Biba v The King [2023] VSCA 122

1. At the time of the offending, the applicant was aged 34; Mohammed was aged 21; and Odisho and Shamou were aged 18. Additionally, the applicant was on bail in respect of a charge of criminal damage.
2. In brief compass, the applicant stalked and intimidated the officer in August 2020. He discovered their home address and their personal mobile phone number and caused others to telephone the officer and to attend at their home.[6] The applicant obtained and/or confirmed the officer's residential address by making false statements to a real estate agent.
3. Mohammed's involvement in the offending consisted of making three phone calls to the officer on a number provided to her by the applicant. In the second phone call, after asking a number of questions, Mohammed said:

You have nothing to say? Hello ... fucking ... fucking with ya ... piggy, piggy, piggy, piggy, piggy can't you see ... you're just a fucking lagging dog. You're a ...

1. As to Mohammed's third call, the prosecution accepted on the plea that this call appeared to be accidental.
2. Odisho's involvement in the offending consisted of providing Shamou with the officer's phone number and instructing her to call the officer and report back. Subsequently, Odisho and Shamou drove to the officer's home and loitered there for approximately two to four hours.
3. Shamou's involvement in the offending consisted of making the calls Odisho told her to make, and going to the complainant's home and loitering there with Odisho.

1. The applicant originally pleaded guilty at a committal hearing on 10 August 2021. However, in the County Court on 24 November 2021, he successfully applied to change his plea. His matter was then fixed for a trial commencing in April 2022. Subsequently, on 27 April 2022, he was re-arraigned in the County Court and pleaded guilty following a sentence indication. A plea hearing was then conducted on 27 and 29 April 2022.
2. At the time of the applicant's plea hearing, Mohammed was the only one of the applicant's co-accused who had been sentenced for her part in the offending. At the risk of repetition, she was sentenced to a 12 month adjourned undertaking in respect of intimidating the officer and possessing cannabis.
3. Between the applicant's plea and sentencing, Odisho was sentenced to the two year CCO to which we have already referred. Odisho's CCO contained a condition that he perform 200 hours of unpaid community work. Shamou was not sentenced until after the applicant was sentenced. The 12 month CCO imposed on her in the County Court contained a condition that she perform 120 hours of unpaid community work. The CCO imposed on the applicant did not contain a condition that he perform any unpaid community work because the judge stated that the applicant had 'already been punished more than sufficiently by [his] time in custody'.[7] The judge imposed conditions that the applicant undergo assessment and treatment for drugs and mental health, and that he undertake other offending behaviour programs.

1. The judge commenced his reasons for sentence with a brief summary of the applicant's offending.[8] His Honour then referred to the officer's victim impact statement, noting that the officer had been significantly emotionally affected by the applicant's conduct; had felt unsafe in their own home and compelled to sell it; and observing that the officer was anxious, and that their sleep was disrupted and they felt anger and despair.[9]
2. The judge said that he was required to give effect to principles of general deterrence and specific deterrence; and that he was required to express the community's denunciation of the applicant's conduct, and to ensure just punishment for his crimes. The judge accepted that there was a 'significant overlap' between charges 1 and 2, and said that it was appropriate to impose an aggregate sentence on those charges.[10]
3. The judge observed that the applicant had violated the officer's privacy and their personal security. He said he regarded the applicant's moral culpability in this regard as high.[11]
4. The judge summarised the applicant's personal circumstances and referred to a report tendered on the plea from a clinical neuropsychologist, Mr Mathew Staios.[12]
5. The judge took into account in the applicant's favour his pleas of guilty. The judge accepted that the pleas of guilty should be treated as early pleas, saying that the applicant was entitled to a reduction in sentence to reflect those pleas.[13] His Honour said that the COVID-19 pandemic had resulted in the applicant's pleas having a greater utilitarian benefit; and that COVID-19 had made the applicant's time in custody more onerous for him because of lockdowns, isolation, and loss of programs and visits.[14]
6. The judge observed that the applicant fell to be sentenced as a man of otherwise good character, who had no prior convictions. His Honour referred to submissions made by the applicant's plea counsel,[15] noting that counsel had 'properly conceded that a gaol sentence was the only available sentence in this case'.[16] Having noted that concession, the judge said that he was of the view that it was appropriate to impose a combination sentence - that is, a term of imprisonment and a CCO.[17] The judge referred to the concession by the applicant's plea counsel that such a combination sentence was appropriate.[18]
7. The judge then referred to a report from the Department of Justice and Community Safety, which had been provided to his Honour following an assessment of the applicant. The judge described the report as containing 'some concerning matters' relevant to the applicant's remorse, insight, drug use and risk of re-offending.[19] The judge noted the recommendation in the report that any CCO be of at least 18 months' duration to enable programs undertaken by the applicant, as part of the CCO, 'to be of assistance'.[20]
8. Prior to imposing sentence on the applicant, the judge stated that he regarded the applicant's offending as a serious example of the offence for which the applicant had been charged and that he had arrived at the sentence by '[b]alancing the maximum penalty prescribed by Parliament and the nature of [the applicant's] offending with [the] absence of prior criminal offending and the other matters urged in mitigation'.[21]

1. The applicant commenced his written submissions in this Court by noting that the prosecution accepted before the sentencing judge that the principle of parity had a role to play in sentencing the applicant. The applicant then observed that, notwithstanding the prosecution's acceptance that parity was relevant, the judge 'did not refer to parity at all in his sentencing remarks, whether expressly or otherwise'. The applicant submitted that this was important because, as this Court has explained, '[a]ppellable error may be inferred from disparity that is not explained in the reasons for sentence'.[22] In his written case in this Court, the applicant then submitted:

Just as importantly, his Honour failed to make any reference to the co-offenders' sentences. That compels the inference that his Honour did not engage in the 'comparative analysis of the culpability and circumstances of co-offenders' that this Court has said is 'indispensable' to the proper application of the parity principle.[23]

1. The applicant submitted that the failure by the judge to refer to the issue of parity or the sentences imposed on his co-offenders, together with the 'large disparity' between his sentence and the sentences of his co-offenders, mandated the upholding of his parity complaint. The applicant contended that the large disparity suggested that, if the judge had had regard to parity, he would have felt it incumbent at least to explain why the applicant was deserving of a sentence which was so much more severe than that imposed on his co-offenders.
2. In an alternative submission, the applicant contended that if the judge did have regard to parity, then he failed to properly apply that principle. It was submitted that there was little by way of relevant difference to justify the disparity between the applicant's sentence and that of his co-accused, particularly because:

(a) all of the offenders were sentenced on the basis of early pleas and an absence of prior (or significant prior) criminal history; > > (b) while the applicant's co-offenders were younger than him, there was no suggestion of immaturity in the offending; > > (c) while the applicant had a somewhat greater role in the offending than Mohammed, his role was 'arguably lesser' than Odisho and Shamou, who attended at the officer's house and remained there for approximately two to four hours; and > > (d) the fact that the co-offenders were not all charged with the exact same charges did not preclude the application of the principle of parity, especially where the offences were agreed to have been committed as 'part of a joint criminal enterprise that engaged in [the relevant conduct]', and where the judge considered that either of the charges would have sufficiently captured the entire criminality.

3. Finally, as to the concession by the applicant's plea counsel that a combination sentence was appropriate, the applicant submitted that the sentence of imprisonment actually imposed - 12 months - was 'considerably longer than the 9 month term which defence counsel had submitted was appropriate'. The applicant contended that the imposition of a CCO in addition to 12 months' imprisonment was not justified, particularly where he had already served 18 months in custody at the time of sentencing.
4. In oral argument, counsel for the applicant submitted that parity considerations required this Court to reduce the length of the custody component of the applicant's sentence and/or the length of the CCO. Counsel submitted:
   • (1) The difference between the applicant's age and the ages of his co-offenders was not material. The applicant having no prior convictions, rehabilitation was as important a consideration in his sentencing as it was in the sentencing of his co-offenders.
   • (2) The fact that the applicant pleaded guilty to two offences (stalking and intimidation), whereas his co-offenders each pleaded guilty to only one of these offences, was immaterial, given the involvement of each of the offenders in the joint criminal enterprise.
   • (3) The respective roles of the applicant and his co-offenders in the offending could not justify the disparity in the sentences imposed. Specifically, Odisho's role in the offending was particularly serious. Moreover, while the applicant directed Mohammed, he did not direct Odisho or Shamou in relation to their roles in the offending.
   • (4) Specific deterrence was of less significance in the case of the applicant than in the case of his co-offenders because, at the time of sentencing, the applicant had already spent 552 days in custody. That experience would have satisfied any need for the applicant to be specifically deterred from offending in the future.
   • (5) The applicant's time in custody was more onerous than it might otherwise have been because of the risk that he might be deported at the conclusion of his sentence. This was an issue which had no relevance in the cases of the co-offenders, but which ought to have mitigated the applicant's sentence.
5. While the applicant submitted that there was an unjustifiable disparity between his sentence and the sentences of each of his co-offenders, the disparity was submitted to be most manifest in the case of Odisho, who was not directed by the applicant, but who, in turn, directed and gave detailed instructions to Shamou.

1. The principles governing parity are well known. They were conveniently summarised by this Court in Anthony v The Queen,[24] as follows:

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.[25]

1. In the circumstances of the present case, there is no substance in the applicant's complaint about the judge's failure to refer to the issue of parity or the sentences of the applicant's co-accused. At the time of the plea hearing, the only co-offender who had been sentenced was Mohammed. It was known to the applicant's plea counsel that she had been sentenced to a 12 month adjourned undertaking. Notwithstanding that knowledge, the applicant's plea counsel conceded that it was appropriate for the applicant to be sentenced to a combination sentence of imprisonment and a CCO. In the circumstances, there was little (if any) occasion for the judge to say anything about the issue of parity between the applicant and Mohammed.
2. While Odisho was sentenced by another judge,[26] between the time of the applicant's plea hearing and sentence, there is nothing to suggest that any submissions were made to his Honour on behalf of the applicant concerning any parity issue between the applicant and Odisho. Again, it can hardly be surprising that his Honour made no reference to the question of parity with Odisho's sentence in the Reasons.
3. Contrary to the applicant's submissions, there were good reasons to differentiate between the sentence to be imposed on the applicant and the sentences to be imposed on his co-accused:
   • (1) First, the applicant fell to be sentenced for both offences against the officer (stalking and intimidation); whereas his co-offenders each only fell to be sentenced in respect of one of those offences. Despite the able submissions of the applicant's counsel to the contrary, this is a relevant difference between the applicant's position and that of his co-offenders.
   • (2) Secondly, the co-offenders were youthful offenders (being aged 21, 18 and 18 at the time of offending); whereas the applicant, who was 34 at the time of offending, could not be described as a youthful offender. The fact that rehabilitation was an important sentencing consideration in respect of all four offenders cannot gainsay the relevant difference in age between the applicant and his co-offenders.
   • (3) Thirdly, while the applicant was undoubtedly criminally liable in respect of all of the conduct which constituted the offending against the officer, each of the co-offenders was only liable in respect of that part of the joint criminal enterprise (either stalking or intimidation) to which they had pleaded guilty.
   • (4) Fourthly, when comparing the CCOs imposed on the applicant, Odisho and Shamou, one needs to compare not just the length of each CCO, but also the conditions of each CCO. Specifically, the applicant's CCO did not contain a condition requiring him to perform any hours of unpaid community work; whereas Odisho's CCO contained a condition requiring him to perform 200 hours of unpaid community work, and Shamou's CCO required her to perform 120 hours of unpaid community work.
4. In oral argument, the applicant's counsel placed considerable emphasis on the seriousness of Odisho's offending. We accept that Odisho's offending was serious. To the extent that the applicant's counsel submitted that Odisho's offending was more serious than the applicant's offending, we reject that submission. In our view, the applicant's conduct in covertly obtaining the private telephone number and residential address of the officer, from which the balance of the offending against the officer flowed, was the most serious part of the overall offending in this case.
5. When one examines the whole of the circumstance of the offending and the offenders in this case, there is nothing to suggest that there has been any impermissible disparity between the sentence imposed on the applicant and any of the sentences imposed on his co-offenders. While one might debate whether some particular factor justified the imposition of a higher or lower sentence on one or other of the four offenders in this case, none of the issues raised by the applicant (either individually or collectively) leads to the conclusion that there has been any breach of the principles of parity in the imposition of sentence upon the applicant.
6. For the reasons given above, the applicant's parity complaints are not reasonably arguable.
7. In any event, having regard to the seriousness of his offending, the applicant's sentence can only be described as being one which is at the bottom end of the range. The judge was correct to describe the applicant's moral culpability for his offending against the officer as 'high'.[27] While, given the time the applicant spent on remand during the COVID-19 pandemic, we would not say that his sentence was 'inappropriately low',[28] we would say that it is difficult to see how the applicant could have been sentenced to any lesser sentence than that imposed by the judge. In our view, any lesser sentence would likely have been manifestly inadequate. Even if we were of the view that there was some merit in the applicant's parity arguments (which we are not), considerations of parity could not permit his sentence to be lowered by this Court to one which would then be manifestly inadequate.[29]

1. The application for leave to appeal will be refused.

[1] Contrary to s 21A of the Crimes Act 1958.

[2] Contrary to s 31D of the Crimes Act 1958.

[3] By s 324C(2) of the Crimes Act 1958.

[4] When referring to the officer in these reasons, we will adopt the same pronoun as that used by the sentencing judge - noting that his Honour made a proceeding suppression order prohibiting the publication by any means of any matter which might directly or indirectly enable identification of the officer.

[5] Where Shamou had been sentenced to three months' imprisonment and a 12 month CCO.

[6] DPP v Biba [2022] VCC 858, [3] ('Reasons').

[15] Not counsel who appeared in this Court.

[22] Nipoe v The Queen [2020] VSCA 137, [39].

[23] R v Hildebrandt [2008] VSCA 142; (2008) 187 A Crim R 42, 49 [49].

[24] [2016] VSCA 22.

[25] Ibid [12]. The Court referred to 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]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]-[25]; Collins v The Queen [2015] VSCA 106, [23]. See also Marchei v The Queen [2021] VSCA 58, [49].

[26] DPP v Odisho (unreported, County Court of Victoria, Judge Marich, 12 May 2022).

[28] See Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140, 147-8 [31].

[29] Ibid. See also s 280(1) of the Criminal Procedure Act 2009.