Philp v The Queen [2017] VSCA 320

1 On 3 June 2016, the applicant (who had initially been charged with murder) pleaded guilty in the Supreme Court to the manslaughter of Raymond Parker. He was sentenced to nine years' imprisonment, with a non-parole period of six years.

2 Two co-offenders, each of whom also pleaded guilty to manslaughter, were sentenced by the same judge. Daniel O'Donnell was sentenced to three years and six months' imprisonment, with a non-parole period of two years, and Dean Brooks was sentenced to nine years' imprisonment, with a non-parole period of six years.

3 The applicant sought leave to appeal on two grounds. On 2 March 2017, Priest JA refused leave on both grounds. The applicant elected to renew his application, but on the election advanced only a single ground, namely, that the sentence imposed on him offended against the principles of parity.

4 At the conclusion of argument on the renewed application, we announced that leave to appeal would be refused. It was well open to the judge, in our view, to differentiate between the applicant and O'Donnell as she had, and the contrary was not reasonably arguable. We said that we would publish reasons in due course. These are those reasons.

5 The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community's sense of justice, for the reasons which Mason J gave in Lowe v The Queen:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[1]

Indeed, such is the importance of ensuring appropriate differentiation in sentence, as a fundamental matter of fairness, that a court of criminal appeal can interfere with an otherwise appropriate sentence in order to ensure that the sentencing differentials are just.[2]

6 As this Court has said previously, the question to be addressed when the parity ground is raised is:

whether there were reasonable grounds for the differentiation - or lack of differentiation, as the case may be - between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate - or fail to differentiate - between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant's grievance about the sentencing relativity cannot be said to be justifiable.[3]

7 Mr Parker, aged 75 years[4] at the time of his death, had been a long-term cultivator of cannabis, which he grew hydroponically on the ground floor of his home near Bayles (the 'Bayles property'). He and the applicant had met around 2007. The applicant regularly visited the deceased to purchase cannabis and, it was alleged, took steps which helped facilitate its cultivation.[5]

8 In the early hours of Wednesday, 7 January 2015, the applicant and his co-offenders drove to the Bayles property, intending to steal cannabis and cash from Mr Parker. The three entered the premises uninvited. Mr Parker was tied up and assaulted and property was taken. He was found dead on the afternoon of Tuesday, 13 January 2015, having suffered multiple blunt force trauma injuries to the head, upper limbs, torso, back and lower limbs.[6]

9 In her reasons for sentence, the judge summarised the offending as follows:

You had been to the Bayles address on at least 20 occasions to take delivery of cannabis or to assist in the manicuring of cannabis plants. You had assisted Mr Parker to bypass the electrical mains for his hydroponic set-up. Mr Parker referred to you as 'the Electrician'.

You believed that Mr Parker kept large amounts of cash at the Bayles address and you often talked about this to others.

A man named Martin Tunstall rented a room at your house in Pakenham from early 2014. In June 2014, you took him to the Bayles address, where Mr Parker showed him the cannabis crop. You and Tunstall returned to the Bayles address a month later to manicure the cannabis plants. Tunstall told the police that you believed Mr Parker had $250,000 in cash buried at the Bayles address and that you were 'hell bent' on finding it. When Mr Parker asked Tunstall to travel to South Australia with him to install a jetty and pontoon at his holiday home, you told Tunstall that Mr Parker would be taking $40,000 with him in cash and you urged Tunstall to find it. You also told Tunstall that while Mr Parker was away, you were going to search the Bayles address for hidden money. You phoned Tunstall regularly while he was away with Mr Parker wanting to know if he had located Mr Parker's money.

Both you and Tunstall used ice and were constantly concerned about money. Tunstall had not being paying his rent. You suggested 'roughing up' or 'slapping around' Mr Parker to get the money you believed he had 'stashed' at the Bayles property. O'Donnell made it clear to you that he did not want any part of that as he had been given a lengthy gaol term for aggravated burglary years earlier and he was not interested in going back to gaol for assaulting Mr Parker.

In September and October 2014, you and O'Donnell went to the Bayles address in Mr Parker's absence with a view to stealing cannabis and money. On the first occasion, in September 2014, you and O'Donnell broke into the house together but ascertained that the cannabis crop was too young to steal. You took a look around the house but did not take anything. On the second occasion, in October 2014, you informed O'Donnell that you were meeting with Mr Parker in Pakenham and told him to go to the Bayles address while Mr Parker was with you to steal cannabis and money. O'Donnell went to the Bayles address alone while you met with Mr Parker. On that occasion, O'Donnell succeeded in stealing approximately $7,400 and five pounds of cannabis that he found on the property. This was divided between you and O'Donnell.

On the evening of 6 January 2015, you, Brooks and O'Donnell went to the Cardinia Club, returning home at around 9.00 pm. O'Donnell went to bed. In the early hours of the morning, you knocked on O'Donnell's door and suggested going to 'Ray's', being the Bayles address. Before leaving, O'Donnell observed you and Brooks smoking ice with Brooks' mother, Jodie. You, Brooks and O'Donnell then drove to the Bayles address intending to steal money, valuables and cannabis from Mr Parker. You believed that Mr Parker would not report matters to the police because that would expose his own illegal activities.

On the way to the Bayles address, you told Brooks that if Mr Parker was there, 'it would be good to give him a bit of shake, rattle and roll'.

When you arrived at the front gate of the Bayles address, you told Brooks and O'Donnell to go in, while you waited a minute or two before bringing the car up the driveway. When O'Donnell asked you why, you said, 'In case Ray's there'. This was the first O'Donnell knew of the possibility that Mr Parker would be at home.

Brooks jumped out of the car as soon as it stopped and headed up the driveway. You told O'Donnell to go with him, and he did. Brooks entered the house first through the open garage door and started to go up the stairs. O'Donnell followed. When they got to the top of the stairs, they heard a voice say, 'Who's there? Who's that in my house?'. Instead of retreating, Brooks and O'Donnell went in the direction of the voice. They were both now well aware that Mr Parker was at home and must have known that some form of assault would be necessary in order to subdue him.

Mr Parker's bedroom was in complete darkness when Brooks and O'Donnell entered. O'Donnell says that he bumped into Mr Parker, pushed him and could hear Brooks to his right going at Mr Parker, who fell to the ground. O'Donnell could hear a lot of shuffling and movement and believed from the sounds that were being made that Brooks was kicking Mr Parker.

At this point, O'Donnell left the bedroom because he had been cut on the hand. He went into the lounge area, where there was some light. He could hear Brooks yelling and lots of commotion coming from the bedroom. He says that he yelled out to Brooks to stop, but realised that, given the distance between him and the commotion in the bedroom, Brooks would not have heard him.

O'Donnell rang you to find out where you were and to ask you to intervene. He found you sitting outside downstairs, smoking a cigarette. Brooks could be heard thrashing around upstairs and O'Donnell told you to go upstairs and stop him, as things were getting out of hand. As you went upstairs, O'Donnell could hear Brooks yelling, 'Where's the fucking money?' and 'Tell me where it is'.

You did not intervene. O'Donnell went upstairs and found you sitting on a dining chair close to the entrance to Mr Parker's bedroom, but out of sight of Brooks and Mr Parker. The light was now on in the bedroom.

O'Donnell entered the bedroom and saw that Brooks had a knife in his hand, and that Mr Parker was lying on the floor with a large cut on his arm. Brooks was tying a cord around Mr Parker's neck and yelling at him. O'Donnell told Brooks to stop, but Brooks took no notice. O'Donnell left the bedroom to speak to you, but you ignored him as well. O'Donnell returned to the bedroom and confronted Brooks, who let go of Mr Parker. Brooks then went out into the lounge room and slashed the bottom of a chair before returning to the bedroom and yelling at Mr Parker again. O'Donnell again told you to stop Brooks. This time, you called to Brooks to come out and he did.

The three of you got into the car and left.

Mr Parker was found dead in his bedroom a week later, on 13 January 2015, by a friend who had been asked to check on him. He was face-down on the floor at the foot of the bed and all but naked. Bruising and lividity marks were present on his side, back, left arm, face and neck. A length of yellow rope was tied to the bedhead, and smears and drops of what appeared to be blood were found on the walls, floor, bedding and on medication in the master bedroom. The contents of the house had been turned upside down, with drawers removed from cabinets, furniture overturned, the under-side of a couch cut open and the cistern lids removed from the toilets. Fingerprints were found throughout the house, including an impression in blood on the right hand side door of the vanity in the master bedroom en suite which belonged to Brooks. Blood was found in the lounge room belonging to O'Donnell.[7]

10 In refusing leave on the parity ground, Priest JA said:

In my view, the complaint of unjustified disparity is not reasonably arguable. There were significant differences in the role played by the applicant and O'Donnell. The judge found that the applicant was the instigator who had orchestrated the assault, and found that it was the applicant who had devised the plan to rob the deceased. It was the applicant, the judge said, who was 'hell bent' on finding the money he believed that the deceased had. Indeed, it was the applicant who sent Brooks and O'Donnell into the house telling them to give the deceased a 'bit of a shake, rattle and roll'. By way of contrast, the judge accepted that O'Donnell was a reluctant participant who tried to distance himself from the assault. He had tried to have Brooks desist, and asked the applicant - unsuccessfully initially - to have Brooks stop.

Quite apart from the differences in the role played by the applicant vis-à-vis O'Donnell, there was a number of significant mitigating features that O'Donnell could pray in aid. Most importantly, O'Donnell made a statement against the applicant, was prepared to give evidence and gave an undertaking to do so. He was accordingly entitled to - and received - a significant 'discount'. Furthermore, O'Donnell had a severely disadvantaged background which, the judge found, reduced his moral culpability.[8]

11 Where an applicant elects to renew an application for leave to appeal following a refusal of leave by a single judge, the Court hears the application afresh. There is no requirement to identify error in the reasons of the leave judge. At the same time, as has been made clear in previous decisions, carefully-expressed reasons of the judge who refused leave will ordinarily be given considerable weight. In the event that no flaw or error in that reasoning can be discerned, this Court would be slow to arrive at a different conclusion.[9]

12 Counsel for the applicant accepted that the differences identified by Priest JA were material differences between the applicant and O'Donnell and were properly taken into account in the sentencing. The submission was, however, that those differences could not reasonably justify the sentencing differential between them.

13 We concluded that these were very significant differences and that they amply justified the sentencing differential. Apart from the significant difference in their roles, the fact that O'Donnell had undertaken to give evidence against the applicant - and was therefore entitled to a significant sentencing discount - was of great significance. So too was the judge's conclusion that O'Donnell's moral culpability, and the weight to be given to specific and general deterrence, were significantly reduced on account of his disadvantaged background.

[1] [1984] HCA 46; (1984) 154 CLR 606, 610-11 ('Lowe').

[2] Ibid 612; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).

[3] Teng v The Queen [2009] VSCA 148; (2009) 22 VR 706, 710 [17] citing R v Wolfe [2008] VSCA 284 [9] (Maxwell P); see also Truong v The Queen [2017] VSCA 105 [4].

[5] Philp v The Queen (Unreported, Supreme Court of Victoria, Court of Appeal, Priest JA, 2 March 2017) [6] ('Leave Reasons').

[7] DPP v Philp [2016] VSC 486, [10]-[25].

[9] Ayol v The Queen [2014] VSCA 151 [14], [26]; Sadrani v The Queen [2015] VSCA 202 [7].