Circumstances of the offending****[4]

1. In early August 2018, EC, an 18 year old female, began corresponding with Shekhe via Facebook. Shekhe was also aged 18. On 17 August 2018, Shekhe telephoned EC and asked her to go out with him that evening. He told her that he and a friend would pick her up. She eventually agreed.
2. Shekhe and the applicant arrived by car at EC's address at around 9:00 pm. The applicant, who was 21 years old, was driving. EC got into the back seat of the car while Shekhe remained in the front passenger seat. EC and Shekhe had planned to purchase some marijuana. As the three of them drove around, Shekhe made some phone calls but they could not find any marijuana in the area.
3. After a short stop in Heidelberg, they resumed driving, with Shekhe now sitting in the back seat behind the applicant, who continued driving.
4. Shekhe started saying things to EC like 'You're going to give me oral?'. Later, Shekhe showed her a kitchen knife he had brought with him.
5. After driving around for some time, they arrived at Altona Beach, where Shekhe made further telephone calls to purchase marijuana. They then drove to an address in Altona where Shekhe bought marijuana. When he returned to the car, Shekhe told EC that she was going to give him 'head' and that if she did not do so, he would not take her home. Shekhe said that she would have to do the same for the applicant.
6. Shekhe, the applicant and EC drove to a nearby park where they got out of the car and smoked marijuana. Shekhe then asked EC to take a walk with him. They walked to some playground equipment and spoke for a while. He continued to ask her for oral sex. He then grabbed her by her shoulders and pushed her down onto her knees. He then undid his pants, pulled out his erect penis and pushed it in and out of her mouth. She said that she wanted to leave, to which Shekhe replied that he wanted to keep going until he ejaculated. Shekhe then put his penis back in her mouth until he ejaculated. The two acts of oral penetration comprised the rolled-up charge of rape for which Shekhe was sentenced.
7. Shekhe and EC then walked back to the car. Shekhe told EC that she now had to perform oral sex on the applicant. Shekhe yelled at EC that, if she did not do so, she would be stabbed and left on the side of the road. EC was too scared to call police, remembering that Shekhe had said earlier that night that the last girl he had met up with who had done that had been thrown out of the car onto a freeway. EC said she did not want to give the applicant oral sex, but would do so if they took her home afterwards. Shekhe and the applicant yelled at her to get out of the car.
8. EC got out of the car and walked with the applicant into the park. While they were walking, he touched her breasts over her clothing (charge 1 against the applicant - sexual assault). She said 'Don't touch me'. At his instruction, she sat on his lap on a seat at the park. He shouted at her to 'do something' to arouse him, but he was unable to achieve an erection. She said that she just wanted to go home.
9. They then returned to the car and got into the back seat. The applicant told EC that if she did not want to have oral sex, they should have penile/vaginal sex instead. She said that she did not want to do this either. The applicant eventually achieved an erection and told EC to perform oral sex, which she did until he ejaculated in her mouth (charge 2 against the applicant - rape).
10. While this was happening, the applicant touched EC's vagina over her clothing. She pushed his hands away, saying, 'Don't touch me' (charge 3 against the applicant - sexual assault).
11. EC was then driven to a point from which she was able to walk home.
12. In April 2019, Shekhe declined a request to be interviewed by police. The applicant was interviewed in May 2019. He denied engaging in non-consensual sexual acts with EC. Both offenders were charged in January 2021.

Personal circumstances of the applicant and Shekhe

1. As noted, the applicant was 21 years old at the time of the offending. By the time of sentencing, he was 25.
2. The applicant was born in New Zealand and raised by both parents, who are of Somalian heritage. He reported that his parents witnessed terrible things in Somalia and that his family spent four years in a Kenyan refugee camp before moving to New Zealand. He moved to Australia with his family in 2013, when he was 16. However, his father remained in New Zealand. There is no history of family violence or parental drug use. The applicant has nine siblings.
3. One of the applicant's brothers and a nephew died in a motor vehicle accident in September 2021. Other traumatic events in the applicant's life included the murder of a cousin, the deaths of friends and witnessing a stabbing in prison.
4. The applicant was bullied at school. He completed Year 12. During 2016 he visited New Zealand for 7 months and worked on a farm, and in 2021 he held a job that involved 'pick packing' and labouring.
5. The applicant began using cannabis at the age of 13 and smoked about 3 grams a day when he arrived in Australia. After his brother's death, he frequently consumed alcohol, Xanax, cocaine and codeine.
6. At the time of the offending, the applicant did not have a criminal record.
7. The applicant is not an Australian citizen and faces the risk of deportation due to the current offending.
8. Shekhe was 18 years old at the time of the offending and 22 at the time of sentence.
9. He was born in Australia and is also of Somalian background. He and his mother were physically beaten by his father while he was growing up. His parents separated when he was 10. He has a half-brother aged 21 and five other siblings. He reported being responsible for the care of his siblings, as his mother worked long hours.
10. Shekhe described being bullied at school. He left school in Year 10 and began selling drugs. He partially completed a carpentry pre-apprenticeship and worked for about five months in a carpentry job. He has had two other jobs, in retail and at a warehouse.
11. Shekhe was involved in a motor vehicle accident at the age of 14, in which he sustained a broken femur. He described traumatic events including his grandmother's death and the loss of six close friends through car accidents and drug overdoses.
12. Shekhe first used cannabis at age 17 and began using cocaine and MDMA heavily at 18. He also used Xanax tablets daily.
13. On 17 April 2018, prior to the offending, the Children's Court placed Shekhe on a good behaviour bond for 6 months for the offence of retention of stolen goods.

1. At the plea hearing, the applicant tendered a report prepared by a psychologist, Gina Cidoni. She concluded that the applicant suffered from:

(a) persistent depressive disorder with anxious distress and persistent major depressive episode (moderate);

(b) cannabis use disorder in sustained remission;

(c) anxiolytic and stimulant use disorders in early remission; and

(d) post-traumatic stress disorder ('PTSD').

1. Ms Cidoni assessed the applicant's risk of sexual recidivism as 'low-moderate' and stated that he had 'an undeveloped ability to regulate and manage emotional states, impulses and risk-taking'. She said that the applicant's ability to see beyond himself when considering a problem and to consider the perspective of others or long-term consequences was compromised. She considered that these factors influenced how he behaved at the time of the offending.
2. Ms Cidoni reported that the applicant had difficulty taking responsibility for his offending, but accepted that the offending was wrong. She stated that prison would negatively affect his mental health.
3. Shekhe also tendered a report by Ms Cidoni. She stated that Shekhe told her that he was disgusted with his offending and blamed no one but himself. She concluded that his risk of sexual recidivism was moderate. She diagnosed Shekhe with:

(a) substance use disorder in enforced remission;

(b) PTSD; and

(c) generalised anxiety disorder with depressed mood.

1. According to Ms Cidoni, prison would change Shekhe's life, as his complex and traumatic background and poor coping could intensify his mental health issues. She concluded that Shekhe's PTSD, added to higher tensions and distress in a prison setting, would weigh more heavily upon him.

1. The judge stated that the applicant was not entitled to the benefit of a plea of guilty or to any indication of remorse that such a plea may have demonstrated.[5]
2. The judge held that the applicant was to be regarded as still a youthful offender, as he was only 21 years old when the offending took place.[6]
3. The judge accepted that the applicant's conviction rendered him liable, as a non-citizen resident in Australia since 2013, to deportation to New Zealand. He accepted that this operated as a form of extra curial punishment because the applicant had resided in Australia since his childhood and all his substantial family connections were in Australia. The judge also accepted that the applicant's imprisonment would be more burdensome as he contemplated his inevitable deportation.[7]
4. In the case of Shekhe, the judge held that, as he had pleaded guilty to a new indictment after negotiation and a sentence indication hearing, it was an early plea and was 'some indication of remorse'.[8] The judge stated that Shekhe's plea had facilitated the course of justice and was to be accorded additional weight because it was entered during the COVID-19 pandemic.[9]
5. The judge found that Shekhe had good prospects of rehabilitation.[10]
6. The judge took into account Shekhe's youth. He also took into account the delay between the offending and sentence. He said that the delay had deprived Shekhe of the opportunity to be sentenced to detention in a youth justice centre.[11]
7. The judge noted that the standard sentence for rape is 10 years' imprisonment. He imposed significantly lower sentences, having regard to his assessment of the gravity of the offending and the weight he had given to the matters in mitigation.[12] The judge did not make any express finding regarding the gravity of the offending.
8. In both cases, the judge found that general and specific deterrence, denunciation and just punishment needed to be given weight.[13]

1. The applicant appeared on the application before us without legal representation. The Court took him through the arguments that counsel had advanced on his behalf in his written case. The applicant said that he did not wish to elaborate on those arguments.[14]
2. The applicant submitted that the sentence imposed upon him offended the principle of parity. He accepted that there were some differences to justify the higher sentence imposed upon him on the charge of rape, compared to Shekhe. However, he contended that the disparity between the sentences was too great having regard to the following matters:

(a) Shekhe played the leading role in the events of the night;

(b) the applicant's offending was opportunistic and unplanned;

(c) the applicant faced a single charge of rape comprising a single act, whereas Shekhe faced a rolled-up charge comprising two acts of oral penetration;

(d) Shekhe's moral culpability was higher than that of the applicant; and

(e) unlike Shekhe, the applicant faced the prospect of deportation upon completion of his sentence.

1. The applicant argued that the following factors were common to the two offenders:

(a) both had no prior convictions, although Shekhe had a previous finding of guilt in the Children's Court;

(b) both had offended subsequently - Shekhe had served an 18-month term of youth detention, whereas the applicant had served 270 days in adult custody;

(c) limbs 5 and 6 of Verdins[15] were enlivened for both of them;

(d) both had significant histories of substance abuse; and

(e) both experienced disadvantaged upbringings.

1. According to the applicant, Shekhe's guilty plea did not justify the marked disparity in the sentences. He submitted that, although it was an early plea because it followed a negotiated outcome, Shekhe's counsel cross-examined EC at a contested committal hearing.
2. The respondent submitted that the disparity in the sentences was rational and justifiable. The respondent pointed to the s 6AAA statement, by which Shekhe would have been sentenced to 7 years and 6 months' imprisonment if he had not pleaded guilty, as illustrative of the judge's consciousness of the parity principle.
3. The respondent contended that the sentence imposed upon Shekhe was justifiably reduced by the discount for his guilty plea, which demonstrated remorse, reduced the impact upon EC and had significant utilitarian value, especially in the time of the pandemic.
4. The respondent argued that there were other critical differences between the applicant and Shekhe, including that Shekhe was younger than the applicant and, as a result of delay, had lost the opportunity to be sentenced to detention in a youth justice centre. The judge also found that Shekhe had insight into his offending, whereas the applicant had a lack of insight and denied his offending.

1. An argument based on an apparent disparity in treatment of co-offenders has a close similarity to an argument of manifest excess in a sentence. In both cases, the exercise of the sentencing discretion is impugned on the basis that, without necessarily ascribing the asserted miscarriage in the discretion to any specific error, the sentence imposed lay outside permissible bounds.
2. An allegation of manifest excess is a challenge to the exercise of a discretion which does not depend on specific error, as articulated in House v The King.[16] The applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[17]
3. The parity principle was summarised in Kellway (a pseudonym) v The King[18] as follows:

The purpose of parity in sentencing is to ensure consistency in punishment.[19] 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'.[20] Significant disparities in sentences 'should be capable of a rational explanation'.[21] However, that is not to say that there will be a 'scientifically precise answer to the quantification of disparities between offenders'.[22] The assessment of the amount of disparity between offenders is '[u]ltimately ... an evaluation based on impression'.[23]

A ground of appeal complaining about disparity should be approached within the same analytical framework as the ground of manifest excess.[24] 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.[25]

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'.[26] 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.[27] 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'.[28]

1. As this passage reveals, the traditional test for describing a case where the sentencing discretion has miscarried as a result of the differential treatment of two or more co-offenders is that the difference, or disparity, in their treatment gives rise to a 'justifiable sense of grievance' in an objective observer. The word 'grievance' has subjective overtones, but the test is objective. Reduced to its essentials, a 'justifiable sense of grievance' means simply that the difference in sentencing outcomes was not reasonably open. That is what gives rise to the objective 'sense of grievance'. It is the unreasonableness of the difference that makes the grievance 'justifiable'.
2. In Nipoe v The Queen, the Court said:[29]

The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the 'qualitative and discretionary judgements required' to arrive at the sentence imposed.[30] It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA, with whom Brooking and Phillips JJA agreed, said in R v Djukic:

Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[31]

1. In the present case, Kyrou JA listed the factors that were common to both offenders, and those that were not, in the following terms:

The factors that are common to the two offenders, in addition to those relied upon by the applicant, are as follows:

(a) Both met [EC] and, in the same location and on the same evening, separately raped her by penetrating her mouth despite her protests.

(b) Both were young at the time of the offending.

(c) Both suffered from PTSD.

(d) Delay was a mitigating factor for both.

The main factors that favour the applicant are as follows:

(a) Shekhe's role in the offending was more serious than that of the applicant and his moral culpability was higher than that of the applicant. Shekhe initiated and co-ordinated the offending. He also threatened [EC], displayed a knife and was physically violent towards her at the time he demanded oral sex. In addition, Shekhe was sentenced for a rolled up charge of rape - comprising two acts of oral penetration - whereas the applicant was sentenced for a single act of oral penetration.

(b) The applicant was exposed to the risk of deportation whereas Shekhe was not.

(c) The applicant suffered from persistent depressive disorder, whereas Shekhe did not.

The main factors that favour Shekhe are as follows:

(a) Shekhe was entitled to significant moderation in his sentence due to his guilty plea during the currency of the Covid-19 pandemic. The plea demonstrated remorse and had significant utilitarian benefit.

(b) Although both offenders experienced disadvantaged upbringings, Shekhe experienced family violence, whereas the applicant did not.

(c) Although both offenders were young at the time of the offending, Shekhe was only 18 and was deprived of the opportunity of being sentenced to a Youth Justice Centre due to delay for which he was not responsible.

(d) The judge assessed Shekhe's prospects of rehabilitation as good. The judge did not make any express finding about the applicant's prospects of rehabilitation.[32]

1. To the above list of factors favouring the applicant, we would add:

(a) The applicant was sentenced on the basis that the judge could not be satisfied that he knew of the presence of the knife.

(b) Ms Cidoni assessed the applicant's risk of sexual recidivism as 'low-moderate' whereas she assessed the risk in Shekhe's case as 'moderate'.

1. Plainly the most important difference is the fact that Shekhe pleaded guilty, whereas the applicant took his case to trial. He was of course entitled to do that, but in doing so he lost the potential benefit of the discount that attaches to a plea of guilty. It is true that the utilitarian benefit of Shekhe's plea was less than it might have been, coming as it did after EC had undergone cross-examination at committal. On the other hand, his plea spared EC the need to give evidence in a criminal trial, and had enhanced utilitarian benefit in light of the ongoing effects of the COVID-19 pandemic on the criminal justice system.
2. A related difference is that Shekhe expressed some remorse and displayed somewhat greater insight into his offending than the applicant.
3. It is also significant that, although the applicant was a youthful offender, Shekhe was three years younger and had only just turned 18.
4. It is true that Ms Cidoni saw Shekhe as having a slightly higher risk of sexual recidivism, and that Shekhe employed physical force against EC in a way that the applicant did not. Shekhe had also produced the knife and threatened EC not to try to call police. In addition, Shekhe committed two acts of penetration. Unlike the applicant, Shekhe is not subject to the risk of deportation. But in our view these are less weighty differences. The risk of sexual recidivism in each case is similar. The applicant was present when Shekhe threatened EC, and he raped her not long afterwards. Shekhe's two acts of penetration were in quick succession, whereas the applicant's single act of rape was accompanied by additional unlawful sexual touching. The applicant has family members in New Zealand, ameliorating to some extent the significance of the prospect of deportation.
5. When all these factors are taken into account, we are satisfied that the difference in the sentences imposed on the two offenders was comfortably open to the sentencing judge. Shekhe's plea of guilty and his greater youth pointed to a significantly lower sentence than that of the applicant, notwithstanding the other matters just mentioned.
6. We note that we have reached our decision without having regard to the s 6AAA statement made by the sentencing judge in respect of Shekhe's sentence.[33]
7. Leave to appeal on the first ground must be refused.

1. The second proposed ground contends that the sentence on the rape charge, and the non-parole period, are manifestly excessive.
2. The applicant submitted that his offending lacked physical violence or pre-planning. He relied upon powerful matters in mitigation, being his youth, lack of prior convictions, difficult upbringing, the application of limbs 5 and 6 of Verdins, and the burdens attendant upon the prospect of deportation. He contended that this last factor, in particular, was not adequately reflected in the sentence imposed by the judge.
3. The respondent submitted that the sentence was within the available range and that, despite the matters relied upon in mitigation, the judge was correct to take into account general and specific deterrence as well as denunciation and just punishment.
4. In relation to the prospect of deportation, the respondent submitted that the judge acknowledged and gave weight to both limbs of Guden v The Queen[34] and that deportation was just one factor to be taken into account in sentencing. The respondent argued that New Zealand, where the applicant was likely to be deported to, is not unfamiliar to the applicant. The applicant's father and one of his brothers reside in New Zealand. The respondent submitted that the prospect of deportation has less weight in cases of graver offending.

1. In our opinion, the sentence imposed on the applicant on the charge of rape was well open to the judge. The standard sentence for rape is 10 years' imprisonment. EC was raped in frightening and degrading circumstances after being detained against her will. The sentence reflects the judge's recognition of the mitigating factors upon which the applicant could rely, including his youth and lack of prior convictions.
2. We reject the applicant's submission that the sentence failed to take proper account of the risk of deportation. As explained in Guden,[35] that matter is relevant to sentencing in two ways. First the expectation, or apprehension, of being deported following release may make the burden of imprisonment greater than for someone who faces no such risk. Secondly, the expected loss of the opportunity of settling permanently in Australia may be viewed as a serious 'punishing consequence' of the offending. In our view, neither matter is of critical weight in this case. As the respondent submitted, New Zealand is not unfamiliar to the applicant, the applicant having moved from there to Australia in 2013 when aged 16; his father and one brother live in New Zealand.
3. Taking all the matters relevant to sentence together, we are not persuaded that the sentence of 7 years' imprisonment on the rape charge was not reasonably open.
4. It follows that we reach the same conclusion with respect to the non-parole period. In particular, the period of 4 years and 6 months (approximately 64 per cent of the total effective sentence) fairly reflects the applicant's youth and facilitates his prospects of rehabilitation.
5. We therefore refuse leave to appeal on ground 2.

1. The application for leave to appeal is refused.

[1] DPP v Shekhe and Abdullahi (County Court, Judge Wischusen, 18 November 2022) ('Sentencing Remarks').

[2] Abdullahi v The King [2023] VSCA 110.

[3] Criminal Procedure Act 2009, s 315(2); Supreme Court (Criminal Procedure) Rules 2017, r 2.25(1)(b). The matter was first listed for hearing early in 2024 but was adjourned in order to enable the applicant to try to find legal representation. No such representation was obtained.

[4] Much of what follows by way of background and summary is drawn from the reasons of Kyrou JA.

[9] Ibid [27], citing Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344, 356 [35], 356-7 [39] (Priest, Kaye and T Forrest JJA); [2021] VSCA 169.

[12] Ibid [59], [61], [66], [68].

[14] The following summaries are again drawn from the reasons of Kyrou JA.

[15] [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) ('Verdins').

[16] (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370-1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[17] Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[18] [2023] VSCA 109 [124]-[127] (Emerton P, Niall and Kaye JJA) (citations in original).

[19] Abdou v The Queen [2015] VSCA 359 [62] (Redlich, Beach JJA and Beale AJA) ('Abdou'). See also Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ) ('Green'); Nipoe v The Queen [2020] VSCA 137 [38] (Maxwell P, Niall and Emerton JJA).

[20] [2013] VSCA 64 [43] ('Dawid').

[21] R v Tien [1998] VSCA 6 [40] (Tadgell JA).

[22] Ah-Kau v The Queen [2018] VSCA 296 [51] (McLeish and T Forrest JJA).

[24] Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354, 371 [63] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.

[25] Ibid 371-2 [63] (Maxwell P, Harper JA and T Forrest AJA).

[26] R v Mercieca [2004] VSCA 170 [17] (Winneke P).

[27] Abdou [2015] VSCA 359 [62] (Redlich, Beach JJA and Beale AJA).

[28] [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (emphasis in original).

[29] [2020] VSCA 137 [40] (Maxwell P, Niall and Emerton JJA); see also Taleb v The Queen [2020] VSCA 329 [31] (Maxwell P and Weinberg JA); Ip v The Queen [2020] VSCA 211 [21] (Maxwell P and Weinberg JA); Zaia v The Queen [2020] VSCA 9 [83]-[84] (Kyrou, Kaye and McLeish JJA); Topal v The Queen [2019] VSCA 289 [21]-[24] (Maxwell P and Niall JA); Sharp v The Queen [2018] VSCA 327 [48]-[54] (Maxwell P and Niall JA); Sikoulabout v The Queen [2018] VSCA 268 [72]-[76] (McLeish and Niall JA); Adams v The Queen [2018] NSWCCA 139 [83]-[84], [87] (Johnson J, Simpson AJA and Adamson J agreeing at [1] and [92]).

[30] Green [2011] HCA 49; (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ); McCloskey-Sharp v The Queen [2015] VSCA 87 [17] (Osborn JA).

[31] [2001] VSCA 226 [25].

[32] Abdullahi v The King [2023] VSCA 110 [51], [53]-[54].

[33] See Waugh v The Queen [2013] VSCA 36; (2013) 38 VR 66, 73 [23] (Maxwell P and Redlich JA).

[34] [2010] VSCA 196; (2010) 28 VR 288, 295 [27] (Maxwell P, Bongiorno JA and Beach AJA) ('Guden').