R v Wolfe [2008] VSCA 284

• Count 1 (burglary) - imprisonment for a period of 12 months;

• Count 2 (theft) - imprisonment for a period of 6 months;

• Count 3 (aggravated burglary) - imprisonment for a period of 2 years;

• Count 4 (robbery) - imprisonment for a period of 12 months.

2 The sentencing judge ordered that six months of the sentence in respect of each of counts 1 and 4 be served cumulatively upon each other, and upon the sentence in respect of count 3, resulting in a total effective sentence of three years with a non-parole period of 18 months. His Honour made a statement pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, if the appellant had pleaded not guilty, he would have passed a sentence of four years with a non-parole period of three years.

3 On 26 February 2007, HK was finishing his shift at Rydges Hotel in Hawker Street, North Melbourne at about 10:30 pm. When he went to the staff locker room he met a stranger coming out of the locker room. This person said that he was just using the toilet. When HK found that his wallet was missing, he asked this person to come with him to the manager's office. The person promptly disappeared. Police were called and the accused was identified by an officer from the hotel security film. When the accused was interviewed by police about this incident, he said that he had been living not far from there at the time. He admitted that he had gone to the hotel and that 'some black bastard came out and saw me, I pushed him over and took the wallet.'

4 At about 10:40 pm on 14 May 2007, 14-year-old PT was in his upstairs bedroom when he heard noise from downstairs and at first thought that his brother must have come home. The accused then came into PT's bedroom and told him to get his parents' money and not to call the police. When PT told the accused that he could not do that, the accused pressed down on his shoulders with his hands and repeated the demand. The accused collected computer games and consoles from PT's room. IT, his sister, heard the accused's demands from her room across the hallway and came in to the room to find out what was happening.

5 When the accused again demanded money, she told him that they did not have much money as their mother was a pensioner and showed him her mother's purse, which contained only $15.00. The accused took this money from the purse. According to PT and IT and their mother, the accused threatened to kill them if they did not part with their property. When the accused went downstairs he spoke to someone outside the door who told him to hurry up. As the accused left he told them not to call the police and that he was the cousin of someone from PT's school.

6 The accused and his companion were seen by a person in the street who thought they were acting suspiciously, and so took the registration number of their car and gave it to police on patrol in Sydney Road. The car was registered to an address in Pascoe Vale. The accused and his co-accused, Gary Cane, were arrested there at about 11:10 pm. The accused said that he had gone to the premises as he thought that he knew a girl who lived there and that the door was open. He denied making any threats to obtain the property he took and said that he had left behind the money he was given. He also said that he told the woman that her husband sold 'ice and speed' and asked her where the money was. He also told police that he had been 'up' for six days.

7 The grounds of appeal and the outline of submission on behalf of the appellant advanced three grounds. The first concerned parity with the co-offender, who was sentenced for the same incident which gave rise to counts 3 and 4. There were also submissions advanced that the total effective sentence was manifestly excessive and that the cumulation of six months on count 1 offended totality. In oral argument, counsel for the appellant confined his submissions to the issue of parity, which he described as the real point of the appeal.

8 In my opinion, the appeal should be dismissed, on all grounds, for the following reasons.

9 I deal first - and principally - with parity. As I said recently,[2] the question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a 'justifiable sense of grievance' about the relativity between the appellant's sentence and the sentence of the co-offender.[3] I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant's sense of grievance is justifiable is to be determined by asking 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.

10 In my respectful opinion, it was reasonably open to this sentencing judge to differentiate as he did between the appellant and his co-offender on the count of aggravated burglary. It is an offence which carries a maximum of 25 years. The appellant was sentenced to two years' imprisonment, his co-offender to one. Counsel for the appellant submitted that nothing in the circumstances of the offending, or in the admitted differences between their respective criminal records, could have justified a judge imposing on his client the sentence imposed on the co-offender.

11 Counsel for the appellant properly conceded that a comparison of his client's criminal record with that of Cane showed that the appellant's record was significantly longer (there being, on my count, twelve separate occasions over the period 1998 to 2007 when he was before courts for sentencing) than Cane's (he had only seven similar occasions in the period 1999 to 2005). Counsel for the appellant also properly conceded that his client's record was objectively worse than Cane's. With respect, that must be so given that, on the second and sixth occasions, the appellant was convicted of armed robbery. He also has convictions for violence or threatened violence, possession of weapons, and numerous dishonesty offences. He has served considerably more time in detention than his co-offender, as was pointed out to the sentencing judge.

12 Defence counsel on the plea conceded, again quite properly, that there were material differences between the appellant and his co-offender, who had been sentenced earlier. Counsel said:

... [J]ust in relation to the issue of parity, there's obviously distinguishing features between himself and Cane and I can't get over that in the sense that Cane wasn't charged with the robbery count. Although he's done - I think Cane got nine months so he's done already a lot more than Cane, he's done about a third more I think already.

13 This was a very succinct submission on parity. There was no attempt by defence counsel on the plea to draw any detailed comparisons between the two offenders. That may be because it was thought that the more closely their respective positions were examined, the less advantageous that would be for the appellant. However that may be, this Court should be slow to entertain on appeal what amounts to a new argument about parity, when that very matter was addressed on the plea by defence counsel and by the sentencing judge in his reasons. An appeal is not the occasion for a second argument on the merits, and that is essentially what we have heard - an argument on the merits of the parity question. Of course there may be circumstances where some relevant matter was omitted before the sentencing judge, such that justice requires a fresh examination of parity, but that is not this case.

14 In my respectful opinion, the judge was fully entitled to differentiate between the offenders as he did. The appellant had been sentenced on 9 March 2007 on four counts of theft, one count of burglary, one count of attempted theft and one count of handling. He was sentenced to four months' imprisonment, of which two months were wholly suspended. His co-offender had no convictions since 2005. (Counsel for the appellant at first tried to make something of the fact that the co-accused had been remanded on other charges in the course of 2007, but properly conceded that, in the absence of a conviction, this was an irrelevant matter.) Within days of his release in May 2007, after serving two months in an adult jail, the appellant committed the offences for which he was sentenced on this occasion.

15 Counsel for the appellant properly conceded that these matters constituted material distinctions between his client and the co-offender. In answer to a question from Weinberg JA, counsel conceded that it was open to the sentencing judge to impose a heavier sentence on his client on count 3 than on the co-accused, by virtue of those objective differences between them. That concession meant, as Weinberg JA pointed out, that the only issue was how big that differential could reasonably be.

16 The appellant was the principal offender on counts 3 and 4. So much was submitted by the Crown on the plea,[4] and defence counsel did not take issue with that characterisation. His Honour was entitled to sentence on that basis, and we should not entertain an appeal which sought to characterise the facts in any other way - absent, of course, manifest factual mistake, but there was none. It seems clear, indeed, from the admissions which the appellant made in his interview with police that he accepted responsibility as the prime mover in the incident, both in going to the premises and in making the entry. Thus, at the point at which the aggravated burglary was committed, his culpability was greater than his co-offender's.

17 The last important distinguishing matter between them was, of course, that upon his release in May 2007, the appellant was serving a suspended sentence - the remaining two months of the four months imposed in March 2007. To re-offend in breach of a suspended sentence is, as the judge rightly said, an aggravating factor. That factor had no application to his co-accused.

18 Those very significant differences, in my opinion, both explain and fully justify the differential which the judge in his careful sentencing reasons decided to impose.

19 For similar reasons, I regard the submission of manifest excess as not reasonably arguable. The maximum penalty for aggravated burglary is 25 years' imprisonment. A sentence of two years for aggravated burglary was merciful indeed for someone with the appellant's record, offending at the age of 25 as he was, and having had opportunities to learn, as he had in the years 2004 to 2006, the very great benefits of staying away from drugs and crime.

20 The sentencing judge was particularly attentive to the best interests of the appellant and, in the course of discussion with defence counsel on the plea, pointed out that it would be greatly in the appellant's interest not to have a suspended sentence but to have a non-parole period followed by a period of supervision on parole. His Honour approached this difficult sentencing task with care, looking to the appellant's future rehabilitation - that being in his own interests, plainly, and also in the interests of the community, as his Honour noted.

21 For those reasons, the appeal should be dismissed.

22 The sentence imposed upon the appellant on count 3 was, in my view, an extremely lenient one. If he harbours some sense of grievance about the lesser sentence imposed upon his co-accused, that grievance cannot be said to be legitimate. I agree that the appeal should be dismissed.

23 I also agree, for the reasons stated by the learned President and Weinberg JA, that the appeal should be dismissed.

[1] What follows is taken from the prosecution summary presented on the plea.

[2] The Queen v Lewis [2008] VSCA 202 [15].

[3] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.