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[2020] VSCA 232
Court of Appeal (Vic)
2020-09-09
Mr P, Priest JA, Beach JA, Forrest JA
Original judgment source is linked above.
3 We shall set out the factual background to both sets of offending.
4 At the date of offending Chamma was aged 22 and El Houli 20. Chamma was 23 when sentenced, El Houli 22.
5 PrixCar Services sells new cars on a large scale. It also conducts a car storage and transport business. The business site is situated in Altona North and the perimeter of the large property is surrounded by cyclone wire fencing.
6 At approximately 6:50am on Sunday 2 May 2019, unknown offenders cut the cyclone wire perimeter fence at the Altona North business and gained entry to the car storage compound. A white 2017 Mercedes Benz AMG GT valued at $334,000 was stolen. On Tuesday 14 May 2019, police located the vehicle covered in a black vinyl wrap. Forensic examination revealed that fingerprints on the inside and outside of the driver's side window were those of El Houli.[1] El Houli accepted, by his plea, that he knowingly appropriated the vehicle at some point after it was stolen by the unknown offenders on 5 May 2019. (El Houli: Charge 1 - Theft of Mercedes Benz AMG.)
7 Between Monday 17 June 2019 and Tuesday 18 June 2019, unknown offenders stole a white 2018 Toyota Hilux from an address in Mornington. At 6:30am on 9 July 2019, El Houli and Chamma drove this stolen white Toyota Hilux to the perimeter fence of PrixCar Services in Altona North. By their pleas both applicants admit theft of this vehicle. (El Houli and Chamma: Charge 2 - Theft of Toyota Hilux on 9 July 2019.)
8 Both men broke into the yard area using bolt cutters to cut the cyclone fence. The bolt cutters were in the possession of El Houli. (El Houli: Related summary charge 4 - Going equipped to steal; Chamma: Related summary charge 2 - Trespass.)
9 El Houli and Chamma had entered into an agreement to steal vehicles from PrixCar. They had also agreed to steal the white Toyota Hilux and use it to assist during the thefts. The prosecution put all of charges 2, 3, 4 and 5 on a statutory complicity basis.
10 El Houli gained access to a black BMW 850i coupe valued at $273,000. He took possession of this vehicle and was its sole occupant. At roughly the same time, Chamma took possession of a white Mercedes Benz C300 coupe valued at $92,000. Chamma drove this vehicle for a short period and then transferred his attentions to a black BMW 330i sedan valued at $70,900. (El Houli and Chamma: Charge 3 - Theft of BMW 850i; El Houli and Chamma: Charge 4 - Theft of Mercedes Benz C300 coupe; El Houli and Chamma: Charge 5 - Theft of black BMW 330i.)
11 El Houli endeavoured to make his exit from the compound. He drove the $273,000 BMW coupe into the solid steel exit gate but failed to breach it. He then reversed and drove the BMW into the gate at a fast speed approximately 11 times. He caused significant damage to the gate and destroyed the front of the BMW, causing approximately $157,000 damage to that vehicle. The damage to the gate was approximately $38,000. (El Houli: Charge 6 - Damaging property (BMW 850i and steel gate).)
12 PrixCar employees positioned a company vehicle behind El Houli in the BMW. They also parked a truck beside El Houli in an effort to protect the gate. PrixCar employees approached the BMW 850i on the driver's side. El Houli then reversed the BMW into the PrixCar vehicle (a Nissan Patrol) parked behind the BMW. (El Houli: Related summary charge 19 - Dangerous driving.)
13 El Houli alighted from the BMW coupe and was restrained by PrixCar employees. El Houli, who knew one of the employees by name, said, 'You're dead, Dave. You're dead.' (El Houli: Related summary charge 20 - Using threatening language in public.)
14 At the time of this offending El Houli was on bail for other matters. (El Houli: Related summary charge 17 - Committing an indictable offence whilst on bail.)
15 Meanwhile, Chamma was driving the stolen black BMW 330i sedan. He drove it to near where El Houli was repeatedly ramming the exit gate. Chamma stopped for a few seconds to view the spectacle and then reversed and drove off into the compound. He collided with a stationary white Chevrolet Camaro. The black BMW 330i sustained $8,635.40 damage and the Camaro $3,285. (Chamma: Charge 7 - Damaging property (black BMW 330i); Chamma: Charge 8 - Damaging property (Chevrolet Camaro).)
16 Chamma ultimately dumped the black BMW 330i within the storage yard. At that stage he was able to avoid detection as the focus was on El Houli. He then entered a blue BMW 330i, valued at $70,900. He initially hid in the boot for a time, before gaining access to the car's interior. Damage to the value of $159.99 was caused to the interior. (Chamma: Charge 9 - Theft of blue BMW 330i.)
17 Chamma then drove the blue BMW around the lot and parked it in front of a blue Volkswagen sedan valued at $57,000. Chamma left the BMW and entered the Volkswagen. There were vehicles to the front, rear, left and right of the Volkswagen, including the BMW Chamma had just parked. (Chamma: Charge 10 - Theft of Volkswagen.)
18 Police arrived with PrixCar employees and they approached Chamma, who was still in the Volkswagen. To avoid apprehension, he locked the doors. He revved the vehicle's engine and drove forward sharply in the direction of a Constable Payne. Chamma was requested to exit the vehicle but refused to do so. He reversed into a parked Alfa Romeo, narrowly missing three police officers. Chamma then turned the steering wheel towards Constable Payne and revved the engine. The vehicle lunged forward towards Constable Payne, and that officer, using his baton, smashed the driver's side window of the vehicle. Chamma jumped into the backseat, but was quickly apprehended. The damage to the Volkswagen was $6,970; the damage to the Alfa Romeo was $4,455. (Chamma: Charge 11 - Damaging property (Volkswagen); Chamma: Charge 12 - Damaging property (Alfa Romeo); Chamma: Charge 13 - Conduct endangering persons.)
19 On this eventful morning, the total damage to vehicles caused by Chamma and El Houli was $181,088. The damage to the gate was $37,928.
20 The prosecutor opened the facts of the case. He advised the judge that El Houli's plea was agreed at the first case conference. Chamma's case resolved a little later, but still at an early stage. Both men had been remanded in custody and pre-sentence detention was agreed at 255 days each.
21 Counsel for El Houli made submissions to the following effect:
22 El Houli's prior criminal history was extensive for a young man. He had been dealt with in the Children's Court in October 2016 for theft of a motor vehicle and other offences. In June 2017, a consolidated plea was put on his behalf at the Sunshine Magistrates' Court. He pleaded guilty to reckless conduct endangering life, theft of a motor vehicle and unlicensed driving, and was sentenced to an aggregate of 152 days' imprisonment (time served). On the same day at the Sunshine Children's Court, he pleaded guilty to, inter alia, attempting to commit an indictable offence, unlicensed driving, stating a false name, committing an indictable offence whilst on bail, failing to answer bail, armed robbery, and other driving offences. He was placed on a good behaviour bond for this offending.
23 At the Melbourne Magistrates' Court in December 2017, he was dealt with for, inter alia, two counts of theft of a motor vehicle, driving while disqualified, reckless conduct endangering serious injury, committing an indictable offence whilst on bail, possessing methylamphetamine, carrying a controlled weapon without an excuse, prohibited person in possession of a firearm, and possessing GHB. He was sentenced to 140 days' imprisonment (time served) together with a 12-month CCO with therapeutic conditions, including treatment for drug dependency.
24 In February 2019, El Houli appeared once again at the Melbourne Magistrates' Court. He pleaded guilty to, inter alia, theft of a motor vehicle, five counts of tampering with a motor vehicle, dealing with the proceeds of crime, possessing a drug of dependence, possessing methylamphetamine, cocaine and cannabis, unlawful assault, dishonestly retaining stolen goods, dishonestly receiving stolen goods, committing an indictable offence whilst on bail, and obtaining a financial advantage by deception. He was sentenced to an aggregate of 200 days' imprisonment and placed on a 24-month CCO with an unpaid community work component of 180 hours. He breached this CCO by the offending the subject of this appeal.
25 Counsel for Chamma made the following submissions:
26 Chamma also has an extensive criminal history for a young offender. In March 2017 at the Sunshine Magistrates' Court, he was convicted of possession of morphine, possession of methylamphetamine, theft of a motor vehicle, two counts of committing an indictable offence whilst on bail, obtaining property by deception, failing to stop a motor vehicle upon request, unlicensed driving, failing to stop at a Preliminary Breath Test ('PBT'), and driving in a manner dangerous. He was sentenced to 31 days' imprisonment (time served) together with an 18-month CCO with an unpaid community work component of 120 hours. He was also ordered to undergo treatment for drug dependency or abuse.
27 In October 2017, Chamma was dealt with at the Melbourne Magistrates' Court on charges of, inter alia, contravening a CCO, failing to stop at a PBT, committing an indictable offence whilst on bail (two charges), possession of morphine, obtaining property by deception, failing to stop a motor vehicle upon request, theft of a motor vehicle (two charges), theft from a motor vehicle, handling stolen goods, theft from a shop, burglary, driving in a manner dangerous, failing to stop his vehicle after an accident, and dishonestly assisting in the retention of stolen goods. He was given an aggregate sentence of 11 months' imprisonment and a CCO with a 200-hour unpaid community work component - although this seems to have been varied to 70 hours on appeal.
28 In August 2018 at the Melbourne Magistrates' Court, Chamma was fined an aggregate of $2,000 for theft of a motor vehicle and committing an indictable offence whilst on bail. In November 2018 he was again before that Court, convicted of theft of a motor vehicle, theft, and making a threat to inflict serious injury. He received an aggregate of four months' imprisonment (including pre-sentence detention of 112 days).
29 In April 2019 at the County Court, he was convicted, inter alia, of theft, theft from a motor vehicle, theft from a shop, burglary, dishonestly retaining stolen goods, handling stolen goods, driving in a manner dangerous, and failing to stop after an accident. He was sentenced to an aggregate of 363 days' imprisonment (including pre-sentence detention of 321 days).
30 The judge summarised the offending. Her Honour noted that both offenders had provided essentially 'no comment' police interviews. She reviewed the personal circumstances of each applicant. Her Honour accepted that El Houli had been using ice regularly from the age of 17. It was also accepted that El Houli suffered from 'some aspects of PTSD' due to a fatal car accident some years earlier. The judge described his criminal history as extensive, and noted that he was at the bottom of the 'youthful offender' classification.
31 The judge then turned to Chamma's circumstances. At age 22 at the time of offending, he also fell to be sentenced as a youthful offender. He is the third youngest of eight children whose father died some years ago. Chamma is a qualified motor mechanic, having completed an apprenticeship. Her Honour accepted that, from about the age of 18, Chamma had engaged in polysubstance abuse involving ecstasy, cannabis, GHB and, more recently, methylamphetamine - which had become a big problem. Her Honour described his criminal history as problematic.
It is quite clear that in the case of both of you, despite the chances that the courts have given you to reform and to seek treatment for your drug habits, this has been of no use whatsoever. You continued, both of you, to engage in large-scale drug use. You have engaged in offending which has become more and more serious. You have engaged in offending which has brought you, because of its seriousness, for the first time[4] to the County Court. You had both decided that you were going to - and you have got a history of this - fund your drug habits by stealing cars and on-selling, and I accept that what you decided to do on that day involved some degree of planning, involved potential theft of hundreds of thousands of dollars' worth of expensive cars, and that this was seriously unlawful offending, and offending which is taking you into what must be regarded [as] almost the professional sphere.
I do not accept, despite the submissions of each of your counsel, that because of your youth, because of your good families - and each of you has got job prospects. You, Mr Chamma - I got a reference from a former teacher as to what a talented mechanic you are, and you have work with a brother-in-law as a mechanic, but despite these future prospects your offending is far too serious to be dealt with by way of a combination. You have both been given multiple chances in the past and all you have done is go on to offend in the same way - using drugs, stealing cars - only this time they were a lot more expensive and the offending was a lot more organised.
I have decided that there is little difference between the culpability of each of you. You are both youthful offenders, you were both involved in this enterprise. There might have been greater unlawful use of cars and damage of cars by you, Mr Chamma, but you, Mr El Houli, caused a great deal more damage and you have an extra charge, Mr El Houli, of theft of a very expensive motor vehicle, plus you had been to those premises before. You were on bail for offending there. Mr El Houli, ultimately you have got worse prior convictions than Mr Chamma, but you, Mr Chamma, had only been out of jail for six weeks. You, Mr El Houli, had been on your community corrections order for three months and on bail again for offending against the same premises. Again, each of you have got similar family backgrounds, strong family support, work eventually from family members. Rehabilitation, I accept, is still important for each of you. Can I say, if the two of you presented to this Court as older than you are you would be getting considerable more gaol than what I have decided is appropriate today.
Each of you has got very concerning similar prior convictions involving drug use and motor car theft; they dominate your priors. There has been an escalation, as I have said. In my view the principles of general deterrence, specific deterrence and protection of the community are such that I have decided to sentence you as follows ...[5]
33 El Houli's Ground 2 contends that the judge erred in her approach to parity and El Houli should have received a shorter term of imprisonment than Chamma. Ground 1 of Chamma's proposed grounds of appeal contends also that the judge erred in her approach to parity and that Chamma should have received a shorter term of imprisonment than El Houli. We shall consider these arguments jointly after considering each applicant's discrete grounds of appeal.
34 This Court has a broad discretion whether or not to grant an extension of time. The applicant carries the burden of persuading the Court that an extension ought to be granted. A number of factors bear upon the exercise of this broad discretion. Time limits exist for sound reasons - finality in criminal proceedings is an important consideration. The Court will consider, amongst other matters, the actual length of the extension sought, the reasons for the delay, and the merits of the appeal.[6] The exercise of the discretion must always be informed by 'what the interests of justice require in the particular circumstances of the case'.[7] In this case, the delay is relatively short and the explanation is reasonable. We shall defer ruling on this aspect until we have examined the merits of El Houli's application for leave to appeal, but if there is merit in that application the application for extension of time will succeed.
35 This ground complains that the judge either failed to find that the applicant had demonstrated remorse, or that imprisonment would weigh more heavily upon him than others, or that he was at risk of being institutionalised, or that her Honour failed to have proper regard to these factors, or any combination of them. In the oral hearing, counsel for El Houli focused primarily on the risk of institutionalisation. In our view there is nothing in this ground. It is clear from the transcript of the oral plea hearings that her Honour appreciated that El Houli was contrite. So much flows from the direct exchanges between the judge and El Houli (described by counsel for the respondent as a 'veritable sermon'). Further, as the respondent points out, the evidence of remorse was qualified in several respects. The psychologist, Ms Mynard, wrote that El Houli displays remorse, guilt and regret, but 'struggle[s] to understand the reasons for his offending and how to take full responsibility'. Earlier, Ms Mynard had written that El Houli 'does have difficulty understanding himself, his impulses and antisocial behaviours'. We are of the view that these opinions are incompatible with full insightful remorse.
36 The judge did not overlook El Houli's PTSD. At paragraph [29] of the sentencing reasons, her Honour accepted that El Houli appeared to be suffering from 'some aspects' of PTSD, but considered the essence of his problems to be his entrenched drug abuse. In our view it was open to the judge not to accord the 'increased burden of imprisonment' significant weight in the sentencing mix. Ms Mynard considered that El Houli's putative institutionalisation offset the burden of PTSD within a custodial setting.
37 Similarly, we are not persuaded that the judge overlooked the risk of institutionalisation as an independent potentially mitigating factor. Her Honour was clearly concerned about the potential for institutionalisation, and it featured prominently in the direct exchange between her Honour and El Houli. It also featured in discussion between counsel for El Houli and the judge. We agree with counsel for the respondent that it cannot reasonably be concluded that the judge overlooked this matter. Whilst the risk of institutionalisation is a factor that may weigh in an offender's favour, and particularly so for a youthful offender, it was just one of many factors pulling both ways in this quite complex sentencing exercise.
40 Ground 3 contends that the sentences imposed on related summary charge 17 (committing an indictable offence whilst on bail) and related summary charge 20 (using threatening words in a public place) were manifestly excessive. This ground is pressed by counsel for El Houli in the event that Ground 1 and/or Ground 2 are successful and the sentencing discretion is reopened. For the reasons expressed at, respectively, paragraphs [35]-[37] and [57]-[64] of these reasons, leave to appeal will not be granted on these grounds. Counsel for El Houli correctly and sensibly accepts that, if Grounds 1 and 2 are unsuccessful, leave to appeal under Ground 3 would likely be refused on the basis that there is no reasonable prospect that the [8]ourt would reduce the total effective sentence.8 Our conclusions on Grounds 1 and 2 make it unnecessary to consider this ground further.
42 Ground 2 contends that the sentence imposed on charge 13 (reckless conduct endangering life) is manifestly excessive (14 months' imprisonment, base sentence). It will be recalled that this offending involved placing three people at risk. Charge 13 relevantly read, '[Chamma] recklessly engaged in conduct, namely driving a motor vehicle erratically and in close proximity to persons that placed Mark Abela, Matthew Payne and Megan Walters in danger of serious injury'. We have summarised this offending at paragraph [18] of these reasons. The three victims of the offending were police officers who were narrowly missed as Chamma revved and manoeuvred the Volkswagen at Constable Payne, who used his baton to break the driver's side window of the vehicle.
43 Chamma contends that the endangerment was of serious injury, not life; the offence carried a maximum sentence of five years' imprisonment; and that the plea of guilty admitted only to conduct having the potential to place victims in danger of serious injury, as opposed to actually placing them in danger of serious injury. This is a distinction of jesuitical sophistry. If there is a potential for danger then there is danger. That danger must be 'substantiated and real'.[9] There must be an 'appreciable risk' of serious injury, together with the foresight of its probability on the part of the accused.[10]
44 Grounds that allege manifest excess are difficult to establish. It is insufficient for this Court to consider that it would have imposed a different sentence, or that the sentence was high or stern. What must be established is that the sentence imposed was wholly outside the range of sentences available in the proper exercise of the sentencing discretion.[11]
45 In our view, the sentence of 14 months' imprisonment imposed on charge 13 was well within the scope of sentences reasonably open to the judge. The offence the subject of this ground carried with it the existence of a substantiated and real danger of serious injury, together with foresight of its probability. Further, the relevant offence talks of the endangerment of a 'person',[12] and thus the offence as pleaded, was akin to a rolled-up count alleging (presumably by consent) three victims.
46 In conducting an analysis of sentencing practices for any type of offending, in addition to the qualifications identified by the High Court in DPP v Dalgleish,[13] and the caution that should be exercised when there is a very wide variation in the type of circumstances that can give rise to the particular type of offending under scrutiny, caution must also be exercised when examining offences which are part of a larger set of charges - particularly where there are more serious charges on the indictment. The sentences imposed for 'lesser' charges may well have been compressed, perhaps substantially so, to reflect the principle of totality. To extract and rely on a sentence imposed on a lesser offence, in this circumstance, may well be to extract and rely on a sentence that is artificially low due to its place in the indictment.
47 In our view, a sentence of 23 per cent of the maximum sentence available, despite the early plea of guilty and other mitigating factors, cannot be characterised as 'wholly outside the range available' to her Honour in the exercise of her sentencing discretion. As we have said, we consider it to be comfortably within that range.
48 Leave to appeal under this ground must be refused.
49 Both applicants sought leave to appeal on parity grounds, which were set out as follows. The bulk of the oral hearing was spent on these grounds.
Ground 2
The sentencing judge erred in her approach to the application of parity.
Ground 1
The sentences imposed on charges 3, 4 and 5 infringe the principle of parity in that it was not open in all the circumstances to impose the same sentences and same measure of cumulation upon [Chamma] and El Houli.
50 El Houli contends that the judge proceeded from a starting point of wishing to impose the same sentence on both applicants, and that this was an error of principle. Further, El Houli contended that only four of the 13 charges were common to both applicants, and that none of the related summary charges were common. The net result was that a higher sentence was imposed on El Houli than on Chamma for the offending the subject of charges 2, 3, 4 and 5. In his written case, Mr Smallwood, counsel for El Houli, put it this way:
That result came about notwithstanding [that] the sentencing judge did not state that she intended to impose a higher effective sentence on [El Houli] for
offending that was put on the basis of complicity, and notwithstanding [that El Houli] was younger [than] Chamma and pleaded guilty at an earlier stage.
51 El Houli then contended that Chamma's charge 13 offending (conduct endangering persons) was 'especially reckless' and involved attempting to accelerate a vehicle at a police officer, narrowly missing police officers, and turning the vehicle so that it lunged towards a police officer. Counsel for El Houli then submitted that his client's lone offending on charge 1 (theft of Mercedes Benz AMG, value $334,000) was less culpable than Chamma's lone offending on charges 9 and 10 (theft of blue BMW 330i, value $70,900, and theft of Volkswagen, value $57,000). Further, counsel for El Houli submitted that the utilitarian value of El Houli's plea to charge 1 was very significant, given that there was no evidence against him save for fingerprints. Thus, so this argument went, the judge's approach to parity was wrong in principle and impermissibly distorted the sentencing task to El Houli's detriment.
52 Predictably, Chamma contended that the sentencing was impermissibly distorted against him, not against El Houli. For the purpose of his argument, Chamma focused on charges 3, 4 and 5, and accepted that her Honour was entitled to view Chamma's and El Houli's respective culpability as equal on those charges, although El Houli's personal circumstances were significantly different. The argument was that the fact that El Houli was on bail, and charged with the offending on charge 1 when he committed the remainder of the offending, was a significantly aggravating factor and attracted the operation of s 16(3) of the Sentencing Act 1991 ('Sentencing Act'). Counsel for Chamma also emphasised that, at the time of the offending, El Houli was on a CCO for offending that included seven charges of theft of a motor vehicle. This too was submitted as a matter of aggravation. El Houli's prior convictions were asserted to be worse, and it was submitted that he had been less productive on remand. Counsel for Chamma accepted that El Houli was 'slightly' younger[14] than Chamma, but both were to be sentenced as youthful offenders. El Houli indicated his plea at a 'slightly' earlier stage than Chamma,[15] but the difference was said not to be significant, and Chamma's plea had been entered at the earliest reasonable opportunity. In her written case, Ms Connelly, counsel for Chamma, submitted:
Evidently her Honour thought that though the specific charges against [Chamma] and El Houli were different, in a broad and practical way, their offending was equally bad and their personal circumstances did not justify distinction. So much was open to her. However it was no open to her not to apply the statutory presumption in favour of cumulation in the case of El Houli and it was not open to her to fail to apply the statutory presumption of concurrency in favour of [Chamma].
53 Further, 'it was not open to her Honour to fail to reflect aggravation of offending in breach of bail and a CCO. In all the circumstances, these matters of aggravation compelled a different outcome on charges 3-5'.
54 Mr Boyce QC, who appeared for the respondent on both applications, submitted as follows.
55 Her Honour did not use Chamma's sentence as the starting point, nor did she start from a conclusion of equality and then reason backwards. Her Honour, having regard to all relevant matters, including culpability, rehabilitation and family support, found it difficult to distinguish between El Houli and Chamma. In those circumstances, it is unsurprising that they received the same sentence. It was open to her Honour not to impose a lesser penalty on El Houli than on Chamma even though El Houli was on bail when the post-charge 1 offending occurred and was also on a CCO. Mr Boyce submitted that El Houli's prior convictions were 'worse' than Chamma's and his record on remand less impressive.
56 Mr Boyce contended that no ground of appeal impugns the general conclusion reached by the judge that, all things considered, Chamma and El Houli should receive the same total effective sentence: 'This being so, the efficacy of singling out for the purposes of parity a distinction between the individual sentences imposed upon charges [Chamma] shares with [El Houli] may be open to question.' Further, it was argued that Chamma had only recently been released from prison at the time of offending, was 'slightly' older than his co-offender and his plea came later. In the circumstances, Mr Boyce submitted, a conclusion that Chamma has a justifiable sense of grievance on the sentences imposed on charges 3, 4 and 5 is unsustainable.
57 It is worth repeating her Honour's sentencing remarks on the applicants' respective culpabilities. At paragraph [39], the judge said:
I have decided that there is little difference between the culpability of each of you. You are both youthful offenders, you were both involved in this enterprise. There might have been greater unlawful use of cars and damage of cars by you, Mr Chamma, but you, Mr El Houli, caused a great deal more damage and you have an extra charge, Mr El Houli, of theft of a very expensive motor vehicle, plus you had been to those premises before. You were on bail for offending there. Mr El Houli, ultimately you have got worse prior convictions than Mr Chamma, but you, Mr Chamma, had only been out of jail for six weeks. You, Mr El Houli, had been on your community corrections order for three months and on bail again for offending against the same premises. Again, each of you have got similar family backgrounds, strong family support, work eventually from family members. Rehabilitation, I accept, is still important for each of you. Can I say, if the two of you presented to this Court as older than you are you would be getting considerable more gaol than what I have decided is appropriate today.
58 This paragraph illustrates with some clarity the difficult sentencing task confronting her Honour. Many factors pulled in competing directions; other factors were, more or less, common to both offenders. No sentencing judge is expected to weigh competing sentencing factors with mathematical precision when conducting a single sentencing exercise on an individual offender.[16] This conventional statement of principle is all the more relevant when co-offenders, each with common and different culpabilities, and each with similar and different circumstances, fall to be sentenced.
59 Recently, in Nipoe v The Queen,[17] this Court restated the rationale underpinning the principle of parity. It is convenient to set it out in full:
Consistency in the application of the law is a fundamental aspect of the rule of law. In a very different context, but in terms that are relevant to discretions generally, Brennan J said that: '[i]nconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice'. The High Court has observed that:
Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'.
Appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention. However, any assessment of an argument based on parity requires this Court to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders and to recognise that: '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.'
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 judgments required' to arrive at the sentence imposed. 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 co-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.[18]
60 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.[19] 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.[20] An 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.[21]
61 Before examining briefly the individual positions of El Houli and Chamma, we observe, in regard to both applicants, that the total effective sentences imposed and the non-parole periods are in our view modest indeed, given the overall criminality demonstrated by both applicants.
62 So far as El Houli is concerned, we are not satisfied that he has established this parity ground. We are not satisfied that the judge commenced from the position that she wished to impose the same sentence on each young offender regardless of their individual circumstances. The passage set out at paragraph [57] of these reasons strongly suggests the contrary. The judge assessed the respective culpabilities of each offender, and their circumstances. Only then did her Honour proceed to impose sentence, having found it difficult to draw any meaningful distinction between them.
63 In our view, the technical argument mounted by El Houli required of the sentencing judge impossible intellectual convolutions:
64 These questions are rhetorical. They are not quantitatively answerable. Given the complexity of the common and disparate facts, her Honour was not only entitled to stand back and take a broad view of the applicants' relative criminality, it was the only practical means of evaluating it. El Houli has no sustainable complaint on a parity basis.
65 In our view it was open to the judge to take the broad view that the respective overall culpabilities of the two applicants were about equal. In written submissions, counsel for Chamma conceded this insofar as charges 3, 4 and 5 are concerned, but contended that his individual circumstances were sufficiently dissimilar to El Houli's circumstances as to compel a disparity of sentence on those charges. There is some force to the submission that El Houli was on bail and a CCO when his offending occurred, and that this provides a solid foundation for distinguishing between him and El Houli - however, Chamma himself had been released from prison only weeks earlier, after serving 12 months' imprisonment for, inter alia, theft of a motor vehicle (two counts), obtaining property by deception, theft, dishonest retention of stolen goods, committing an indictable offence whilst on bail, burglary, driving in a manner dangerous, and failing to stop after an accident. Further, El Houli was a little younger than Chamma, and pleaded guilty at an earlier stage - although Chamma seemed to have done better on remand.
66 In our view, whilst it may have been open to the judge to distinguish between El Houli and Chamma on charges 3, 4 and 5, given that El Houli's offending was committed whilst on he was on bail and during the currency of a CCO, in all the circumstances, her Honour was not bound to draw this distinction. Put another way, it was also entirely open to her Honour not to draw the distinction because of the myriad other considerations relevant to the sentencing exercise, and pulling in different directions.
67 Neither applicant has established his parity ground.
68 El Houli's application for leave to appeal was received approximately one and a half months out of time. Without rehearsing it, the explanation for the delay is reasonable. If El Houli's grounds of appeal had substance we would have granted leave to appeal out of time. As it is, we have concluded that there is no substance to his grounds of appeal and it would be futile to grant the application for an extension of time.
69 During the oral hearing, counsel for the respondent raised an error in the Record of Orders made in the County Court on 20 March 2020 in respect of El Houli, whereby it did not reflect her Honour's intention, clearly expressed during her sentencing remarks, that El Houli's driver's licence be cancelled and he be disqualified from obtaining a new licence for a period of 12 months on each of charges 1, 2, 3, 4 and 5 - each period to run concurrently. Her Honour's verbal order for cancellation of El Houli's licence and disqualification for a period of 6 months on summary charge 19 was reflected in the Record of Orders, on the other hand. The addition of orders for cancellation and disqualification on charges 1-5 brings the driving penalties imposed on El Houli in line with those imposed on Chamma.[22] Further, sub-ss 89(4) and (5) of the Sentencing Act require the cancellation or suspension of the driver's licence of a person convicted of theft of a motor vehicle, and their disqualification from obtaining a further licence or permit for some period of time.
70 In rectification of this clear error, and as we are entitled to do under s 104A(5A) of the Sentencing Act, we have added a minute to the Record to the effect that, on each of charges 1, 2, 3, 4 and 5, any Victorian licence or permit held by El Houli is cancelled, and on each of those charges he is disqualified from obtaining a further licence or permit for a period of 12 months from 20 March 2020, with each period to run concurrently.
71 Before expressing our conclusion in each application, there is one further matter which should be stated. Underlying the submissions of each applicant was a contention that thefts of motor vehicles are somehow less serious forms of thefts than other thefts. That contention is incorrect. The objective gravity of any theft needs to be considered by reference to what was taken (including its value), from whom it was taken, and all other relevant surrounding circumstances, including the purpose for which it was taken. It simply does not follow that because the theft concerned a motor vehicle, then necessarily the theft is in some lower category of the offence. In this case, the offences to which each applicant pleaded guilty were plainly serious. Moreover, given the appalling criminal record of each youthful applicant, the judge could not sensibly have imposed any lesser sentences.
72 The application for an extension of time in which to lodge an application for leave to appeal against sentence is refused.
[1] The total value of damage to the Mercedes AMG was $71,516.
[5] DPP v Chamma [2020] VCC 375, [37]-[40].
[6] Madafferi v The Queen [2017] VSCA 372, [11] (Priest, Hansen and Coghlan JJA).
[9] R v Abdul-Rasool [2008] VSCA 13; (2008) 18 VR 586, 596 [41] (Redlich JA), in the context of conduct endangering life.
[11] Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA, Redlich JA agreeing at [26]); McPhee
v The Queen [2014] VSCA 156, [8] (Redlich and Priest JJA) ('McPhee'); McKinnin v The Queen [2019] VSCA 114, [164] (Niall, T Forrest and Weinberg JJA); Atem v The Queen [2020] VSCA 35, [48] (Tate, McLeish and Weinberg JJA).
[13] [2017] HCA 41; (2017) 262 CLR 428, 433-4 [4]-[7] (Kiefel CJ, Bell and Keane JJ).
[15] Chamma went to committal and the case settled before witnesses were examined. The impugned charge was withdrawn.
[16] McPhee [2014] VSCA 156, [8].
[18] Ibid [38]-[40] (Maxwell P, Niall and Emerton JJA).
[19] Ah-Kau v The Queen [2018] VSCA 296, [51] (McLeish and T Forrest JJA).
[20] DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1, 9 [27] (Warren CJ, Redlich JA and Ross AJA).
[21] DPP v KMD [2015] VSCA 255 (Maxwell P, Weinberg and Beach JJA).
[22] Chamma's driver's licence was cancelled and he was disqualified from obtaining a new licence for 12 months on each of charges 2-5, and for six months on each of charges 9 and 10.
Chamma
The Queen [2020] VSCA 232
[2020] VCC 374 (Judge Gaynor)
CRIMINAL LAW - Appeal - Sentence - Sentencing procedure - Principle of parity - Approach to sentencing co-offenders - Theft of a motor vehicle - Conduct endangering serious injury - Damaging property - Verdins considerations - Weighting of mitigating factors - Comparison of mitigating factors of co-offenders - Seriousness of theft of a motor vehicle - Impact of value of property on seriousness of theft - Impact of value of damage on seriousness of offence of damaging property - Weighting of criminal history in sentencing calculus - Comparison of criminal histories of co-offenders - Comparison of personal circumstances of co-offenders - Comparison of seriousness of individual charges in sentencing co-offenders - Impact of institutionalisation on weight of burden of imprisonment - Leave to appeal refused; R v Verdins (2007) 16 VR 279, R v Abdul-Rasool (2008) VR 586, McPhee v The Queen [2014] VSCA 156, Ah-Kau v The Queen [2018] VSCA 296, Nipoe v The Queen [2020] VSCA 137 considered - Crimes Act 1958 ss 23, 74(1) 197(1), Criminal Procedure Act 2009 s 280(1)(b).
(2007) 16 VR 279
(2007) 16 VR 269
(2011) 34 VR 1
(2008) 18 VR 586
(2017) 262 CLR 428