Collins v The Queen [2015] VSCA 106

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 14 July 2014, the appellant pleaded guilty to charges of armed robbery, burglary, theft and possession of an unregistered general category hand gun. Following a plea hearing on 16 July 2014, the appellant was sentenced on 23 July 2014 as follows:

Burglary [Crimes Act 1958 (Vic) s 76(1)]

10 years [Crimes Act 1958 (Vic) s 76(3)]

Theft [Crimes Act 1958 (Vic) s 74]

10 years [Crimes Act 1958 (Vic) s 74]

Armed Robbery [Crimes Act 1958 (Vic) s 75A(1)]

25 years [Crimes Act 1958 (Vic) s 75A(1)]

Possession of unregistered general category handgun [Firearms Act 1996 (Vic) s 7B]

600 penalty units or 7 years (first offence); 1200 penalty units or 10 years (second offence)

2 On 18 November 2014, Redlich JA granted the appellant leave to appeal against his sentence on the following ground:

The learned sentencing judge erred in her application of the parity/disparity principle in relation to both the total effective sentence and the non-parole period imposed.

3 The appellant's parity complaint relates to an earlier sentence imposed upon the appellant's co-offender, one Turkozu. Turkozu pleaded guilty to the same two charges of burglary and armed robbery to which the appellant pleaded guilty. However, Turkozu was sentenced to be detained in a Youth Justice Centre for three years as part of an aggregate sentence for those two offences and seven other offences, being a further charge of armed robbery, two further charges of burglary, one charge of intentionally causing injury, one charge of reckless conduct placing another person in danger of serious injury, one charge of criminal damage and one charge of robbery.

4 In granting the appellant leave to appeal, Redlich JA said:

In my view, the applicant should have the opportunity of demonstrating that, all circumstances considered, there were not reasonable grounds for differentiation between Turkozu and the applicant. He should also have the opportunity to make good the argument that even if Turkozu was in an 'overall better position' than the applicant, her Honour was obliged to give some effect to the parity principle in the sentencing synthesis and had failed to do so.

5 The facts giving rise to charges 1 and 2 are as follows. In late March 2012, the appellant drove Anthony Bonvino (in the appellant's car) to a hardware store where he purchased a crowbar at the appellant's request.

6 On 28 March 2012, the appellant, with Bonvino and Turkozu, left Melbourne (in the appellant's car) at approximately 11:30am and drove towards Seymour. The appellant told Turkozu that he was going to Seymour to steal some guns from a house. The appellant drove to the house. The occupants of the house were not home.

7 The appellant drove to an empty laneway at the back of the property where he and Turkozu got out of the car. The appellant took the crowbar and bent back the rear gate in order to enter the property. Turkozu stayed at the gate while the appellant went inside a bungalow/shed, went to a locked gun safe, broke into it and took a Weatherby 22 REM rifle (valued at $500), a Lithgow 22 RIMFIRE bolt-action rifle (valued at $100), a Gamo 22 AIR rifle (valued at $100) and a Boito 12 gauge shotgun (valued at $500).

8 The appellant, with Turkozu and Bonvino, drove back to Melbourne where he and Turkozu took photos of each other posing with the guns on Turkozu's phone.

9 On 6 April 2012, the appellant and Turkozu drove (in the appellant's car) to the home of the appellant's cousin where they dropped a bag containing some of the firearms.

10 Charge 4 was constituted by the following facts. At some point after the Lithgow Rimfire rifle was stolen, it was shortened. Turkozu saw the modified rifle in the appellant's car and on one occasion the two men used the rifle to shoot at cans. There were two other occasions where the appellant knew the modified rifle was in his car - the firearm had been in and out of his possession from the time it was stolen.

11 Charge 3 was constituted by the following facts. On 9 April 2012, the appellant was driving his car with Turkozu and two others. At approximately 2:20am, the appellant stopped the vehicle down a side street near a 7-Eleven store in Reservoir. The appellant and Turkozu discussed doing an armed robbery using the gun. Turkozu and the appellant left the vehicle (wearing hoodies and sunglasses) and Turkozu concealed the stolen shortened Lithgow rifle down his pants.

12 Either the appellant or Turkozu knocked on the door of the 7-Eleven (which had been locked for safety reasons while the attendant was cleaning) and asked if it was open. The attendant replied that it was, and he opened the door. Turkozu entered the store while the appellant remained holding the door open. When the attendant moved behind the counter, Turkozu pulled out the rifle, pointed it at the attendant and said 'Give me the money' twice. After the attendant tried unsuccessfully to open the till, Turkozu yelled at him to give him all the money. Turkozu became aggressive and pushed the gun in the direction of the attendant. The attendant opened the till, and placed the cash drawer on the counter. Turkozu took the money and ran back to the car with the appellant.

13 The appellant's car was intercepted on 9 April 2012 with the appellant, Turkozu and two others inside. As Turkozu got out of the car, police saw the shortened Lithgow rifle on the back seat (with a cartridge loaded inside the barrel and a container of ammunition in the rear driver's door pocket).

14 The appellant was interviewed on that day and when asked about the armed robbery answered 'No comment'. The appellant said he knew the rifle was in the car at one stage that day and had been in the car on 1 April 2012. The appellant said he was not aware Turkozu had bullets for the firearm (on 9 April 2012).

15 The judge commenced her reasons for sentence with a summary of the appellant's offending. In the course of her reasons, the judge referred to Turkozu's circumstances and his role in the burglary and armed robbery. The judge said:

Turkozu, who was eighteen years old at the time of the offending, pleaded guilty to the same armed robbery, burglary and theft to which you have pleaded. In addition, he pleaded guilty to a further armed robbery, a robbery, 2 further burglaries and one charge each of intentionally causing injury, reckless conduct endangering a person of serious injury, and criminal damage. He was sentenced by his Honour Judge Maidment to be detained in a Youth Justice Centre for 3 years with 134 days served in adult custody declared by way of pre-sentence detention.

There is no victim impact statement in this matter but it is clear that the armed robbery must have been a terrifying experience for Mr Wong, who was doing no more than trying to earn a living. Your offending is aggravated by the fact that you offended against a soft target in the dead of the night. There was a crude level of planning involved, in that the car was parked away from the shop, and you disguised your faces. There was also an understanding as between you and your co-offender as to the roles you would play once at the store.

In respect of the burglary and theft, it was your idea to commit these offences and you arranged for another to buy a crowbar, which you used to access the bungalow where you knew the guns were kept. You collected Turkozu and told him what you wanted to do, then drove to the house in Seymour where you and he committed the offences. I do not sentence you on the basis that you stole the guns in order to commit the armed robbery.

Your role in respect of the armed robbery was marginally less than that of Turkozu who was the one making the demands and wielding the weapon. Not only did he point the gun at the victim but at one point he actually pushed it forward, tipping over an item on the counter. Whilst this was his action, it is evident from the CCTV footage that you did nothing to dissuade him from his behaviour but simply looked on at what he was doing, leaving shortly thereafter.[1]

Parity is an issue in your case, although there are some marked disparities between your situation and that of your co-offender. He pleaded guilty to a number of serious charges, over and above those both of you committed. On the other hand, he was only 18 years old when he committed the offences which you and he committed together, he pleaded guilty at an earlier stage than you, he had one prior court appearance involving road traffic offences and failing to answer bail, and he undertook to give evidence against you. In compliance with his undertaking, he gave evidence at the committal hearing. In particular, Turkozu's undertaking to give evidence entitled him to a substantial discount in the sentence that he would otherwise receive. His Honour Judge Maidment referred to this factor in the course of his sentencing remarks. Allowing for all of these matters, he received a sentence of 3 years Youth Justice Centre, having served a substantial period in adult gaol which was deducted from his sentence. I regard the differences in his situation as opposed to yours to be material ones which, on balance, places him in an overall better position than you. In saying this, I have very much borne in mind that he faced a number of serious charges over and above those that you share. I have also borne in mind the respective roles that you played in the offences you committed together, and the sentence he received, albeit the qualitative difference between your situation and his. I do not regard His Honour's s.6AAA indication as something which somehow binds me or compels me to a view in respect of sentencing you.[2]

17 The judge dealt with the appellant's personal circumstances in the following terms:

You are now 26 years old and were 24 at the time, so you are still rather young and far from beyond hope of rehabilitating. You have a partner and a child who is 2 ½ years old. I factor in that you will suffer hardship from being separated from your family and you have your family to look to for support when you are released from gaol. In saying this, I am mindful of the fact that you had these supports at the time that you committed the offences; however, a good deal of water has passed under the bridge since then which points in a positive direction for you.

I take into account the CISP report which recorded that you ultimately progressed well on the program, which is to your credit.

I also take into account your background. You were raised in Meadow Heights by your mother and have never met your father. Some of your family members were in court to support you and you also have them to look to in the future. When you left school, having completed year 8, you began work as a plasterer's labourer. You went on to complete an apprenticeship and whilst on bail you obtained your certificate of qualification in this field. You intend to find full time employment when you can. About three months ago, you suffered severe leg injuries in a car accident which have had some ongoing ramifications for you. I was told that you will need some surgery in the not too distant future to address a surgical screw which is protruding from your left ankle.[3]

In all of the circumstances, I find that your prosects of rehabilitation are quite good and I need place fairly modest weight on specific deterrence and the need to protect the community.

Your Counsel's primary submission was that you were a candidate for a community corrections order; however, even allowing for all that has been said and done to enable community corrections orders to accommodate more serious offences, in my view, even the most onerous community corrections order could not do justice to the weight which I ought give to all relevant sentencing principles. You are still a relatively young man and in sentencing you I have borne in mind the desirability of maximising your chances of rehabilitation. However, as I have said, I must also do justice to the weight that I must attach to other sentencing principles relevant to your case. I am afraid that the only suitable disposition in your case is an immediate term of imprisonment.[4]

19 The appellant submitted that the judge was bound to consider parity in sentencing him. It was further submitted that parity in the appellant's case required a reduction in the sentence that was imposed, and that the judge fell into error in not reducing the appellant's sentence accordingly.

20 While the appellant conceded that there were factors that favoured the appellant receiving a sterner sentence than Turkozu, the differences between the appellant and Turkozu that favoured a reduced sentence for the appellant were said to be:

(a) the number and seriousness of the offences that each pleaded guilty to;

(b) the role that each played in the offences that they committed together (although in argument this afternoon, counsel for the appellant eschewed any significant reliance on the differing roles of the appellant and Turkozu in their joint offending);

(c) the relative prospects for rehabilitation that were evident at the time that the two of them were sentenced; and

(d) delay in the appellant's case, that was not present in Turkozu's case.

21 In summary, it was submitted by the appellant that parity required a reduction in the appellant's sentence and, in view of the serious additional charges that Turkozu pleaded guilty to and the nature of the sentence he received, the sentence imposed on the appellant gave rise to a justifiable sense of grievance on his part.

22 The respondent submitted that the judge's reasons for sentence disclosed that her Honour correctly considered and dealt with the issue of parity. In support of a contention that there was no parity issue so far as Turkozu's and the appellant's sentences were concerned, the respondent pointed to the following factors:

(a) Turkozu was 18 at the time of the offending, and 19 at the time of sentence, and was therefore a young offender within the meaning of the provisions of the Sentencing Act 1991 - thereby enabling the judge to have regard to sub-div (4) of div 2 of pt 3 of the Sentencing Act 1991 for the purposes of sentencing; whereas the appellant was 23 at the time of offending and 26 at the time he was sentenced;

(b) Turkozu was arrested on 9 April 2012 and made partial admissions and was remanded in custody, and having been granted bail, breached bail and ultimately served 134 days of pre-sentence detention in an adult prison prior to being sentenced;

(c) At a committal mention in August 2012, while still in custody in an adult prison, Turkozu indicated a willingness to plead guilty to the charges he faced;

(d) By October 2012, Turkozu had made statements to police implicating co-offenders, including the appellant, in serious offending, and had stated that he was prepared to give evidence at the committal of the appellant in relation to these matters; and

(e) Turkozu had one previous court appearance which resulted in a non-conviction disposition, whereas the appellant had a more significant criminal record that involved two court appearances.

23 The principles governing parity are well-established.[5] 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.[6] 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 the way in which he or she did.[7] When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[8]

24 Insofar as the appellant submitted that the judge failed to have regard to parity principles, we would reject this submission. Her Honour's reasons for sentence show that the issue of parity was considered by the judge - as she was bound so to do.

25 The question then became whether the differences between the appellant and Turkozu justified a different sentence being imposed upon the appellant. While the appellant was relatively young, he was some years older than Turkozu. Further, unlike the appellant, Turkozu fell to be sentenced as a young offender within the meaning of the Sentencing Act 1991.

26 There were additional matters that justified a more lenient sentence being imposed on Turkozu. First, the appellant's prior convictions were more significant than Turkozu's prior convictions. Secondly, Turkozu indicated a willingness to plead guilty at an earlier stage than the appellant did. Thirdly, it was Turkozu who gave a statement and offered to give evidence against co-offenders, and he did in fact give evidence against the appellant at a contested committal hearing. The appellant was not able to call any of these mitigating factors into account when he was sentenced.

27 It is certainly the case that Turkozu pleaded guilty to a number of serious charges in addition to those to which the appellant pleaded guilty.[9] The sentencing judge was well aware of that fact and she expressly referred to it. She then set out the mitigating factors upon which Turkozu could rely which the appellant could not, including his youth, his early guilty plea, his lack of relevant prior convictions, and his undertaking to give evidence against co-offenders.

28 Youth and a willingness to give evidence against co-offenders are amongst the most compelling circumstances of mitigation which exist. Offenders as young as Turkozu was at the time of this offending are sentenced on the basis that their youth is itself a primary consideration, that rehabilitation is usually far more important than general deterrence, and that adult prison is not to be imposed unless that disposition cannot be avoided.[10] The discount for assistance and co-operation of the kind Turkozu was willing to give, and did give, may be, in the words of Callaway JA, 'very considerable indeed'; and that discount is in addition to the mitigating effect of a guilty plea and any other evidence of remorse.[11] Each of these very powerful mitigating factors were present in Turkozu's case, and were expressly referred to by the sentencing judge in contrasting the position of Turkozu with that of the appellant.

29 The appellant's submission in his written case (although not relied upon to any significant extent in oral argument) that Turkozu's role in their joint offending was more significant than that of the appellant must also be rejected. While it is true that it was Turkozu who pointed the rifle at the attendant in the 7-Eleven store robbery, the appellant's role in this joint offending was not relevantly less significant that Turkozu's role.

30 Similarly, there is very little in the appellant's delay point as argued in his written case. Turkozu's case was dealt with, with greater expedition than the appellant's case because Turkozu chose to plead guilty at an earlier stage in his proceeding than did the appellant.

31 In our view, having regard to the fact that Turkozu was younger, had a less significant criminal history than the appellant, offered to plead guilty at an earlier stage than the appellant, and offered to give evidence against co-offenders, the appellant has no justifiable sense of grievance in relation to the sentence that was imposed upon him when it is compared with the sentence earlier imposed upon Turkozu. We see no error in the way the judge dealt with the parity question, nor in the sentence imposed on the appellant by her Honour.

[1] DPP v Collins (Unreported, County Court of Victoria, Judge Cannon, 23 July 2014) ('Reasons') [19]-[22].

[5] See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; and Roujnikov v The Queen [2015] VSCA 97, [24]-[25] (Weinberg and Kyrou JJA).

[6] 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.

[7] Roujnikov v The Queen [2015] VSCA 97 quoting McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA).

[8] Hilder v The Queen [2011] VSCA 192, [38]-[39] (Maxwell P).

[9] We have obtained and reviewed the Summary of Prosecution Opening in DPP v Turkozu dated 15 May 2012.

[10] R v Mills [1998] 4 VR 235.

[11] R v Duncan [1998] 3 VR 208, 214-15.