Abela-Rogers v The Queen [2022] VSCA 34

1 The applicant Rhys Abela-Rogers pleaded guilty to four charges of aggravated burglary, two charges of burglary, three charges of theft, and one charge each of aggravated home invasion with intent to steal (offensive weapon), attempted aggravated burglary and trafficking cannabis. He also pleaded guilty to a summary charge of dealing with property suspected of being the proceeds of crime.

Aggravated home invasion (steal) - Offensive weapon

Deal with property suspected of being proceeds of crime

Section 6AAA statement:

11 years' imprisonment with non-parole period of 8 years

3 The applicant Charlie Farrugia pleaded guilty to three charges of aggravated burglary, two charges of theft and one charge each of burglary, attempted aggravated burglary and trafficking cannabis.

Section 6AAA statement:

7 years' imprisonment with non-parole period of 5 years 6 months

5 The applicants were amongst seven identified young offenders who were sentenced for their varying roles in housebreaking offences involving eight incidents. Abela-Rogers was involved in all eight incidents. Farrugia was involved in five of the eight incidents.

6 Other offenders were Jackson Balshaw, Dylan Farrugia, Abdulahi Ali, Damien Monro and Jake Synan. The global sentencing position of all offenders is set out in the table in the Annexure to these reasons. All offenders pleaded guilty to all charges against each of them respectively.

7 Abela-Rogers seeks leave to appeal against his sentence on three grounds:

Ground 1: The sentencing judge erred by finding that the fact that the applicant pleaded guilty during the pandemic did not have additional utilitarian value.

Ground 2: The marked disparity between the sentences imposed on charges 4, 5, 6, 9, 10, and 11 and the sentences imposed on Jackson Balshaw is manifestly too great.

Ground 3: The individual sentences imposed on charges 5, 7, 8, and 9 were manifestly too long.

8 Farrugia seeks leave to appeal against his sentence on two grounds:

Ground 1: The disparity between the sentences imposed on charges 9, 10 and 11 and the sentences imposed on Jackson Balshaw [is] manifestly excessive and infringe[s] the parity principle.

Ground 2: The individual sentences imposed on charges 1, 8, 9 and 11 are manifestly excessive.

9 Both applicants advance parity arguments constructed around this Court's resentencing exercise in the appeal of Jackson Balshaw.[1] As will be apparent from the table annexed to these reasons, Balshaw pleaded guilty to two charges of aggravated burglary, one charge of attempted aggravated burglary, one charge of burglary, two charges of theft and one charge of common law assault. At first instance he was sentenced to a total effective sentence of five years' imprisonment with a non-parole period of two years and 10 months. In this Court, his appeal against sentence was allowed and he was resentenced to a total effective sentence of three years and 10 months' detention in a Youth Justice Centre.

10 Counsel for the respondent conceded before us that, given the Balshaw sentence imposed by this Court, he could not contend that the parity grounds advanced in these applications were not established. In more positive language, the respondent accepted that, consequent upon the establishment of those grounds, the sentencing discretion must be reopened.

11 We agree with these sensible concessions. What follows are our reasons for granting the applications for leave to appeal against sentence and allowing the appeals, and the necessary resentencing exercise.

12 A well-organised and sophisticated method was employed by the applicants and their co-offenders to locate cannabis crops and steal them. A Forward-Looking Infrared Radar ('FLIR') was used to identify areas of higher temperature. Houses where these areas of higher temperature were identified were considered likely to be cannabis crop houses. Once a target was identified, members of the group would travel to the address in the early hours of the morning. False number plates were affixed to vehicles used in the offending. A getaway driver would be nominated and would remain with the vehicle. The other members of the team chosen for that particular burglary would enter the suspected crop house, their faces covered, and often equipped with crowbars, poles and garden shears. If cannabis was there and readily accessible they would take it. If other readily transportable items of value were present they too were likely to be stolen. There was no identifiable instigator or leader of the group.

13 The actual offending and the surrounding circumstances are comprehensively and accurately summarised in her Honour's sentencing reasons.[2] We shall quote those reasons:

I now turn to the actual offending.

[Incident 1]

The first incident in time, Charge 1, aggravated burglary, occurred on 10 September 2018 at 78 Huxley Avenue, Mulgrave. Each of you, Rhys Abela-Rogers and Charlie Farrugia, were involved in that offence and are charged with an aggravated burglary particularised as entering that premises with intent to steal, knowing or being reckless as to a person's presence.

It was at 2:43 am on 10 September 2018 that you broke into 78 Huxley Avenue. That premises had an external CCTV camera which shows a dark-coloured station wagon parked on the street at the front of the address. Three offenders, with faces covered, exit the vehicle and approach the house carrying garden shears and a jemmy bar. You, Rhys Abela-Rogers, remained with the vehicle.

You, Charlie Farrugia, went to the front door first and attempted to look through a window. One of the unknown offenders went to the CCTV camera at the front door and attempted to remove it. A second unknown offender attempted to force open the front door using a crowbar or a jemmy bar but was unsuccessful. You, Charlie Farrugia, forced the front door open by kicking it. Three offenders then entered the house[.]

Chris Ballas and his wife resided at that address. Mr Ballas was watching television when he heard the front door being forced open. When he went to investigate, he found offenders in the house and chased them out. The offenders were in the house for less than 10 seconds, returned to the Commodore, and drove away. Mr Ballas called '000'. There was no cannabis plantation at the house.

Whilst an unsuccessful initial foray into your offending spree, the aggravated burglary was complete on entry and on this occasion, involved early morning entry to a private residence by multiple offenders who were disguised, targeted premises and a confrontation with a resident - albeit this confrontation was on a relatively low level. It was the first offence in time, and while serious, was not as objectively serious as some of the offending which was to follow.

[Incident 2]

Incident 2, reflected in Charges 2 and 3 on the indictment as charges of burglary and theft, occurred about two weeks later on 26 September 2018 at 578 Main Road West, Kings Park. You, Rhys Abela-Rogers and Charlie Farrugia, were undeterred by the offence of 10 September 2018, despite having clear opportunity to reflect on those actions and to desist. On this occasion, Dylan Farrugia was also involved.

At 00:34 am on 26 September 2018, an external CCTV camera of a house in the street recorded a Commodore parked at the front of 578 Main Road West, Kings Park. False number plates were fixed to the vehicle - as they were on each occasion.

Three persons left that vehicle and entered the premises whilst one remained with the car. There was a cyclist riding home who observed a male in the driver's seat and another male run from the address carrying a large television as he passed by the Commodore.

CCTV footage records two persons to leave the premises carrying bags that were put in the boot of the vehicle. At 00:42 am the vehicle drove off.

Three identified offenders being you, Rhys Abela-Rogers, you, Charlie Farrugia, and Dylan Farrugia are each charged with the theft of cannabis and of a television.

The cyclist called '000' soon after he made his observations. Police attended at the house and found damage to the door frame and a room containing seven cannabis plants and cultivation equipment.

Again, this involved entry in the early morning by more than one offender on targeted premises. No one was identified as being present at the time of entry, hence the charge of burglary.

[Incident 3]

Charges 4, 5 and 6 occurred on 3 October 2018 at two separate address[es] being 45A Ferndale Road, Sunshine North and 22 Meadowbank Drive, Sunshine North. I accept that it was part of your initial intention for 3 October 2018 that two addresses be approached, marking an increased determination in your endeavours.

You, Rhys Abela-Rogers, were involved in each of these events, effectively comprising your third and fourth offence approximately a week after your second. Again, the opportunity for reflection after 26 September 2018 was ignored.

Dylan Farrugia, Jackson Balshaw and Abdulahi Ali were also involved, comprising Dylan Farrugia's second involvement and the first for Abdulahi Ali and Jackson Balshaw. Each is charged with the offences of burglary on 45A Ferndale Road and all but Jackson Balshaw with the aggravated home invasion of 22 Meadowbank Drive, from which a television, iPhone and handbag was stolen and theft is charged. In relation to this event, Jackson Balshaw is charged with aggravated burglary.

On 2 October 2018, you, Rhys Abela-Rogers, purchased a Toyota Aurion to which false registration plates were fixed.

At around 2:30 am on 3 October 2018, CCTV footage from external cameras at residences in Ferndale Road, Sunshine North, show a light-coloured vehicle driving in the street, park[ing] and persons from that vehicle walk[ing] towards a townhouse at 45A Ferndale Road. The resident was not at home, hence the charge of burglary.

A neighbour heard loud noises and banging coming from inside 45A and contacted '000'. He observed multiple torch lights within the residence and a number of persons to leave.

Police attended later and observed that 45A appeared to have been broken into as the front security door had been removed and the door had been damaged. They located seven cannabis plants in the garage.

[Incident 4]

22 Meadowbank Drive, Sunshine North, is approximately two kilometres from Ferndale Road, Sunshine North, and it had internal and external CCTV cameras fitted. The CCTV footage shows that at 2:45 am, you, Rhys Abela-Rogers, Dylan Farrugia, Abdulahi Ali and an unknown male approached the house masked and wearing gloves. Dylan Farrugia and Jackson Balshaw were carrying garden shears and you, Rhys Abela-Rogers, were carrying a crowbar that had a torch attached. Entry was forced through the front door. As already outlined, a large television, an Apple iPhone and a purse [were] stolen from these premises.

This was the home of Linh Nguyen. Also in the house at that time were his partner, Phuong Doan and two others. They were all in bed sleeping. Nguyen heard a noise and got up. He found intruders inside the house and confronted them. They pushed Nguyen away and ordered him to lie on the floor. They searched the house but there was no cannabis.

Internal CCTV footage shows you, Rhys Abela-Rogers, standing close to Nguyen when speaking to him with a crowbar pointed towards his chest and stomach area. At one point, Jackson Balshaw was searching through his jacket. Nguyen walked towards Balshaw. Balshaw faced Nguyen, raised his garden shears above his head and pointed them at Nguyen, threatening him, forming the basis for a charge of common assault on the indictment which is particular to Jackson Balshaw.

You, Rhys Abela-Rogers, used the crowbar to hook Nguyen by the back of the neck and pull him back before then raising the crowbar above your head and poking Nguyen in the chest.

Being confronted by a resident apparently posed you little challenge. I have no doubt that he was likely to have been terrified - for himself and for the other occupants of his premises. This represents a serious example of a confrontation with an innocent victim and elevates your role, Mr Abela-Rogers, and that of Mr Balshaw in this offence. It also elevates the objective gravity of it. The objective gravity is high in any event.

This was a far more serious example of a confrontation than that demonstrated in Charge 1 where confrontation led to flight.

This particular offence otherwise carried all the hallmarks of those that preceded it in the sense that it was highly orchestrated and highly sophisticated offending, involving the entry of multiple and disguised intruders to targeted premises with scant regard for those that inhabited them.

This was the second occasion in which your offending, Mr Abela-Rogers[,] involved confrontation with occupants at the home you chose to invade, albeit for Charge 1, you were in the vehicle.

Your offending, Mr Abela-Rogers, was becoming more brazen, more fearless and showed callous disregard for those that were the victims of your criminal behaviour. This must be reflected in the penalty imposed.

Yet you were again undeterred by this experience.

[Incident 5]

Charge 7 is the next event in time and occurred on 13 November 2018 at 16 Gardenia Road, Balwyn North. It is you, Rhys Abela-Rogers[,] and Abdulahi Ali who are charged with aggravated burglary which is particularised as entering with an intent to steal, knowing or being reckless as to a person's presence in what was your fifth involvement in this kind of offending, Mr Abela-Rogers.

On 6 November 2018, an address close by, being 13 Gardenia Road, was pinpoint-marked on a map on Ali's phone, reflective of the general research employed prior to the offences taking place.

On 13 November 2018, between 1:52 and 1:56 am, an external CCTV camera at a residence in Gardenia Road recorded an Aurion driving in the street.

Hope Windon and Samuel Wilkinson resided at 16 Gardenia Road. There was no cannabis plantation at the house. At 1:57 am, Windon awoke when she heard noise at the front door and she got up to check. Wilkinson got up shortly after. He saw a torch light reflecting off a wall near the front door. Windon found offenders forcing open the front door, the door was damaged. Both Windon and Wilkinson attempted to keep the door closed. They were unable to do so.

Two offenders entered[;] they had face coverings. One was carrying a crowbar and the other was carrying some sort of implement. Wilkinson yelled at the offenders to get out. The offenders responded with 'Back off.' There was a short standoff. The offenders then left and drove away in the Aurion.

Whilst relatively limited in terms of the actual incursion into the home, the incident lasted about one minute and was terrifying. Wilkinson immediately called '000' and police arrived shortly thereafter.

Samuel Wilkinson provided a victim impact statement. The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

Mr Wilkinson recalled waking up to his partner's screams of terror and to battling to keep the door shut as two masked men forced their way into the home. He believed he was going to die and he thought his partner was to be killed. He speaks of having his life changed forever. They never slept in that house again. He describes life afterwards as having an ominous cloud that hung over both of them and made it harder to feel happy and to just enjoy life. It affected the relationship between them and they simply did not feel safe in their home.

Mr Wilkinson read his victim impact statement to the court. Your offending upon him and his partner has been profound in terms of both its immediate effect and its enduring impact. It demonstrates clearly the lasting ramifications from invading the private and personal space of others, an environment in which people are entitled to feel both safe and secure. This entitlement was clearly destroyed for both Mr Wilkinson and for his partner. Whilst other victims of your offending have chosen not to make victim impact statements, Mr Wilkinson's is perhaps a stark example of how they might also have been affected.

This was the third occasion in which your offending involved a confrontation with the occupants of the home you chose to invade, Mr Rhys Abela-Rogers.

[Incident 6]

Approximately four weeks later, your offending resumed, Mr Abela-Rogers. It had been some three months for you, Mr Charlie Farrugia. Each of you had again had a considerable period in which to rethink your actions, yet you chose to offend again, increasing your already high moral culpability.

Charge 8 occurred on 10 December 2018 at 38 Jonah Parade, Deer Park. You, Rhys Abela-Rogers and Charlie Farrugia, are charged with aggravated burglary which is particularised as entering with an offensive weapon and an intent to steal, knowing or being reckless as to a person's presence at that premises. This would involve your sixth home entry, Mr Abela-Rogers, and your third, Mr Charlie Farrugia. Dylan Farrugia was also present and for his fourth occasion.

Anh Tuan Vo resided at 38 Jonah Parade, Deer Park. Several rooms in his house were set up for cannabis cultivation. Some houses in Jonah Parade had external CCTV cameras. At 3:12 am on 10 December, CCTV footage showed the Aurion in Jonah Parade. It backed into the driveway of number 38 with the rear boot against the garage roller door. As was well established, a driver remained with the vehicle. Three masked offenders then exited the vehicle and forced entry to the house through the front door.

Vo was in bed. Two offenders entered his bedroom and an offender threatened Vo with a stick or similar and demanded to know 'Where is the money?' Vo said there was no money. One of the offenders remained with Vo most of the time whilst the others searched through the house. Vo recalls that the offender with him had a stick or hammer or similar.

Approximately 20 cannabis plants were cut and removed. The offenders demanded Vo's car keys, which he gave them. The offenders loaded the cannabis into the Aurion. Two offenders got into the back of the Aurion which left the scene whilst another offender drove away with Vo's vehicle.

It was a neighbour who called '000'. Police arrived soon after and observed there were cannabis plants in the house. Vo's vehicle was found abandoned the next day.

Neither the theft of the motor vehicle or theft of cannabis is charged. Neither of you will therefore be punished for those events. Rather, they further demonstrate the well-established method of offending where entry was gained with an intention to steal, preferably cannabis, but also items of value should they be available.

Obviously, this offence also involved the direct confrontation with the occupant of the premises, increasing its objective gravity. It further demonstrates the general fearlessness of your offending by this time. The particularised presence of a weapon also elevates the seriousness.

I accept the submission by the Crown that all persons are entitled to protection of the law, no matter what their circumstances. The fact that a victim is engaged in criminal activity, in this case the growing of cannabis, at the time of the offending against them may be relevant in assessing the harm caused to the victim by the offending. I have no victim impact statement from Mr Vo, yet I accept the invasion of a private residence in the early hours of the morning by masked offenders with weapons would have, at the very least, been frightening.

On the late evening of 19 December 2018 and the early morning of 20 December 2018, police conducted surveillance and observed you, Rhys Abela-Rogers, and you, Charlie Farrugia, with Dylan Farrugia and Jackson Balshaw driving in the Aurion. Different false plates had been affixed to the Aurion at Damien Monro's residence. From midnight until about 3:00 am on 20 December, the Aurion drove around numerous suburban streets in Dingley, Noble Park, Springvale South and Deer Park. At 3:15 am, the Aurion returned to Damien Monro's residence, where the false plates were removed and correct plates affixed.

You are not punished for these observations, it is said to be part and parcel of the methodology being employed at the time. This included the scouting for and locating of potential targets which serves to highlight the sophistication, determination and planning involved - relevant to the assessment of the overall gravity.

The next offending, chronology-wise, involves the charges each of you face for trafficking in cannabis. This perhaps also highlights the value to you of the item which you were stealing.

In terms of the traffick cannabis charge, Charge 12, Mr Farrugia, that offending is comprised by 10 SMS messages exchanged between you and a man by the name of Colin Berryman on 22 December 2018 over a period of about an hour. In those messages, you offered to sell Berryman three pounds of cannabis at $2,300 per pound. You told Berryman that you were buying it at $2,250 per pound so were making $50 per pound on sales and said the cannabis was dry and clean. Ultimately, Berryman declined to proceed with the purchase. This charge is put on the basis of an offer for sale on one occasion and is not at the lowest end but is relatively low in terms of a charge of trafficking in cannabis.

In terms of the trafficking in cannabis charge relating to you, Mr Abela-Rogers, you are said to have trafficked cannabis on four occasions between the dates of 26 December 2018 and 9 January 2019. On 26 December 2018, you agreed to sell to a person named Hayes two pounds of cannabis at $2,800 per pound. On 8 January 2019, Hayes told you that he would split the two half bags of cannabis you had supplied him that day and that it was 'two and a half short'. You agreed to 'fix it up'. The minimum quantity that a bag may refer to is said to be 28 grams. On 4 January, you offered to sell a pound of cannabis to another person, again for $2,800. Between 8 and 9 January 2019, you agreed to sell to that same person half a bag of cannabis, telling the purchaser to collect it from your house.

Notably, your trafficking, in effect, involves a similar amount of cannabis to that of Mr Farrugia, albeit between dates. The Crown could establish at least Mr Hayes received what was offered. Your offending for this charge is more serious than that of Mr Farrugia. It is not suggested that you are co-accused for that offending.

However, totality and the assessed level of seriousness overall will dictate that the sentences to be imposed for each of you for the offence of trafficking will be concurrent with the other sentences I am otherwise to impose.

I will now return to the break-ins.

[Incident 7]

Charges 9, 10 and 11 occurred on 17 January 2019 and involved two premises. One at Thurbro Drive, Keysborough and the other at 15 Aloomba Street, Chadstone. All offenders are charged with aggravated burglary particularised as entering with an intent to steal, knowing or being reckless as to a person's presence of 14 Thurbro Drive and with the theft of cannabis plants from that address. All seven offenders are also charged with the attempted aggravated burglary of 15 Aloomba Street.

On 16 January 2019, you, Rhys Abela-Rogers, told Abdulahi Ali on the phone that they needed another car as there were four in your vehicle. Ali was told to take Jackson Balshaw.

A listening device and telephone intercept picked up the conversation on 17 January during which you, Rhys Abela-Rogers, you, Charlie Farrugia, Dylan Farrugia and Damien Monro discuss using FLIR devices, identifying cannabis grow houses, breaking into those premises and to meeting with Ali, Balshaw and Synan. The aim on 17 January 2019 was break into five houses overall.

Things were clearly escalating in terms of the number of offenders intended to be involved on that particular night and with an ambitious target of five premises, hence the need for more manpower.

Abdulahi Ali, Jake Synan and Jackson Balshaw were in Ali's Camry. A FLIR was put into that vehicle and stolen number plates were subsequently attached.

At 2:20 am, your Aurion, Mr Abela-Rogers, and Abdulahi Ali's Camry met and target addresses were discussed.

At about 2:55 am on 17 January 2019, Abdulahi Ali, Jake Synan and you each, Rhys Abela-Rogers and Charlie Farrugia, and Dylan Farrugia broke into a house at 14 Thurbro Drive, Keysborough. It was the role of Damien Monro and Jackson Balshaw to stay with the two vehicles which had been used to travel to that location. Loud banging could be heard on the listening device, cannabis plants were taken and put into the Camry.

You, Charlie Farrugia, returned to the Aurion with Dylan Farrugia and you, Rhys Abela-Rogers, returned to the Aurion a short time later. In the Aurion, a discussion occurred which is referred to in the Crown opening. The Asian female of the house declined to provide any information to police. As agreed, the evidence of that discussion can be used to show that you, Mr Abela-Rogers, were not quietly being led through this particular incident. It also shows that you were again prepared to have some form of active involvement with the occupants of those premises.

A local police unit later attended at the house and observed that the front door had signs of forced entry with a trail of cannabis leaves from the front door down the driveway. Cannabis was located inside the premises. You were all charged with and have pleaded guilty to the theft of cannabis from that residence, being Charge 10.

[Incident 8]

At around 3:25 am, the Aurion parked near 15 Aloomba Street, Chadstone. You, Rhys Abela-Rogers and Charlie Farrugia, Damien Monro and Dylan Farrugia had checked that house earlier that morning when strong readings on a FLIR had been obtained. Abdulahi Ali was also present in the vicinity in his Camry.

You, Rhys Abela-Rogers, and the Farrugias left the Aurion. Damien Monro remained as driver. Loud banging and a male yelling loudly could be heard on the listening device. You each returned to the Aurion soon thereafter and discussed being confronted at the front door of the house by a large Aussie bloke - not a 'nip' - and then leaving.

When police attended the address on 25 January 2019, they observed that the front door had signs of attempted forced entry and 51 cannabis plants were in the garage and rear shed. The male resident would not provide information to police.

Undeterred by those events, you then drove towards a third house, which you intended to break into, that house being at 22 Ruby Street, Preston. You are not charged with the approach to these premises, rather it is outlined in the Crown opening to further inform the circumstances of the planning and as an indication that this address was probably likely to be next of the five premises to be entered that morning as part of your audacious plan. However, as the address was neared, a police van approached. The Camry flashed its headlights at the Aurion and the Camry took off at a fast rate of speed on the wrong side of the road. The police van pursued the Camry, attempting to intercept it, but was unsuccessful.

The Aurion was driven back by Damien Monro to your father's address, Mr Rhys Abela-Rogers, in St Albans. It was found at that address by police later that day.

On 17 January 2019, you[,] Rhys Abela-Rogers and Charlie Farrugia, were arrested as were Dylan Farrugia, Abdulahi Ali and Damien Monro. On interview, you exercised your rights to make a 'no comment' record of interview.

Various searches by police were conducted and items of relevance to the police investigation were located. These were particularised in the Crown opening but included items used in the offending, such as three FLIR, a crowbar with a torch attached, walkie talkies, gloves, garden shears, a jemmy bar and face masks - further supporting the sophistication of this offending. Items of relevance were found at each of your respective premises.

On a search of your premises, Mr Abela-Rogers, by police on 17 January 2019, the amount of $7,850 in cash was located in your bedside table, forming the basis of the summary charge of dealing with property suspected of being the proceeds of crime. That is also an offence to which you have pleaded guilty. Again, it is an offence which is relatively minor in the scheme of things. Any application for forfeiture in relation to these monies will be granted.[3]

14 As we have said, these sentencing remarks are accurate and comprehensive. Insofar as they offer any commentary about the nature of the offending and the impact it had on the victims of these crimes, we agree with those comments.

15 The rationale underpinning the parity principle is the need for consistency in the application of the law, which is a fundamental aspect of the rule of law.[4] While disparity in the sentences of co-offenders for which there is no ready explanation in the reasons for sentence may bespeak error justifying appellate intervention, it must be borne in mind that consistency in the law also at times requires some disparity: '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.'[5]

16 In considering a parity argument this Court must recognise the 'qualitative and discretionary judgments' involved in the primary judge's task in discerning these relevant differences and similarities between co-offenders.[6] As was said in Nipoe, '[t]he real issue is whether it was reasonably open to the sentencing judge to differentiate ... between the co-offenders, having regard to the "qualitative and discretionary judgments required" to arrive at the sentence imposed'.[7] This Court has explained the task presented to appellate courts in determining grounds of appeal that complain of unjustifiable disparity:[8]

Parity is an aspect of equal justice that requires like to be alike. What will constitute 'like' as between co-offenders will ultimately require an evaluation based on impression.[9] What will constitute a departure from like and the extent of that departure will require a similarly impressionistic evaluation. Reasonable minds will inevitably differ on these sorts of evaluations. On appeal, disparity in treatment of co-offenders, or its unwarranted absence, is treated within the same analytical framework as manifest excess.[10]

[a]n appellate court will rarely resentence based on disparity (or impugned parity) because sentencing, by nature, is imprecise and involves an exercise of judicial discretion. The disparity (or lack of it) must be so 'marked' or 'manifest' as to not be reasonably open to the sentencing judge.[12]

17 The standard of marked or manifest disparity adheres in cases such as the present where this Court has already reduced the sentence of a co-offender, however, such a circumstance requires us to consider the disparity between the applicants' sentences and the new sentence imposed on Balshaw by this Court.[13]

18 It is apparent that this is a most serious sequence of offending and that the participation rates of the numerous co-offenders varied quite substantially. In order to evaluate the parity arguments and effect resentencing, we shall offer a brief comparison of the circumstances that relate to each of Balshaw and the two applicants.

19 At the time of offending Jackson Balshaw was 18 years old. He was 20 at the time of sentence in the County Court, after a reasonably early plea of guilty.

20 He participated in four of the eight incidents - incident 3 (burglary), incident 4 (aggravated burglary (offensive weapon), common law assault, theft), incident 7 (aggravated burglary (person present), theft) and incident 8 (attempted aggravated burglary). Incident 4, where he threatened the occupier of the relevant residence with a pair of garden shears, was particularly nasty. Additionally, although not the subject of charges, Balshaw was involved in the forward scouting for suitable target residences.

21 He was released on bail after serving approximately two months on remand following arrest. His bail was revoked during the committal and he was subsequently released again at the Melbourne County Court. Thereafter he used his time on bail to his advantage, taking part in the Salvation Army Bendigo Bridge program. He completed that program and immediately commenced employment as a trainee stonemason. He maintained that physically demanding employment for 10 months, ceasing only upon his sentencing in December 2020. His prior convictions for possession of amphetamine, exceeding the prescribed blood alcohol concentration whilst driving and stating a false name and address were of relatively little moment. His employer spoke highly of him, as did the 'Salvocare' report concerning his participation in the Salvation Army program.

22 A consultant psychologist found no psychological impairment to Mr Balshaw's rehabilitation and considered that a further term of imprisonment may expose him further to anti-social and self-destructive behaviour. The psychologist considered Mr Balshaw to be immature and impressionable. A pre-sentence report was prepared assessing his suitability for a Youth Justice Centre order and it concluded he had reasonable prospects for rehabilitation. At his resentence in this Court, the Court found that he was 'substantially on the road to reform and rehabilitation'.[14]

23 Mr Balshaw had a difficult early life. His mother abused drugs and attempted suicide when he was 15 years old - he discovered her in her car. In relation to this offending, he was considered to be remorseful.

24 Mr Abela-Rogers, as we have set out, was involved in all eight incidents. Although there was no obvious leader of the group,[15] he was certainly an active participant in many of the incidents. He is clearly the most criminally culpable of the various co-offenders.

25 He was 18, turning 19 years old, at the time of offending and 20 at the time of sentence. During his formative years he witnessed frequent domestic violence. He remains close to his mother and has enduring family support. Conflicting evidence was put before the judge on the plea as to whether or not Mr Abela-Rogers suffers from an intellectual disability - a recent report of a neuropsychologist, Dr Linda Borg, noted that he performed disingenuously in testing and there was no psychological or psychiatric basis to mitigate his moral culpability.

26 His prospects for rehabilitation were guarded and his youth entitled him to some moderation of sentence. Unlike the other co-offenders, he pleaded guilty to aggravated home invasion (as opposed to aggravated burglary) in relation to incident 4, which engaged s 10AC of the Sentencing Act 1991 ('Sentencing Act'). This section provides that, in fixing sentence for the offence of aggravated home invasion contrary to s 77B of the Crimes Act 1958, unless special reasons exist, 'a court must impose a term of imprisonment and fix ... a non-parole period of not less than three years'.

27 The sentencing judge inferred some remorse from Mr Abela-Rogers' plea and accepted that COVID-19 custodial restrictions generally added to the custodial burden. Her Honour did not accept that there was any enhanced utilitarian benefit to the plea, given that it was clearly indicated before the pandemic took hold in Australia, and a trial was never likely by the pandemic's onset. Put another way, he committed to a plea before the pandemic was a consideration, and therefore had not done anything to ease the case backlog caused by COVID-19.

28 Mr Abela-Rogers had no prior convictions, a consideration that was moderated by the period over which the instant offending extended and its confronting nature. He abused drugs and alcohol for a relatively short time before imprisonment.

29 Charlie Farrugia was involved in five of the eight incidents - incident 1 (aggravated burglary (person present)), incident 2 (burglary, theft), incident 6 (aggravated burglary (offensive weapon)), incident 7 (aggravated burglary (person present), theft) and incident 8 (attempted aggravated burglary). He also pleaded guilty to trafficking in cannabis.

30 At the time of the commission of all the above offences he was the subject of a Community Correction Order ('CCO') imposed in Melbourne Magistrates' Court on 21 June 2018. It was ordered that he carry out 100 hours of community work and that the order's duration be for 15 months. The charges were possession of cannabis, unlawful assault, theft and common law assault. The sentencing judge considered the fact that Mr Farrugia was subject to this CCO as an aggravating feature of his offending. We agree.

31 Mr Farrugia developed a cannabis dependency in his early teens and subsequently cocaine and methamphetamine addictions. He also abused alcohol from an early age.

32 At the time of the offending he was aged 20, and 21 at the date of sentence. His other prior criminal history was relatively limited, but included affray and handling stolen goods. He also had suffered from an unstable early life with a violent, drug-abusing father who was the subject of a number of intervention orders during Charlie Farrugia's early life. The judge considered his prospects for rehabilitation were good if he could address his drug dependency. Her Honour was impressed with the efforts he had made in custody to rehabilitate himself.

33 The judge also noted that he was in a stable relationship before his arrest, with a baby born while he was on remand. The relationship, unsurprisingly, is now strained.

34 Neither applicant claimed any academic distinction, although both were apparently competent junior sportsmen.

35 Applying the principles set out at [15]-[16], we have reached the view that, in respect of both applicants, the individual sentences imposed, the orders for cumulation and the consequent total effective sentences do not comply with the principle of parity when considered against the Balshaw resentence. We are fortified in this conclusion by the previously mentioned concession, fairly made, by the respondent on this issue.

36 In short compass, while Balshaw was a youthful offender, so too were the applicants.[16] All had suffered difficult upbringings, and none had reams of devastating prior convictions, although Charlie Farrugia was the subject of court supervision (via a CCO) at the time of offending. There was no leadership figure, although Balshaw and Abela-Rogers were certainly active participants in the nasty incident 4. Balshaw probably had better prospects for rehabilitation than the applicants, and it seems Charlie Farrugia's prospects are perhaps a little better than those of Abela-Rogers.

37 It is unfortunate that a direct comparison cannot be made of the sentences imposed upon Balshaw and Abela-Rogers on the charges comprising incident 4 as Abela-Rogers pleaded guilty to aggravated home invasion (charge 5) and Balshaw (charge 2) to aggravated burglary (thus avoiding the operation of s 10AC of the Sentencing Act). Notwithstanding this, 'there is a clear relationship between the elements' of both offences,[17] and they carry the same maximum penalty. It must be observed that the difference between Abela-Rogers' head sentence on his charge 5 of five years and eight months' adult imprisonment, and Balshaw's head sentence on effectively the same offending (his charge 2) of three years and six months' Youth Justice detention is a great disparity indeed. Similarly, from a broader perspective, the disparity between (on the one hand) the very lengthy total effective sentences imposed upon both applicants and (on the other hand) Balshaw's total effective sentence is also very great.

38 In truth, the single most important distinguishing factor between the applicants themselves, and between them and Balshaw, is the degree of participation in this continuing, highly criminal enterprise. Abela-Rogers participated in every incident and trafficked some of the product of his endeavours. He is, by some margin, the most criminally culpable. Charlie Farrugia participated in five of the eight incidents and also trafficked in cannabis. All at a time when he was subject to a CCO - a substantial aggravating feature. Balshaw was an active participant in four incidents, but had made real steps towards rehabilitation by the time of sentence.

39 There are similarities and differences between all three young men, however, after some deliberation, we have concluded that the parity grounds must succeed. The marked disparity between the sentences imposed on the applicants as compared to Balshaw[18] is manifestly excessive. Abela-Rogers' ground 2 and Farrugia's ground 1 are established, and in both cases the sentencing discretion is reopened.

40 In the circumstances it is unnecessary to consider Abela-Rogers' grounds 1 and 3, and Farrugia's ground 2, save to observe that both applicants are entitled to an enhanced benefit for the utilitarian value of their pleas of guilty made during the time of the pandemic.[19]

41 We are told, and accept, that both applicants have been adversely affected by various COVID-19-related impacts on their custodial conditions. Family visits have been largely replaced by electronic contact and various rehabilitative programs have been suspended. We understand that administrative decisions may soften the impact of days spent in lockdown,[20] although it is undoubted that the general burden of imprisonment (leaving aside lockdown days) has been increased by measures necessary to deal with the pandemic. We take this into account, and also take into account all the mitigating factors so conscientiously explored by the sentencing judge, including:

• The extremely difficult early lives of both applicants.
• Their youth.
• Their early pleas of guilty.
• In respect of Abela-Rogers, the lack of prior criminal history, and, in respect of Farrugia, a limited criminal history.
• That it is both applicants' first time in custody.
• In respect of Abela-Rogers, his 'low cognitive function', albeit in a general way. It is not suggested that any cognitive deficit impacts upon Abela-Rogers' moral culpability.
• In respect of Farrugia, his expression of remorse and efforts toward rehabilitation whilst on remand, as well as good family support and job prospects on release.

42 In resentencing the applicants we do not lose sight of the fact that this was serious, grown-up offending, albeit committed by youths barely out of the Children's Court jurisdiction. The principles of general and specific deterrence, denunciation, just punishment and, particularly in Abela-Rogers' case, protection of the community, all must be given some emphasis in the resentencing exercise. The sentencing exercise required of the sentencing judge was a very difficult one, with factors pulling in many directions over seven different young offenders with different stories to tell.

43 Balancing these divergent factors as best we can, we shall resentence the applicants in accordance with the following tables.

Aggravated home invasion (steal) - offensive weapon

Section 6AAA statement:

9 years' imprisonment with a non-parole period of 6 years 6 months

Section 6AAA statement:

8 years' imprisonment with a non-parole period of 5 years 6 months

[1] Balshaw v The Queen [2021] VSCA 78 ('Balshaw').

[2] DPP v Abela-Rogers [2020] VCC 1412 (Judge Gwynn) ('Reasons').

[4] Nipoe v The Queen [2020] VSCA 137, [38] (Maxwell P, Niall and Emerton JJA) ('Nipoe').

[5] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original); [2001] HCA 64.

[6] Nipoe [2020] VSCA 137, [39].

[7] Ibid [40], quoting Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

[8] Chamma v The Queen [2020] VSCA 232, [60] (Priest, Beach and T Forrest JJA) ('Chamma') (citations in original).

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

[10] DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1, 9 [27] (Warren CJ, Redlich JA and Ross AJA); [2011] VSCA 145.

[11] Chamma [2020] VSCA 232, [60] (citations in original).

[12] DPP (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244 (Maxwell P, Weinberg and Beach JJA); [2015] VSCA 255.

[13] R v Simmons [2008] VSCA 185, [30] (Weinberg JA).

[14] Balshaw [2021] VSCA 78, [57] (Kaye and T Forrest JJA).

[16] See Sentencing Act s 3 (definition of 'young offender').

[17] Sikoulabout v The Queen [2018] VSCA 268, [62] (McLeish and Niall JJA). See also DPP v Wol [2019] VSCA 268, [72] (Kyrou, Kaye and T Forrest JJA); DPP v O'Brien [2019] VSCA 254; (2019) 280 A Crim R 1, 9 [38] (Maxwell P, Niall and T Forrest JJA); [2019] VSCA 254.

[18] As set out in the table annexed to these reasons.

[19] See Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.

[20] Victorian prisoners are eligible to receive up to four days' reduction in their sentences for each day spent in lockdown: Corrections Act 1986 s 58E(1)(a); Corrections Regulations 2019 reg 100(a).

[21] Balshaw pleaded to aggravated burglary whereas Abela-Rogers and other co-offenders pleaded to aggravated home invasion.