Clark v The Queen [2020] VSCA 125

Factual and procedural background[1]

4 The appellant pleaded guilty to the charges set out in the below table and, on 1 February 2019, he was sentenced as follows:[2]

[s 77A Crimes Act 1958]

Intentionally damage property [s 197(1) Crimes Act 1958]

[s 74 Crimes Act 1958]

[s 74 Crimes Act 1958]

Possess drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981]

Total effective sentence: 6 years' imprisonment

6AAA Statement: 8 years' imprisonment with non-parole period of 6 years

5 May pleaded guilty to the charges set out in the below table and was sentenced on the same day, by the same judge, as follows:

Total Effective Sentence: 3 years, 9 months' imprisonment

6AAA Statement: 5 years, 6 months' imprisonment with non-parole period of 3 years

6 The circumstances of the offending may be summarised as follows. On 14 May 2018, the appellant borrowed a friend's car and drove it (summary charge of unlicensed driving). Around 6:15 am on Thursday 17 May 2018, the appellant and May, together with another unidentified male, entered a property by climbing a side fence.

7 The appellant was carrying a loaded sawn-off shotgun. May concealed her face and hair and was carrying a backpack. The appellant did not have his face covered. He turned off the power to the automated gates leading into the property and forced open a gate leading to the rear deck. He picked up a spade in the rear yard and used it to force open the rear glass sliding door.

8 The appellant and May then entered the house together. That conduct constitutes the charge of home invasion. They entered the house with intent to steal property within it. May became aware of the firearm only after climbing the fence into the property, but nevertheless proceeded to enter the house. She did not know if the firearm was real or an imitation. Neither the appellant nor May knew whether anyone was present in the house, but were reckless as to that circumstance.

9 Inside the house, May picked up various items and placed them in her backpack. The male and female occupants heard the break-in and barricaded themselves inside a bedroom, hiding in a walk-in wardrobe. The appellant forced his way into the bedroom and banged on the door of the walk-in wardrobe.

10 As the door opened, the woman saw the barrels of the shotgun. The man pushed the wardrobe shut and the appellant said words to the effect of, 'We saw you on the news, tell me where everything is or we'll start popping shots'. While hiding in the wardrobe, the woman called 000.

11 The third offender, who had kept a lookout at the front of the property, jumped the fence, broke a lock to a shed and removed various items including power tools. After placing various items in her backpack, May left the house with some keys. She tried unsuccessfully to open the automatic gates. She got into a red Volkswagen parked in the carport and tried to start the engine.

12 The third offender put the power tools into the back seat and, with the appellant, forced the automatic gates open, damaging the hydraulic arms. That damage constitutes the charge of intentionally damaging property. The third offender then fled.

13 The appellant got into the front passenger seat of the Volkswagen with the shotgun and May unsuccessfully tried to reverse the car out of the carport. The appellant then got into the driver's seat and also tried, without success, to get the car into reverse gear. That conduct constitutes the charge of theft of a motor car.

14 Police then arrived and both the appellant and May tried to run away. May was arrested near the Volkswagen. She had in her backpack a laptop, a soldering iron, a plastic container, a watch, an iPhone, a tablet, three power banks, cigarettes and some cash. Those items, together with the power tools and other items the third offender had taken from the shed and placed in the Volkswagen, constitute the property the subject of the charge of theft to which the appellant and May pleaded guilty.

15 When police arrived, the appellant ran away and hid in a nearby bush. When a police officer found him, he resisted arrest. That conduct constitutes the summary charge of resisting arrest. The appellant was arrested with the assistance of other police. He was found to be in possession of five mobile phones, jewellery, a bankcard and a healthcare card not in his name, a remote gate opener and $300 in cash. His possession of those items constitutes the charge of dealing with property suspected of being proceeds of crime.

16 The appellant also had in his possession a small bottle of 1,4-Butanediol, a ziplock bag containing methylamphetamine and another ziplock bag containing a portion of a Xanax tablet. His possession of those drugs constitutes the charge of possession of drugs of dependence.

17 Police then found, nearby, the car which the appellant had borrowed. Inside the car were two knives. The appellant's possession of those knives constitutes the summary charge of possession of a dangerous article.

18 On the plea, the prosecutor submitted that the head sentence to be imposed on the appellant and May for charges 1-4 should be the same and that any differences in their respective levels of culpability for the offending and in their personal circumstances should be reflected in a shorter non-parole period for May. The prosecutor tendered a table which identified the similarities and differences between the appellant and May for the purposes of the application of the parity principle. That table is appended to these reasons.

19 The prosecutor relied on Yoannidis v The Queen.[4] In that case, the same sentence was imposed on two co-offenders for an aggravated burglary, two assault and two theft charges notwithstanding differences in their personal circumstances and the fact that Yoannidis recruited the co-offender in order to collect Yoannidis's drug debt.

20 The appellant's counsel agreed that the appended table was factually correct. He submitted that any moderation of the sentence for May should not be a basis for increasing the sentence for the appellant.

21 In his sentencing reasons, the judge stated that he did not accept the prosecutor's submission 'in relation to roles and parity'.[5] He said:

[The appellant] was carrying the loaded firearm. Ms May did not know that he had any firearm until the two of [them] jumped over the fence. [The appellant] spent twice as long inside the house and went into the bedroom, where the occupants were hiding and threatened them. Ms May went only into the kitchen and study when she entered the house. Applying the parity principle, recognising the similarities and dissimilarities between [their] roles and also [their] personal circumstances, I will impose a lower total effective sentence and non-parole period on ... Ms May.[6]

22 In our respectful view, the judge's approach to the question of parity was entirely orthodox and it was well open to his Honour to differentiate between the appellant and May as he did. No complaint was directed at his Honour's summary of the difference in their roles, as set out above, and his Honour was entitled to treat those matters as warranting a significant sentencing difference.

23 The fact that the appellant was carrying a loaded firearm was a very significant aggravating feature of the home invasion offence. It revealed premeditation on his part; it greatly increased the danger associated with the act of entry into the premises; and it shed relevant light on the appellant's intention at the point of entry. The fact that May became aware of the firearm after they had jumped the fence does little to moderate the significance of this differentiating factor, in our view.

24 The other very significant differentiating factor, in our view, was the respective criminal records of the two offenders. As the judge recorded in his reasons, the appellant was sentenced to terms of imprisonment in 2007, 2009 and 2010 for robbery offences. He also served sentences of imprisonment for unlawful assault and other offences in 2010. In 2012, he was sentenced to 2 years and 3 months' imprisonment for theft, burglary and criminal damage; in 2016, he was sentenced to 6 months' imprisonment for offences including burglary, shop stealing and unlawful assault; and in 2017, he was sentenced to community correction orders for handling stolen goods, burglary and offending on bail. This offending breached CCOs imposed subsequently.

25 May, on the other hand, had a very limited criminal history, as the prosecutor conceded on the plea. She had never served a term of imprisonment, and had no convictions for crimes of violence. Self-evidently, the sentencing considerations of specific deterrence and protection of the community weighed much more heavily in the case of the appellant than in the case of May, given this stark difference in their records.

26 Accordingly, the appeal against sentence must be dismissed.

Consideration of Parity Principle (in relation to the charges on the indictment)

The principle of parity is an aspect of equal justice. Like offences should be treated alike and relevant differences should be reflected in the sentences imposed. (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606)

At the time of preparing this document (31 October 2018), plea submissions on behalf of Mr Clark had not been received.

Role/involvement in the home invasion, criminal damage and theft

• Though not the subject of a separate charge, he entered the victims' bedroom and confronted them.

• Became aware that Mr Clark was in possession of a firearm once both of them had got over the fence. Not aware if the firearm is real or imitation.

• Complicit in the criminal damage - an element of the plan in being able to drive the car away

In her interview, May gave information indicating that she had previously been to the victims' house and that she knows Mr Dawson (Q & A 45 - 52 and 55 - 63). The Crown does not distinguish the role played by each of the accused with respect to the motivation behind the plan and whether one or the other was the instigator of the plan.

Minimised her involvement with respect to when she became aware that Mr Clark was holding a firearm. (Q & A 243)

To assist a young person's rehabilitation, a longer period of parole may be imposed.

Ms May is not a young offender and marginally qualifies as a youthful offender.

Pleaded guilty at the earliest opportunity (1st committal case conference)

Pleaded guilty at the earliest stage (2nd committal case conference

Plea of guilty, psychologist considers that he has exhibited remorse

Apart from plea of guilty, no other evidence of remorse

Robbery, ICI, escape from lawful custody - 5 mths imp wholly suspended for 6mths (breached, sentence restored)

31.8.2010 (crown appeal on sentence he received on 28.10.2009)

Robbery, RCI, burglary x 2, u/a, behave in offensive manner in public place, theft x 3 0 13mth imp, NPP 3 months

motor vehicle offences - fined $500 violence offences and theft - Agg 6 months imp

dishonesty offences, burglary, criminal damage - 3mths imp

Theft, burglary, crim damage - 2yrs 3mth imp, NPP 13 months

dishonesty/driving offences, bail offences, burglary, u/a x 3 - TES 6 months imp

dishonesty/bail offences/burglary - 55 days imp and 12mth CCO (breached, order varied)

theft and theft of motor vehicle, driving, dishonesty and drug offences (cannabis) - 12 mth CCO (breached)

driving/bail/burglary/dishonesty offences - 85 days imp and CCO varied

Possess on court premises offensive weapon - adjourned undertaking without conviction

Fail to answer bail x 2 - fine without conviction

Possess prohibited weapon - convicted and discharged

possess methylamphetamine x 3 - 6mth CCO commit ind off whilst on bail x 2, possess cannabis x 2

Drive whilst suspended and other driving offences -

13.12.2018 - contravene CCO x 2, burglary and theft

• Came to Australia age 11. All siblings placed in residential care, apart from his siblings.

• surrounded by drugs from young age (both parents abused drugs)

• Offending committed in the context of becoming homeless and separated from his partner

• Completed Certificates 1, 2, 3 in hospitality at Box Hill TAFE

• Commenced use of methylamphetamine at around age 20, coincides with criminal offending

• No diagnosis of any psychological disorders, offending is attributed to drug use

• 5 year old son (currently being cared for by her mother and was also cared for by her mother prior to the offending)

• will depend on whether he can abstain from using drugs and find stability in his social situation

• Has completed several courses while in custody, working in the prison café.

• Will depend on whether she can abstain from using drugs, find employment

[1] Paragraphs 4-17 are based on the reasons given by Kyrou JA on 18 September 2019 for granting leave to appeal.

[2] DPP v Clark [2019] VCC 104 ('Reasons').

[3] This sentence is included in the judge's sentencing remarks, but not in the record of orders.

[4] [2018] VSCA 109.