Salapura v The Queen [2018] VSCA 255

1 The applicant pleaded guilty to the charges set out in the table below and, on 15 December 2017, he was sentenced by a County Court judge as set out in that table.[1]

[Firearms Act 1996 s 5(1)]

[Crimes Act 1958 s 77(1)]

Causing serious injury recklessly [Crimes Act s 17]

Possession of cartridge ammunition without a licence

[Firearms Act s 124(1)]

Total Effective Sentence: 7 years, 9 months' imprisonment

6AAA Statement: 10 years' imprisonment with a non-parole period of 8 years

2 The applicant's co-offender, Stephen Spiteri, was sentenced on the same day by the same judge as follows:[2]

Possession of cartridge ammunition without a licence

Dealing with property suspected of being proceeds of crime [Crimes Act s 195]

[Bail Act 1977 s 30B]

Total Effective Sentence: 5 years' imprisonment[3]

3 The applicant seeks leave to appeal against sentence on the following proposed grounds:

1 The learned sentencing judge erred in doubly punishing the applicant:

(a) By finding that the possession of a loaded firearm increased his culpability for both charges 1 and 2; and

(b) In punishing the applicant for the possession of a firearm in sentencing on charges 1, 2 and 3, and in the orders for cumulation.

1. The learned sentencing judge erred in assessing the applicant's culpability for charge 2 by taking into account an irrelevant consideration, namely that the applicant subsequently produced a firearm.
2. In imposing sentences for the charges of aggravated burglary the learned sentencing judge erred in failing to properly apply the principle of parity.

4 For the reasons that follow, the application for leave to appeal will be refused.

5 On 10 July 2016 at 12:55 am, the applicant and Spiteri drove to a residential property in Deer Park and climbed over the rear fence into the backyard. The applicant had been incorrectly informed that there was a cannabis crop at the property, and he recruited Spiteri to assist him to steal it. They were both disguised and armed with handguns despite being prohibited persons in respect of firearms (charge 1). The applicant's handgun was loaded but Spiteri's handgun was unloaded.

6 The applicant and Spiteri attempted to force the back door open with a jemmy bar but were unsuccessful. The noise they made woke the residents of the property, Anthony Nguyen and Ema Hamzic. They heard the offenders walking towards the front of the house, and went to the front door.

7 The applicant and Spiteri attempted to use the jemmy bar to force entry through the front door. Hamzic armed herself with a kitchen knife while Nguyen attempted to hold the door closed. The offenders forced their way through the front door, breaking the door frame and the lock (charge 2).

8 Nguyen took the jemmy bar from the applicant and then punched him. The applicant took his handgun from his trousers and fired it six times. He hit Nguyen three times in the leg (charge 3).

9 Hamzic struck the applicant with the kitchen knife, wounding him to the upper body.

10 The applicant ran along the hallway of the house, looking in each room before he and Spiteri ran out of the front door. Before he left the property, the applicant said to Hamzic 'Do you want to die?', to which she replied 'No, do you?'.

11 The applicant and Spiteri left the property by climbing over the fence. Spiteri drove the applicant to Sunshine Hospital, where he was admitted at 1:23 am with stab wounds. He was subsequently transferred to the Royal Melbourne Hospital at 4:30 am.

12 The applicant's injuries were serious and life-threatening, involving significant bleeding from one of his stab wounds. One of the wounds caused a collapsed lung. The collection of air and blood around the lungs required emergency surgery and placement of a chest drain. As a consequence of the imminent threat to his life caused by significant blood loss, the applicant underwent a 'massive transfusion protocol'. A report provided by Dr Jo Ann Parkin, a senior physician of clinical forensic medicine, dated 7 September 2016, stated that without urgent medical treatment, the applicant would have died.

13 Nguyen was taken by ambulance to the Royal Melbourne Hospital where he was treated for bullet wounds to his right thigh, knee and calf. Hamzic suffered superficial injuries to her hands and arms.

14 Later on 10 July 2016, police executed a search warrant at the applicant's mother's home and located 28 rounds of ammunition for a 9-millimetre Luger in a toolbox belonging to the applicant (summary charge 2). The applicant was arrested on 19 July 2016.

15 In his victim impact statement, Nguyen stated that he needed to learn to walk again as a result of his injuries and feels pain every day. He also suffers from arthritis, loss of bone and cartilage and will require a knee replacement. He feels extremely depressed and anxious, and experiences paranoia, flashbacks and nightmares. He is no longer able to enjoy sporting activities.

16 In her victim impact statement, Hamzic said that she has permanent scaring from severe cuts to her hands. She has become paranoid, stressed, hypervigilant and withdrawn from her family. She suffers from extreme anxiety and has difficulty sleeping.

17 The applicant was 22 years old at the time of the offending and 23 at the time of sentencing. He was the second of four children, and experienced a difficult early childhood due to his father's alcoholism and physical and verbal abuse towards him, his mother and his older brother. On one occasion, he was unable to attend school for more than a week due to bruising to his face. His parents separated when he was 12 years old, after which he lived with his mother. His parents were subsequently divorced.

18 The applicant left school after completing Year 10 and worked as a concreter for four months. He then moved to Queensland for 12 months, where he worked in a furniture factory. He returned to Melbourne when he was 18 years old and in early February 2016 began working part-time with his father on the railways. He worked in that position until his arrest for the current offending.

19 At about the time of his parents' divorce, the applicant began to consume alcohol in large quantities on weekends. However, his consumption decreased so that, when he was 17 years old, he consumed alcohol only on a social basis. He intermittently used cannabis from the age of 13, but did not develop a regular habit. Also when he was 13, he began taking ecstasy pills, but stopped after a couple of months.

20 The applicant was first exposed to methylamphetamine ('ice') when he was 15 years old. He regularly used ice while he was still attending school and, when he was 17 years old, he used 'a couple of points' every day, until he moved to Queensland. He did not use ice when he was living in Queensland, but quickly resumed using it in the same quantity after he returned to Melbourne. His ice use increased when he was 19 years old, after the death of his older brother, such that he smoked up to one gram each day.

21 The applicant met his fiancée, Betty Stojcevski, when he was 20 years old and ceased using ice. They have a daughter who is now aged about 3 years. Approximately 18 months after meeting Ms Stojcevski, the applicant resumed using ice on an increasingly frequent basis and, in the period before his arrest, he was using one or two points per day.

22 The applicant has a relevant history of prior offending. On 9 August 2010, when he was 16 years old, he was dealt with in the Sunshine Children's Court for robbery, armed robbery, three charges of attempted armed robbery, two charges of intentionally causing injury, recklessly causing injury, recklessly causing serious injury, possession of an unregistered handgun, using a controlled weapon without excuse, using false number plates, using an unregistered motor vehicle on a highway, driving without a licence and harassing a witness. He was sentenced to a youth supervision order for an aggregate of 12 months.

23 On 11 October 2010, the applicant was placed on a good behaviour bond for 12 months for criminal damage with intention to damage or destroy.

24 On 20 August 2013, when he was 19 years old, the applicant was dealt with in the Ballarat Magistrates' Court for attempted robbery, two charges of unlicensed driving, dealing with property suspected to be the proceeds of crime, assault by kicking, possession of ecstasy and ice, possession of cartridge ammunition without a licence, possession of a firearm while a prohibited person, and carrying a prohibited weapon. He was placed on a community correction order ('CCO') for 12 months.

25 On 3 April 2014, the applicant was fined an aggregate of $800 for the offences of possession of ice and cannabis, and possession of a prohibited weapon within the immediate vicinity of licensed premises.

26 On 25 November 2014, the applicant was dealt with in the Sunshine Magistrates' Court for assault with a weapon, possession of an imitation firearm while a prohibited person, failing an oral fluid test within 3 hours of driving and unlicensed driving, and breach of the CCO imposed on 20 August 2013. On appeal from the sentence imposed by the Magistrates' Court, on 15 July 2015 the County Court cancelled the applicant's CCO and sentenced him to a CCO for 18 months. Prior to the County Court sentence, he had been in custody for 126 days.

27 On 28 July 2015, the applicant was dealt with in the Sunshine Magistrates' Court for driving in a dangerous manner, driving while disqualified and unlicensed, and numerous other driving offences. He was sentenced to 5 months' imprisonment, wholly suspended for a period of 12 months, placed on a CCO for 12 months and fined an aggregate of $1,500. He was disqualified from holding a licence for 15 months.

28 The applicant initially complied with his CCO obligations but, in about May 2016, relapsed into drug use before committing the current offending.

29 A neuropsychological report dated 4 October 2017 from Dr Loretta Evans stated that applicant is of average intelligence and his decision-making skills are intact. She opined that the applicant demonstrates cognitive deficits, primarily attentional and memory difficulties, indicating an acquired brain injury secondary to his significant blood loss in the aftermath of the current offending. She also opined that the applicant reports criteria and demonstrates behaviours consistent with post-traumatic stress disorder arising from the traumatic and fearful events he experienced as a child and the possibility of his own death after the current offending. She stated that the applicant had expressed regret about his behaviour, that he clearly understands the wrongfulness of his actions, and that he is able to appreciate the impact of his actions on others.

30 Character references from friends, family and previous employers were tendered on the plea in support of the applicant. Ms Stojcevski described the positive changes he has made while in custody, including remaining drug-free and gaining insight into the poor decisions he has made as a result of his drug use, and the consequences of those decisions on the victims of his offending and his own family. She stated that he is very remorseful and has taken responsibility for his actions. The applicant's family described him as a loving and caring father to his young daughter, and his former employers described him as hardworking and reliable. The company for which he was working at the time of the offending indicated that it would support him with employment opportunities in the future.

31 The applicant has completed a number of courses on remand and has remained drug-free.

32 As we have already stated, the judge sentenced the applicant and Spiteri on the same day. He published joint sentencing remarks.

33 The structure of the judge's sentencing remarks is as follows. First, the judge described the offences to which the offenders pleaded guilty and the circumstances in which those offences were committed. He described the offending as 'very serious' and said that general deterrence, just punishment and denunciation were central sentencing considerations.[4] Secondly, the judge referred to the offenders' prior criminal histories. He said that those histories meant that the principles of specific deterrence and community protection were highly relevant sentencing considerations. Thirdly, the judge discussed the applicant's personal history and the sentencing considerations applicable to him. Fourthly, the judge discussed Spiteri's personal history and the sentencing considerations applicable to him. Finally, the judge pronounced the sentences for each offender.

34 The judge stated that the fact that the current offending occurred while the applicant was subject to a CCO was an aggravating feature of the offending.

35 The judge found that the applicant's early plea of guilty indicated that he accepted responsibility and was remorseful for his offending. He referred to the injuries sustained by the applicant during the aggravated burglary and said that he took into account 'this aspect of extra-curial punishment ... in moderation of sentence'.[5] The judge took into account the applicant's youth, the impact on him of the hardship he suffered in his early years, and the ongoing support of his mother and partner. He said that although the applicant's youth meant that rehabilitation should be given some weight, it was not a paramount factor due to the serious nature of the applicant's offending and his history of previous breaches of the law.

36 The judge stated that he was 'guarded' about the applicant's prospects of rehabilitation for the following reasons:

[The applicant has] shown a remarkable propensity to commit serious offences involving violence. A common feature of [his] offending, is that [he is] armed with a firearm. In assessing [his] prospects, I cannot ignore the fact that past efforts to support [him] in the community have failed. [His] ability to defeat [his] drug problem is compromised on every occasion by a relapse and further serious offending. This pattern has occurred whilst [he has] been in work and whilst [he has] had the support of [his] mother and in more recent times, [his] partner. This history does not auger well for [his] future efforts at rehabilitation.[6]

37 The judge added that, due to the applicant's completion of a number of beneficial courses and his drug-free status while he has been on remand, there was a 'ray of light' in relation to his prospects of rehabilitation.[7]

38 The judge noted that he was required to apply the principle of totality and said the following about that principle:

[I]n sentencing you for all these offences, I am required to ensure that the total sentence remains just and appropriate for the whole of your offending. I have taken care to avoid any double punishment in respect of the charges on the indictment.[8]

39 In the course of discussing the sentencing considerations applicable to Spiteri, the judge stated the following:

In assessing [Spiteri's] culpability, I recognise that no allegation is made that [his] firearm was loaded, nor is it alleged that [he] produced the firearm at any time. If these matters reduce [Spiteri's] culpability in comparison to [the applicant], the fact that [Spiteri was] on bail for an offence of aggravated burglary when [he] committed the current offences, operates to the opposite effect. In addition, [the applicant] sustained extra-curial punishment, which moderates his sentence to a degree. Given these circumstances, I can see no reason why I should distinguish between either of [the offenders], as far as sentencing for the aggravated burglary is concerned. I have made a distinction between [them] in relation to the firearms offence that reflects [the applicant's] possession of a loaded firearm.[9]

Grounds 1 and 2: Double punishment and relevance of production of firearm

40 The applicant submitted that the judge impermissibly punished him twice for the act of possessing a firearm that was loaded because, as well as constituting a separate offence, the judge had found that it was a matter that increased his culpability in respect of the aggravated burglary. He contended that the double punishment was evident from the judge's statement, set out at [39] above ('impugned paragraph'), that the applicant's culpability for charge 2 was increased relative to that of Spiteri - or that the matters the applicant was able to call in mitigation were counterbalanced - by his possession of a loaded handgun. The applicant argued that the lesser sentence of 2 years and 3 months' imprisonment imposed on Spiteri for the firearm possession offence indicated that the judge treated the applicant as having greater culpability for that offence and thus impermissibly punished him twice for the same act.

41 The applicant conceded that his possession of a loaded firearm was a relevant matter for the judge to take into account in assessing the seriousness of both the possession offence and the aggravated burglary offence. However, he contended that because the aggravated burglary offence was complete at the time he and Spiteri entered the Deer Park home, and because he later produced his handgun to commit the offence of recklessly causing serious injury, the fact that his handgun was loaded but Spiteri's was not, did not provide the judge with a valid basis upon which to distinguish his culpability for the aggravated burglary from that of Spiteri.

42 The applicant submitted that, despite the judge's statement that he had taken care to avoid double punishment, the individual sentences and orders for cumulation nevertheless had the effect of punishing him multiple times for the possession of the loaded handgun. He argued that was so for the following reasons:

(a) the possession of a firearm was a particular of charges 1 and 2, and was involved in the commission of charge 3, which all occurred during a single episode of offending;

(b) the judge referred to the possession of the handgun when describing the seriousness of the aggravated burglary and when describing the recklessly causing serious injury charge;

(c) the judge distinguished between the applicant and Spiteri for the firearm possession offence on the basis that the applicant's firearm was loaded; and

(d) the judge had regard to the use of a firearm in his assessment of the applicant's prospects of rehabilitation.

43 In relation to ground 2, the applicant submitted that the judge erred by taking into account the fact that he produced his handgun after he had entered the Deer Park home as a relevant sentencing consideration that increased his culpability relative to that of Spiteri for the aggravated burglary charge. He contended, relying on Director of Public Prosecutions v Barnes,[10] that the offence of aggravated burglary was complete when he entered the home as a trespasser, having the requisite intention and accompanied by the particularised forms of aggravation, namely, possession of the jemmy bar and firearm. Accordingly, he argued, the production of the firearm was an irrelevant consideration because the offence of aggravated burglary with intent to steal had already been completed by the time of his altercation with Nguyen.

44 The Crown submitted that, while the three offences with which the applicant was charged had in common that they involved the applicant's possession of a loaded firearm, there were nonetheless substantial, separate aspects of criminality involved in each offence. It contended that the judge was aware of the need to avoid double punishment, and that the sentences imposed and orders for partial cumulation demonstrate that he properly applied the relevant principles to avoid impermissibly punishing the applicant twice for the same act.

45 The Crown argued that, when read in context, the impugned paragraph does not reveal double punishment. It contended that the impugned paragraph was a response to matters put by counsel for Spiteri in mitigation, which sought to disassociate Spiteri from the injuries caused by the applicant to Nguyen, and emphasise that Spiteri's firearm was unloaded.

46 The Crown submitted that the judge had not found that the applicant's possession of the loaded firearm increased his culpability. It contended that, to the contrary, by using the word 'if' in the second sentence of the impugned paragraph, the judge had indicated that he had not found that the applicant's culpability was higher than that of Spiteri and had in fact found that their culpability was equal. This conclusion was, the Crown submitted, favourable to the applicant, particularly in circumstances where he, in addition to possessing a loaded gun, had planned the aggravated burglary and recruited Spiteri to participate.

47 The Crown contended that, in any event, the applicant's possession of the loaded handgun upon his entry into the Deer Park home, and throughout the duration of the aggravated burglary was a relevant matter to be taken into account in imposing sentence for that offence.[11]

48 In relation to ground 2, the Crown argued that the offence of aggravated burglary, rather than being complete at the time an offender enters the premises as a trespasser with the relevant intent and features of aggravation, simply commences at that time, and continues for the duration of the period that the offender remains on the premises. Accordingly, so it said, the applicant's possession of the loaded firearm, and his production of it in the course of the aggravated burglary was a relevant sentencing consideration for the aggravated burglary.

49 The Crown also submitted that, even if the offence of aggravated burglary was complete at the time of entry into the premises, and therefore at the time the applicant produced the firearm, it was nevertheless a relevant sentencing consideration that the applicant had possession of a loaded firearm which was capable of being produced.

50 Charges 1 and 2 on the indictment were common to the applicant and Spiteri. They were in the following terms:

CHARGE 1: The Director of Public Prosecutions charges that [the applicant] and STEPHEN SPITERI at Deer Park in Victoria on the 10th day of July, 2016 being prohibited persons each possessed a firearm.

Statement of Offence: Prohibited Person in Possession of a Firearm contrary to s 5(1) of the Firearms Act 1996.

CHARGE 2: The Director of Public Prosecutions charges that [the applicant] and STEPHEN SPITERI at Deer Park in Victoria on the 10th day of July, 2016 entered as trespassers a building situated at 30 Winslow Crescent with intent to steal therein and at the time had with them two firearms and an offensive weapon, namely a jemmy.

Statement of Offence: Aggravated Burglary contrary to s 77(1) of the Crimes Act 1958.

51 The offence of possession of a firearm while being a prohibited person set out in s 5(1) of the Firearms Act does not require that the firearm be loaded. However, that offence is aggravated if the firearm is loaded.

52 Consistent with s 5(1) of the Firearms Act, where, in a charge of aggravated burglary under s 77(1) of the Crimes Act, reliance is placed on possession of a firearm, the firearm need not be loaded.

53 Section 77(1) of the Crimes Act provides as follows:

77 Aggravated burglary

(1) A person is guilty of aggravated burglary if he or she commits a burglary and -

(a) at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or

(b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.

54 As s 77(1) refers to the commission of a burglary, it must be read together with s 76(1), which provides as follow:

76 Burglary

(1) A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent -

(a) to steal anything in the building or part in question; or

(b) to commit an offence -

(i) involving an assault to a person in the building or part in question; or

(ii) involving any damage to the building or to property in the building or part in question -

which is punishable with imprisonment for a term of five years or more.

55 Having regard to the provisions of ss 76(1) and 77(1) of the Crimes Act and the terms of charge 2 on the indictment, the aggravated burglary charge in the present case required proof of the following elements:

(a) the applicant and Spiteri entered the Deer Park home as trespassers with the intention of stealing anything in the home; and

(b) at that time, they had with them a firearm or an offensive weapon.

56 It follows that the offence of aggravated burglary was committed as soon as the applicant and Spiteri, while in possession of their firearms and the jemmy bar, entered the Deer Park home as trespassers with the intention of stealing the cannabis crop that they had thought was inside.[12] As s 77(1)(a) requires an offender to have with him or her a firearm or offensive weapon, the applicant and Spiteri would have committed the offence even if they were not in possession of their firearms. This is because the indictment specified the jemmy bar as the offensive weapon.

57 It is apparent from what we have said that we agree that the offence of aggravated burglary is complete when an offender enters a building as an armed trespasser with the relevant intent. However, this simply means that all the elements of the offence are satisfied for the purpose of proving the offence; it does not mean that everything that happens while the offender is in the building is irrelevant to the objective gravity of that offence.[13] On the contrary, as an element of the offence is entering a building as a trespasser, that element continues for the entire time that the offender remains in the building as a trespasser. As this Court said in Barnes, the offence of aggravated burglary 'can be regarded as persisting while the offender is inside the premises'.[14] Accordingly, what occurs after entry into the building forms part of the context in which the offending takes place and may provide evidence of the intent with which the entry was made.[15] It may also inform the overall seriousness of the offence.[16]

58 However, where an additional offence such as theft or assault is committed while the offender is in the building as a trespasser, in order for the offender to be punished for the additional offence, that offence must be charged separately. If the additional offence is not the subject of a separate charge, the offender cannot be punished for it by treating the acts constituting the additional offence as aggravating features of the aggravated burglary offence.[17] This is because the principle that a sentencing court is bound to take into account all the circumstances of the offence with which the offender has been charged must give way to the principle that a person cannot be sentenced for an offence with which he or she has not been charged or of which he or she has not be convicted.[18]

59 Although charge 2 was confined to the events that took place at the Deer Park home, charge 1 was not so confined. That offence commenced on 10 July 2016 as soon as the applicant and Spiteri drove to the suburb of Deer Park while in possession of their handguns and continued throughout the period that they retained possession of the handguns in that suburb on that day.[19] Accordingly, while the periods of the offending the subject of charges 1 and 2 overlapped while the applicant and Spiteri were at the Deer Park home, the offending the subject of charge 1 subsisted both before and after their presence in that home.

60 There was no overlap between charges 1 and 3. This is because the infliction of serious injuries on Nguyen by the applicant's firing of his handgun was not an element of the firearm possession offence, and possession of the handgun was not an element of the recklessly causing serious injury offence. Further, possession of the handgun is only relevant to charge 3 in the brief period in which the handgun was fired and caused serious injuries to Nguyen.

61 It follows from the above analysis that, while possession of the handgun featured in all three charges on the indictment, its relevance differed in respect of each of those charges. A proper appreciation of the differences in the relevance of the handgun and a reading of the judge's sentencing remarks as a whole indicate that the applicant's possession of the handgun did not result in him being doubly punished in respect of all three charges.

62 In considering the impugned paragraph of the sentencing remarks, it is important to bear in mind that, by this point in the sentencing remarks, the judge had already dealt with the circumstances of the offending and the sentencing considerations relevant to the applicant and was addressing the sentencing considerations relevant to Spiteri. Contrary to the applicant's submission, the judge did not say, in the impugned paragraph, that the applicant's culpability for charge 2 was increased relative to that of Spiteri. As the Crown correctly pointed out, the second sentence of the impugned paragraph commences with the qualification 'If these matters reduce [Spiteri's] culpability in comparison to [the applicant]'. Read in context, the judge said no more than that, in assessing Spiteri's culpability it was relevant that his firearm was unloaded and was never produced.

63 It was clearly relevant to the assessment of Spiteri's culpability relative to that of the applicant that only the applicant's handgun was loaded. This crucial difference is appropriately reflected in the higher sentence imposed on the applicant for the firearm possession charge.

64 The fact that, during the time that the offenders remained in the Deer Park home as trespassers, the applicant produced his handgun whereas Spiteri did not, is a relevant component of the factual matrix with which their respective roles in the commission of the aggravated burglary offence are to be assessed. It cannot be regarded as an irrelevant consideration. Irrespective of whether the loaded handgun was used to commit a separate offence, its production would have been a frightening sight for both Nguyen and Hamzic. The firing of the handgun occurred after it was produced and resulted in serious injuries to Nguyen but not to Hamzic.

65 We agree that, as the applicant's handgun was a feature of all three offences, and those offences were committed sequentially during the period that the offenders were in the Deer Park home, it was necessary for the judge to ensure that that common feature was not used to doubly punish the applicant in respect of all three offences. However, for the reasons we have explained, although there was some overlap in the time and place within which the offences were committed, that overlap was not complete. The three offences did not involve a single instance of offending but separate and distinct offending.

66 The judge expressly stated that he took care to avoid double punishment and there is nothing in the sentences that he imposed or the cumulation that he ordered that suggests that he did not do so. The orders for cumulation were appropriate to reflect the separate and distinct offending and the fact that, whereas Nguyen was the sole victim of the recklessly causing serious injury offence, both he and Hamzic were the victims of the aggravated burglary offence.

67 The judge was entirely justified in having regard to the applicant's use of the handgun in assessing his prospects of rehabilitation. The fact that the applicant had previously committed numerous offences of possession of a firearm and offences of violence, despite being given several opportunities to reform, cast obvious doubt on his prospects of rehabilitation.

68 It follows that grounds 1 and 2 are not made out.

69 The applicant submitted that the judge failed to properly apply the principle of parity and thereby erred by imposing the same sentence on him and Spiteri for the charge of aggravated burglary. He contended that the judge fell into error, first, by taking into account the irrelevant consideration that he produced the firearm (see the discussion of ground 2 above), and secondly by failing to properly take into account the following matters that should have resulted in the sentence imposed on him being lower than that imposed on Spiteri:

(a) The extra-curial punishment that he suffered as a result of the offending, including life-threatening injuries and the ongoing effects of post-traumatic stress disorder and an acquired brain injury.

(b) The fact that Spiteri was on bail for remarkably similar offending at the time these offences were committed.[20]

(c) The applicant was 22 years old at the time of the offending and 23 when he was sentenced, whereas Spiteri was 25 years old at the time of the offending and 26 when he was sentenced. The judge made no reference to the comparative ages of the applicant and Spiteri, and erred by failing to consider that, as a consequence of his youth relative to Spiteri, he was entitled to additional leniency.[21]

70 The applicant conceded that his handgun was loaded whereas Spiteri's was not, and that he had been the instigator of the plan to steal the putative cannabis crop. He submitted, however, that no distinction could be drawn between them on the basis of his instigation of the offending, because they were both willing participants in the criminal enterprise, and there was no suggestion of coercion on his part to induce Spiteri to participate.

71 The applicant contended that, in the light of these differences between him and Spiteri, the judge was bound to impose a lesser sentence on him than Spiteri for the aggravated burglary charge, and that it was not open to the judge to find that there was no reason to distinguish between them in sentencing for that charge.

72 The Crown submitted that it was reasonably open to the judge to impose the same sentence on the applicant and Spiteri for the aggravated burglary. It contended that none of the matters relied on by the applicant had the effect that he should have received a lesser sentence. That was, it argued, because the applicant had planned to steal the cannabis crop, recruited Spiteri to assist him, had a substantially worse criminal record than Spiteri, and was subject to a CCO at the time of the offences.

74 As the applicant and Spiteri were co-offenders in relation to the aggravated burglary offence, the principle of parity required the judge to impose the same sentence on them for that offence unless there were distinguishing features in their respective roles in that offending or in their personal circumstances which warranted differential sentences.

75 The applicant's culpability in the aggravated burglary offence was higher than that of Spiteri because the applicant was the instigator of the offending and recruited Spiteri to assist him. As we have already discussed, it was also relevant that, when the offenders broke into the Deer Park home, the applicant had a loaded handgun which he produced during the aggravated burglary whereas Spiteri's handgun was not loaded and was never produced. These considerations suggested that it might be open to the judge to sentence the applicant more severely than Spiteri.

76 However, the judge correctly held that these considerations were cancelled out by other considerations which suggested that it might be open to the judge to sentence the applicant more leniently than Spiteri. The latter considerations included the applicant's extra-curial punishment and the fact that Spiteri was on bail for an earlier aggravated burglary when he committed the aggravated burglary at the Deer Park home.

77 In our opinion, the differences of 3 years in the offenders' ages at the time of the offending was not material in the circumstances of this case. Ordinarily, the more youthful the offender, the greater the weight to be given to his or her rehabilitation. However, in the present case, in the light of the seriousness of the aggravated burglary offence and the extensive relevant criminal histories of both offenders, the judge was justified in not treating rehabilitation as a paramount sentencing consideration in relation to either of them.[22]

78 In all the circumstances, the judge was right to conclude that the principle of parity required that the same sentence be imposed on the applicant and Spiteri for the aggravated burglary offence.

79 For the above reasons, the application for leave to appeal will be refused.

[1] DPP v Salapura [2017] VCC 1914 ('Sentencing remarks').

[2] See Spiteri v The Queen [2018] VSCA 254.

[3] At the time of sentencing, Spiteri was already serving a sentence of 6 years' imprisonment for prior offences of aggravated burglary and assaulting a police officer. Applying the principle of totality, the judge ordered that only part of the sentence imposed on Spiteri be served cumulatively on the prior sentence, producing a combined total effective sentence of 8 years and 6 months' imprisonment. The judge also ordered a new single non-parole period of 6 years and 6 months. See DPP v Spiteri [2017] VCC 1914.

[10] [2015] VSCA 293 [45] ('Barnes').

[11] The Crown relied on R v Ashdown [2003] VSCA 216 ('Ashdown').

[12] Barnes [2015] VSCA 293 [45].

[13] Ashdown [2003] VSCA 216 [12].

[14] Barnes [2015[ VSCA 293 [45].

[15] Barnes [2015[ VSCA 293 [45].

[16] Ashdown [2003] VSCA 216 [12].

[17] Barnes [2015[ VSCA 293 [45].

[18] See R v De Simoni (1981) 147 CLR 383, 389; R v Newman [1997] 1 VR 146, 150.

[19] See Mansfield v The Queen [2011] VSCA 290 [27].

[20] See Spiteri v The Queen [2018] VSCA 254.

[21] The applicant relied on Huynh v The Queen [2017] VSCA 216 [51].

[22] See Mongrag v The Queen [2018] VSCA 105 [37]-[39].