Anthony v The Queen [2016] VSCA 22

1 On 16 July 2015, the applicant and a co-offender, Ashley Gow ('Gow'), each pleaded guilty in the County Court to a charge of aggravated burglary. The applicant also pleaded guilty to a charge of recklessly causing serious injury, and Gow pleaded guilty to a charge of common assault. On 10 August 2015, the applicant was sentenced as follows:

6AAA Statement: 6 years' imprisonment with a non-parole period of 4 years' imprisonment

2 For his offending, Gow was sentenced to an aggregate sentence of three months' imprisonment, on his release to be followed by a Community Correction Order of three years' duration. Conditions of the Community Correction Order required Gow to undergo treatment and rehabilitation for alcohol abuse or dependency.

3 On 7 September 2015, the applicant filed a notice of application for leave to appeal against sentence. The applicant's sole proposed ground of appeal was as follows:

The learned trial judge erred in his application of the parity principle.

4 On 12 November 2015, Priest JA refused the applicant's application for leave to appeal. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application.

5 On the hearing of the applicant's renewal application, the applicant was unrepresented. While the applicant's written case (prepared by his former lawyers) directs argument only to the applicant's proposed ground of appeal, at the hearing of the renewal application, the applicant sought to advance a broader case that raised a range of personal and family issues that would effectively require this Court to rehear the applicant's original plea. As was explained to the applicant during the course of the hearing, this Court has no power to rehear the applicant's plea. The range of concerns that the applicant had as to his families' future were simply not matters relevant to the issue raised by this application.

6 It is necessary to provide a brief summary of the offending, principally so as to compare the applicant's role with that of Gow - parity between the sentences imposed on the applicant and Gow being the issue in this application.

7 Carly Pearson ('Pearson') is the applicant's de facto partner. The victims, Justin Oliver and Russell Oliver, are brothers. On 26 September 2014, Pearson and a girlfriend met the Oliver brothers at a hotel. Late in the evening, Pearson and Justin Oliver had sexual relations. In his reasons for sentence,[1] the sentencing judge described what then unfolded as follows:

Pearson sent numerous suggestive text messages to Justin Oliver. She told him that she wanted to see him. She told him and that she was pregnant, presumably with his child. She later told him that she was not pregnant. Justin Oliver replied to the text messages, telling her that he was not interested, presumably in having any further relationship with her.

Pearson also sent a number of text messages to Russell Oliver. Those exchanges produced a threatening response from Russell Oliver, who threatened to 'get' Pearson. He made a number of very threatening responses, one of which was '... you are fucked slut, hope you like gangbang'. He also threatened to tell [the applicant] that she had engaged in a sexual liaison with Justin Oliver.

On 5 December 2014, Gow became aware that Pearson and Justin Oliver had engaged in a sexual liaison. Gow contacted [the applicant] and told him of what he knew, who in turn contacted Pearson, who admitted that she had engaged in a sexual liaison.

It was from this point that things seriously spiralled out of control. Gow and [the applicant] joined up with two unknown accomplices on 6 December 2014 at about 2.10am, with the express intention of going to the Olivers' house.

The Olivers were asleep in their house. Russell Oliver heard loud banging at the front door. It was [the applicant] banging on the door. He called out 'Rosebud police, come to the door'. That was followed by one of the four of you also calling out 'open the fucking door'. The Olivers hid in Justin Oliver's bedroom, bracing themselves against the door.

[The applicant] and the two unknown accomplices went around to the back of the house. [The applicant] kicked the back door open and then entered the house, with the two unknown accomplices turning on the lights in the house. Gow remained at the front door of the house.

[The applicant] and [his] accomplices were unable to locate either of the Olivers. One of [them] tried the door handle of the door to the bedroom where the Olivers were hiding. [The applicant and the two unknown accomplices] all then left the house, leaving the lights on. As [they] were leaving the house, one of [them] picked up some garden shears that were sitting on a table inside the house and removed them from the house.

After [the applicant] and the two unknown accomplices left the house, Russell Oliver came out of the bedroom and turned off the lights. That was observed by Gow, [the applicant] and the two unknown accomplices who ran back towards the house. Russell Oliver must have seen your approach to the house because he went back into the bedroom where he and Justin Oliver braced themselves against the door. Russel Oliver called 000. While the Olivers were in the bedroom, one of [the offenders] was observed to tap on the bedroom window with the garden shears.

[The applicant] and the two unknown accomplices entered the house. Gow remained outside. [The applicant] and the two unknown accomplices knew that the Olivers were hiding in the bedroom. One of [them] said to the Olivers 'we've got you now, you're fucken dead'. One of [them] threatened to slit the throat of Russell Oliver's dog if the Olivers did not come out of the bedroom.

[The applicant] and the two unknown accomplices repeatedly kicked at the bedroom door. While that was occurring, [the applicant] said 'fuck my missus you fucking dog cunt'. The kicking of the door caused it to come off its hinges. At about that time, Justin Oliver escaped out of the bedroom window. The door fell on top of Russell Oliver. He had his back to the door. The action of the door falling caused him to fall to the floor on his stomach.

[The applicant] confronted Russell Oliver and asked him 'are you the one who fucked my missus?' to which Russell Oliver replied that it was not him. [The applicant] repeatedly yelled at Russell Oliver asking 'who fucked my missus?'

Russell Oliver crawled from under the door and tried to escape through the window. He was grabbed from behind and thrown onto a bed. He had a baton in one hand and his mobile phone in the other hand. He was swinging the baton over his shoulder in an attempt to fend off [the applicant] and the two unknown accomplices. The baton and the phone were taken from him. As he lay on the bed, one of [the offenders] had his hands around his neck. One of [the offenders] said to him 'I'm going to choke you out and break your neck'. [Russell Oliver] was being punched to his back. He estimates that he was punched more than 20 times. He tried to fight back, and at one point bit the finger of one of [his attackers].

While he was being assaulted by [the applicant] and the two unknown accomplices, Russell Oliver felt pressure and blows to the back of his right lower leg. The photographs produced during the hearing demonstrate that a sharp instrument was used to slice deeply into his right calf. [The applicant] and the two unknown accomplices left the house, and then all [four offenders] left the Olivers' property.

Russell Oliver climbed out of the window of the bedroom. He hid behind a car outside the house. As he was in that position, the garden shears were thrown over the car, landing 2 metres away from him.

In between [the applicant] and the two unknown accomplices breaking down the door and entering the bedroom until the time one of [them] took {Russell Oliver's] mobile phone from him, [Russell Oliver] was on the phone to an operator who asked him a series of questions to identify himself and where he was. The recording of what transpired in that time is chilling. Russell Oliver is heard letting out bloodcurdling screams while being assaulted by [the applicant] and the two unknown accomplices.

Russell Oliver prepared a Victim Impact Statement. Understandably, the grave assault upon him has left him with a number of lasting consequences. He suffers from depression and anxiety. He is in fear of being assaulted again by both [the applicant and Gow], and now suffers interference with his sleep, concentration, his capacity to function mentally and he has become hypervigilant. The severe wound to his lower leg has interfered with the function of muscle, blood bearing vessels, the Achilles tendon and nerve supply to his lower leg. He has lost a significant level of function in his leg. That loss of function has interfered with his capacity to work, and to engage in social and recreational activities.[2]

8 A little later on in the Reasons, the judge referred again to the circumstances of the applicant's offending and the reasons that led to the applicant attending at the Olivers' premises on the night in question. The judge said:

In your record of interview, you told police that associates of yours told you that the Olivers were coming after you and that they wanted you dead. You also told the police that Russell Oliver had been antagonistic towards you over the preceding 18 months or so. Whatever was involved in that antagonism, you developed a fear of the Olivers, and you developed a belief that they were going to kill you and your family. It was as a result of this, and no doubt because of the liaison between Russell Oliver and Pearson, that you, and your associates, hatched the plan to go to the Olivers' house.

You have admitted that what you did on that night is consistent with the summary which I set out earlier. Although you told the police that you did not go there to put the Olivers in fear of their lives, that is what ultimately happened. You and your two unknown accomplices kicked in the rear door and entered the Olivers' house. After seeing the lights turned off, you entered the house again, kicked down the bedroom door, and then what occurred was an occasion of uncontrolled and savage violence. I am in no doubt that you were in a violent rage. There is no evidence to suggest that you were armed with a sharp instrument which was used to seriously wound Russell Oliver, so it is more probable that it was one of your unknown accomplices. Whatever the instrument was, it was used repeatedly and savagely to slice deeply into Russell Oliver's leg.[3]

9 On the hearing before this Court, the applicant tendered and read from a number of documents. One of the applicant's apparent purposes of doing so was to assert, in strong terms, that the applicant had a real fear of the victims, and that the applicant was defending his family.[4] The applicant went so far as to suggest that the provocation he and his family had received reduced the seriousness of his offending. That said, we note that the applicant's plea in the County Court proceeded on the basis of the agreed facts that were set out in the judge's Reasons.

10 The applicant was born on 24 January 1980, and was 34 years of age at the time of his offending. In his Reasons for sentence, the judge set out the applicant's background circumstances and work and family history in some detail.[5] It is not necessary to set out all of that detail in these reasons. It is sufficient to note that the judge, having analysed relevant family matters in not inconsiderable detail, accepted that there were exceptional circumstances in the applicant's case which called for an exercise of mercy on the grounds of family hardship.[6]

11 However, as the judge also noted, the applicant had a relevant criminal history. As the judge put it:

You have a long criminal history going back to 7 February 2000. The following is a short summary of your previous court appearances which have some relevance to the sentence I must impose on you:

• On 7 February 2000, you were dealt with for theft, possess heroin and use heroin and, without conviction, you were fined.
• On 17 October 2001, you were dealt with for aggravated burglary and attempted theft from a motor vehicle. You were sentenced to 90 days' imprisonment, which was partially suspended, and you were released on a Community-Based Order for 12 months.
• On 23 July 2002, you were dealt with for multiple offences including theft of and from a motor vehicle, being unlawfully on premises, burglary, aggravated burglary and breach of the previous Community-Based Order. You were sentenced to 300 days' imprisonment, which was partially suspended.
• On 3 April 2003, you were dealt with for theft from a shop and destroying property. You were sentenced to a short term of imprisonment.
• On 17 March 2004, you were dealt with for multiple offences including aggravated burglary, theft, theft of a motor vehicle and breach of a Suspended Sentence Order. A fine was imposed for those offences.
• On 17 September 2004, you were dealt with for an affray and sentenced to three months' imprisonment, which was suspended for 12 months.
• On 9 May 2005, you were dealt with for multiple offences including driving offences, aggravated burglary, theft, theft of a motor vehicle and breach of the Suspended Sentence Order. You were sentenced to imprisonment on the driving offences for one month, which was wholly suspended. It would appear that no penalty was imposed for the other offences.
• On 24 August 2005, you were charged with a number of driving offences. You were sentenced to 28 days' imprisonment, which was wholly suspended for six months, and you were fined.
• On 22 February 2007, you were dealt with for criminal damage and sentenced to three months' imprisonment which was wholly suspended for 12 months.
• On 25 February 2010, you were dealt with for possession of a weapon without exemption or approval and discharging an arrow. You were placed on a Community-Based Order for 12 months.
• On 29 June 2010, you were dealt with for theft of a motor vehicle, burglary and theft and sentenced to two months' imprisonment, which was wholly suspended for 12 months.
• On 13 January 2011, you were dealt with for failing to comply with a Community-Based Order, possession of a prohibited weapon without exemption or approval and discharging an arrow. You were convicted and fined.[7]

12 The principles governing parity are well established. As has been said before, 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 a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[8]

13 While the sentences imposed upon the applicant and Gow are significantly different, there were very substantial differences between the circumstances of their roles in the offending and their circumstances generally. So far as the circumstances of the offending are concerned, it is to be remembered that Gow remained outside the front of the house and did not play any role in what occurred inside the house or in the infliction of what the judge correctly described as the 'grave assault' on Russell Oliver.[9]

14 Next, there was a significant difference between the criminal records of the applicant and Gow. Gow's prior convictions were mainly for dishonesty and drug offences. Gow had no prior history of violent offending. A major distinguishing feature between the applicant's history and Gow's history is that the applicant had two prior findings of guilt for aggravated burglary, whereas Gow did not. A comparison of their respective criminal histories shows that the applicant's was considerably more extensive and more serious than Gow's.

15 Another matter that distinguishes the applicant from Gow is their respective prospects for rehabilitation. The judge noted the significant efforts that had been made by Gow in that respect following his offending.[10] The judge accepted that Gow had 'sound prospects of rehabilitation, and ... a reduced likelihood of engaging in serious offending'.[11] As to the applicant's prospects of rehabilitation, however, the judge said:

I am not certain whether you have good prospects of rehabilitation. Your criminal history is riddled with offences of dishonesty and breach of orders, and there is one troubling prior conviction for affray; however, its importance is perhaps diminished by the fact that it occurred 11 years ago.[12]

16 While the above matters all told in favour of the imposition on the applicant of a sentence that was significantly more severe than that which might be imposed upon Gow, it is of course to be remembered that the judge concluded that there were exceptional circumstances in the applicant's case that called for an exercise of mercy on the grounds of family hardship. In sentencing the applicant, the judge said that he had paid due and full regard to these matters 'which mitigate[d] the sentence' that he was about to impose.[13]

17 When one examines all of the differences between Gow's circumstances (and the circumstances of his offending) on the one hand, and the applicant's circumstances (and the circumstances of the applicant's offending) on the other hand, notwithstanding all of the points made by the applicant in his oral hearing before us, we are unable to conclude that any breach of the parity principle occurred. The applicant's complaint about parity is not reasonably arguable. Additionally, notwithstanding all of the material tendered by the applicant, we are unable to see any arguable error in the sentence imposed on the applicant or in the judge's reasons for sentence.

18 Finally, we should say that in any event the attack on Russell Oliver (for which the applicant fell to be sentenced) was particularly brutal. In the circumstances, the sentence imposed by the judge in respect of charge 2 was particularly lenient. The sentence on this charge was no doubt moderated by the applicant's family hardship, accepted by the judge to constitute exceptional circumstances. Absent the applicant's exceptional circumstances, the applicant would likely have received a much sterner sentence in respect of charge 2.

19 The application for leave to appeal against sentence must be refused.

[1] DPP v Anthony [2015] VCC 1116 ('Reasons').

[4] One of the bases for this assertion was a statement the applicant said was made by Pearson to him (when he confronted her about the alleged sexual liaison) that, in fact, the sexual liaison was non-consensual.

[8] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; R v Postiglione [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]-[39] (Maxwell P); Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]-[25] (Weinberg and Kyrou JJA); Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA).

[13] Ibid [91]. See further, Reasons [87].