Jacobs v The Queen; Ross v The Queen [2011] VSCA 238

2 The appellants, Brent James Ross and Ryan Lee Jacobs, each pleaded guilty to one count of intentionally causing serious injury, which carries a maximum penalty of 20 years' imprisonment. Following pleas in mitigation in the County Court, each appellant was sentenced by the same judge on 25 January 2010 to five years' imprisonment with a non-parole period of three years.

3 Each appellant now appeals against his sentence on the sole ground that the sentence offends the principle of parity having regard to the sentences subsequently imposed by a different judge on the co-offenders Jamie Pettingill and Jay Young. Pettingill was sentenced to two and a half years' imprisonment, wholly suspended for three years, while Young was sentenced to three years' imprisonment with a non-parole period of 12 months.

4 The offending stemmed from an altercation at the Loft nightclub in Lonsdale Street, Melbourne in the early hours of Sunday 19 April 2009. Jacobs (then aged 22), Ross (then aged 20), Young (then aged 24), and Pettingill (then aged 20) were part of a group[1] of some 12 people who were out celebrating a friend's 18th birthday. The victim, Benjamin Rendell, was also out celebrating his 22nd birthday with a group of people. Both groups had consumed alcohol before arriving at the club. A misunderstanding on the dance floor led to Jacobs' then girlfriend pulling Rendell's girlfriend's hair. A scuffle broke out between them, with Jacobs, Rendell, Ross and

Ross's girlfriend all becoming involved. Security staff intervened and separated the groups, ejecting Rendell through the front door, whilst Ross was led out the back door. Rendell was angry and remonstrated with security staff on Lonsdale Street, before being calmed down by his friends and led away. Rendell's group walked around the corner to Russell Street where they sat on a bench waiting for a taxi. Meanwhile, Ross made his way back to the front of the club and reunited with his group, which began walking down Lonsdale Street. The judge described what happened next as follows:

1. ... Rendell could see you, Mr Ross, approaching with your friends following behind and from your body language he, Rendell, detected that the fight was about to break out. You, Mr Ross, immediately began punching Rendell and forcing him back into a wall. Mr Aqualina [Rendell's friend] explained in his statement that Rendell, as Aqualina observed, had no chance to fight back or to protect himself as he was surrounded by your numerous co-offenders and yourselves. Now by me saying that, I am not saying there was a pre-planned event to circle. That is just the way it happened.
2. The CCTV exhibit, Exhibit C, shows a pack of violent and aggressive young men encircling Rendell. The display of punching, kicking and stomping on Rendell's head is horrific to witness. Such violence is so vividly shown on this CCTV it is absolutely appalling viewing. The behaviour of each of you two young men was a disgrace. As can be seen on the film, Rendell was rendered unconscious and taken to the ground whence both of you together with the co-offenders continued to punch and kick Rendell to the head and body.[2] Mr Aqualina, Rendell's friend, heard a thud. Aqualina believed that to be Rendell's head hitting the pavement. As I said earlier, it is apparent that some of the co-offenders were circling keeping Rendell's friends from coming to his assistance. Mr Rendell began to convulse. He was bleeding heavily from the head. His eyes began rolling back into his head and at this time Rendell's girlfriend, Ms Dilisio, yelled out, "You are going to kill him." It was obvious that Rendell was convulsing and one among you called out, "Oh, shit." You then all ran off. One can say you are a despicable pack of thugs. You ran like true cowards that you represent, classic bullies running from the scene of your despicable behaviour.
3. A close analysis of the CCTV film shows you, Mr Ross, and you, Mr Jacobs, kicking, punching and you, Mr Jacobs, in addition to kicking and punching Rendell, stomping on Rendell's head on at least two occasions. On your departure, the friends and acquaintances of Rendell flagged down a passing police patrol. An ambulance was called and Mr Rendell was then taken to the Royal Melbourne Hospital for emergency treatment. He was then later admitted to that hospital. The exhibit produced, Exhibit D, is a set of photographs that have been lifted off the Exhibit C being the CCTV and also pictures of Mr Rendell that were taken by way of the normal camera. They depict the result of a severe beating and kicking that occurred to the victim, Rendell's head and his face. Those injuries are substantial and quite horrific.
4. On admission to the Royal Melbourne Hospital, Dr April Woo recorded that - and I quote her - "An investigation was conducted on Rendell. Among other things the CT scan of the brain, neck and face showed a four millimetre contusion in the right temporal parietal region." There are other tests taken and I suspect had all of you been tested not surprisingly the consumption of alcohol was confirmed by Rendell, of course. The diagnosis of Dr Woo was, "A contusion over the right temporal parietal region and secondly, facial lacerations and bruising. Mr Rendell required the intervention of neurosurgeons at least to monitor him." Mr Rendell remained in hospital for two or three days prior to being released into his mother's care. Rendell had to be constantly monitored over the following 14 days.

5 Fortunately, Rendell suffered no fractures and, apart from a chipped tooth and a laceration requiring stitches, no permanent physical damage, but that was a matter of good luck rather than any reflection of the nature of the attack, which we have seen on CCTV, and which was vicious.

6 In his sentencing remarks the judge referred to the appellants' limited education (each to year 10), their limited employment thereafter, and their abuse of alcohol and drugs which had led to trouble with the law. In this regard, Jacobs had 19 prior convictions and one non-conviction bond from four court appearances, mainly for damaging property, burglary, theft, and driving offences. The judge emphasised that he had no prior convictions for violence. Ross had 15 prior convictions from four court appearances, including damaging property, theft, driving offences, possessing a prohibited weapon, and recklessly causing injury. The present offending was committed by Ross in breach of a Community Based Order[3] and a Good Behaviour Bond.[4]

7 The co-offenders, Young and Pettingill, pleaded guilty to the same offence as the appellants, but on the basis that they aided and abetted the appellants, rather than acting as principals. Their involvement was as follows. Pettingill kicked Rendell four times and punched him once, before he fell to the ground. He did not assault Rendell once he was on the ground. He departed the scene before Rendell was stomped on. Young stood back and prevented a friend of Rendell from assisting him, by lashing out with his foot and throwing a punch. When Rendell was convulsing on the ground, Young kicked him once to the leg, then pulled Ross away.

8 As mentioned, on 28 May 2010 a different judge sentenced Pettingill to two and a half years' imprisonment, wholly suspended for three years, while Young was sentenced to three years' imprisonment with a non-parole period of 12 months.

9 The appellants were granted leave to appeal on the ground that:

The sentence and non-parole period imposed on the appellant offended the principle of parity having regard to the sentences subsequently imposed on the co-offenders Jamie Pettingill and Jay Young.[5]

10 The appellants submitted that such distinctions as existed between the appellants on the one hand and Pettingill and Young on the other did not warrant such a large disparity in sentence. The disparity in the treatment of Pettingill and Young was manifestly excessive and such as to engender in the appellants a justified sense of grievance that justice has not been done. This being so, their sentence and the non-parole period should be reduced to reflect parity with the sentences imposed on Pettingill and Young, thereby avoiding their feeling of injustice.

11 Counsel for Jacobs referred to the following matters in particular. While he accepted that Jacobs played a greater role in the offending than Pettingill and Young, he submitted that the CCTV showed a group assault in which all offenders participated, and indeed the appellants' actions were made possible by the co-offenders playing their respective roles. The fact that Pettingill and Young were sentenced as aiders and abettors did not of itself establish that they were less culpable than the appellants'.[6] He noted that when sentencing Pettingill and Young, the judge recognised that they must be sentenced on the basis that they pleaded guilty to intentionally causing serious injury, rather than being sentenced on their own individual actions.

12 As to matters of similarity, counsel noted that all were sentenced as youthful offenders, and all had prior convictions. Pettingill had two prior convictions for burglary and criminal damage, but like Jacobs did not have priors for violence. Young had prior convictions and was on a suspended sentence for offences including intentionally causing injury and assault police. Only five months before the present offending, he had received a sentence of three months' imprisonment wholly suspended for 12 months.

13 As to matters of difference in Jacobs' favour, counsel noted that Jacobs (as with Ross) indicated his plea of guilty at the first committal mention whereas Pettingill and Young did so at the contested committal hearing although before cross-examination. Further, the judge found that Jacobs' prospects for rehabilitation were positive. Counsel submitted that his prospects were at least as good, if not better, than the others, which meant that he was an ideal candidate for a shorter than normal non-parole period. Yet his non-parole was unremarkable, as compared to Young's which was merely a third of the head sentence.

14 As to matters of difference against Jacob, counsel conceded that both Pettingill and Young had their sentences moderated on account of some of the principles in R v Verdins,[7] but submitted that the reductions on that account could only have been slight. Indeed, the reduction in moral culpability on account of impaired intellectual functioning ought to have been relevant only to Pettingill and not to Young, as intoxication was a more significant causative factor in his offending.

15 Finally, it was submitted that even if the sentences imposed on Pettingill and Young were considered lenient or inadequate, Jacobs' sentence should be reduced.

16 Counsel for Ross adopted the submissions made on behalf of Jacobs, insofar as they applied to Ross. He conceded at the outset that it was legitimate for the judge to distinguish between Ross's offending and that of Pettingill and Young, both on account of differences in their roles and of matters personal. Nevertheless the differences did not warrant such large disparity.

17 This is, I think, a sufficient reference to counsel's submissions. I have had regard to all they have said in writing and orally.

18 It is to be noted from the outset that the judge who granted leave on the parity ground refused leave to appeal on the ground of manifest excess, noting that the offending was 'gratuitous violence of a gross and wholly unacceptable kind which, as the judge rightly discerned, warranted condign punishment', and that notwithstanding the appellants' youth and relevant mitigating factors, it was not reasonably arguable that the sentences were beyond the range of a sound exercise of sentencing discretion. I agree entirely with that conclusion. Indeed, viewing the appellants' sentences independently of the later sentences imposed on Pettingill and Young, the sentence and non-parole imposed by the learned judge on each appellant was, in my view, entirely appropriate.

19 It is only because of the later sentences imposed on Pettingill and Young that it falls to this Court to consider whether the disparity between the sentences is beyond that which is proportionate to the respective degrees of culpability and the individual circumstances of the offenders.

20 It is plain that Pettingill and Young were sentenced on the basis that each played a lesser role in the offending than the appellants. In my view, that was appropriate. Of course, the mere fact that a person is sentenced as an aider and abettor does not necessarily entail lesser culpability. The degree of culpability is always a question of fact to be determined in the light of all the relevant circumstances. In the present case, the CCTV demonstrates that the appellants had a significantly greater involvement in the attack. The fact is that the appellants beat the victim senseless while Pettingill and Young played significantly lesser roles, albeit helping to achieve the same brutal outcome. The fact that the appellants were sentenced as principals and Pettingill and Young as aiders and abettors no doubt reflected this fact. And while it is true that the Crown prosecutor put the same sentencing range (a head sentence of four to six years) in relation to each of the four offenders, the objective gravity of the offending of Pettingill and Young was plainly less than that of the appellants.

21 Further, the appellants were not entitled to any moderation of their sentences on account of the principles in Verdins, whereas those principles had some relevance in relation to Pettingill and Young. In this regard, the judge found that Pettingill was suffering from an intellectual disability, characterised by impaired reasoning and judgment, which contributed to the offence. She held that the disability reduced his moral culpability, moderated general deterrence and denunciation, and meant that any term of imprisonment would be 'far more difficult' for him. As to Young, the position is less clear. The judge referred to his 'borderline' intelligence, and cognitive functioning being equivalent to that of an 11 year old, which she said would impact on his judgment but more so in the context of abusing alcohol with his peers. The judge also referred to Young's counsel's submission that he would 'do it hard' in prison, and stated that she took 'those matters' into account. Unfortunately, the judge did not make any findings as to which, if any, principles from Verdins applied to Young. In the circumstances, I am prepared to assume in the appellants' favour that Verdins was of minimal, if any, relevance in Young's case. Further, it is clear that the judge gave greater weight to specific deterrence for Young having regard to the fact that the present offending occurred while he was on a suspended sentence for an offence of violence. That fact, and the assumed minimal relevance of Verdins in Young's case, may go some way to explaining the different outcomes as between Pettingill and Young.

22 As to other matters distinguishing the appellants from Pettingill and Young, the appellants had more prior convictions than Pettingill and Young, albeit none for violence in Jacobs' case. Further, the offending by Ross breached his community based order and a bond, although of course Young too breached his suspended sentence. As to the offenders' ages, it is not to be overlooked that Young was a few years older than the others, although this may have been more than offset by his limited intellect. As to their rehabilitation prospects, I accept that Jacobs' rehabilitation prospects were as good, if not better, than the others. However, I do not consider that there was a marked difference between the four offenders' rehabilitation prospects. It would seem that all were sentenced on the basis that far from being lost causes, they were young men who, with steady employment, stable relationships, and reduced alcohol consumption, could lead productive and law-abiding lives.

23 In short, one could compare and contrast each offender's respective role and his relevant personal matters without end, but ultimately it is a question of whether the disparity between the appellants' sentences on the one hand and those of Pettingill and Young on the other gives rise to a justifiable sense of grievance. As Dawson and Gaudron JJ said in Postiglione v The Queen:[8]

... the parity principle, as identified and expounded in Lowe v The Queen[9] recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.

24 As I have said, I regard the sentences imposed on the appellants as appropriate. The difficulty is that, unfortunately, Pettingill and Young received sentences that were lenient to the point of being manifestly inadequate, particularly in the case of Pettingill. The result is that the disparity between those sentences and the appellants' sentences is excessive, indeed disproportionate to their respective degrees of culpability and individual circumstances. It follows that the appellants' sentences should be reduced, but only to the extent necessary to remedy the unjustified disparity. It would not, I consider, be correct to reduce the appellants' sentences to the level of Young's sentence for to do so may compound the error in a way which would be unacceptable to the public conscience.[10]

25 For these reasons, I would allow each appeal and re-sentence each appellant to four years and six months' imprisonment. I would fix a non-parole period of two years and six months in each case. I would declare pursuant to s 6AAA of the Sentencing Act 1991 that but for their pleas of guilty, I would have imposed a sentence of six years and six months' imprisonment and fixed a non-parole period of four years and six months in each case.

[1] The group included a further co-offender who was dealt with in the Children's Court. It is not necessary to say anything more about him.

[2] I interpolate that counsel did not specifically challenge the accuracy of the judge's description of the attack, however this italicised passage must be read subject to what follows below as to the precise role of the co-offenders Pettingill and Young which was discussed at some length on the appeal.

[3] Imposed in September 2008 in respect of damaging property, possession of a prohibited weapon, theft and driving with a blood alcohol level over 0.00%.

[4] Imposed in February 2009 in respect of a theft.

[5] Jacobs' ground is worded slightly differently but raises the same complaint.

[6] See DPP v SJK; DPP v GAS [2002] VSCA 131.

[7] [2007] VSCA 102; (2007) 16 VR 269.

[8] [1997] HCA 26; (1997) 189 CLR 295, 301-2.

[9] [1984] HCA 46; (1984) 154 CLR 606.

[10] R v MacGowan (1986) 42 SASR 580, 583.