O'Loughlan v The Queen [2010] VSCA 175

1 The appellant, and a co-offender, Adam Rybalka, each pleaded guilty in the County Court at Ballarat to one count of aggravated burglary (count 1), and one count of recklessly causing serious injury (count 2). The offences were committed on 10 September 2008, while both men were living at Reid's Guesthouse, in Ballarat. During the course of the afternoon they had been drinking heavily. In addition, the appellant had consumed a quantity of prescription medication, significantly more than was prescribed.

2 Some months earlier, the victim, Stephen Maher, who at that stage was also living at Reid's Guesthouse, had stolen some items of property from the appellant. The property in question was of no great value, but included a photograph to which the appellant was particularly attached. Some of the property, but not the photograph, had since been recovered. The appellant was determined to take revenge.

3 Both offenders agreed that they would confront Maher in his flat at the block of units to which he had since moved. As the block had a secure entrance, a plan was needed in order to gain entry. Rybalka suggested that they ring the doorbell of an acquaintance of the appellant, who also lived in the units, and thereby gain admission to the building.

4 The two men took with them as potential weapons a steering lock, and a set of wooden 'nunchucks', both owned by the appellant. They went to the block of units and followed the plan suggested by Rybalka. For a short while, they visited the appellant's friend. They then proceeded upstairs to Maher's flat. On reaching the door, they both began banging on it. Shortly thereafter, they kicked the door in. That formed the basis for count 1, the count of aggravated burglary.

5 The appellant then rushed at Maher, screaming threateningly at him. He struck Maher over the head with the steering lock. Maher sought to escape, but was blocked by Rybalka. Rybalka then struck Maher to the head, probably, though this was disputed, with the 'nunchucks'. Maher retreated back into the unit where he was repeatedly assaulted by both offenders. The blows struck to Maher's head formed the basis of count 2, the count of recklessly causing serious injury.

6 Maher was shortly afterwards discovered by a neighbour, bleeding profusely. He was taken to hospital by ambulance where he was treated for two lacerations to the front and top of his head, both of which required significant suturing. He also suffered extensive scratches and bruising to the side and back of his head. He was discharged from hospital the next day.

7 On the day after the attack, both offenders were interviewed by the police. Each admitted having gone with the other to Maher's unit, and having kicked down the front door. However, each blamed the other for having inflicted the injuries to Maher's head.

8 Both the appellant and Rybalka ultimately pleaded guilty to each count, the appellant having done so only after a contested committal. The Crown case was that they had acted in concert, and neither the appellant nor Rybalka took issue with that contention. As the sentencing judge correctly observed, their having acted in concert rendered it unnecessary to determine which of the two had struck the blow, or blows, to the head that gave rise to count 2. As Maher could not be located, no victim impact statement was produced on the plea.

9 Regrettably, as events transpired, the sentencing judge did not sentence both the appellant and Rybalka on the same day. She sentenced the appellant on 11 December 2009, but did not sentence Rybalka for several months, until 8 April 2010. Her reason for deferring sentencing in Rybalka's case was so that additional material concerning the hardship that would be suffered by his partner if he were imprisoned could be placed before her. In fairness to her Honour, it should be noted that, although she indicated that she was prepared to defer the appellant's sentencing as well, his preference, as expressed through his counsel, was to be sentenced forthwith.

10 In the end, her Honour sentenced the appellant to 20 months' imprisonment on the count of aggravated burglary, and 30 months' imprisonment on the count of recklessly causing serious injury. She ordered that both sentences be served concurrently, making a total effective sentence of 30 months' imprisonment. She fixed a non-parole period of 15 months.

11 When her Honour ultimately came to sentence Rybalka several months later, she took a very different course. She imposed a sentence of 20 months' imprisonment on the count of aggravated burglary, just as she had in relation to the appellant. However, she sentenced Rybalka to only 18 months' imprisonment on the count of recklessly causing serious injury. Both terms were to be served concurrently, making a total effective sentence of 20 months' imprisonment. She fixed a non-parole period of only six months.

12 It is necessary to say something more about the circumstances of the offending, and of each offender. The appellant was aged 35 at the time of sentencing. He had a history of drug abuse, and a number of prior convictions, mainly for offences involving dishonesty and drug matters. He also had one conviction for attempted armed robbery, which had involved the use of a toy pistol. He had been sentenced to a community based order for that offence. It is important to note that his last court appearance, before being dealt with for the matters before this Court, had been almost ten years earlier, in 2000.

13 Dr Lester Walton provided a psychiatric report in which he diagnosed the appellant to be suffering from a chronic mixed anxiety depressive disorder. He considered the chronic depression to be relevant to the offending. In his opinion, such a disorder was likely to impair a person's capacity to exercise proper judgment, and all the more so when that person was heavily intoxicated, as the appellant clearly was. In Dr Walton's view, the appellant's moral culpability was reduced by reference to the principles in R v Verdins.[1] He was also of the opinion that, by virtue of the appellant's disorder, imprisonment would bear more heavily upon him.

14 The sentencing judge observed that, at the time of the offending, the appellant had been living what she described as a 'marginalised lifestyle' in Ballarat. He was unable to work because of a significant back injury, heavily dependent on pain killers (which he was unfortunately abusing), and suffering from chronic anxiety and depression. She was satisfied that, on the night in question, the appellant had drunk a large amount of alcohol, in addition to taking the prescription medication. She found that he had been brooding for some time, and not just on that day, in relation to his grievance against Maher. She accepted that the appellant's ability to think, and act rationally, had been impaired.

15 Her Honour said that she was satisfied that the appellant had learnt a salutary lesson and, to that extent, specific deterrence was less of a factor in sentencing him. However, she rejected a submission put on his behalf that he receive a wholly suspended sentence.

16 When, some months later, her Honour came to sentence Rybalka, she differentiated between the two offenders on the basis of their culpability for the offending. She had not previously drawn that distinction, and the Crown had never, at any stage, invited her to do so. Indeed, the Crown's position was that both men were equally culpable.

17 Her Honour observed again, as she had when sentencing the appellant, that the two offenders had acted in concert, and were therefore both responsible for whatever injuries Maher had sustained. She reiterated that it did not matter which of them had struck the blow, or blows, that led to those injuries.

18 The sentencing judge noted that Rybalka had told Mr Ian Joblin, a clinical psychologist who had assessed him, as well as a community corrections officer, that he had accompanied the appellant only to ensure that he did not injure Maher too severely. Her Honour rejected that assertion. She observed that Rybalka had suggested the means of gaining access to the building where Maher lived. He had also assisted in breaking down the door to Maher's unit. He had blocked Maher's escape, and had admitted to having struck Maher with a weapon. The fact that Rybalka claimed that he had used a piece of wood, and not the 'nunchucks', was of little consequence. Plainly, Rybalka had taken an active role in the commission of both offences.

19 When it came to Rybalka's personal circumstances her Honour noted that he was 29 years of age, and that he had been well educated. He had succeeded in passing Year 12, and had gone on to complete various TAFE courses. Sadly, he had subsequently become addicted to heroin. That had resulted in a pattern of drug related offending.

20 Indeed, as her Honour observed, Rybalka's prior convictions were both more numerous and more serious than the appellant's. They included a number of offences involving dishonesty, a significant number of drug offences and, importantly for present purposes, one offence involving violence. The most recent of Rybalka's prior convictions was in 2005.

21 Her Honour noted that Rybalka had indicated a willingness to plead guilty at an earlier stage than had the appellant. Unlike the appellant, he had not conducted a contested committal. However, as against that, when Rybalka's matter came back before her Honour, in January 2010, he had indicated that he was contemplating pleading not guilty, at least to the charge of aggravated burglary. Because he was not legally represented on that occasion, her Honour gave little weight to that apparent change of heart. She noted, however, that Rybalka had sought throughout to downplay his own involvement in the offending, and to shift responsibility to the appellant.

22 The sentencing judge gave some limited weight to remorse, just as she had in relation to the appellant. With regard to Rybalka, she observed that he had undertaken counselling, he too having been diagnosed as suffering from depression. However, the psychological evidence led in support of Rybalka did not go quite as far as that led in support of the appellant.

23 When her Honour came to the question of parity, she said of Rybalka:

I must look at the issue of parity between you and Mr O'Loughlan. I sentenced Mr O'Loughlan to a term of 30 months' imprisonment with a non-parole period of 15 months. Although I am aware that he has appealed that sentence, there has been no hearing or decision as to whether his sentence was too severe or whether I made an error in my reasoning, so I must proceed to sentence you without that guidance. Had you been sentenced on the same day as him, as I had intended until your letter was handed to me, I would not have even known of Mr O'Loughlan's appeal. In the circumstances, therefore, I do not take into account that Mr O'Loughlan's sentence might be changed as a result of his appeal.

When sentencing co-offenders, there are inevitably some aspects of similarity and some of difference, and these must be considered. However, the principle is that people engaging similarly in the same offences should be treated similarly. I do not regard your level of culpability for the offences as being as high as Mr O'Loughlan's, in particular on Charge 2 of recklessly causing serious injury, as he was the first to enter the unit and strike Mr Maher and it was his revenge that was being taken. However, your willingness to accompany him, your providing of the means of gaining entry to the building and your participation in breaking down the door and then severely assaulting Mr Maher still puts you as an active participant in the offending. Comparing your prior offences with his, you have more, and the latest is more recent, although only one of your past offences involves violence and that was for an unlawful assault many years ago. I regard you as having taken more positive steps towards rehabilitation since the offending than him. You are entitled to a degree more leniency than him for having accepted the process of a straight hand-up-brief at committal, whereas he pursued a committal hearing. Finally, there is the circumstance of hardship to Ms [H], your partner, and that differentiates your situation from Mr O'Loughlan's.

I do not regard you as having an entrenched history of violent offending, although multiple appearances before courts for a variety of drug-related offending and breaching of at least one community-based order and at least one suspended sentence mean that you cannot rely on previously good character or claim to have learnt from past mistakes sufficiently to warrant particular lenience by the court. The current offences are of a more serious level than anything in which you have previously engaged, more serious also than Mr O'Loughlan's prior offences. I accept that offences of this seriousness and violence were out of character for you and both of you were at least partially led into them by a four litre cask of Lambrusco wine, but that is not an excuse, and in the circumstances I do not regard it as mitigatory.[2]

24 It seems from her Honour's sentencing remarks that three factors weighed most heavily in favour of Rybalka, and explained why he received a more lenient disposition than the appellant. These were the greater efforts he was said to have made towards rehabilitation, his earlier willingness to plead guilty and, importantly, the hardship that her Honour felt Rybalka's imprisonment would impose upon his partner.

25 It appeared from the material placed before her Honour that the partner had been the victim, in 2006, of a serious sexual assault. She had suffered greatly as a consequence, and was heavily dependent upon Rybalka as a result. This was the subject of the additional material placed before her Honour at the original sentencing hearing, and which she regarded as justifying further consideration.

26 Despite the Crown's submission to the contrary, the sentencing judge concluded that Rybalka was less morally culpable for this offending than was the appellant. The basis for that conclusion appears to have been that the appellant entered the unit first, and struck the first blow. It was also he who had been seeking revenge, that being the motivation for the attack.

27 In dealing with the effect that Rybalka's imprisonment would have upon his partner, her Honour correctly observed that third party hardship was a common result of any custodial disposition. She concluded that the third party hardship in this case was not so exceptional as to warrant Rybalka avoiding an immediate term of imprisonment, as for example, by being given a community based order. That was particularly so given that he had previously breached an order of that kind. It was in those circumstances that her Honour sentenced Rybalka as she did.

28 In our view, there was no justification for differentiating between the appellant and Rybalka to the extent that her Honour did. In particular, the hardship to Rybalka's partner did not give rise to exceptional circumstances, and ought not, properly, to have mitigated his penalty. It most certainly could not justify the marked disparity that resulted from Rybalka receiving a little over half the appellant's sentence on count 2, and only two-fifths of the appellant's non-parole period.

29 The Crown submitted before this Court that any disparity between the two sentences should not be regarded as relevantly 'marked'. Alternatively, if that submission were rejected, it was submitted that any 'marked' disparity was justified. In any event, it was submitted that this Court should not interfere on the basis of parity because Rybalka's sentence, if not that of the appellant himself, was manifestly inadequate.

30 That latter submission is difficult to reconcile with the Crown's failure to appeal against Rybalka's sentence. Had the Crown taken the view that that sentence was manifestly inadequate, it ought to have appealed, particularly since it could have done so without any concern about this Court's unwillingness to intervene on the grounds of double jeopardy.

31 Though Rybalka's total effective sentence of 20 months' imprisonment was undoubtedly lenient (some might say extremely so), it does not follow that this Court should reject what seems to us to be an otherwise compelling parity argument put on behalf of the appellant.[3] On any view, principles of parity must be taken into account, even in circumstances where the sentence imposed upon a co-offender is regarded as inadequate.[4]

32 That does not mean that principles of parity require an appellate court to impose what is, in its view, a wholly inappropriate sentence.[5] It might mean, however, that a sentence towards the very bottom of the range is called for, even if that sentence, when viewed objectively, is otherwise seen as being too low.

33 In the end, the question remains whether there is such a marked disparity between the treatment accorded to the appellant, and that of his co-offender, as to entitle him to say that he has a justifiable sense of grievance.[6]

34 The sentencing judge found that Rybalka was entitled to greater leniency than the appellant. In our view, she was entitled to distinguish between them, to a limited degree, on the basis of Rybalka's willingness to plead guilty at an earlier stage than the appellant. There was some utilitarian value, at least, in his having forgone a contested committal.

35 However, we consider that this single factor did not justify the marked disparity in the sentences imposed. In particular, that disparity could not be justified by her Honour's finding that Rybalka was less culpable than the appellant. It is true that the appellant struck the first blow, and the offending was motivated by his desire for revenge. Nevertheless, the appellant had the benefit of a stronger Verdins finding than did Rybalka. Dr Walton's evidence, as has been indicated, was that the appellant's chronic depression should be regarded as having lessened his moral culpability. Rybalka did not have the benefit of any such evidence.

36 The appellant may not have had the benefit of the finding as to steps towards rehabilitation but, in part, that finding was the product of her Honour's own willingness to defer dealing with the co-offender. The appellant's criminal record was not as bad as that of Rybalka. All in all, apart from the earlier willingness to plead guilty, the other sentencing considerations largely cancelled each other out.

37 That does not mean that, in allowing this appeal and re-sentencing the appellant, we would impose a sentence that we would regard as wholly inappropriate, or outside the range. It does mean, however, that we would reduce the disparity between the two sentences so as to mitigate the justifiable sense of grievance that the appellant presently has.

38 It goes without saying that the sentences now to be imposed by this Court, when re-sentencing the appellant, should not be regarded as any useful precedent for future matters.

39 We would allow the appeal, and set aside each of the sentences imposed on the appellant below, as well as the non-parole period. We would re-sentence the appellant to 20 months' imprisonment on count 1, and substitute for the sentence of 30 months' imprisonment on count 2, a sentence of 24 months' imprisonment on that count. We would direct that both sentences be served concurrently, making a total effective sentence of 24 months' imprisonment. We would fix a non-parole period of nine months.

40 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), we would indicate that, but for the appellant's plea of guilty, he would have received a sentence of 30 months' imprisonment on count 1, and 36 months' imprisonment on count 2, both to be served concurrently, making a total effective sentence of 36 months' imprisonment. We would have fixed a non-parole of 15 months.

41 It is declared that a period of 208 days, not including today, is to be reckoned as already served.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] DPP v Rybalka (Unreported, County Court of Victoria, 8 April 2010, Judge Cohen), [43] - [45].

[3] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 613-4; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 322; R v Ritter [2000] VSCA 135, [18] and [22]; and R v William [2001] VSCA 130, [13].

[4] R v Simmons [2008] VSCA 185, [36]. See also Pecora v R [1980] VicRp 47; [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430; Capper (1993) 69 A Crim R 64; and R v Morrice (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Southwell, Ormiston and McDonald JJ, 9 May 1995).

[5] R v D'Ortenzio [1961] VicRp 68; [1961] VR 432, 433; R v Charles [1979] VicRp 2; [1979] VR 8, 11; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 612 (Mason J) and 617 (Brennan J); Cox (1991) 55 A Crim R 396, 401; Reardon (1996) 89 A Crim R 180, 182, 183 and 191; and Steer v R [2000] FCA 462; (2000) 171 ALR 463, 481. See also R v Patterson (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Gray and Ormiston JJ, 24 July 1986); and R v Simmons [2008] VSCA 185, [37].

[6] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.