Al Qassim v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPC 2024 0044

HUSSAIN AL QASSIM	Appellant
v
THE KING	Respondent

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JUDGES:	T FORREST and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2024
DATE OF JUDGMENT:	10 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 302
JUDGMENT APPEALED FROM:	DPP v Alqassim [2023] VCC 2157 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Multiple offences including aggravated burglary, theft, home invasion, false imprisonment and handling stolen goods – Total effective sentence of 10 years and 1 month imprisonment – Non-parole period of 5 years and 6 months – Cumulation of individual sentences – Whether cumulation was manifestly excessive – Whether sentencing judge failed to give sufficient weight to the totality principle – Total effective sentence was within range reasonably open to sentencing judge – Outrageous criminality – Offending was objectively grave and repeated – Significant cumulation was appropriate – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Whether total effective sentence was manifestly excessive – Offending was objectively grave and repeated – Total effective sentence was within range reasonably open to sentencing judge – Sentencing principles were given appropriate weight – Appeal dismissed.

Azzopardi v The Queen (2011) 35 VR 43; Clarkson v The Queen (2011) 32 VR 361; Rohen v The King [2024] VSCA 1, applied; Cay v The Queen (2010) 29 VR 560; Nguyen v The Queen (2016) 256 CLR 626, considered.

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Counsel
Appellant:		Mr OP Holdenson KC
Respondent:		Mr JCJ McWilliams
Solicitors
Appellant:	Slaveski & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
KENNY JA:

Introduction

On 30 October 2023, the appellant pleaded guilty in the County Court of Victoria to two charges of aggravated burglary, two charges of theft, two charges of possessing a drug of dependence, one charge of false imprisonment, one charge of handling stolen goods, and four related summary offences.
On 20 November 2023, the appellant was sentenced to a total effective sentence of 10 years and 1 month imprisonment, as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary[1]	25 years’ imprisonment	5 years and 6 months’ imprisonment	Base
2	False imprisonment[2]	10 years’ imprisonment	2 years’ imprisonment	3 months
3	Theft[3]	10 years’ imprisonment	3 years’ imprisonment	6 months
4	Aggravated burglary	25 years’ imprisonment	5 years’ imprisonment	2 years
5	Theft	10 years’ imprisonment	4 years’ imprisonment	12 months
6	Handling stolen goods[4]	15 years’ imprisonment	12 months’ imprisonment	2 months
7	Possession a drug of dependence[5]	12 months’ imprisonment	Fine of $250	N/A
8	Possession of a drug of dependence	12 months’ imprisonment	Fine of $250	N/A
Related Summary Offences
14	Commit an indictable offence whilst on bail[6]	30 penalty units or up to 3 months’ imprisonment	2 months’ imprisonment	1 month
37	Unlicensed driving[7]	60 penalty units or up to 6 months’ imprisonment	Fine of $500	N/A
38	Possession of a prohibited weapon[8]	240 penalty units or up to 2 months’ imprisonment	4 months’ imprisonment	1 month
42	Dealing with property suspected of being proceeds of crime[9]	2 years’ imprisonment	18 months’ imprisonment	6 months
Total Effective Sentence:		10 years’ and 1 month imprisonment
Non-Parole Period:		5 years and 6 months
Pre-sentence Detention Declaration:		711 days
Section 6AAA Statement:		14 years’ imprisonment with a non-parole period of 10 years
Other Relevant Orders: 1. Charge 4 — Forfeiture order (as per Schedule) and Disposal Order (as per Schedule) 2. Charge 5 — Disqualified from obtaining a driver’s licence for two years

[1]Contrary to s 77 of the Crimes Act 1958.

[2]Contrary to common law.

[3]Contrary to s 74(1) of the Crimes Act 1958.

[4]Contrary to s 88 of the Crimes Act 1958.

[5]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.

[6]Contrary to s 30B of the Bail Act 1977.

[7]Contrary to s 18(1)(a) of the Road Safety Act 1986.

[8]Contrary to s 5AA of the Control of Weapons Act 1990.

[9]Contrary to s 195 of the Crimes Act 1958.

On 18 October 2024, the appellant was granted leave to appeal against sentence. There are three grounds.
Ground 1: The orders for partial cumulation of the individual sentences of imprisonment imposed on charges 4 and 5 upon the individual sentence of imprisonment imposed on charge 1 are, in all the circumstances of the case, manifestly excessive.
Ground 2: The Learned Sentencing Judge has erred in the exercise of her discretion by failing to give sufficient weight to the sentencing principle of totality.
Particulars
(i)The [appellant] refers to and repeats Ground 1 herein;
(ii)The Learned Sentencing Judge erred in ordering that 3 years of the sentence of imprisonment imposed for the two offences the subject of Incident 2 (charges 4 and 5) be served cumulatively upon the sentence of imprisonment imposed for the three offences the subject of Incident 1 (charges 1, 2 and 3).
Ground 3: The Total Effective Sentence imposed, namely, 10 years and 1 month’s imprisonment is, in all the circumstances of the case, manifestly excessive.
For the following reasons, the appeal should be dismissed.

The offending

Incident 1 — charges 1, 2 and 3

Around 11 pm on Friday 29 October 2021, the appellant and two unknown co-offenders went to a suburban home in Eltham. This was the home of ‘Mr and Mrs F’, who were asleep in bed at the time. The three offenders had covered their faces and each wore gloves. They were armed with a silver handgun, a hammer, and a large screwdriver.
The offenders forced their way into the house via the front door, went upstairs, and confronted Mr and Mrs F in their bed. One offender took Mrs F’s mobile phone. Another offender approached Mr F in bed, pointed the gun in his face and demanded money. Mr F believed the gun was real. Both victims said that they had no money, to which the offender responded, ‘I know you’ve got a safe, no point fucken [sic] lying I know you’ve got one’. The offender then ‘racked’ the gun and a round of ammunition fell to the ground.
Two of the offenders took Mr F downstairs, where he opened first one safe, taking out some jewellery and other items, and then a second safe, taking out cash and travel and bank cards. The offenders asked him where a third safe containing money was, and he said that there was no third safe. The offender with the gun told Mr F to go back into the bedroom to get his phone. He did so, opened his bank accounts on his phone and gave the phone to the offender. The third offender (with the screwdriver) had remained upstairs with Mrs F. While searching drawers, he asked Mrs F whether she had any gold, and then took a box of jewellery and put it into a pillowcase.
The offenders discussed how they would get money from the bank accounts. They decided that Mrs F would be held hostage by one offender while the other two (including the appellant) would take Mr F to an ATM to withdraw money. This is what they did, withdrawing $1,000 from an ATM. Not being satisfied with this amount, the offenders then used Mr F’s mobile phone to withdraw another $1,000 in $500 amounts via contactless cash.
The offenders then drove Mr F home. They and Mr F went inside. The offenders told Mr F to sit down. They continued to threaten him, pointed the gun at him, and told him not to call the police. In front of Mr and Mrs F, the three offenders discussed what they should do next to get more money from the victims, including holding the victims hostage, taking Mrs F to an ATM to withdraw more money, transferring the vehicle into their names, and taking a jet ski from the garage.
On 30 October 2021, at around 12:30am, the offenders left the house, having deleted CCTV footage. They told the victims, ‘Don’t call the police. We know you have a son and daughter’, and, ‘We can get to them’.

Incident 2 — charges 4 and 5

Three weeks later, on Friday 19 November 2021 at about 12:40 am, the appellant and two unknown co-offenders went to the Doncaster home of ‘Ms T’ and ‘Mr W’, who were at home with their two-year-old son. The offenders had their faces covered, wore gloves and were armed with a silver imitation handgun and a knife. Ms T and Mr W were downstairs in the study, with the window open. Their son was sleeping. One of the offenders reached through the window and pointed the imitation firearm at the victims, saying to the victims, ‘You know why were are here’. The offenders entered the house via the window, kept the gun pointed at the victims and demanded to know where the money was. When Ms T screamed and tried to activate the security system, one of the offenders put a hand over her mouth and held a knife to her throat, telling her to ‘shut up’. This offender then approached Mr W and held the knife to his throat, saying, ‘Don’t look at me, don’t move or I’ll kill you’. At the same time, the offender with the gun pointed it at Ms T.
The offenders took the victims to the lounge room. For about 40 minutes, the victims sat on the couch while one offender stood over them with the gun. The other offenders ransacked the house. One of the offenders asked the victims where the drugs and the safe were.
The offenders took the keys to a Toyota Hilux and a Mercedes wagon (valued at $320,000). They moved the Hilux from the drive and stole the Mercedes and other items, including jewellery, watches, accessories, clothing, luggage, a wallet, bank and credit cards and personal identification documents. As they left the house, they threatened to harm the victims if they called the police. The Mercedes wagon was abandoned at about 2:30 am the same morning.

Incident 3 — charges 6 and summary charge 37

On Friday 3 December 2021 an aggravated burglary was committed at a suburban home in Doncaster. The offenders stole a number of items including a 2008 Suzuki Galant Motorcycle and its keys.
On 6 December 2021, at around 9:40 pm, CCTV footage at a Shell Service Station in Epping captured the appellant riding the 2008 Suzuki motorcycle stolen in the aggravated burglary on 3 December 2021. The appellant ultimately pleaded guilty to handling stolen goods (charge 6) and driving while unlicensed (charge 37).

Arrest and search warrant — charges 7 and 8, summary charges 38 and 42

On 9 December 2021 police arrested the appellant at his Epping home. They also executed a search warrant and located items suspected of being the proceeds of crime (charge 42). They found the stolen Suzuki motorcycle (charge 6 and summary charge 37). They also found a number of vials containing 16 grams of testosterone and 11.8 grams of nandrolone (charges 7 and 8); and knuckle dusters and an extendable baton (charge 38).

Offences committed whilst on bail — summary charge 14

At the time of the Incident 1 offending, the appellant was on bail in relation to two charges of driving a motor vehicle without an experienced driver and two charges of driving without L plates displayed and was required by summons to appear at Heidelberg Magistrates’ Court on 16 March 2021.[10] The appellant failed to appear and a warrant was issued. On 20 July 2021, he was apprehended in relation to other matters and was released on bail. Summary charge 14 is a rolled-up charge of committing an indictable offence while on bail.
[10]See paragraph [5] of these reasons.
Plea hearing
At the plea hearing on 30 October 2023, the sentencing judge had before her a bundle of character references and three clinical reports concerning the appellant (a report prepared by forensic psychologist, Mr Jeffrey Cummins;[11] a report prepared by the Australian Forensic Therapeutic Rehabilitation Melbourne (‘AFTR’);[12] and a report prepared by clinical neuropsychologist, Mr Mathew Staios). Her Honour also received victim impact statements made by Mr and Mrs F. The prosecutor’s plea submission referenced a statement made by Ms T.
[11]Psychological report of Mr Jeffrey Cummins dated 26 October 2023 (‘Cummins Report’).
[12]Report of Australian Forensic Therapeutic Rehabilitation Melbourne dated 20 October 2023 (‘AFTR Report’).
The judge’s sentencing reasons (‘reasons’) state that the appellant was 21 years old at the time of the offending and that it was ‘clear’ from the references given by family and friends that the appellant had ‘the support of [his] family and [his] community’.[13] The reasons also record that the appellant was born in March 2000 in an immigration detention centre in Western Australia and was three years of age when he and his family left the detention centre.[14] The family settled in Melbourne when he was six.[15] When 12 or 13 years of age, the appellant began skipping school and smoking cannabis.[16] At around 15 years of age, he was the victim of two assaults; he required hospitalisation from the second assault after being struck and stabbed with a bottle.[17] Following these assaults, he began to engage in high risk behaviour such as joy riding in stolen cars.[18] He was expelled from school a number of times and dropped out after Year 9.[19] He subsequently took up a variety of jobs, including in construction, real estate and property development.[20]
[13]DPP v Alqassim [2023] VCC 2157, (‘Reasons’), [60].
[14]Reasons, [48].
[15]Ibid.
[16]Ibid [52], citing the Cummins Report, [28]; AFTR Report, [8.13].
[17]Reasons, [53], citing the Cummins Report, [22]; AFTR Report, [8.12.5] and [8.14].
[18]Reasons, [54]–[55], citing the AFTR Report, [8.15], [8.20].
[19]Reasons, [56].
[20]Ibid.
The reasons for sentencing
Gravity of offending
The sentencing judge described both Incident 1 and Incident 2 as serious instances of aggravated burglary and theft.[21] While the victims were unknown to the offenders, the judge found that, in both instances, the offending was pre-planned or premeditated.[22]
[21]Ibid [21] and [36].
[22]Ibid [20](iv) and [36].
In relation to Incident 1, the judge stated:
(i)The aggravated burglary involved three offenders, each of whom had taken steps to conceal their identity;
(ii)Each of the offenders [was] armed, one with a handgun which appeared to [Mr F] to be loaded with at least one round of ammunition;
(iii)The offenders appeared to have information about [the couple’s] safes, and were purposeful and persistent in accessing items from the safes;
(iv)Each of points two and three indicate that the offending was pre-planned;
(v)The offenders were bold and persistent in requiring [Mr F] to access money from an ATM;
(vi)The incident commenced late at night and lasted around an hour and a half; and
(vii)The [couple] were told not to call the police and their children were threatened.[23]
[23]Ibid [20].
The judge also found that the false imprisonment was a serious instance of that offence, being ‘carried out under threat of weapons in the presence of [Mr F] and whilst holding his wife hostage’.[24] Her Honour referred to the fact that Mr and Mrs F had given victim impact statements detailing the adverse effects of the offending on them.[25]
[24]Ibid [21].
[25]Ibid [22]–[23].
The judge also found that Incident 2 was a ‘serious instance of the offences of aggravated burglary and theft’.[26] Her Honour inferred that the offending was premeditated, since ‘you all had the equipment used with you — you each wore a disguise, and two of you were armed’.[27] As her Honour noted, the offenders entered the victims’ home ‘after midnight, well aware there were people present’.[28] During the incident ‘the knife was held to the throat’ of each victim.[29] Moreover, ‘[the] offending was in company, persistent and threats were made to each victim’.[30] In assessing the seriousness of Incident 2, her Honour noted that, while the value of the stolen items was unclear, the value of the Mercedes alone was $320,000 and cash amounting to $7,650 was also taken.[31]
[26]Ibid [36].
[27]Ibid.
[28]Ibid.
[29]Ibid.
[30]Ibid [37].
[31]Ibid [38].
The sentencing judge noted Ms T’s statement that the incident was ‘extremely scary, it’s honestly like a nightmare’.[32]
Appellant’s mental health assessments and drug use
[32]Ibid [35].
In her sentencing reasons, the judge gave specific attention to the mental health assessments in the reports of Mr Staios, Mr Cummins and the AFTR. In particular, her Honour noted that, in 2019, Mr Staios found that the appellant presented no evidence of having a cognitive impairment;[33] and in 2023, Mr Cummins diagnosed the appellant as suffering from complex post-traumatic stress disorder.[34] Her Honour observed that:
Based on your history of offending Mr Cummins considered that a diagnosis of Anti-Social Personality Disorder might be made, although he thought your offending might have been drug related. He noted a history of impulsivity, and a poorly defined sense of self, and chronically low self-esteem.[35]
[33]Ibid [63], citing the Staios Report, [7.1].
[34]Reasons, [65].
[35]Ibid [64].
Her Honour also took account of the appellant’s history of drug and alcohol use. Her Honour noted that the appellant attributed his ‘commencement of the use of drugs to the event in Iraq when [he was] 10’.[36] This was apparently a reference to the appellant’s statement to Mr Cummins that, during a family holiday in Iraq, he had been the victim of a traumatic assault by a 30-year-old family friend, and that this event had affected him ‘very much throughout his life’.[37] Her Honour also noted that the appellant reported smoking cannabis from ‘the ages of 12 or 13 or 14’ until his incarceration in mid-2018,[38] using cocaine from ‘14, 15 or 16 and also drinking … alcohol’,[39] and at 19 or 20, becoming addicted to methylamphetamine and often used GHB.[40] Her Honour found that ‘much of [the appellant’s] offending whilst he was using that drug was to fund his addiction’,[41] that the appellant began using Seroquel in mid-2020 ‘to wean’ himself off illicit drugs;[42] and that he also began to ‘abuse Lyrica at around the same time, having first been prescribed that drug for pain management when … stabbed in the leg in 2015’.[43]
Criminal history
[36]Ibid [66], citing the Cummins Report, [15].
[37]Reasons, [51], citing the Cummins Report, [15] and [31]
[38]Reasons, [66], citing the Staios Report, [3.7], the Cummins Report, [28], [and the AFTR Report, [8.13].
[39]Reasons, [67].
[40]Ibid, citing the Cummins Report [28].
[41]Reasons, [68].
[42]Ibid [69], citing the Cummins Report, [23] and [27].
[43]Reasons, [69], citing the Cummins Report, [27].
In her reasons, the judge referred to the fact that the appellant had ‘an extensive criminal history’, commencing from 15 years of age.[44] Her Honour noted that he was convicted of offences in the Children’s Court in 2015, 2016, 2017, 2018 and 2019, including for theft, aggravated burglary and driving related offences.[45] The appellant was first convicted of offences as an adult in April 2019, where he received an imprisonment sentence of 2 years and 11 months for offences of home invasion, burglary, theft and handling stolen goods.[46]

Matters raised in mitigation

[44]Reasons, [70].

[45]Ibid [70]–[71].

[46]Ibid [72].

In balancing the appellant’s young age and his serious criminal history, her Honour said:
You are now 23 years old. I accept that when sentencing a young man such as yourself, rehabilitation should usually be at the forefront of the considerations and that the need to promote your rehabilitation means that other factors, such as just punishment and general deterrence, may carry less weight.
On the other hand, you present with a serious criminal history and have committed these serious offences after serving time on remand in an adult prison, and then a sentence of [Youth Justice Centre], followed by Youth Parole. Where offending is serious, as here, the weight in mitigation to be given by reason of your youth is reduced and the emphasis on your rehabilitation does not extinguish the other sentencing goals and purposes.[47]
I accept that a sentence which would see you in prison for the balance or major part of your 20s would have the capacity to crush your hopes for the future and to make you less interested in seeking to address the causes of your offending. In taking this into account I have arrived at sentences which are significantly less than otherwise would have been imposed.[48]
[47]Citing DPP v Wol [2019] VSCA 268, [63] and Fisher v The Queen [2018] VSCA 222, [36].
[48]Reasons, [73]–[75].

Her Honour accepted that the appellant’s early guilty plea had saved the Court time and resources and avoided the need for the victims to give evidence in Court.[49] She accepted that the appellant was sorry for what he had done,[50] that the COVID-19 pandemic had made his time on remand more difficult, that he had completed a number of courses while on remand, began to engage with AFTR to address his alcohol and drug abuse,[51] and that he had ‘taken active steps to address the causes of [his] offending, whilst … on remand, and [had] done so with the prospect of future gaol time hanging over [his] head’.[52]

Rehabilitation prospects

[49]Ibid [76].

[50]Ibid [77], citing the Cummins Report [32]–[33].

[51]Reasons, [80]–[81].

[52]Ibid [84].

In relation to the appellant’s rehabilitation prospects, the judge commenced by noting that Mr Cummins had assessed the appellant’s risk of ‘future violent offending as Moderate-High’.[53] Her Honour continued:
One of the difficulties I have in assessing your prospects for rehabilitation is that when you presented before a Judge of this Court in 2019, you told her that you had had a wake-up call and were ready to address where your life was headed. You also expressed remorse providing a letter to the court on that occasion in which you apologised to the victim for the home invasion ... Whilst there was a period of around a two years between your release on parole … and this offending, in that time you became addicted to a new set of drugs, and then committed these very serious offences.[54]
At the same time, her Honour accepted that the appellant’s older brothers were ‘successful and supportive’, and that his parents provided him with a safe home.[55] She also noted that he had made important steps in his rehabilitation by engaging with AFTR.[56]

Final remarks on sentencing

[53]Ibid [85], citing the Cummins Report, [34].

[54]Reasons, [87].

[55]Ibid [89].

[56]Ibid [90].

Having characterised the offending in Incidents 1 and 2 as ‘very serious’, the judge found that the offending called for ‘denunciation, just punishment and deterrence, both specific and general’. Her Honour concluded:
I am sentencing you for three incidents, two of which involved serious aggravated burglaries. There must be cumulation between those incidents, and within the first two incidents, in particular. I am mindful of the need to not impose a crushing sentence, and to ensure that when imposing the orders for cumulation, I should take a final look to ensure that the total effective sentence is sufficient to address the combined offending, but not more. Because of the number of offences, some of which are very serious, the orders for cumulation I have arrived at are significantly lower than would otherwise have been appropriate.
Whilst I am very mindful of not imposing a crushing sentence, I cannot accede to your counsel’s submission that sentences which would enable you to be eligible for parole in the near future can be imposed. Such sentences would be wholly inadequate, in all the circumstances. I will set a shorter than usual non-parole period, but even doing so it means that you will not be eligible for parole for some time. [57]
[57]Ibid [93]–[94] (emphasis added).

Consideration — grounds 1 and 2

The substance of grounds 1 and 2 is that the partial cumulation of the individual sentences — relating to Incident 2 upon the sentences relating to Incident 1 — was manifestly excessive and paid insufficient attention to the principle of totality. It was submitted that this has resulted in a total effective sentence that is manifestly excessive.
Senior counsel for the appellant, in attractive oral submissions, contended as follows:
(a)The notional overall sentence for Incident 1 is 6 years and 3 months (comprised of the sentence imposed on charge 1 (5 years and 6 months) plus the cumulation ordered on charge 2 (3 months) and charge 3 (6 months)).
(b)The notional overall cumulation for Incident 2 is 3 years (comprised of the cumulation ordered on charge 4 (2 years) and charge 5 (12 months)).
(c)This amounts to nearly 50% cumulation of Incident 2 (3 years) on the notional sentence on Incident 1 (6 years and 3 months).
(d)This seems to be a very large cumulation and invites scrutiny.
The submission was developed by reference to her Honour’s reasons for sentence, particularly paragraphs [73]–[75][58] and [93]–[95].[59] It is clear, so the submission contended, that the judge intended to avoid imposing a ‘crushing sentence’[60] that would ‘see [the appellant] in prison for the balance or major part of 20s and crush [his] hopes for the future’.[61] Accepting this to be the case, however, the sentence then imposed on the appellant will not expire until he is aged 31 years, going on 32 years.[62] Senior counsel submitted that this illustrates that the orders for cumulation of Incident 2 are manifestly excessive and result in exactly the outcome the judge was trying to avoid. These submissions were directed to both grounds 1 and 2.
[58]See paragraph [28] of these reasons for judgment.
[59]See paragraph [31] of these reasons for judgment.
[60]Reasons, [93], [94].
[61]Ibid [75].
[62]At the time of sentencing (20 November 2023), the appellant was aged 23 years and 7 months (his birthdate is 26 March 2000). The appellant’s total effective sentence is 10 years and 1 month and he had served 711 days as pre-sentence detention, which is effectively 2 years. Thus, his sentence will expire 8 years and 1 month from 20 November 2023. That is December 2031, when the appellant will be aged 31 years and close to turning 32 years.
The respondent submitted that her Honour’s remarks in paragraphs [75] and [93] of the reasons need to be viewed in the context of her overall sentencing remarks and should be seen as no more than a global statement of principle to be considered alongside all other relevant sentencing principles. The offending in both Incident 1 and Incident 2 was very serious and entirely discrete, separated temporally and geographically and with different victims. It was further argued that, but for the compressive effects of the totality principle, the offending conduct in both incidents would have allowed for a total effective sentence considerably longer than in fact was ultimately imposed, despite the appellant’s relative youth.
After anxious consideration, we have concluded that these grounds of appeal ought to be dismissed. It must be borne steadily in mind that this was a two-transaction sequence of outrageous criminality. It bears a little repetition. Incident 1 involved an aggravated burglary with just about every conceivable circumstance of aggravation.[63] Armed with weapons and covered faces, the appellant and co-offenders forced entry into the victims’ home. Their intentions were to steal.[64] They approached their victims in bed and pointed a gun in the male victim’s face.[65] The offenders falsely imprisoned the male victim, held the female victim effectively as hostage, stole from the victims, and threatened to return and harm their children.[66] This disgraceful criminality took place over hours. The victims were and remain completely traumatised.[67]
[63]Aggravating features includes circumstances where the offender is carrying a weapon at the time of entry, knows or is reckless to the fact that a person is present in the building at the time of entry, has an intent to steal/assault/cause damage, uses forced entry, is accompanied by others, and where the victims are particularly frightened: DPP v Meyers (2014) 44 VR 486, 419 [25]–[26], 498 [48]; [2014] VCC 314 (Maxwell P, Redlich and Osborn JJA). Offending that takes place late at night or in the early hours of the morning is a further aggravating feature: at 495 [38], 496 [40], 497 [43].
[64]Reasons, [4].
[65] See paragraphs [5]–[10] of these reasons for judgment.
[66] Ibid.
[67]The victim impact statements tendered at the plea hearing describes how Mr F has trouble sleeping, frequently relives the incident in his mind (particularly the gun), and has installed increased security to try to feel more safe. Mrs F’s statement describes having regular nightmares and panic attacks, being easily frightened and remaining fearful that a similar incident may recur. Mrs F stated she wears a panic alarm around her neck when she is alone. Both victims were undertaking counselling following the incident.
Three weeks later, in a separate incident, the appellant — again, with two co-offenders — carried out further very similar criminal conduct. This activity was no less objectively grave than Incident 1. Early in the morning, the armed intruders confronted the victims through an open window, pointing at them a realistic imitation firearm. The offenders’ faces were covered and they wore gloves. After entering through the window, the offenders continued terrorising the young couple. A knife was held at both victims’ throats at various times. One of the intruders threatened to kill the male victim. The house was ransacked and a $320,000 Mercedes Benz was stolen along with jewellery, watches, accessories, clothing, luggage, a wallet, credit and debit cards, and personal identification documents. This incident took approximately 40 minutes and occurred while the victims’ two year old son was sleeping.[68] The two adult victims were thoroughly traumatised, and remained so as at the date of the plea hearing.
[68] See paragraphs [11]–[13] of these reasons for judgment.
Senior counsel made good his argument that the cumulation of about 50% of the Incident 2 offences was greater than is often seen in multiple offence sentences. So much can be accepted. This is quite different, though, to demonstrating that this larger than usual cumulation is manifestly excessive. In our view, notwithstanding the appellant’s relative youth and other mitigating factors, the objective gravity of the offending calls for stern sentences and significant cumulation.
As we have observed, senior counsel for the appellant relied on statements made by the judge in her sentencing remarks to endeavour to demonstrate that the cumulation produced a total effective sentence that was ‘crushing’. We shall not repeat those arguments which are set out at paragraphs [33]–[34] of these reasons. We consider that, viewed in the overall context of her conscientious sentencing remarks, her Honour considered that the need to avoid a crushing sentence was but one of a suite of sentencing factors that required consideration.
If her Honour’s reference to ‘the need not to impose a crushing sentence’ that ‘would see [the appellant] in prison for the balance or a major part of [his] 20s’[69] was a reference to the charitably low minimum non-parole period of 5 years and 6 months (which is 54% of the total effective sentence), then this would have been an error as sentencing judges are required to proceed on the basis that an accused will serve his or her full sentence.[70] If it is, however, an error, it leads nowhere in advancing these two grounds of appeal. For the reasons we have expressed we consider that the substantial cumulation ordered by the judge was within range and appropriate given the objective gravity of both sets of offending.[71]
[69]Reasons, [75].
[70]A court must not have regard to any possibility or likelihood that the offender will be affected by executive action of any kind: Sentencing Act 1991, s 5(2AA).
[71]The imposition of less severe individual sentences may call for greater cumulation to reflect total criminality where more severe individual sentences may require greater concurrency: Nguyen v The Queen (2016) 256 CLR 626, 677-8 [64]; [2016] HCA 17. Furthermore, a sentencing judge or court may approach a sentencing task differently and this does not demonstrate error, especially if the total effective sentence and the non-parole period are within range: Cay v The Queen (2010) 29 VR 560, 569 [58] (Nettle JA).
As such, grounds 1 and 2 must be refused.

Consideration — ground 3

Grounds 1 and 2 proceeded for the purposes of argument on the basis that sentences imposed for each individual offence were unchallenged. What was challenged under those grounds was the cumulation and the consequent total effective sentence. Ground 3 challenges the total effective sentence in another way: by challenging the individual sentences imposed.
In oral argument the appellant was content to rely on his written case, in particular:
In imposing sentence upon the [appellant], the learned sentencing judge accepted most of the submissions which had been made on his behalf concerning the mitigating factors to be taken into account. The learned sentencing judge thereby imposed sentence on the basis that:
(i) although the [appellant] was 23 years old, the weight to be given to the [appellant’s] youth and the need to promote his rehabilitation was to be reduced because he had a ‘serious criminal history’ and these offences were ‘serious’;
(ii) the [appellant] had indicated an intention to plead guilty at a ‘relatively early stage’, with the consequence that there were savings of time and court usage, and the various victims were not required to give evidence in court;
(iii) the utilitarian value of the resolution of the prosecution was greater than otherwise by reason of the impact of the COVID-19 pandemic on court listings;
(iv) the [appellant] had expressed remorse for his offending;
(v) the conditions under which the [appellant] had been remanded in custody were onerous by reason of the effects of the COVID-19 pandemic;
(vi) the [appellant] had put his time on remand to good use, having completed various certificates, engaged in alcohol and drug rehabilitation and read about his religion, returning to a practice of prayer;
(vii) the [appellant] had had a traumatic background; and
(viii) the [appellant’s] prospects of rehabilitation were ‘guarded’.
The appellant submitted that these factors, together with the judge’s remarks at paragraphs [75] and [93] of her sentencing reasons concerning the ‘need to not impose a crushing sentence’,[72] ought to lead to the conclusion that the total effective sentence was manifestly excessive for a 23-year-old offender, as were the individual sentences for charges 1 to 5.[73]
[72]Reasons, [93]. See paragraph [31] above of these reasons for judgment.
[73]The sentences on charges 6–8 were not challenged in this appeal.
As this Court has observed on many occasions, grounds of manifest excess are difficult to establish.[74] What must be demonstrated is that the impugned sentence or sentences are wholly beyond the range available to a sentencing judge in the proper exercise of his or her sentencing discretion.[75] The sentence must bespeak underlying error.[76] Put another way, it must be demonstrated 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.’[77]
[74]See, e.g. Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157 (‘Clarkson’).
[75]Ibid; Rohen v The King [2024] VSCA 1, [123] (Priest, Taylor and Boyce JJA).
[76]Ibid.
[77]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
The sentencing judge carefully detailed the appellant’s personal circumstances, including childhood experiences, substance abuse and mental health issues. Her Honour also made clear and careful reference to the matters on which the appellant relied in mitigation, including his guilty pleas and evidence of remorse.
Both the appellant’s youth and his significant criminal history properly fell for consideration in the sentencing synthesis. This history included a sentence of 9 months in a Youth Justice Centre (for offending similar to some of that involved here) and, more recently, in 2019, a sentence of 2 years and 11 months’ detention in a Youth Justice Centre also for similar offending to that involved here. This history was highly relevant and led her Honour to be cautious about the appellant’s rehabilitation prospects.
At the same time, the sentencing judge clearly appreciated the need to take account of the appellant’s youth and give appropriate weight to prospects of rehabilitation, whilst consistently with Azzopardi v The Queen[78] acknowledging that these considerations were to some extent diminished in his case by the other sentencing principles.
[78](2011) 35 VR 43.
On the face of the sentencing reasons, the appellant’s personal circumstances and matters in mitigation were given proper consideration. This ground does not allege specific sentencing error, however. It contends that there must be some inferred underlying sentencing error.
It will be recalled that her Honour’s expressed aspiration to avoid a crushing sentence was referred to under grounds 1 and 2 herein. We repeat our response to that submission.[79] In short, when those statements are read in context, it is clear to us that this aspiration was an important moderating factor in the judge’s overall sentence. It could not, however, assume a dominance over other factors such as to produce a sentence that was unjust or inappropriately lenient in all the circumstances. It is unnecessary to rehearse the outrageous criminality one more time. That criminality demanded appropriate weight in the sentencing calculus, as it impacted deterrence (both specific and general), protection of the community, denunciation and just punishment. And it received it.
[79]See paragraphs [38]–[40] of these reasons for judgment.
Further, an examination of the specific sentences imposed reveals that each of them, without exception, was in all the circumstances moderate. The most serious offences (the aggravated burglary offences) resulted in head sentences that were 22% and 20% of the maximum sentences available for that offending. The other sentences were similarly moderate when viewed against all the circumstances, including the maximum penalties available. The parties referred the Court to numerous cases as illustrative of current sentencing practices. These cases included Stowers & Phillips v The King,[80] Brown v The Queen,[81] DPP v Wol,[82] Sikoulabout v The Queen,[83] Akoka v The Queen,[84] and Dughettti v The Queen,[85] DPP v Meyers[86] and Hogarth v The Queen.[87] None of these would lead to a contrary conclusion, bearing in mind the facts and circumstances disclosed in each of them.
[80][2022] VSCA 203.
[81][2021] VSCA 204.
[82][2019] VSCA 268.
[83][2018] VSCA 268.
[84][2017] VSCA 214.
[85][2019] VSCA 217.
[86](2014) 44 VR 486; [2014] VSCA 314.
[87](2012) 37 VR 658; [2012] VSCA 302.
The appellant has failed to establish this ground. The appeal against sentence must be refused.

Conclusion

For the reasons stated above, the appeal is dismissed.
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[2024] VSCA 302

10 December 2024