Sikoulabout v The Queen [2018] VSCA 268

1 On 12 February 2018, the applicant pleaded guilty in the County Court to two charges of aggravated home invasion, two charges of armed robbery, one charge of criminal damage, and one charge of theft. On 16 March 2018, he was sentenced as follows:

Aggravated home invasion [Crimes Act 1958 s 77B]

Armed robbery [Crimes Act 1958 s 75A]

Damaging property [Crimes Act 1958 s 197(1)]

Aggravated home invasion [Crimes Act 1958 s 77B]

Armed robbery [Crimes Act 1958 s 75A]

Theft [Crimes Act 1958 s 74(1)]

Order for the taking of a forensic sample pursuant to s 464ZF of the Crimes Act 1958. Confiscation and forfeiture orders.

2 Two of the applicant's co-offenders, Kia Toumngeun and Stephen White, pleaded guilty to various charges and were sentenced at the same time as the applicant.

Aggravated home invasion [Crimes Act 1958 s 77B]

Armed robbery [Crimes Act 1958 s 75A]

Aggravated home invasion [Crimes Act 1958 s 77B]

Armed robbery [Crimes Act 1958 s 75A]

Theft [Crimes Act 1958 s 74(1)]

Possessing a firearm as a prohibited person [Firearms Act 1996 s 5(1)][1]

Trafficking a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1)]

Possessing cartridge ammunition [Firearms Act 1996 s 124]

14 years 6 months with a non-parole period of 11 years 6 months

Aggravated home invasion [Crimes Act 1958 s 77B]

Armed robbery [Crimes Act 1958 s 75A]

Aggravated home invasion [Crimes Act 1958 s 77B]

Armed robbery [Crimes Act 1958 s 75A]

Theft [Crimes Act 1958 s 74(1)]

Possessing a firearm as a prohibited person [Firearms Act 1996 s 5(1)][3]

5 The applicant seeks leave to appeal against his sentence on three proposed grounds. The first proposed ground alleges that the individual sentences imposed on charges 1 and 4 are each manifestly excessive and the second proposed ground alleges that the total effective sentence and the non-parole period are manifestly excessive. By the third proposed ground, the applicant alleges that the sentence imposed on him offends the principle of parity.

6 For the reasons that follow, we would grant leave to appeal but dismiss the appeal.

7 The offending that gave rise to the charges against the applicant and his co-accused took place in Robinvale in early 2017.

8 The applicant separated from his wife in 2010. In 2014, he commenced a relationship with another woman, Amphone Oudemephone. After that relationship ended in 2016, the applicant developed a number of grievances against Ms Oudemephone. He believed that she had been unfaithful to him and accused her of stealing from him cash, jewellery and a Honda vehicle.

9 The applicant contacted the Department of Immigration and reported that Ms Oudemephone was living illegally in Australia. He was frustrated about the apparent lack of action in response to his report.

10 After establishing that Ms Oudemephone was living in the Robinvale area, the applicant reported the alleged theft of the Honda vehicle to the Robinvale police. As will be explained further below, the police assisted him with his complaint and ultimately recovered the vehicle. Between January and March 2017, the applicant periodically contacted the police with information that he had received regarding Ms Oudemephone's movements in the area.

11 In late January and early February 2017, the applicant formulated a plan of revenge to conduct an armed robbery on the place at which Ms Oudemephone was living. The applicant went to Toumngeun's house and met with Toumngeun, White and another man, Nigel Miller to discuss the plan. The four discussed the plan to invade a home at Tol Tol near Robinvale where the applicant mistakenly believed that Ms Oudemephone was staying. The applicant suggested to the other men that there would be $10,000 to $20,000 in cash at the premises and that the occupants were unlikely to contact the police because they were living illegally in Australia. They agreed to use balaclavas, gloves, cable ties, tape and guns.

12 On the evening of 4 February 2017, the applicant drove the group 480 km from Wodonga, where the applicant lived, to Tol Tol. In the early hours of the next morning, while the applicant waited in the car, Toumngeun, White and Miller forced their way into a caravan on the premises and then into the main house. The men were wearing balaclavas and carrying firearms, one of which had a knife attached as a bayonet. One of the men also carried a mallet. The occupants of the caravan and house were bound and gagged and were assaulted, including by being struck by the guns and the mallet. The men stole $200 cash, a necklace and mobile phones from the caravan and from the house they took $20 cash, mobile phones, a novelty sword, a television and some keys. They broke into a car on the premises and stole cash, ATM cards and a passport. The applicant slashed the tyres of the car.

13 In late February, the Robinvale police recovered the Honda vehicle which the applicant had reported as stolen. The applicant sent an email to the police thanking them for their efforts. He collected the vehicle in early March but shortly thereafter collided with a kangaroo in New South Wales. He contacted Robinvale police who provided further assistance to him by contacting the New South Wales police on his behalf.

14 In early April, the applicant made plans to carry out another home invasion at an address at which he (again, mistakenly) believed Ms Oudemephone was staying and, for that purpose, convened another meeting at Toumngeun's house. Toumngeun and White participated in this second home invasion, as did Narelle Carter (Toumngeun's partner) and Gia Toumngeun (Toumngeun's son). Miller was not involved.

15 On 15 April 2017, Carter drove the men to Robinvale in the applicant's vehicle while the applicant remained in Wodonga. Shortly after midnight on 17 April 2017, Toumngeun, White and Gia Toumngeun went into the house with firearms and a cattle prod. The occupants of the house were bound and gagged and made to lie on a bed. Two of the occupants, an elderly couple, were lying on the bed when one of the men pulled down their pants and underwear before threatening them and their son with a firearm. He pointed the firearm at the woman's head and said that she would be raped if they did not cooperate. The occupants of the house were struck with the guns and a baseball bat and electrocuted with the cattle prod. The house was ransacked and cash, jewellery, mobile phones and other electronic devices were stolen, along with a car which was abandoned by the offenders a short distance away.

16 The applicant's vehicle encountered mechanical problems on the return journey to Wodonga. Carter called the applicant who drove from Wodonga to assist.

17 In May 2017, the police conducted raids on various premises where they found firearms and disguises and items stolen during the two home invasions.

18 At a raid on Toumngeun's house, police found materials, documents and product related to the manufacture of methylamphetamine. This formed the basis of the charge of trafficking in a drug of dependence. Police also found cartridge ammunition which was the subject of the summary offence.

19 The applicant, Toumngeun and White were each arrested, interviewed and charged. The applicant made no comment on the specific allegations put to him. White denied his involvement in both home invasions. Toumngeun made full admissions to police about his involvement in the offending, but falsely implicated Miller in the second home invasion and falsely alleged that the applicant had been present at that home invasion.

20 The committal hearing for the applicant, Toumngeun and White proceeded by way of hand up brief and each pleaded guilty. When the matter was listed for a plea hearing in December 2017, White raised concerns about Toumngeun's statement implicating Miller. The matter was adjourned and further statements were taken, including a statement from Toumngeun in which he admitted that Carter and his son had been involved in the second home invasion and that he had falsely implicated Miller. Toumngeun was prepared to give evidence to this effect. The earlier false statement to police was the subject of the charge of attempting to pervert the course of justice. White's change of position came to the attention of the applicant's lawyers shortly before the plea hearing and the applicant indicated his preparedness to give evidence against Carter and Toumngeun's son in relation to the second home invasion.

21 The judge commenced his reasons for sentence by describing the circumstances of the offending and the police investigation.[4] His Honour then turned to consider matters personal to each of the applicant, Toumngeun and White.

22 The judge recorded that the applicant was 55 years old. He was born in Laos and his childhood had been affected by the Vietnam war. He fled Laos as a refugee in 1981 and, after some years in Thai refugee camps, arrived in Australia in 1987. The applicant lived in Canberra for 10 years before moving to the Wodonga area with his wife, with whom he had three children.[5]

23 The judge observed that the applicant's offending was 'incongruous with [his] hitherto good character and long term positive engagement with [his] community'.[6] He said it was a 'mystery' why the applicant 'began and so obsessively persisted in this offending'.[7] The judge referred to a report prepared by a psychologist, Patrick Newton, who opined that the applicant was within normal intellectual and cognitive limits and had no major mental health conditions, although he had suffered from symptoms of depression at various times in his life.[8] The judge noted that the applicant's family remained supportive of him and that he was anxious about his children. The judge accepted that the applicant would find imprisonment difficult for this reason, and also by reason of his isolation in custody.[9] The applicant had no prior convictions.

24 The judge noted that Toumngeun was 44 years old and, like the applicant, had been born in Laos. He arrived in Australia as a young child in 1979 and his family settled in Melbourne and then Wodonga. He left school when he was 15 but subsequently completed a welding course and worked in that trade until May 2015 when he left employment on account of depression. In 2008, he separated from his partner but he continued to be involved with his five children.[10] In the opinion of a psychologist, Toumngeun had suffered from symptoms of depression over a long period and had self-medicated with illicit drugs.[11] His Honour observed that substance abuse had been a major problem for Toumngeun and that he was injecting methylamphetamine daily at the time of the offending.[12]

25 The judge expressed the view that Toumngeun's mental health and substance abuse issues were not mitigating factors but did provide context for his offending. Although his Honour accepted that Toumngeun would find imprisonment more difficult because of his mental health problems, he considered that the Verdins principles were of 'little relevance'.[13] The judge noted that Toumngeun had a significant criminal record for drug, dishonesty and violence offences, but none of his previous offending was as serious as the offending for which he was to be sentenced.[14]

26 In relation to White, the judge recorded that he had been born and raised in Melbourne and, at the time of sentencing, was 44 years old. His father was violent towards him during his childhood.[15] He left school in year 11 and had worked in a variety of jobs, including labouring and in a warehouse cool room.[16] A psychologist had diagnosed White with 'persistent depressive disorder' with an element of anxiety. The judge noted that White's psychological problems, together with the fact that he was in protective custody, would impact on the burden of imprisonment.[17]

27 The judge observed that White had appeared in court a number of times since July 1991 when he was 18. Between February 2007 and March 2016, he had appeared in court on six occasions in relation to drug and violence offences, firearm offences and breach of family violence intervention orders. The latter arose out of his 'turbulent' relationship with a woman with mental health problems. In the period leading up to the offending, White had left home and was living with Toumngeun. The judge noted that his substance abuse problems had worsened in recent years and, at the time leading up to the offending, he was using methylamphetamine.[18]

28 After setting out these matters, the judge turned to consider the objective seriousness of the offending. His Honour described the offending as 'appalling and brutal' and said that it 'possess[ed] many of the very adverse features present in what can be called high end examples of the offence'.[19] In that regard, the judge noted that the offending was carried out at night with weapons and disguises and that the accused had targeted vulnerable victims. It was relevant that, after what had been done to the victims during the first home invasion, the accused decided to commit a second home invasion.[20]

29 His Honour identified punishment, denunciation and general and specific deterrence as the key sentencing objectives. He said it was necessary to impose 'sentences of very substantial length'. He observed that s 10AC of the Sentencing Act 1991 requires a non-parole period of at least three years for aggravated home invasion, unless a special reason exists. He stated that that section had no practical relevance because 'the non-parole period I fix must be well in excess of three years'.[21] We interpolate to note that, on the plea, it was conceded by the applicant's counsel that a non-parole period in excess of three years was necessary in the circumstances.

30 The judge then recorded the mitigating factors that he had taken into account in respect of each of the accused.

31 In relation to the applicant, the judge noted that he had had regard to his personal circumstances, his otherwise good character, his plea of guilty, and his remorse and cooperation (including his undertaking to provide further assistance).[22] The judge found that the applicant had good prospects of rehabilitation despite the high criminality and moral culpability of the offending.[23]

32 In relation to Toumngeun, the judge said that he had taken account of his personal circumstances, including his mental health issues.[24] He accepted that he had expressed remorse and that his plea of guilty had utilitarian value, but said this had been compromised by his attempt to pervert the course of justice.[25] His Honour found that Toumngeun's prospects for rehabilitation were 'guarded' but could not be completely discounted.[26]

33 Finally, the judge noted that in sentencing White he had had regard to his psychological symptoms and personal problems in the time leading up to the offending.[27] He observed that White's decision to take action in relation to Toumngeun's false statement was indicative of his 'genuine concern about impending injustice' and gave credence to the quality of his plea, cooperation and remorse.[28] Having regard to White's cooperation, the judge considered that he had genuine prospects of rehabilitation notwithstanding the seriousness of the offending and his prior convictions.[29]

34 The judge dealt expressly with parity, ultimately concluding that the offenders should receive the same or very similar sentences. He made an exception in relation to White, who he said should receive the benefit of the circumstances of his cooperation.[30] This was reflected in a sentence for White that was one year shorter than his two co-offenders on each of the two aggravated home invasion charges.

35 Although each of the proposed grounds of appeal turns on an assessment by this Court of the sentences imposed rather than the specific reasons given by the judge, given the course of argument, it is necessary to set out two paragraphs from the reasons for sentence in which his Honour dealt with parity. Paragraphs 58 and 59 are in these terms:

The question of parity or disparity between you arises. On this, comparison raises matters both favourable and adverse to each of you. For example, you Mac Sikoulabout have no criminal history; but you were, it is clear, a primary figure in this. It was your grievance. You instigated and persisted with it. Further I see the two home invasion episodes to be classic acts of complicit or concerted behaviour. The particular roles between you, physical attendance or not, and the individual acts within the attack matter little in this case. You should be seen as equally culpable.

Ultimately, weighing all relevant matters related to each of you, I have found that you should receive the same or very similar sentences on these charges. That has the exception of you, Stephen White. You should receive the benefit of the circumstances of your cooperation and my findings on them.

36 The point of differentiation that weighed in favour of White related to his cooperation in providing a statement to police that exculpated Miller who, to that point, the Crown alleged had been involved in both incidents. In sentencing White, the judge said that he had taken into account White's plea of guilty and cooperation, including an undertaking to give assistance in the prosecution of other offenders. In that regard, the judge said of White's cooperation:

These matters have particular importance in your case. It was you who precipitated developments in the December 2017 plea hearing which led to a correct version of events and the withdrawal of the second home invasion charges against the falsely accused Miller. I accept that you did this because of a genuine concern about impending injustice. This gives real credence to the quality of your plea, cooperation and, I would find, expression of remorse. I see this as a significant factor.[31]

37 The judge returned to the matter, observing that had he not pleaded guilty, he would have sentenced White to a term of imprisonment of 14 years and 11 months and adding that '[h]ad you not pleaded guilty you would not have assisted in relation to the innocent man charged'.[32]

38 As a significant element of the argument on parity raised by proposed ground 3 turns on apparent differences in the treatment that the judge accorded cooperation by the applicant and White respectively, it is necessary to say something more about the events leading up to their cooperation.

The cooperation with authorities by the applicant and White

39 On 18 December 2017, the applicant, Toumngeun and White each appeared before Judge Lawson for the purpose of being arraigned and pleading guilty to the offences relating to the first and second incidents. The indictments alleged that each of those three men together with Miller had participated in both incidents. We note that, at that stage, Miller had agreed to plead guilty to charges relating to the first incident but denied any involvement in the second incident and intended to plead not guilty to those charges.

40 The basis upon which the prosecution alleged that Miller was involved in the second incident included a statement from Toumngeun that implicated Miller in that offending. Toumngeun had also said that the applicant had driven the assailants to the location of the second incident. In fact, Toumngeun's statement was false and was given by him in an attempt to exonerate his family members (Gia Toumngeun and Carter) who had been involved in the second incident and in the hope of getting a discount in his sentence by reason of his cooperation. Toumngeun subsequently pleaded guilty to a charge of attempting to pervert the course of justice in relation to his false statement.

41 At the hearing on 18 December 2017, White indicated through his counsel that he would provide a statement to the prosecution saying that he was present at both incidents but that Miller was not present at all during the planning or execution of the second incident and that, together with the applicant, Toumngeun and White, the other offenders involved in the second incident were Gia Toumngeun and Carter.

42 Once it became apparent that the proposed statement of White might affect the factual basis of the plea for all of the accused, Judge Lawson stated that it would be necessary to adjourn the plea to enable the statement to be obtained. At this point, counsel for the applicant indicated that he was in a position to proceed with the plea. That plea would have proceeded on the basis of an indictment that alleged that Miller was a co-offender in respect of the second incident.

43 After the hearing before Judge Lawson, White gave a formal statement on 19 December 2017.

44 After White had made his position clear, the applicant then indicated that he would cooperate with the prosecution by providing a statement. He did so on 4 January 2018. His statement corroborated White's account that Miller was not involved in the second incident but that Gia Toumngeun and Carter were each involved in the commission of those offences.

45 The applicant seeks leave to appeal on the following three proposed grounds:

Ground 1: The individual sentences imposed on charges 1 and 4 are manifestly excessive in all the circumstances.

Ground 2: The total effective sentence and non-parole period are manifestly excessive in all the circumstances.

Ground 3: The sentence does not adequately reflect the principles of parity when compared with the sentences imposed on the co-offenders Toumngeun and White.

46 It is convenient to deal with proposed grounds 1 and 2 together, before addressing proposed ground 3.

47 By proposed grounds 1 and 2, the applicant alleges that the individual sentences on charges 1 and 4, the total effective sentence and the non-parole period are each manifestly excessive.

48 The applicant submitted that, notwithstanding the seriousness of the offences, there were a number of strong mitigating factors to which the judge gave insufficient weight. The applicant pointed to his lack of prior or subsequent offending and his otherwise 'exemplary' character, which was attested to by character witnesses who wrote of his significant community contribution. It was submitted that, in light of these matters, the applicant had good prospects for rehabilitation.

49 The applicant referred also to his plea of guilty and his remorse as evidenced by the psychologist's report, the statement he made to police, and his undertaking to give evidence against his co-offenders, including Carter and Gia Toumngeun. It was submitted that the judge had only referred to the applicant's cooperation in a 'cursory' way, notwithstanding its genuine utility. It was contended that the applicant's cooperation was of value in a number of ways: it had assisted in the prosecution of Carter and Gia Toumngeun, ensured that Miller was not convicted in respect of the second home invasion, and clarified the circumstances of the second home invasion.

50 The respondent submitted that the individual sentences, total effective sentence and non-parole period imposed by the judge were reasonably open to him in the proper exercise of the sentencing discretion.

51 The respondent emphasised that the offending was serious, as the judge recognised in his reasons for sentence. The respondent placed some reliance on the second reading speech for the Bill introducing the offence of aggravated home invasion. In that speech, the Minister stated that the 25 year maximum penalty (and statutory minimum of three years' imprisonment) is 'intended to deter those who think it is acceptable to ... break into a home - not caring that there are people at home and that those people will be terrified and traumatised.'[33]

52 The respondent submitted that, having regard to the seriousness of the offending and the applicant's role as the 'sole instigator', he fell to be sentenced as an offender with a high degree of moral culpability. It was submitted that the judge's reasons disclose that he had regard to all the mitigating factors in imposing the sentence.

53 As to the applicant's previous good character, the respondent said that it was relevant that the offending had not been a one-off event, but that the applicant had rather persisted in his 'campaign of revenge' even after police had recovered the Honda vehicle.

54 In relation to the applicant's cooperation with authorities, the respondent submitted that it could not be said that the judge had given only cursory consideration to this factor, but that, in the circumstances, it necessarily carried little weight. It was said that the applicant's cooperation had been of limited value because Toumngeun and White had already pleaded guilty. Further, the applicant had initially given a 'no comment' interview and it was White, not the applicant, who had alerted police that Toumngeun had falsely implicated Miller in the second home invasion.

55 Finally, the respondent noted that no current sentencing practices or comparable cases were put before the judge by either party. The offence of aggravated home invasion is relatively new and, accordingly, there is no clear guidance on sentencing practices. Nonetheless, the respondent submitted that it would be appropriate to consider a serious instance of aggravated home invasion as analogous to a serious example of aggravated burglary. In that regard, the respondent noted that a number of aggravating features that are present in the most serious instances of aggravated burglary were present in this case, including the fact that the offending occurred at night, that disguises were used, and that the victims were particularly vulnerable.

56 In order to persuade this Court that the sentence is manifestly excessive, the applicant must demonstrate that the sentence is 'wholly outside the range of sentencing options available' to the sentencing judge in that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. The excess must be 'obvious, plain, apparent, easily perceived or understood and unmistakeable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.'[34] It follows that the test is a stringent one that pays due regard to the discretionary power exercised by the sentencing court.

57 An assessment of whether a particular sentence imposed is manifestly excessive does not turn on an assessment of whether the judge gave adequate weight to mitigatory factors or placed too much weight on the seriousness of the offence. The question is whether the result arrived at is manifestly excessive.

58 Charges 1 and 4 involved very serious examples of a very serious offence and had a number of aspects that the judge correctly noted were present in 'high end examples of the offence'.[35] They included that the invasion occurred at night, disguises and weapons were used, the victims were no doubt terrified and cruelly assaulted and they were vulnerable by reasons of their immigrant status and remote rural location. The applicant's motive stemmed from a personal grievance but he marshalled his co-offenders by presenting to them a clear and vulnerable target. In that respect, the offending was planned and deliberate.

59 It is also important to emphasise that the second home invasion occurred some two months after the first, allowing the applicant time for reflection and consideration. That he should organise a further offence of the same kind demonstrates a high degree of criminality on his part.

60 The violation of a home by armed offenders, disguised and equipped with cable ties to restrain the occupants, is an offence that will inevitably be terrifying to the victims. The manner in which the home invasions occurred was brutal and terrifying.

61 There can be no doubt that the offences to which the applicant pleaded guilty were serious. Charges 1 and 4 involved offences in contravention of s 77B of the Crimes Act. The offence of 'aggravated home invasion' commenced on 7 December 2016[36] and carries a maximum sentence of 25 years' imprisonment. Section 10AC of the Sentencing Act 1991 requires that a term of imprisonment be imposed for an offence against s 77B, and that a non-parole period of not less than three years be fixed under s 11 of that Act unless the court finds under s 10A that a special reason exists for not doing so.

62 Given its recent introduction at the time of sentence, there are few (if any) cases from which current sentencing practice for the specific offence might be discerned. However, there is a clear relationship between the elements of s 77B and those of aggravated burglary under s 77 of the Crimes Act. Within the limits that attend the permissible use of current sentencing practice,[37] sentences for aggravated burglary provide a relevant touchstone for the consideration of current sentencing practice.

63 In Till v The Queen,[38] this Court rejected an argument that a sentence of eight years for aggravated burglary was manifestly excessive. In that case, the applicant had entered the victim's flat in the early hours of the morning, at around 5:00 am, in the company of a co-offender and armed with a metal bar and a knife. The applicant believed that there was a person present in the flat. His appearance was disguised by the use of a hoodie and a hat and that of his co-offender by a balaclava. His forced entry was accompanied by him yelling at the door in a highly agitated state which was clearly designed to intimidate and terrify the occupant of the flat. The forced entry into the flat was aggressive and frightening.[39]

64 In the course of refusing leave to appeal, this Court referred to a number of cases in which sentences of six years' imprisonment or more had been imposed for the offence of aggravated burglary.[40] Notably, in DPP v Cooper,[41] this Court resentenced an offender to eight years' imprisonment for the offence of aggravated burglary. In that case, the offender entered premises at night while armed with a knife, knowing that the premises were occupied by an elderly man, with an initial plan to steal what was believed to be about $20,000 cash kept at the premises. The offender had a prior conviction for aggravated burglary. The Court emphasised the need for specific deterrence and described the sentence of two years' imprisonment imposed by the sentencing judge as 'little short of derisory'.[42]

65 In both Till and Cooper, there were significant acts of violence after entry that formed the basis of separate charges and separate sentences: intentionally causing serious injury in the case of Till, and murder in Cooper. However, in each case, a sentence of eight years' imprisonment for aggravated burglary was upheld.

66 The sentences imposed in other cases are not determinative. They do show, however, that substantial periods of imprisonment (including greater than six years) have been imposed for the offence of aggravated burglary and this highlights the seriousness with which the courts regard offending of this kind. Those cases also assist in the identification of aggravating factors. There were features of those cases that were also present in the applicant's offending.

67 The absence of any criminal history and a life of unblemished character were powerful matters to be balanced against the objective seriousness of the applicant's offending. As well, it is was necessary to factor in the fact that the applicant had agreed to cooperate and had provided a statement. That matter was relevant to both his remorse and the utilitarian benefit of encouraging offenders to break ranks and assist authorities, and also because it had the potential to render his incarceration more onerous by reason of the risks faced in prison by those who cooperate with authorities.

68 In our view, the constellation of factors that made these offences very serious called for a very significant period of imprisonment. Even allowing for the previous good character of the applicant, his absence of criminal history and his willingness to cooperate, we are not persuaded that the individual sentences or the orders for cumulation were manifestly excessive.

69 Finally, we note that an issue was raised before us as to whether the applicant should be held liable for the conduct of those present within the house during the second incident in which the elderly occupants were tied up, made to lie down and had their underpants pulled down, before the elderly female occupant was threatened with rape. The applicant submitted that this conduct was so extreme that it fell outside of the plan to which the applicant was a party and therefore was not conduct in which he was complicit under s 323 of the Crimes Act. It is not necessary for the purposes of resolving the application for leave to determine this matter. That is because, on any view, even without those features, there was a clear intention to threaten, terrorise and rob the occupants and the offending was of a very high order.

71 By proposed ground 3, the applicant alleges that the sentences imposed on the applicant, Toumngeun and White were such as to give rise to a justifiable sense of grievance in the applicant.

72 The principle of parity is engaged where there is a differential treatment between co-offenders that gives rise to a justifiable sense of grievance (objectively determined).[43] Different treatment, like discrimination generally, can take the form of treating the same things differently or in treating different circumstances in a way that does not pay due regard to the differences.

73 This ground does not require an appellate court to undertake a line-by-line comparison between the various weightings given to different aspects of the two sentences that are being compared. The appellant has to establish a justifiable sense of grievance which is to be considered objectively.

74 The rationale for overturning a sentence on the basis of a marked and inexplicable discrepancy with a sentence imposed on a co-offender was explained by Mason J in Lowe v The Queen in the following oft-cited passage:

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.[44]

75 The requirement of equal justice is fundamental and, as Vincent JA said in R v Djukic:

It is regarded as inherently unjust to discriminate, in the sentences imposed upon them, between equally culpable and otherwise equally positioned co-offenders. It is also accepted that there is no justice in the imposition of the same penalty upon persons who are not equal in these senses'.[45]

However, the process of sentence is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA went on to observe in Djukic:

Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[46]

76 No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way which he or she did.[47]

77 The applicant directed his submissions on parity from two different perspectives. First, the applicant argued that the judge found, and he submitted it was the case, that the applicant's culpability for the offences was the same as that of Toumngeun but that their relative antecedents were markedly different - yet the same sentence was given to each of them in respect of the aggravated home invasion, armed robbery and theft charges. Parity was breached by giving the same sentence to two offenders who stood in relatively different positions.

78 Next the applicant compared the sentence imposed on him with that imposed on White. The applicant observed that the judge said that he would have given the same or very similar sentences to the applicant, Toumngeun and White but for the cooperation given by White to the authorities. It was said this cooperation justified the lower sentence imposed on White for the two aggravated home invasions. It was said that, given that the applicant had also cooperated with the authorities, there was no objective justification for such a marked differential in sentence.

79 The starting point for the submission was the judge's reasons in paragraphs 58 and 59 which we have set out above. It was argued that the judge found in paragraph 58 that each of the three offenders bore equal culpability for the offending and that the only relevant difference was the extent of the cooperation by White.

80 The question whether there has been a breach of parity turns on this Court's assessment of the comparable sentences having regard to all of the relevant matters. That is, the Court looks at the comparative outcome of the sentencing process rather than the judge's own assessment of the individual aspects that led him or her to impose the sentence in question. The proposed ground does not call for a decision whether this Court would give the various sentencing factors the same weight, but whether the result is such that there is a justifiable sense of grievance by reason of the failure to treat relevant differences differently.

81 However, the respondent conceded that, if the applicant's characterisation of the judge's reasons was correct, there was a breach of the principle of parity. Accordingly, it is necessary to consider the judge's reasons on this aspect.

82 The applicant submitted that the last sentence of paragraph 58 in which the judge said that the three offenders 'should be seen as equally culpable' constituted a finding that the culpability for the offences was equal across the three offenders. That was said to reflect a finding that the overall gravity of the offending by each offender was the same.

83 By contrast, the respondent contended that the judge was dealing with two aspects in paragraph 58. First, the judge identified the primary role of the applicant as the instigator of the offending who had recruited the other offenders and stated that this marked the applicant's offending as more serious. The second aspect of the paragraph addressed the offender's culpability for the acts committed in execution of the plan and, in that respect, because each of the three were complicit in the offending, each shared equal culpability.

84 In relation to the implementation of the plans, the respondent pointed to the central role played by the applicant in the offending, which included arranging meetings to plan the home invasions, assisting with loading firearms into vehicles on both occasions, and picking up his co-offenders following the second home invasion when their vehicle broke down. The respondent further submitted that the fact that the applicant was not physically present at the two home invasions did not diminish his involvement in the execution of the plan or his moral culpability for what occurred on the day. In that regard, the respondent referred to s 323(3)(a) of the Crimes Act, which provides that a person may be involved in the commission of an offence even if he or she is not physically present when the offence is committed.

85 Putting those things together, the respondent contended that the judge found that the applicant's offending was markedly more serious than that of his co-offenders because it had the additional aggravating factor of recruiting the other offenders.

86 The applicant sought to counter that argument by saying that, even if the respondent's construction of the judge's reasons was correct, nevertheless any difference in culpability was of a minor or insignificant degree. The applicant submitted that those differences did not explain an equality of sentence given the significant criminal history of Toumngeun, including the fact that the first incident occurred in breach of a community correction order which Toumngeun was then serving.

87 In our view, fairly read, the judge drew a significant distinction between the applicant and his co-offenders by making the point that, although each was liable for what occurred on the day of the two incidents, the applicant bore significant additional responsibility as the person who had originated the offending. In the judge's view, that difference was sufficient to justify the imposition of the same or very similar sentences on the three offenders.

88 Not only is that the better reading of the reasons for sentence, standing back from the reasons and assessing the matter for ourselves, the approach taken properly reflects the consideration that an offender who conceives of a plan to commit an aggravated burglary or home invasion, recruits others to give effect to the nefarious plan and then assists in its execution bears a heavier culpability than the co-offenders who do not share responsibility for the conception of the plan.

89 To our mind, there is a degree of artificiality in a co-offender who marshals a number of persons who are willing to engage in an armed home invasion of this kind contending that he should get a lesser sentence because the people he got to undertake the offending had a significant criminal past.

90 Whether considered by reference to the judge's reasons or by reference to our own independent assessment, we do not regard the sentences imposed on the applicant when compared with those imposed on Tounmngeun as giving rise to a justifiable sense of grievance.

91 The issue taken in relation to White is different. The differential between the sentences imposed on the applicant on charges 1 and 4 and those imposed on White turned on the circumstances of White's cooperation with authorities. On charges 1 and 4 the applicant was sentenced to seven years' and eight years' imprisonment respectively. In relation to the corresponding charges, White was sentenced to six years and seven years respectively. The differences in sentence are material and cannot be dismissed as insignificant.

92 The foundation stone for the argument that there was a breach of parity was that the applicant had also indicated that he would cooperate with authorities and had provided a statement as to the involvement of Gia Toumngeun and Carter in the second incident.

93 The two differences between the cooperation of the applicant and that afforded by White were that White was the first to cooperate and that White was present at the time of the second incident and was therefore in a position to give direct evidence as to who was present during the offending. By contrast, the applicant, although he had initiated the offending, was not present at the scene of the second home invasion but arrived after the offences were committed in response to a request to help transport the offenders. The respondent did not place weight on this second difference.

94 Relying on the first aspect, the respondent submitted that the forensic value of White's account was greater as he would be the primary witness and the applicant was, in effect, in the position of a corroborator.

95 The judge regarded the cooperation given by White as reflecting a real manifestation of his remorse. His decision to break ranks in order to exculpate Miller from the second incident was important and, in the judge's view, demonstrated a 'genuine concern about impending injustice'.[48]

96 The fact that White was the first to cooperate provided a relevant point of difference between him and the applicant. It provided a rational point of distinction for the purpose of sentence.

97 There is no tariff or standard discount that is afforded to offenders who provide assistance to authorities. In DPP v Cooper, this Court said that the amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including - but not limited to - the nature and extent of the cooperation, any willingness to give evidence against co-offenders, and any danger flowing from the cooperation.[49]

98 Here, the judge took into account the nature and extent of White's cooperation, including that it was motivated by a concern to avoid injustice for Miller, and concluded that it went to the credit of White because it provided tangible support for the quality of his plea, cooperation and expression of remorse. The judge's finding of remorse in the case of the applicant was more guardedly expressed. In our view, this was perfectly appropriate.

99 The differences between the sentences given to the applicant when compared to White were not insignificant. However, when viewed in the whole, we are not persuaded that the disparity in sentences gives rise to a justifiable sense of grievance so as to permit appellate intervention.

100 Ground 3 was arguable, given the room for argument over the judge's approach to parity. We would give leave to appeal but we would dismiss the appeal.

[1] We note that, on the indictment, the provision cited was s 5(1) of the Crimes Act 1958. The provision which creates the offence is, in fact, s 5(1) of the Firearms Act 1996.

[2] Crimes Act 1958 s 320.

[3] Again, on the indictment, the provision cited was s 5(1) of the Crimes Act 1958. The provision which creates the offence is, in fact, s 5(1) of the Firearms Act 1996.

[4] DPP v Sikoulabout, Toumngeun and White (Unreported, County Court of Victoria, Judge M Bourke, 16 March 2018) [15]-[29] ('Reasons').

[33] Victoria, Parliamentary Debates, Legislative Assembly, 1 September 2016, Hansard, 3330 (Martin Pakula, Attorney-General).

[34] McPhee v The Queen [2014] VSCA 156 [8], quoting Hanks v The Queen [2011] VSCA 7 [22].

[36] It was introduced by the Crimes Amendment (Carjacking and Home Invasion) Act 2016 s 3.

[37] DPP v Dalgliesh [2017] HCA 41; (2017) 91 ALJR 1063.

[38] [2018] VSCA 122.

[41] [2018] VSCA 21.

[43] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610-611; Taudevin v The Queen [1996] VICSC 7; [1996] 2 VR 402; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v the Queen [2011] HCA 49; (2011) 244 CLR 462, 474-5 [31].

[44] [1984] HCA 46; (1984) 154 CLR 606, 610-11.

[45] [2001] VSCA 226 [25].

[47] Dickman v The Queen [No 2] [2017] VSCA 351 [49], citing McCloskey-Sharp v The Queen [2015] VSCA 87 [17].

[49] DPP v Cooper [2018] VSCA 21 [45].