1. Over several hours on 19 March 2021, Timothy Yong was assaulted by several individuals - including the applicant, her partner, Robert Eman ('Eman'), and Piriho Abela ('Abela') - at an address in Noble Park. During the assault, Mr Yong was kicked, punched and slapped to the face and body multiple times. At one stage, the applicant held a machete to Mr Yong's leg, albeit he was not cut.
2. A medical examination of Mr Yong conducted the next day revealed extensive injuries, including fractured nasal bones; two fractured ribs; two black eyes; a swollen left jaw; a right-side wrist drop; and a grossly swollen right ear. He was also found to have multiple bruises over his limbs, torso and back, and grazes to his right hand, face and head.
3. The applicant exercised her right to silence when interviewed following her arrest by police on 8 April 2021. She was subsequently charged.
4. On 31 March 2022, the applicant, now aged 37 years,[1] pleaded guilty before a judge of the County Court to one charge of intentionally causing injury[2] to Mr Yong a little over a year earlier. Eman, aged 41 years,[3] pleaded guilty to the same charge.
5. Following a plea in mitigation, on 17 June 2022 the judge sentenced the applicant to nine months' imprisonment, to be followed by a conditioned community correction order ('CCO')[4] of 18 months' duration.[5] The judge sentenced Eman to 14 months' imprisonment, with a non-parole period of eight months.[6]
6. Before proceeding, we pause to note the structure of the applicant's sentence vis-à-vis Eman's. It will be appreciated that, should Eman be released on parole when first eligible, his time in actual custody pursuant to the sentence imposed will be shorter than the applicant's by a month. If immediately granted parole, he will also be subject to the supervision of the Adult Parole Board for six months, as opposed to the applicant's situation, which will see her subject to supervision by Corrections for 18 months on the CCO after the conclusion of her period of imprisonment. We will return to these features after summarising the submissions of the parties.
7. The applicant now seeks leave to appeal on a single ground that contends that 'the sentence imposed on the applicant does not comply with the principle of parity when considered against the sentence being served by Eman'.
8. In our view, leave to appeal should be refused. Our reasons follow.

1. It is necessary to describe the applicant's and co-offenders' offending in a little more detail.
2. In March 2021, the applicant and Eman were in a de facto relationship. They were acquainted with Abela, who was a friend of Mr Yong and two others, Muslim Yunus ('Yunus') and Mokoenga Tuati ('Tuati').
3. On 19 March 2021, Tuati and Yunus invited Mr Yong to Abela's residence in Dandenong, where Yunus was staying. Mr Yong drove to the address in a white 1998 Honda Accord.
4. When Mr Yong arrived and entered the garage of the property, he was punched by Abela who demanded payment of a drug debt. Abela took Mr Yong's car keys and mobile telephone. He assaulted and threatened Mr Yong for two hours, and prevented him from leaving the garage. Tuati and Yunus were present but did not take part in the attack.
5. Abela then put Mr Yong into the back seat of the Honda Accord, gave Yunus the car keys and told him to drive to an address nearby in Noble Park, where Mr Yong had previously stayed for two weeks in 2020 with the applicant and Eman.
6. When they arrived at the address, a number of others were present, including a man named 'Mike' who represented himself as a collector of a debt owed by Mr Yong to the applicant and Eman.
7. At the Noble Park address, Abela and 'Mike' assaulted and threatened Mr Yong for several hours. During the morning, the applicant and Eman arrived and joined in the assault on, and threats to, Mr Yong. Abela, the applicant, Eman and 'Mike' all were involved in the attack. Mr Yong was struck multiple times in the face and body. Yunus punched Mr Yong in the face twice. And at one point, as we have said, the applicant held a machete to Mr Yong's leg, but did not cut him.
8. During the afternoon, the group left the Noble Park address. Other unidentified people continued to detain Mr Yong in a caravan at the rear of the property, before taking him to another address in Noble Park. At some point he was taken to Dandenong Hospital, where the medical examination earlier referred to was conducted.
9. The applicant, Eman and Yunus were arrested on 8 April 2021. Abela was located and arrested on 20 May 2021.[7]
10. A contested committal hearing proceeded on 21 and 22 October 2021. It continued on 8 November 2021, and the applicant, Eman, Yunus and Abela were committed to stand trial.

1. Urging the imposition of a 'combination' sentence involving imprisonment and a CCO, the solicitor who appeared for her on the plea informed the judge that the applicant - who had pleaded guilty early and has no prior convictions - is a state registered nurse. She married the strict Moslem father of her two children in 2004 and divorced in 2010. Her children remain with the father. Following her divorce, the applicant turned to drugs and became involved in the 'drug scene'.
2. The applicant had been in a relationship with Eman for six years. They had started a car hire business together which was continuing.
3. At the time of the plea, the applicant had charges pending in the Magistrates' Court, including for possession of 'small amounts' of heroin, 'ice' and cannabis, and for possession of weapons, for which she would likely be fined, together with a proceeds of crime charge.
4. The prosecution agreed that a combination sentence was open in the applicant's case.
5. The consequence of a combination sentence is that no non-parole period could be imposed in relation to the applicant.[8]

1. With respect to Eman, the prosecution submitted that 'a head sentence with a non-parole period is warranted'. A combination sentence, the prosecutor submitted, would be 'outside of the range'.
2. Significantly, Eman has a number of prior convictions and findings of guilt. They include: recklessly causing injury (2003); burglary (2012); theft (2012); damaging property (2012); failing to answer bail (2012); dealing with property suspected of being the proceeds of crime (2013); possessing an explosive substance (2013); possessing cartridge ammunition (2013); trafficking methylamphetamine (2013); and a variety of driving offences. He previously has been sentenced to short periods of imprisonment, CCOs and community-based orders ('CBOs'). He has contravened both CCOs and CBOs.
3. Having completed Year 11 at school, Eman worked as a forklift driver between 2001 and 2007, and for 10 years after that was a self-employed project manager and construction administrator. He moved to work with his brother in timber flooring in 2017, before starting his own business. An accident in 2020 meant he could not work, and he went onto a carer's pension to support his elderly mother.
4. A report provided to the court indicated that Eman had unresolved grief, loss, shame and change issues, which had been exacerbated by marriage breakdown, methamphetamine misuse and the workplace injury he suffered in 2020. He had self-medicated using methamphetamines.

1. In her reasons for sentence,[9] the judge found that the applicant's and Eman's roles in the offending were 'effectively equal'. She said:[10]

In considering the relative roles of Mr Yunus and Mr Eman, I note the effective peer pressure used upon Mr Yunus by Mr Abela and that he was effectively lured to the first house. This is in contrast to Mr Eman and [the applicant] who attended at [the Noble park address] of their own volition and voluntarily engaged in the assault on Mr Yong. There is no evidence that Mr Eman and [the applicant] attended under the pressure exerted on Mr Yunus, and it is not open for their moral culpability to be similarly reduced.

The offending appears to have been driven by a debt owed by Mr Yong to Mr Eman and [the applicant], with the younger man, Mr Abela, acting on their behalf. ... I accept that all co-offenders were complicit in relation to the offending against the complainant and I will sentence accordingly.

Having regard to the [sic] all the evidence in this case, I conclude that Mr Abela played a far more serious role, given the extent of his involvement compared to Mr Eman and [the applicant]. Their roles are effectively equal and significantly greater than that of Mr Yunus who was pressured to be involved in this offending. Although, I note Mr Yunus faced additional charges to those which Mr Eman and [the applicant] were indicted.

the objective seriousness of Mr Abela's offending is above mid-range. I also concluded that Mr Eman and [the applicant's] roles sit towards the middle of the range for this type of offence.

1. Acknowledging the dictates of the parity principle, the judge observed:[12]

Equal justice requires that like offenders be treated alike, but that does not mean that co-offenders must receive the same sentence for the same offence.[13] The court must assess each individual and their circumstances and a comparative analysis of the culpability and circumstances of the co-offenders is indispensable to the application of this principle.

1. Finally, addressing her remarks to the applicant, Eman and Abela, the judge said:[14]

Your roles, however, as I have outlined above, were as the principal offenders and instigators of violence and unlike Mr Yunus, Mr Abela, you have been indicted on a charge of false imprisonment and a separate charge of burglary. ...

I note that Mr Eman has a criminal record, including priors for drugs and violence.

[Applicant], you fall to be sentenced as a first-time offender, although I note that you are presently in custody in relation to subsequent matters, they are not relevant for this sentencing purpose.

Mr Abela, you have no prior criminal history and fall to be sentenced as a first-time youthful offender.

1. Counsel for the applicant submitted that the difference between the applicant's and Eman's sentences is manifest. The differences in their sentences were not justified in all the circumstances and were not explained.[15] In any event, the disparity between the sentences justifies intervention even though the applicant's sentence, by itself, may not be manifestly excessive.[16]
2. As to roles, counsel submitted, the judge concluded that the applicant's and Eman's roles were equal. She found Eman's prospects of rehabilitation to be 'guarded';[17] and the applicant's to be 'reasonable', 'with appropriate treatment'.[18] Both had pleaded guilty during the pandemic, attracting Worboyes[19] considerations.
3. Eman, however, has a relevant criminal history, which includes breaching court orders. By way of contrast, the applicant had no prior criminal record, and, as the judge accepted, fell to be sentenced as a first-time offender.
4. Given these matters, counsel submitted, there was a manifest disparity in the sentence imposed on the applicant compared to Eman. Counsel relied on three factors. First, they were found to have the same role in the offending. Secondly, they had largely similar personal circumstances. Thirdly, Eman's criminal record - he has a lengthy criminal record which includes convictions for violence and drug offences, and has been sentenced to terms of imprisonment in the past - was a 'significant differentiating factor'.
5. Counsel for the applicant submitted that, given the significant differentiating factor between the applicant and Eman, the judge failed properly to apply the principle of parity by sentencing the applicant to nine months' imprisonment with an 18 month CCO. Not only will the applicant be subject to punishment by way of imprisonment, but she will be subject to supervision under a CCO for 18 months, in circumstances which are punitive.[20]
6. Finally, counsel submitted that, if error is established, and the sentencing discretion is re-opened, the applicant should be sentenced to a CCO 'in lieu of any remaining term of imprisonment'.

1. Counsel for the respondent submitted that error had not been shown.
2. Acknowledging that the sentences are disparate, the respondent's counsel in writing submitted that 'material differences' between the applicant's and Eman's personal circumstances 'satisfactorily explain the disparity between the sentences imposed in this case'. The principle of parity, counsel submitted, does not demand that sentences 'strictly compare' between co-offenders, or that co-offenders must receive the same sentences for the same offence. Parity - and disparity - ultimately are matters of 'evaluation based on impression'.[21]
3. The respondent's counsel submitted that it is notorious that CCOs may serve each of the sentencing purposes set out in s 5(1) of the Sentencing Act 1991, including both punishment and rehabilitation. Albeit the overall length of the sentencing disposition imposed upon the applicant exceeds that imposed upon Eman - her combination sentence will be in existence for 27 months overall, in contrast with 14 months overall for Eman - it does not automatically follow, counsel submitted, 'that the disparity between the sentences gives rise to a justifiable sense of grievance such that appellate intervention is required'. A CCO cannot be equated with a period of custody, even if it may serve a punitive purpose. It is 'a flexible disposition which is capable of addressing rehabilitative needs of the particular offender, depending upon the conditions imposed'. Counsel submitted that the CCO imposed on the applicant, when assessed in light of the conditions attached to it, was directed towards advancing her prospects of rehabilitation. Further, citing Boulton, counsel submitted that, given the differences between sanctions of imprisonment and a CCO in terms of punitive and rehabilitative capacities, the term of a CCO 'is likely to be longer - often, markedly longer - than the term of imprisonment which might otherwise have been imposed'.[22]
4. By imposing a combination sentence upon the applicant, the judge imposed the sentence asked for. Given the judge's assessment of the applicant's prospects of rehabilitation were 'reasonable' with 'appropriate treatment', counsel submitted, the sentence imposed was appropriate in light of the gravity of the applicant's offending, and the circumstances particular to her.

Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.

1. The parity principle reflects the notion that those who commit the same or similar offences should be treated equally, save where differences in the respective offenders' age, background, previous criminal history and general character, and the part which he or she played in the commission of the offence, justify the imposition of different sentences.[24] As Buchanan JA said in Hafner:[25]

While it is obviously desirable that persons who are parties to the commission of the same offence should receive the same sentence, matters such as age, background, previous criminal history, character and the role played in the commission of the offence have to be taken into account. Some disparity between sentences imposed on co-offenders is not in itself a ground for intervention by an appellate court. The difference between sentences must be manifestly excessive. The Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the party of the accused on whom the heavier sentence is imposed or on the ground the disparity gives the appearance that justice has not been done.

1. Bearing those and similar statements in mind, any attempt to draw a comparison between the applicant's and Eman's sentence is difficult conceptually.
2. Indeed, there are two main difficulties. First, as already noted, should he be granted parole when first eligible, the period of actual custody served by Eman under his sentence will be a month less than the period to be served by the applicant. At first blush - and without regard to binding authority - that appears to be an odd result. Secondly, the applicant's sentence and Eman's sentence are largely incommensurable. Eman's sentence of imprisonment is longer than the applicant's, but the applicant will have a relatively lengthy period of supervision under the CCO.
3. As to the first of those difficulties, authority clearly dictates that this Court is not permitted to take Eman's prospects of release on parole into account when assessing the length of his sentence. We cannot assume - no matter how well grounded that assumption might be - that Eman will be released on parole at the completion of his non-parole period.[26] Rather, we must approach the matter on the basis that he will be required to serve the full sentence of 14 months' imprisonment. Looked at in this way, the head sentence of 14 months' imprisonment imposed on Eman, when compared to the sentence of nine months' imprisonment imposed on the applicant, properly accommodates the principle of parity, given Eman's prior criminal history.[27]
4. The same reasoning must apply to Eman's non-parole period. We cannot assume that Eman will be subject to supervision by the Adult Parole Board for any period (if at all). The Court is bound to conclude that Eman may have to serve every day of his sentence of 14 months' imprisonment, and cannot assume that he will be subject to supervision for six months (or for any period at all).
5. With respect to the second difficulty, no direct comparison can be made between a period of imprisonment and a period spent under supervision on a CCO. Although a CCO clearly has punitive aspects, it clearly is also considerably less punitive than a period of imprisonment. Subject to its conditions, a person bound by a CCO has freedom of movement and association; can take part in employment, family life and social activities; and can choose where, and with whom, to live. It was open to the sentencing judge to conclude that, given the applicant's particular circumstances, a relatively lengthy CCO was appropriate in light of the judge's conclusion that, 'with appropriate treatment', the applicant had 'reasonable prospects of rehabilitation'. That conclusion distinguished the applicant from Eman, so that it was reasonably open to the judge to differentiate between the two co-offenders.[28] As we have said, we must approach the analysis on the basis that Eman will have to serve all of his head sentence; that is, seven months more than the applicant. In that light, we are not persuaded that the 18 month period of supervision on a CCO, which will follow nine months' imprisonment, infringes the principle of parity.
6. For these reasons the applicant's ground must fail.
7. We would make one final observation. In our view, the sentence imposed on Eman is remarkably lenient, if not inadequate. That has been an added source of difficulty when assessing the applicant's sentence vis-à-vis Eman's.[29]

1. Leave to appeal against sentence will be refused.

[2] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.

[4] Conditions attached to the CCO required the applicant to: be under the supervision of a community corrections officer, and to be supervised, monitored and managed as directed; undergo assessment and treatment, including testing for drug abuse or any dependency; undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in hospital or a residential facility; and undergo any program that addresses factors relating to the offending behaviour as directed by the Regional Manager.

[5] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the applicant to 18 months' imprisonment, with a non-parole period of 12 months.

[6] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced Eman to 20 months' imprisonment, with a non-parole period of 14 months.

[7] Abela, who, in addition to intentionally causing injury, pleaded guilty to burglary, false imprisonment and theft of motor car, was sentenced by the same judge who sentenced the applicant and Eman to 18 months' imprisonment, with a non-parole period of 12 months. Yunus, who pleaded guilty to theft of motor car as well as intentionally causing injury, was sentenced to nine months' imprisonment.

[8] Sentencing Act 1991, s 11(2A).

[9] DPP v Abela & Ors [2022] VCC 941 ('Reasons').

[10] Ibid [35]-[37] (emphasis added to this and passages following).

[12] Ibid [66] (citation as in original).

[13] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

[15] Counsel cited Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 475 [32] ('Green').

[16] Counsel cited Roe v The Queen [2021] VSCA 54, [36].

[19] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344.

[20] Counsel cited Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 337 [99]-[100] ('Boulton').

[21] Counsel cited Ah-Kau v The Queen [2018] VSCA 296, [51].

[22] Boulton, 337 [122] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).

[23] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis in original). See also Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green, 472-3 [28] (French CJ, Crennan and Kiefel JJ).

[24] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 (Gibbs CJ) ('Lowe').

[25] Hafner v The Queen [2012] VSCA 190, [17]. See also Lowe, 613-4 (Mason J).

[26] R v Yates [1985] VicRp 3; [1985] VR 41, 44-5, 47 (Young CJ, Starke, Crockett and Hampel JJ). See also A-G v Morgan (1980) 7 A Crim R 146, 156.

[27] See R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).

[28] R v Wolfe [2008] VSCA 284, [9]; Topal v The Queen [2019] VSCA 289, [24].

[29] See Topal v The Queen [2019] VSCA 289, [24]; Taleb v The Queen [2020] VSCA 329, [24].