Taleb v The Queen [2020] VSCA 329

1 This application highlights once again the difficulties which can arise when co-offenders are dealt with by different courts for the same offending. As will appear, the separation of the applicant's case from those of his co-offenders resulted in the sentencing disparity about which he now complains.

2 The applicant and two others took part in a home invasion in the early hours of the morning. One of the others (Alaa Chakik) was carrying a meat cleaver. The applicant and Chakik were subsequently charged with the offence of aggravated home invasion, under s 77B of the Crimes Act 1958.[1] It was alleged that they had entered the premises, in company, with intent to steal.

3 The case against the applicant resolved at the outset of his committal, with him pleading guilty to the lesser charge of home invasion, under s 77A.[2] He was remanded to appear in the County Court for sentence. Chakik, on the other hand, contested his committal and, as a result of rulings made by the magistrate, ended up facing only a charge of aggravated burglary. Over the prosecution's objection, the magistrate proceeded to hear Chakik's plea of guilty to that charge in the summary jurisdiction.

4 The applicant was sentenced on the home invasion charge to 3 years' imprisonment. Chakik was sentenced on the aggravated burglary charge to 181 days, being time served, and a 12-month community correction order ('CCO'). The principal ground of appeal concerns the sentencing disparity between the co-offenders.

5 As will appear, the version of the facts presented to the sentencing judge - in the usual form of an agreed summary - was materially different from the factual basis on which the magistrate imposed sentence, the difference having the effect of minimising Chakik's role. Even allowing for that factual difference, however, the sentencing judge was quite correct to describe the sentence imposed on Chakik as 'inexplicably low'.

6 The judge was obliged to sentence the applicant on the basis of the agreed facts as presented to him. So much was acknowledged on the applicant's behalf, both before the judge and in this Court. His Honour nevertheless stated that, because of the very low sentence imposed on Chakik, he was sentencing the applicant to a shorter term of imprisonment than he would otherwise have thought appropriate.

7 The applicant's submission is that the parity principle obliged his Honour to impose an even lower sentence. For reasons which follow, we disagree. In our respectful view, it was reasonably open to his Honour to conclude that a sentence of 3 years was appropriate for this serious offending, proper weight being given to the 'downward pull' of the parity principle and the low sentence imposed on Chakik. Had it not been for the parity consideration, a much higher sentence would have been called for. Leave to appeal must therefore be refused.

8 At approximately 10:00 pm on 27 March 2018, the complainants - who are brothers (PM and WM) - received a knock at their front door. Two unknown men said that they were looking for someone called 'Mark'. The men were told that no-one by that name lived at the premises. They then went away.

9 At about 4:00 am the following morning, the brothers were alerted by their dog barking and the sound of the front wire door rattling. PM opened the internal wooden door to see who was there. The applicant said, 'All right, Mark, there are two ways we can do this, the hard way or the easy way'. PM again said that he was not 'Mark'.

10 The offenders began to force their way into the house, using a tool to jemmy open the wire door. The wooden door began to splinter and the brothers tried to hold it closed while WM called 000. When told that the police had been called, one of the offenders said, 'Fuck the cops, we are not leaving until this is sorted out. You know what you have done'.

11 When the offenders were unable to get through the front door of the unit, they went around to the back door. They forced entry by splintering the door jamb and breaking off the lock from the timber frame. The applicant, Chakik and one other offender then entered the unit. WM tried to deter them by using a fire extinguisher, while PM used a spray can of black paint.

12 There was a confrontation between PM and the offenders. Chakik brandished a meat cleaver which he was carrying, and passed three cannabis plants in pots to the third offender.

13 As Chakik raised the meat cleaver towards PM, the applicant stood in the way and remonstrated with Chakik. PM showed Chakik his wallet to prove his identity. Chakik then grabbed the wallet.

14 Police arrived at the front door and chased the offenders, who ran out of the back door of the unit and escaped over the fence.

15 In August 2018, the applicant was intercepted driving a vehicle in the forecourt of a petrol station. He was directed to stop while his licence details were checked. When the police returned to their vehicle to check the details, the applicant reversed out of the service station and drove away. At the time of the home invasion, the applicant was on bail, having been granted bail on 1 March 2018.[3] He failed on three occasions in August 2018 to comply with his bail.

16 Following his plea of guilty, the applicant was sentenced as set out in the table below:

[s 197(1) Crimes Act 1958]

Home invasion (intent to steal) [s 77A Crimes Act 1958]

Theft [s 74(1) Crimes Act 1958]

Commit offence whilst on bail [s 30B Bail Act 1977]

Fail to stop vehicle when directed by police [s 64A Road Safety Act 1986]

[s 30(1) Road Safety Act 1986]

[s 30(1) Bail Act 1977]

[s 30(1) Bail Act 1977]

Fail to answer bail [s 30(1) Bail Act 1977]

5 years' imprisonment with a non-parole period of 3 years

Other orders: Disposal and forfeiture orders by consent. With conviction on Summary Charge 7 order that the offender be disqualified from obtaining any license or permit for a period of 12 months from 18 December 2019. With conviction on Charge 1 order that the offender pay compensation in the sum of $1,235.51 to the Department of Health and Human Services.

17 We referred earlier to the different factual basis of the sentencing of Chakik. As the prosecutor explained during the hearing of the applicant's plea, the magistrate was not satisfied that Chakik himself went inside or that he had been in possession of the meat cleaver. On that basis, the magistrate was only prepared to commit Chakik on a charge of aggravated burglary. That charge was based not on Chakik's having gone into the property but on his having been part of a plan to do so. In the applicant's case, as set out above, he was sentenced on the basis that he had been a party to a forced entry in company with Chakik and a third person.

18 The prosecutor told the judge that, in the magistrate's view, there was no constraint on him proceeding to sentence Chakik for aggravated burglary, given that the applicant was to be sentenced in the County Court on a different charge. As his Honour correctly pointed out, however, the charges have the same maximum penalty (25 years' imprisonment) and they are 'of a similar gravity in a generic sense'.[4]

19 It is generally undesirable that co-offenders be dealt with by different courts. Judicial officers should be astute, wherever possible, to ensure that such an outcome is avoided. In this context, we would respectfully adopt what was said in R v Rodden, where Vincent JA (with whom Nettle JA and Cummins AJA agreed) said:

Of course, it would have been more satisfactory if all of the persons involved in this matter had been tried and/or sentenced at the same time, and certainly by the same judge. This case demonstrates the kinds of tensions that can appear to arise in the criminal justice system when this does not occur. When a situation arises in which co-offenders are dealt with separately, there may and often are differences in the substratum of facts upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved. This, of course, would flow, in part, from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders concerned.

Of itself, the fact that such differences can be observed in the sentencing remarks and dispositions imposed, does not justify the intervention of this Court in the sentencing process or provide an adequate foundation for a finding that there has been an unjustifiable disparity in the treatment of the separate offenders but it does, of course, create considerable difficulty in any case such as the present.[5]

20 The judge described the applicant's offence as 'a concerning and serious example of the crime of home invasion'. As his Honour said, the applicant:

in company with others, invaded the sanctity of [the] victims' home in the middle of the night. The conduct revealed persistent and determined behaviour ...

Due to the fact that Mr Chakik, on the prosecution case, brandished a meat cleaver once he had gained entry to the property, clearly, at least one of you was armed with a dangerous item when the home invasion was effected. I accept that there is no evidence to suggest that you yourself were armed. ...

Whilst, as the prosecution conceded, there is no evidence that you were the ringleader of this criminal endeavour, you were, in my view an active participant in it. You are large in stature, which no doubt added to the terror felt by your victims as the criminal endeavour unfolded. Furthermore, the comment attributed to you at the front door of the property ... has a clearly menacing flavour to it.[6]

21 The judge accepted that the applicant's subsequent behaviour, in physically preventing Chakik from using the meat cleaver on the victims, was relevant to his 'overall moral culpability' for his criminality on that night. On the other hand, his Honour said, the gravity of the conduct was accentuated by the fact that the applicant was on bail, granted only a few weeks earlier, and fell to be sentenced 'as a person with a reasonably substantial criminal history', including prior convictions for matters of violence resulting in terms of imprisonment.[7]

22 Both PM and WM spoke of the terror they had experienced as the incident unfolded in their home. PM described himself as 'being beyond terrified, and thinking he was going to die'. His Honour quoted the following passage from the then-recent decision of this Court in Director of Public Prosecutions v O'Brien:

This home invasion had all of the terrifying features referred to by this Court in Hogarth. Sentencing courts must continue to respond to conduct of this kind with substantial sentences. General deterrence is 'a sentencing principle of great importance in cases such as these'.[8]

23 As his Honour also noted, the Court in O'Brien said that previous decisions of this Court concerning home invasion as a form of aggravated burglary remained 'directly relevant' to sentencing for the new offence of home invasion. Moreover, what was said in Hogarth and again in Director of Public Prosecutions v Meyers - about the need for higher sentences for this 'egregious form of conduct' - continued to apply.

24 On the plea, counsel for the applicant (who did not appear in this Court) acknowledged that this was 'extremely serious' offending but submitted, more than once, that the applicant harboured a 'sense of grievance' about the lower sentence imposed on Chakik. According to the plea submission, the applicant had made admissions during his record of interview yet the co-offender got a 'far less significant' sentence, even though he had been holding the meat cleaver. In response, the judge correctly pointed out - and defence counsel accepted - that he was obliged to sentence the applicant for the offence to which he had pleaded guilty and to do so on the basis of the agreed factual matrix.

25 In his very careful reasons, the judge described the application of the parity principle as 'fraught with difficulty'.[9] As noted earlier, his Honour viewed the sentence imposed on Mr Chakik as 'inexplicably low' in the light of the appellate authorities to which he had referred.[10] Noting that the prosecution had not appealed against Chakik's sentence, he set out the statement in Topal v The Queen that

difficulties in applying the [parity] principle become acute where the first sentence is considered to be very lenient or even manifestly inadequate.[11]

26 Importantly, as his Honour noted, the Court in Topal confirmed that

parity does not require the reduction of a sentence to an inappropriately low level.[12]

His Honour quoted from Director of Public Prosecutions (Cth) v Peng, in which the court said:

The approach required where the co-offender's sentence is inappropriately low is different. A sentence that is manifestly inadequate will require that a co-offender's sentence be placed t_oward the lower end of the range of sentences that are available._ But a sentence that is viewed as excessively lenient cannot justify the reduction of a co-offender's sentence to one that is inappropriately low. As Neave and Weinberg JJA recently concluded in Taleb v The Queen, based on their review of the relevant decisions of this Court:

[T]he avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of the appellant's sentence to a level which might otherwise be regarded as at the bottom end of the range, but not to the point where the offender's sentence is wholly inappropriate or outside the range.[13]

27 Applying those principles, his Honour correctly described himself as unable to impose a sentence that was 'inappropriately low'.[14] As his Honour stated, he had an 'overarching duty' to impose an appropriate sentence in accordance with orthodox sentencing principles.[15] Nevertheless, his Honour said that 'in light of the principle articulated in Peng', he had

reduced the length of the sentence of imprisonment, to appropriately take into account the sentences imposed on your co-offenders, particularly that of Mr Chakik. In conformity with Peng, I will impose a sentence of imprisonment toward the lower end of the range of sentences that are available, taking care not to reduce the sentence to an inappropriately low level.[16]

28 In this Court, counsel for the applicant accepted that the judge's approach to the sentencing task was correct in principle. His submission, however, was that the sentence imposed did not meet the requirement stated in Peng. According to the submission, a sentence of 3 years' imprisonment could not reasonably be regarded as being at the lower end of the range of sentences that are available. According to the submission, a sentence of 3 years should instead be characterised as 'middle of the range'.

29 It may be accepted that, as counsel emphasised both on the plea and in this Court, the applicant feels aggrieved by the difference between the sentence of 3 years imposed on him and the sentence of 181 days (plus a CCO) imposed on Chakik. That difference seems particularly stark when regard is had to the role of Chakik as described in the agreed facts on the basis of which the applicant was sentenced.

30 Unavoidably, however, the facts which were excluded in the Magistrates' Court - Chakik having entered the premises and threatened PM with the meat cleaver - were facts which the judge was obliged to take into account in assessing the gravity of the home invasion to which the applicant pleaded guilty.

31 Moreover, as the applicant's counsel properly acknowledged, the resolution of a complaint of sentencing disparity does not turn on any subjective sense of grievance of the offender who receives the heavier sentence.[17] The question is an objective one: was it reasonably open to the sentencing judge to differentiate between the co-offenders as he/she did if proper weight were given to the relevant similarities and in differences between them?[18]

32 In our view, the judge's decision is unimpeachable. His Honour correctly directed himself as to the applicable principles, both as to sentencing for home invasion and as to parity in circumstances where the comparator sentence is manifestly inadequate. We agree with the submission advanced by senior counsel for the Director, that a sentence of 3 years' imprisonment was at the very low end of the available range for a very serious offence of this kind.

33 For the reasons stated in O'Brien and the other authorities to which the judge referred, offending of this kind - in company, with a weapon, in the dead of night, in pursuit of vigilante justice - must continue to attract severe punishment. By its creation of the separate home invasion offence, the legislature has sent the clearest message to sentencing courts - and to would-be offenders - as to how seriously such offending is to be viewed.

34 It follows that the applicant's continuing sense of grievance should be greatly tempered. Had it not been for the 'inexplicably low' sentence imposed on Chakik and the resulting 'downward pull' of the parity consideration, the applicant would have been facing a substantially heavier sentence. In other words, the circumstance which has given rise to the parity complaint - the low sentence imposed on Chakik because of the difference in the factual matrix used - has resulted in the applicant being treated much more leniently than he would otherwise have been.

35 As was helpfully pointed out in the respondent's written case, the judge was in error in stating, early in his reasons, that the home invasion offence was 'a category 2 offence' under the Sentencing Act 1991, such that he was required to impose a custodial order, unless certain specified circumstances existed. In fact, home invasion was only included as a category 2 offence some months after this offending occurred.

36 In the course of argument, counsel for the applicant sought and was granted leave to add a ground of appeal addressing this conceded error. The new ground contends as follows:

In sentencing the applicant on the offence of home invasion as a category 2 offence under the Sentencing Act 1991, the sentencing judge fell into material error such that the sentencing discretion should be reopened.

37 According to the submission, the erroneous reference to category 2 was a material error for two reasons. First, it was said, the exclusion of non-custodial dispositions must have been seen by the judge as requiring an offence of home invasion to be treated as more serious - other things being equal - than an offence of aggravated burglary, even though the maximum penalties were the same. Secondly, and consequently, the judge would have felt (erroneously) that he was constrained in the exercise of his sentencing discretion.

38 In our view, this ground must also be rejected. As already noted, his Honour made an entirely appropriate assessment of the gravity of this offence. Taking into account the applicant's criminal record and the fact that he had offended while on bail, there was no realistic prospect of a non-custodial disposition, either on its own or in combination with a custodial sentence. In the circumstances, we are satisfied that the error was wholly immaterial.

39 For these reasons, the application for leave to appeal must be refused.

[1] The maximum penalty for that offence is 25 years' imprisonment. What makes this offence particularly serious is the fact that any person convicted of it must receive a non-parole period of at least 3 years. That distinguishes it from ordinary home invasion under s 77A, which requires the imposition of a custodial term for anyone convicted of that offence, but sets no minimum non-parole period.

[2] The offence of home invasion can be viewed as a 'lesser charge' for the reasons set out in the above footnote.

[3] The applicant was on bail for having failed to answer a previous grant of bail, theft of a motor vehicle, and driving whilst disqualified.

[4] Aggravated burglary carries the same maximum penalty - 25 years' imprisonment - as do the offences of home invasion and aggravated home invasion. The essential character of all three offences is the same. Home invasion is a form of aggravated burglary. By its introduction of mandatory sentencing requirements for the home invasion offences, however, the legislature has signalled that those offences are to be regarded - other things being equal - as more serious; see footnote 1.

[5] [2005] VSCA 24, [28]-[29].

[6] DPP v Taleb [2019] VCC 2206, [29]-[32] ('Reasons').

[7] In fact, the applicant's previous criminal history was more than just 'reasonably substantial'. He had been involved in some 20 separate court appearances over a period of 16 years, having been dealt with for offences ranging from driving whilst disqualified to a number of thefts and other dishonesty offences. He had also sustained convictions for unlawful assault, intentionally causing injury, recklessly causing injury, and contravening family violence intervention orders. He had, in addition, breached community-based orders, and repeatedly failed to answer bail. He had received a number of custodial sentences, generally of the order of some months.

[8] [2019] VSCA 254, [7] (Maxwell P, Niall and T Forrest JJA) ('O'Brien'); Meyers v The Queen [2014] VSCA 314; (2014) 44 VR 486, 498 [46].

[11] [2019] VSCA 289, [24] (Maxwell P and Niall JA) ('Topal').

[13] [2014] VSCA 128, [36] (Nettle and Redlich JJA) (emphasis added) (footnotes omitted) ('Peng').

[17] See generally, Arie Freiberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) [6.185]-[6.210].

[18] R v Wolfe [2008] VSCA 284; Teng v The Queen (2009) 22 VR 706; [2009] VSCA 148.