R v Hall [2007] VSCA 218

Court of Appeal (Vic)|2007-09-27|Before: CHERNOV and VINCENT JJA and WHELAN AJA

CRIMINAL LAW - Sentence - Armed Robbery - Asserted disparity in sentences between appellant and co-offender - Suggested wrongful consideration of the commission of other separate offences - Disparity justified - Appeal dismissed.

**1 I will ask Whelan AJA to deliver the first judgment.

3 Given the grounds of appeal now relied upon, it is unnecessary to refer to the circumstances of the offences in any detail.

4 In brief summary, on 11 December 2004, at approximately 4.35 a.m., the appellant carried out an invasion of the home of one of his neighbours. He was disguised at the time by a balaclava in which eye holes had been cut. He threatened the occupants, one of whom was a child, with an imitation firearm. His motivation was to obtain money. These circumstances were the foundation for a charge of aggravated burglary (count 1), a charge of being a prohibited person carrying an unregistered firearm (count 2), and a charge of attempted armed robbery (count 3).

5 Later that day, the appellant and an accomplice named Alexander Jadilebovski carried out an armed robbery on a chemist shop. They conducted reconnaissance together. The appellant entered the chemist shop and produced a firearm, which for these purposes I will assume was also an imitation, and demanded money. He stole cash from the till and money from the wallet of the person in the shop. Mr Jadilebovski waited outside in a car and drove the appellant away. These circumstances were the foundation for a charge of armed robbery (count 4), and a second charge of being a prohibited person carrying an unregistered firearm (count 5).

6 After hearing a plea consequent upon guilty pleas when re-arraigned, on 22 June 2006 a judge in the County Court imposed the following sentences:**

Count 4 (armed robbery on the chemist shop): 4 years 6 months' imprisonment (head sentence).

Count 1 (aggravated burglary on the neighbour): 3 years 6 months' imprisonment, one year cumulative.

Count 2 (possession of unregistered firearm): 1 year imprisonment, 3 months cumulative.

Count 3 (attempted armed robbery on the neighbour): 2 years' imprisonment, 6 months cumulative.

Count 5 (possession of unregistered firearm): 1 year imprisonment, 3 months cumulative.

The total effective sentence was six years and six months' imprisonment. The sentencing judge fixed a non-parole period of four years three months.

**7 The accomplice, Mr Jadilebovski, had been sentenced by a different judge in the County Court on 26 May 2005. The only charge upon which he was sentenced was the armed robbery on the chemist shop. He was sentenced to three years' imprisonment. The judge fixed a non-parole period of 18 months.

8 The appellant now appeals his sentence pursuant to leave granted and relies upon two grounds of appeal. They are as follows:**

Ground 3: In imposing sentence on count 4, the sentencing judge erred in failing to have sufficient regard to the principle of parity.

Ground 4: In imposing sentence on count 4, the sentencing judge erred in the way he had regard to the other offences committed by the appellant.

9 On the issue of parity, the sentencing judge said the following, at paragraph 28:

"As to the principle of parity you have approximately double the convictions of Jadilebovski, including the four armed robberies, more serious convictions with several terms of imprisonment, you are considerably older, you were more active in the commission of the armed robbery on the pharmacist and of course there were the additional offences in counts 1, 2 and 3."

**10 The submission in relation to ground 4 is that the judge treated the offences which did not involve Mr Jadilebovski as being a reason to increase the level of difference in the sentences between them in relation to the armed robbery they carried out together.

11 I do not accept that that is what the sentencing judge has done. In my view, the passage complained of is a recitation of the circumstances by virtue of which the sentencing judge had reached a conclusion that some difference in sentence was appropriate, and then a reference to the obvious fact ("of course") that the appellant also faced sentences for additional offences. It seems to me that when he referred to the other charges the sentencing judge was not adding to the list of factors rendering a difference in sentence in relation to count 4 appropriate, but rather was making a reference to the fact that the additional counts meant that there would have to be a considerable difference in the overall outcome.

12 The Crown conceded that if the sentencing judge had taken into account the other counts as a basis for reaching a different sentence on count 4 than that which had been imposed on Mr Jadilebovski, that would be an error. The Crown submitted that even if that were found to be the case, the result in this instance was so clearly correct that this Court should not intervene. I agree with the submission of the Crown in that respect for the reasons which I set out in relation to ground 3, to which I will now turn.

13 As to ground 3, the more general ground concerning disparity, counsel for the appellant accepted that the relevant principle is that this Court will intervene to allow a sentence appeal on the ground of disparity only where the disparity between the two sentences is manifest and would "engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice had not been done"[1].

14 The appellant submitted before us that age was not significant, as Mr Jadilebovski was not a youthful offender. It was submitted that the difference in the roles of the two men was not significant as they each played different parts in accordance with a planned arrangement. Whilst it was conceded that the appellant's criminal history was worse than that of Mr Jadilebovski, and that Mr Jadilebovski had not been to prison before, it was submitted that most of the appellant's relevant prior convictions were now quite old, that Mr Jadilebovski had previously been dealt with by way of suspended sentences and intensive correction orders on a number of prior occasions, and that he had committed this offence whilst on an intensive correction order.

15 On this appeal, counsel for the Crown produced a table comparing the respective positions of Mr Jadilebovski and the appellant, by reference to the sentencing remarks of the two sentencing judges. The table makes a compelling case in justification of the difference between the three years' imprisonment for Mr Jadilebovski and the four years six months for the appellant.

16 The relevant comparisons, which in my view are clearly well founded, are the following:**

(i) There is a discernible difference in the respective roles of the co-offenders in relation to the armed robbery on the chemist shop. The appellant went into the shop and confronted the person inside with an imitation firearm. Mr Jadilebovski waited outside in the car. That discernible difference would, in itself, justify disparity.[2]

(ii) Mr Jadilebovski pleaded guilty at the earliest opportunity. The appellant did not plead guilty until during his trial and following a voir dire. Mr Jadilebovski made full admissions to police. The appellant denied all involvement when interviewed.

(iii) Mr Jadilebovski is 26 years of age. The appellant is 41 years old.

(iv) Mr Jadilebovski suffers from a significant intellectual disability. The appellant suffers from stress and anxiety but has no psychological condition similar to, or equivalent to, that suffered by Mr Jadilebovski.

(v) Both men have considerable prior convictions, but Mr Jadilebovski has no prior convictions for violence. Amongst many other prior convictions, the appellant has four prior convictions for armed robbery and one for aggravated burglary.

(vi) Whilst it is true that Mr Jadilebovski committed the offence whilst on an intensive correction order, it was still a relevant distinction between the two men that Mr Jadilebovski had not been sentenced to a term of imprisonment involving immediate incarceration previously. The appellant has served a number of prior terms of imprisonment involving incarceration.

**17 In my view, the difference between the sentences on the armed robbery count is fully justified. It is certainly not the case that there is a manifest disparity or a disparity which would engender any justifiable sense of grievance.

21 The order of the Court is that the appeal against sentence is dismissed.**

[1] R v Goodwin [2003] VSCA 120, [21] and cases cited. More recently, see R v Nguyen [2006] VSCA 184, [26].

[2] R v Nguyen [2006] VSCA 184, [26] and R v Pham & Nguyen [2006] VSCA 68, [21].

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