Yoannidis v The Queen [2018] VSCA 109

2 On 22 June 2017, the appellant pleaded guilty in the County Court of Victoria to the charges set out in the table below, and on 13 July 2017 he was sentenced by a judge in the County Court as follows:

Aggravated burglary [Crimes Act 1958 s 77(1)]

[Crimes Act 1958 s 320]

[Crimes Act 1958 s 320]

[Crimes Act 1958 s 74(1)]

[Crimes Act 1958 s 74(1)]

Possess a drug of dependence (methylamphetamine) [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)]

Unlicensed driving [Road Safety Act 1986 s 18]

5 years 6 months' imprisonment with a non-parole period of 4 years

Other relevant orders: Driver's licence cancelled and disqualified from obtaining another licence for 42 months to commence from 13 July 2017. Compensation Order in the sum of $649.00.

3 The appellant committed these offences with a co-offender named Danny Szabo. Szabo pleaded guilty to charges which were the same as the first five charges on the appellant's indictment. The appellant and Szabo were sentenced by the same sentencing judge after a joint plea hearing. Szabo received the same sentences on the five common charges as the appellant received.

4 Szabo was not charged with possession of methamphetamine (charge 6) or with unlicensed driving (summary charge), but he was charged with, pleaded guilty to, and was sentenced on, uplifted summary charges of dangerous driving, committing an indictable offence whilst on bail, contravention of a family violence intervention order, and two charges of driving whilst disqualified. On those uplifted summary charges he was sentenced to terms of imprisonment. Only one of those terms was the subject of an order for cumulation, being the dangerous driving charge, in relation to which he was sentenced to 12 months' imprisonment with one month's cumulation.

5 Thus, the total effective sentence for Szabo was the same as that received by the appellant, being 4 years 6 months' imprisonment. The sentencing judge fixed the same non-parole period in relation to Szabo as he fixed in relation to the appellant, being 3 years' imprisonment.

6 On 31 October 2017, Weinberg JA granted the appellant leave to appeal on the sole ground that the sentencing judge had erred in the application of the parity principle by imposing an identical total effective sentence and non-parole period on the appellant as that imposed upon the appellant's co-offender. Szabo also applied for leave to appeal. He did so on the proposed ground that the sentence imposed upon him was manifestly excessive. Weinberg JA refused Szabo leave to appeal.

Considerations relied upon in relation to parity

7 Before turning to the circumstances of the offending, the personal circumstances of the appellant and Szabo, and the sentencing judge's reasons, it is useful to articulate what the appellant maintains are the similarities and differences between the appellant and Szabo. The appellant's written case lists 12 similarities and differences. The written case relevantly reads as follows (the appellant is referred to as 'DY' and Szabo is referred to as 'DS'):

First, both were equally involved in the indictable offences and they formed the 'common' charges between.

Second, when intercepted by the police DY was cooperative upon arrest. But DS evaded arrest and was involved in a police pursuit that put other road users in danger of serious injury and required police to abandon the pursuit of DS.

Third, DY had one additional summary charge of unlicensed driving. DS had five additional summary charges: two charges of driving whilst disqualified, dangerous driving, committing an indictable offence while on bail and contravention of a Family Violence Order.

Fourth, both DY and DS had pleaded guilty and the sentencing judge accepted that their pleas were accompanied by 'regret and remorse'.

Fifth, DY was 20 years of age at the time of the offending and [DS] was 23 years of age at the time of the offence.

Sixth, both - at the time of offending - were unemployed but by the time of sentencing both were employed.

Seventh, both DY and DS had prior convictions between 2010 and 2015. But the majority of DS's prior convictions had been as an adult and the majority of DY's prior matters had occurred when he was a child.

Eighth, DS had previously served a term of imprisonment of 187 days. DY had never served a term of imprisonment.

Ninth, DS committed subsequent offences including assault, criminal damage and breach of a Community Correction Order. DY had not re-offended while on bail for nearly 18 months.

Tenth, DY had successfully completed the CISP bail program and received a 'very positive' assessment. DS did not complete such a program.

Eleventh, the sentencing judge accepted DY was a 'youthful offender' and DS, though 'strictly speaking, not a youthful offender, nevertheless you are a young man, I do consider your youth relevant to my sentencing discretion'.

Twelfth, the sentencing judge found DY and DS had good prospects of rehabilitation.

8 The relevant offending occurred in the early hours of 3 December 2015 when the appellant and Szabo forced their way into residential premises occupied by a person named Ashley Reed, from whom the appellant was seeking to recover a drug related debt, and Reed's girlfriend.

9 At the time of the break-in Szabo was on bail. On 4 October 2015, he had entered into an undertaking of bail at the Keilor Downs Police Station to attend the Sunshine Magistrates' Court on 11 January 2016. On 5 October 2015, an intervention order had been made against him at the Sunshine Magistrates' Court prohibiting contact with one Natalie Matanovic, with whom he had been in a relationship and who is the mother of his son. The offences committed by Szabo that night constituted the uplifted summary charge of committing an indictable offence whilst on bail, and contact which Szabo had that night with Natalie Matanovic in the lead up to the break-in constituted the contravention of the family violence intervention order which was the subject of another of the uplifted summary charges.

10 At the time of the break-in the appellant was the subject of a suspended sentence of imprisonment which had been imposed upon him at the Werribee Magistrates' Court on 11 March 2015.

11 Both the appellant and Szabo were at the relevant time unemployed drug users.

12 The appellant believed that Reed owed him money which was related to drug use. The appellant believed that Reed was avoiding him and this prompted him to send threatening and abusive text messages to Reed's girlfriend and to make inquiries of mutual associates as to where Reed could be found. On one occasion he knocked on Reed's girlfriend's bedroom window in the middle of the night abusing and threatening her.

13 On the night of 2/3 December 2015 the appellant was staying at a hotel. Szabo came to the hotel. He met Natalie Matanovic there. She was sharing a room at the hotel with the appellant. This contact with Natalie Matanovic constituted the breach of the intervention order by Szabo to which I previously referred. The appellant discussed the drug debt with Szabo and said he was going to get his money. He asked Szabo to go with him. Szabo agreed.

14 Szabo at the time was disqualified from obtaining a licence but he nevertheless drove Natalie Matanovic's vehicle with the appellant to the house where Reed and his girlfriend were living. This constituted one of the uplifted summary offences of driving whilst disqualified. They went to the house armed with a metal jemmy bar.

15 The summary of prosecution opening which was tendered on the plea described what happened after the appellant and Szabo had knocked on the door awakening the victims inside:

Szabo and Yoannidis started to hit and kick the front door. [The girlfriend] ran into the ensuite and called 000. Reed closed the bedroom door. The accused men used the jemmy bar to force the front door open. They both entered the house [Charge 1 - Aggravated Burglary].

The accused men went to the bedroom where Reed was holding the handle from the inside. The accused men tried to open the door, however, Reed crouched down and used his body in an attempt to keep the door closed. The accused men struck the door numerous times and one of them said, 'This is how you're going to play it. You've got four seconds or I'm shooting. Four, three, two, one'. The accused men continued to strike the door and it eventually broke away from the hinges and fell inwards on top of Reed.

Reed saw one male holding a jemmy bar in his hand. He ran to the ensuite and closed the door, wedging his body between it and the vanity unit. Szabo and Yoannidis entered the bedroom, turned the light on and started to strike the ensuite door [Charges 2 and 3 - Common Law Assault]. They eventually left the bedroom, taking with them a set of car keys that belonged to [the girlfriend] and a gold coloured Nixon watch that belonged to Reed. [Charge 4 - Theft] As they left the bedroom, the accused said, 'We know where you live now'.

Yoannidis ran and got into the Jeep while Szabo used the stolen car keys to enter [the girlfriend's motor vehicle]. The accused men then drove away in the cars. [Charge 5 - Theft of Motor Vehicle]

16 About 2:00 am on the morning of 3 December police identified the vehicles being driven by the appellant and Szabo. Szabo's driving constituted Szabo's second uplifted summary offence of driving whilst disqualified. The appellant was unlicensed and his driving constituted the appellant's uplifted summary offence of unlicensed driving.

17 When police attempted to intercept the vehicles, the appellant stopped the vehicle he was driving and he was arrested. Szabo manoeuvred the vehicle he was driving around the police cars and accelerated away from them. A chase then followed in which Szabo accelerated to more than 100 kmph through traffic and turned the car headlights off. This conduct constituted the uplifted summary charge of driving in a manner dangerous. Police broke off the pursuit. Szabo was arrested later that morning.

18 When police searched the vehicle that the appellant had been driving they found .9 grams of methamphetamine in a bag which also contained identification in the appellant's name. This constituted the appellant's possession of a drug of dependence charge (charge 6). They also found the watch which the appellant had stolen from Reed.

19 When interviewed both the appellant and Szabo gave 'no comment' answers. Later, after completion of the record of interview, the appellant volunteered certain information to a police officer. The prosecution opening said that the appellant stated that:

(i) He drove to Reed's house with Szabo.

(ii) Reed owed him $2000 for a drug debt.

(iii) The debt had been outstanding for about six months.

(iv) Szabo was armed with a knife.

(v) He followed Szabo into the house.

20 There was no evidence before the sentencing judge that Szabo had been armed with a knife or that the appellant had followed Szabo into the house. On the hearing of the appeal we were told the prosecution had disavowed reliance on those matters. The asserted amount of the drug debt was greater than the amount the appellant had been demanding in his text message ($750).

21 The appellant was released on bail on 7 January 2016. Szabo was released on bail on 29 July 2016. The two accused were committed for trial after a contested committal hearing on 29 July 2016. The appellant and Szabo indicated an intention to plead guilty at a directions hearing prior to the trial.

22 The judge outlined the circumstances of the offending. He referred to victim impact statements which had been tendered on the plea and read to the court by the prosecutor. He referred to the fact that the effects of the offending upon the victims had been 'traumatic and pervasive'.[1]

23 The judge observed that the context of the offending was the 'violent, aggressive collection of a drug debt'.[2] The judge said that whilst the offending was neither sophisticated nor overly planned it was premeditated and committed in the early hours of the morning. The judge described the circumstances as the creation of 'a situation of fear and aggression' so as to achieve a settlement of the appellant's grievance in relation to an outstanding drug related debt.[3] The judge said that the carrying of the metal jemmy bar inside after using it to break open the front door aggravated the offending because it increased the danger.[4] The judge said that the assertions made to the victims suggesting that the offenders were armed with a gun was also an aggravating factor.[5]

24 The judge described Szabo's attempt to 'outrun' the police as 'very serious'.[6]

25 The judge referred to the fact that at the time of the offending Szabo was the subject of a community corrections order and the appellant was the subject of a suspended sentence.[7]

26 The judge said that he took the pleas of guilty into account but that they were not pleas made at the earliest available opportunity. He said that the pleas had obvious utilitarian value. He went on to say that he also accepted that the pleas came at a time in which each of the offenders had 'examined' their conduct and that the pleas had been accompanied by regret and remorse.[8]

27 The sentencing judge reviewed the criminal history of the appellant. In relation to that history, the sentencing judge said:

You, Yoannidis, have priors from 2010 in the Children's Court when you were placed on a bond for assault by kicking and theft. In 2011 you were placed on probation for armed robbery. In 2013 you again were given probation for making threats to kill, assault with a weapon and contraventions of a family violence order. In May 2014, for theft and criminal damage, you were placed on a community corrections order for 12 months. In December 2014, in Queensland, you were fined for assault, and then, in March 2015, for the contravention of the community corrections order imposed in May 2014, you were given a suspended sentence of 45 days, suspended for 12 months.[9]

28 There were in fact three armed robberies which were the subject of the probation order made in the Sunshine Children's Court on 4 April 2011.

29 The judge observed in relation to the appellant's criminal history that the subject offending appeared to be the 'next step' in a descent into 'more serious criminality'.[10] The judge referred to a report by Corrections Victoria prepared for the hearing in March 2015 concerning contravention of the community corrections order, which resulted in the suspended sentence, saying that it had revealed unacceptable absences and a failure to complete any community work.[11]

30 In relation to Szabo's prior history, after referring to the effect of drug abuse upon him, the sentencing judge said:

Your priors reflect its effects on you. Your first prior is related to possession of a weapon in 2010 and the reckless conduct relating to driving. Only five months later, in 2011, you were again suspended for reckless conduct endangering serious injury, and in July 2011 you were before the court again for such conduct, driving whilst suspended. In March and April 2014 you have appearances for assault and many driving offences and possession of firearms. Aged 21, a community corrections order was imposed. In June 2015 you served your first gaol term of 187 days of remand for trafficking in cannabis and theft of a car. You had received the community corrections order for the possession, driving and firearms offences which you breached, receiving then another community corrections order. At age 23, you were again sentenced with one count of weapon possession in July 2015. This antisocial history caused your family to effectively disown you.

While you were released in June 2015, you returned to your relationship with Matanovic and you shared your ice addiction with her. The two of you have a child together, who is aged four.[12]

31 The judge then referred to what he characterised as Szabo's 'subsequent offences'. I will deal with that matter specifically below.

32 Notwithstanding the prior histories of both the appellant and Szabo, the judge nevertheless accepted, on the basis of material put before him as to the conduct of each of the offenders whilst on bail, that they had each taken significant steps towards rehabilitation.[13] After analysing their personal circumstances and the material tendered on their behalf, he concluded that the prospects for rehabilitation in relation to each of them were good.[14] On the plea, material had been tendered indicating that both the appellant and Szabo had been drug free, had engaged in employment, and had rebuilt relationships within their families, during their respective periods on bail.

33 Each of the offenders is young, a matter that the judge considered to be significant.[15]

In sentencing both of you, I have had regard to the important principle of parity, that is the principle that equal justice requires that like should be treated as like, and that the rational difference, if any, in the treatment of the co-accused should be based on differences in culpability and personal circumstances. The principle of totality I also bear in mind, as the offending generally encompassed primarily one criminal episode.[16]

35 In his written case the appellant submitted that there were five significant and fundamental differences between the two offenders that ought to have resulted in a significantly lower total effective sentence and non-parole period for the appellant. The five significant differences were said to be:

(1) The conduct of Szabo subsequent to the offending in fleeing from the police.

(2) The fact that the appellant is three years younger than Szabo.

(3) What were asserted to be Szabo's subsequent offences.

(4) The appellant's positive conduct whilst on bail over a longer period than that of Szabo, who, it was asserted, had been remanded in custody 'for further offending'.

(5) The fact that Szabo had served a 'lengthy' term of imprisonment previously.

36 It was submitted that the judge had specifically referred to the need to address the issue of parity but had failed to deal with the similarities and differences or provide reasons for his conclusion that the total effective sentence and the non-parole period should be the same.

37 Inquiries undertaken by the Court prior to the hearing resulted in the Office of Public Prosecutions informing the Court and the appellant that what both the judge and the appellant had characterised as 'subsequent' offences by Szabo did not involve 'subsequent' offending at all. The offences were offences of make threat to kill, unlicensed driving, criminal damage, recklessly cause injury, two breaches of a family violence intervention order, and an offence of drive whilst disqualified. All of the offences were committed prior to the aggravated burglary. They were dealt with after the aggravated burglary, on 21 September 2016 and on 9 January 2017 at the Sunshine Magistrates' Court. On the hearing before us, counsel for the respondent informed the Court that the victim of the offences (other than the driving offences) was Natalie Matanovic and that the appellant was dealt with by being fined.

Submissions on the application for leave to appeal

38 The appellant relied upon the written case but adapted the submissions made concerning what had been thought to be 'subsequent' offences. It was submitted that these had been serious offences which further illustrated the proposition that the sentencing judge ought to have found that the appellant's prospects of rehabilitation were far superior to those of Szabo. Particular emphasis was also placed in oral submissions upon Szabo's period of imprisonment (187 days) which the sentencing judge had described as being on remand. It was submitted that Szabo had served considerable time in prison but had nevertheless then engaged in the subject offending, whereas the appellant had not been in prison prior to the relevant offending.

39 On behalf of the respondent, emphasis was placed upon the fact that the offending was prompted by the appellant's desire to recover his drug related debt. The offending was said to have been his idea and that he had 'recruited' Szabo. It was submitted that this circumstance had to be a significant factor in assessing the sentences to be imposed upon the two offenders. It was submitted that in the circumstances it had been open to the sentencing judge, who had had specific regard to parity, to come to the result which he did. It was submitted that overall the sentences were lenient given the seriousness of the offending and the prior history of the two offenders.

40 The principle of parity is an aspect of equal justice. Like offences should be treated alike and relevant differences should be reflected in the sentences imposed. An appellate court will intervene when it considers that the sentence imposed on an offender gives rise to a justifiable sense of grievance when compared to that imposed on a co-offender. No justifiable sense of grievance can arise where it was reasonably open to the sentencing judge to treat the co-offenders in the way in which he or she did.[17]

41 Addressing the 12 similarities and dissimilarities asserted on behalf of the appellant, which I set out earlier, it seems to me that the position is as follows:

(1) Equally involved in common offences: The appellant asserts that both the appellant and Szabo were 'equally involved' in the common indictable offences. I do not agree. As the sentencing judge's account of the relevant circumstances makes clear, the appellant was the driving force behind the offending. It was his drug debt that was sought to be recovered. He was the one who determined that they should go to the victims' house. He asked Szabo to accompany him and Szabo agreed. This was the appellant's criminal enterprise. Szabo agreed to assist him.

(2) Co-operation rather than flight: It is said that when intercepted by the police the appellant was 'cooperative', whereas Szabo fled and had to be pursued by police. The appellant did not flee, but he was not 'cooperative'. He made a 'no comment' record of interview. He subsequently made some limited admissions. Szabo evaded arrest, and drove dangerously in doing so. This was serious, as the judge said. That was a factor which the sentencing judge had to weigh in the balance, particularly against Szabo's lesser role in the more serious offending.

(3) Fewer charges: Szabo faced more uplifted summary charges than the appellant. In itself this is of limited significance, save to the extent that it overlaps with the second factor.

(4) Guilty pleas and remorse: Both the appellant and Szabo pleaded guilty and both put material before the sentencing judge which led him to conclude that each was genuinely remorseful.

(5) Age difference: There was a three year age difference between Szabo (23) and the appellant (20). They were (and are) each youthful. The three year age difference is not of great significance, in my view.

(6) Employment: Both the appellant and Szabo were unemployed and under the deleterious influence of drug abuse at the relevant time. Both were employed at the time of sentence.

(7) Prior convictions: Both the appellant and Szabo have significant prior convictions. It is said that Szabo's prior convictions were as an adult whereas the majority of the appellant's prior convictions were in the Children's Court. That is so. However, it is also significant that the appellant has three prior convictions for armed robbery.

(8) Szabo's prior imprisonment: Szabo had previously served time in custody, whereas the appellant had not. That is a matter to be weighed in the balance, but it is to be assessed in a context where each of them have poor criminal records.

(9) Szabo's 'subsequent' offending: Both the sentencing judge and the appellant were mistaken about Szabo's asserted 'subsequent' offending.

(10) Appellant's CISP bail program: The appellant's conduct whilst on bail is relied upon. In my view, the material led and accepted by the sentencing judge in relation to Szabo was relevantly similar.

(11) Young/youthful: This contention has already been dealt with in the context of dealing with the submission that there is a three year age difference between the two offenders.

(12) Prospects of rehabilitation: The sentencing judge found, notwithstanding their poor records, that each of the appellant and Szabo had good prospects of rehabilitation. He reached this conclusion because of the material put before him as to the conduct of each of them whilst on bail. It is submitted that he should have found the appellant's prospects to be far better than Szabo's prospects. In my view, it was open to the sentencing judge to reach the conclusions he did. I consider that his conclusions in that regard were generous in relation to both offenders.

42 When the various similarities and differences relied upon are analysed, in my opinion, it was open to the sentencing judge not to differentiate between the two co-offenders. On the one hand, Szabo had previously served significant time in prison, and had fled the scene committing further offences in doing so. On the other hand, the appellant's involvement in the aggravated burglary was open to be seen as counteracting that factor, given that the break-in was his idea, was preceded by threats and inquiries as to Reed's whereabouts which he had made alone, and was directed at the recovery, by violent means, of a drug related debt which he considered one of the victims owed him.

[1] R v Szabo; R v Yoannidis (Unreported, County Court of Victoria, Judge Gucciardo, 13 July 2017) [25] ('Sentencing Reasons').

[17] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-5; McCloskey-Sharp v The Queen [2015] VSCA 87 [17].