and had a look around for something to sell, then he tried cutting the door open with an angle grinder (Q&A 93, 95 - 96);
- 	The angle grinder did not cut through the door so he used a screw driver to pop the door open (Q&A 98);
- 	They were both searching for anything and didn’t even know it was a gun safe and they started dragging it (Q&A 125, 129);
- 	They started dragging it down the stairs and they saw someone pull up (Q&A 130);
- 	They were not looking for firearms and he would not think that a hardware store would have firearms on premises (Q&A 136);
- 	His friend was trying to get a wheelbarrow and they found the trolley to use (Q&A 157);
- 	The alarm went off when he popped the door open (Q&A 187);
- 	Didn’t know his friend had a taser on him (Q&A 231).
[16] 	[Austin] participated in a recorded interview at Wodonga Police Station during which he made frank admissions to the offences.  [Austin] provided Police with the Mobile Phone Taser and also gave a statement.
…
The reasons for sentence
9	In his reasons for sentence, the judge said that the applicant is a Torres Strait Islander.  He had a stable upbringing in Shepparton, but had limited education having left school after completing Year 8.  Since that time the applicant’s employment consisted of labouring.  He is the father of seven children who reside in the care of his family members.
10	The judge observed that the applicant had ‘a significant history of prior offending involving numerous counts of dishonesty consisting largely of counts of shop theft which extend back to September 2000’.  Although the applicant had been the subject of eight community based orders in the past, he had only completed one such order successfully.  The judge also noted that the applicant had also breached a suspended sentence.  There was no issue, the judge said, that the applicant had ‘a long history of abusing alcohol and to some extent other illicit substances’.  Despite that history, however, none of the applicant’s previous community based orders involved drug or alcohol counselling.
11	Other than that there had been ‘an absence of significant offending’ since May 2013, the judge thought that ‘very little can be said in [the applicant’s] favour as to the prospects of rehabilitation’.
12	The judge noted that the applicant was involved in the offending with his ‘brother-in-law’.  Both had been drinking, and both were ‘clearly very affected’ by the alcohol they had consumed.  The offending, the judge said, ‘was opportunistic and occurred really in the spur of the moment’.
13	Turning to the sentencing remarks made in Austin’s case, the judge observed that Austin had been the victim of abuse as a child and that provided some explanation for his alcohol abuse.  Importantly, Austin had confessed, had co-operated with police and had given an undertaking to give evidence against the applicant.  None of those ‘clearly mitigating’ factors were available to the applicant.
14	The applicant, the judge said, had entered his plea of guilty ‘at a very early time’ and was ‘entitled to a full measure of sentencing discount with respect to that behaviour’.  In sentencing the applicant, the judge said that he had an obligation ‘to impose a sentence which deters others but equally deters [the applicant] from further offending’.  The judge had to ‘denounce’ the applicant’s behaviour; ensure that he is ‘appropriately punished’; impose a sentence which deters him and others from this type of offending; but ‘equally give appropriate weight to [his] prospect of being rehabilitated’.  
15	Moreover, the judge said that he had to ‘ensure that appropriate parity, that is equality, occurs between [the applicant’s] sentence and that of [his] co-accused taking into account all relevant factors’.  The judge noted that the sentencing judge in Austin’s case was of the view that he ‘had demonstrated some insight into his offending and his need to rehabilitate himself so that he could become a good partner and father’, and said: 
In contrast, it is clear from the statement made by you in the course of your community corrections assessment that the positive attitude of your co-offender which influenced the sentence imposed by [Austin’s sentencing judge] is not present in your attitude.
You have been assessed as being a suitable candidate for undertaking a Community Corrections [sic] Order.  In undertaking that assessment, the assessor categorised you as having a high risk of reoffending and as someone who was unable to express plans that would prevent you from lapsing back into drug and alcohol use and commented that you would need extensive case management to assist you in these areas.
I am satisfied that in all the circumstances taking into account my obligation to achieve parity:
Firstly, the behaviour by your co-accused [at] the scene of [the] offence where [he] brandished the mobile phone Taser to assist his escape I think operate[s] to marginally increase his culpability more than yours with respect to the offending.
In terms of the issues that discounted your co-accused’s sentence, the absence in your history of:
i.	any reason which might put into context your history of alcohol and drug abuse;
ii.	any issue as to willingness to give evidence in terms of cooperation; and
iii.	your attitude that in some way intoxication reduces your responsibility for your offending which is not present in the attitude of your co-offender 
operate to remove significant matters of mitigation which [Austin’s sentencing judge] gave appropriate weight to in sentencing your co-accused.
And also:
Taking into account your personal factors to which I have referred, I am satisfied that in this instance, the order that I should impose should not be identical to that of your co-accused.  I am going to impose in this instance, having regard to the seriousness of the offending, an order that you be imprisoned for a period of 14 months from which period will be deducted as time served.
16	Having made these remarks, the judge asked the applicant whether he understood the orders he was about to make and the applicant indicated that he did.  The judge then addressed some further remarks to the applicant:
You may not agree with this but I have tried to explain why there is a difference between the order that I have imposed in this instance and the order imposed on your co-accused.  The community corrections [sic] order is for a shorter period of time but the period of imprisonment has not been discounted in the way that it was discounted for your co-accused for the reasons that I have indicated.  
The submissions of the parties
17	Since there is considerable overlap between them, it is convenient to consider the submissions on both grounds together.
18	In the applicant’s written case it was submitted that, in sentencing the applicant to an aggregate sentence of imprisonment four months’ greater than Austin’s, the sentencing judge failed adequately or sufficiently to apply principles of parity.  It was submitted that, in particular, the judge placed too much weight on Austin’s undertaking to give evidence against the applicant.  Other than saying that he did not know what was in the gun safe, the applicant had, it was submitted, made full admissions in his record of interview.  When Austin was sentenced, the applicant had not yet entered a plea, and there was no indication in his record of interview that he was denying the charges. 
19	Further, it was contended that the judge placed too much weight on comments made by the applicant in the course of his assessment for a CCO, whereby the judge concluded that the applicant needed assistance in gaining insight into his offending behaviour through programs to reduce reoffending.
20	Next, it was submitted that, in circumstances where the judge accepted that Austin was marginally more morally culpable than the applicant because he had a weapon and threatened police, the applicant should not have received a penalty greater than Austin’s.  That is particularly so given that both pleaded guilty at committal mention stage.
21	Finally, it was submitted in the applicant’s written case that the circumstances did not warrant a more punitive CCO being passed on the applicant than on Austin.  The applicant was required to do 200 hours’ community work, whereas Austin’s CCO contained no work component.
22	The respondent submitted that an examination of the discussion on the plea and the reasons for sentence indicate that the sentencing judge had the principle of parity at the forefront of his mind.  It was submitted that the sentencing judge considered that Austin was ‘marginally’ more criminally culpable.  Further, there were matters personal to Austin which the applicant could not call in aid, including that Austin: first, had been abused as a child, this contributing to his alcohol abuse; secondly, had demonstrated some insight into his offending and a positive attitude towards rehabilitation; and, thirdly — and importantly — had made full and frank admissions to the offending during his police interview, made a statement and gave an undertaking to give evidence against the applicant.  By way of contrast, the applicant: first, had grown up in a loving family environment and commenced abusing alcohol and experimenting with drugs at the age of 18 years; secondly, had made only partial admissions in his interview and refused to name his co-offender; and, thirdly, during his assessment for a CCO, he minimised his responsibility for the offending and did not display a positive attitude towards rehabilitation.
23	With respect to Austin’s undertaking, the respondent submitted that the value of the undertaking lay in Austin’s evidence that the applicant knew that the safe contained firearms (in circumstances where Austin had known the applicant since 2006, and they were effectively brothers-in-law).
24	As to the comparative CCOs, the respondent submitted that the condition for unpaid community work in the applicant’s CCO, combined with the direction that all treatment or hours spent in programs be counted as hours of unpaid community work, should be viewed as a ‘therapeutic’, rather than a ‘punitive’, element of the CCO, which was justified by the applicant’s history of drug and alcohol abuse.
25	Ultimately, the respondent submitted that it was open to the sentencing judge to differentiate as he did, and that the disparity in sentences does not give rise to a ‘justifiable sense of grievance’ so as to require appellate intervention.
Discussion
26	When it is contended that the principle of parity has been infringed, the principal inquiry is whether it was reasonably open to the judge in the circumstances of the case to differentiate between co-offenders in the way that he or she did.  The relevant principles were summarised in Collins:
The principles governing parity are well-established.  Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.  If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.  However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.  When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive. 
27	In our view, the complaint in the grounds of appeal that the judge ‘failed to apply principles of parity’ is unsustainable.  
28	As the sentencing remarks make clear, the judge was well aware of his ‘obligation to achieve parity’.  Significantly, the judge identified at least three factors which justified the applicant receiving a more severe sentence than Austin, despite Austin being  ‘marginally’ more culpable in the offending.  
29	First, Austin had demonstrated some insight into his offending and his need to rehabilitate himself so that he could become a good partner and father, whereas the applicant had not.  The applicant’s attitude was that intoxication reduced his responsibility for the offending, that attitude being absent in Austin.  
30	Secondly, Austin’s alcohol abuse could to some extent be explained by what happened to him as a child, no such factor being present in the applicant’s case.  
31	Thirdly, and most importantly, Austin had co-operated with the authorities, and had given an undertaking to give evidence against the applicant, the value of Austin’s putative evidence being that the applicant knew that the safe contained firearms.  In our opinion, that factor alone justified Austin receiving a substantial ‘discount’ on sentence when compared to the applicant. 
Conclusion
32	Since neither ground is reasonably arguable, leave to appeal must be refused.
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