Bonacci v The Queen
[2012] VSCA 170
•3 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0056
| LUKE BONACCI | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
S APCR 2011 0062
| GUISEPPE VASILE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE, MANDIE and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 February 2012 | |
DATE OF JUDGMENT: | 3 August 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 170 | First Revision: 13 August 2012 |
JUDGMENT APPEALED FROM: | DPP v Bonacci and Vasile (Unreported, County Court of Victoria, Judge Dean, 4 March 2011) | |
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CRIMINAL LAW – Sentence – Aggravated burglary, common assault and armed robbery – Crimes Act 1958, s 77(1) – Additional charges faced by Vasile of being a prohibited person in possession of an unregistered firearm and possession of a prohibited substance – Home invasion of occupied premises while disguised and carrying unloaded firearm, a crowbar and a hunting knife – Indictment did not include reference to knowledge or expectation that persons were present at the premises in the charge of aggravated burglary – Pleas of guilty – Both offenders sentenced to same sentences for offences for which they were jointly indicted – Vasile sentenced to total effective sentence of imprisonment for eight years six months – Non-parole period of six years – Bonacci sentenced to total effective sentence of imprisonment for eight years – Non-parole period of five years – Whether sentencing judge erred in taking into account that persons were present at the premises when imposing sentence for aggravated burglary – R v De Simoni (1981) 147 CLR 383 and R v Newman and Turnbull [1997] 1 VR 146 distinguished – Parity – Prospects of rehabilitation, relevance of prior convictions and effect of Vasile giving evidence about remorse – Appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Bonacci | Mr P J Matthews | Marich Legal Pty Ltd |
| For the Appellant Vasile | Mr M J Croucher SC | Robert Stary Lawyers |
| For the Respondent | Mrs C M Quin | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
MANDIE JA
HARPER JA:
At some point in their lives most people probably try, with some success, to imagine what it would be like. It is dark, because sunrise is hours away. A masked stranger is at the end of the bed. His or her mere presence (although the presence is seldom that of a female) is more than a direct and immediate violation of one’s privacy – it is a massive insult to one’s sense of self. And its inherent menace is magnified when physical harm is threatened; or, worse, inflicted.
This was the reality for Mr Dennis Antonopoulos and his wife Akridi Antonopoulos in the early hours of Monday 19 April 2010. They were elderly. They were asleep upstairs when two intruders, the present appellants, used a crowbar to force open the front door of their home. In addition to the crowbar, the intruders were armed with an unloaded sawn-off double-barrel shotgun and a hunting knife. Both were wearing black beanies, pulled over their faces. After a day spent drinking alcohol and consuming illicit drugs, including methylamphetamine, the two had persuaded themselves that the couple, who operated a manchester stall at a market in the eastern suburbs of Melbourne, had a large sum of cash in their house. One of the two, the appellant Luke Bonacci, knew the victims because he had gone to school with their son Con. Through that connection he had, some years before, visited their house.
Bonacci and the other appellant, Guiseppe Vasile, decided they would break into the house and steal the money they thought would be there. Not that they had any need for it. Vasile, in particular, had reached middle age with a record of hard work and financial security; but both appellants had good work records, and neither had any history of the behaviour which both exhibited during the inexcusably aberrant madness of 19 April 2010. Indeed, if demonstration were needed, the materials placed before this Court on this appeal starkly demonstrate the evil for which drugs - methylamphetamine perhaps in particular – can be responsible. If the appellants have a conscience, and we have little doubt that they have, drugs robbed them of it that night.
This is by no means to deny that they are responsible for what they did. They knew that what they were doing was wrong. They must also have known that, merely by being armed, the threat posed by their presence would be magnified in the minds of their victims. And in their drug-affected criminality they intended that, if actual violence were necessary, they would employ their weapons to inflict it.
Having reconnoitred the premises, the appellants departed to obtain their equipment. They returned about an hour and a half later. They brought with them tape and plastic ribbon with which to restrain the occupants should that need arise.
Both Mr and Mrs Antonopoulos were awakened from their sleep by the sound of the appellants yelling at them. They were thereafter threatened and, at times, tied up and gagged, as the two offenders searched and ransacked the house for about an hour. The telephone lines in the bedroom and the kitchen were cut. At an early point in the proceedings Mrs Antonopoulos was struck to the forehead with the crowbar. At another, the appellant Vasile opened the gun by breaking it in the middle, pretended to put bullets into it (a pretence which may or may not have been detected by the victim) and then placed the barrel in Mr Antonopoulos’s mouth. At the same time, he persisted with his shouted demand that he be told where ‘the money from today’s market’ was. Later, while downstairs in the kitchen, Mrs Antonopoulos was able to free herself from her restraints and attempted to run across the road to a neighbour’s home. The appellant Vasile caught her in the front garden and took her back into her house, holding his hand over her mouth, and instructing her not to call out. Both victims feared for their lives. Both suffered cuts and bruises; but, mercifully, no more serious physical injuries. The psychological impact could not have been otherwise than severe, perhaps devastating.
The benefit gained by the appellants from these acts of gross criminality was the sum of $30 in cash, various items of jewellery, and a watch. When, on 20 April 2010, the police searched Vasile’s home, they found the shotgun and the stolen jewellery. The beanies were discovered at premises occupied by Bonacci.
Both men were arrested and initially charged with numerous offences, including two of aggravated burglary. This, as s 77 (1) of the Crimes Act1958 makes clear, is a special category of the offence of burglary (that is, of the offence committed when a building is entered with an intent to steal, or to commit an assault on a person inside, or to damage the building or any property in it). According to s 77 (1), aggravated burglary is committed if at the time of the burglary (a) the burglar has with him or her a real or imitation offensive weapon (including a firearm) or explosive materials, or (b) a person was to the knowledge of the burglar in the building, or the burglar was reckless about whether someone was or was not present.
The statutory definition of aggravated burglary gives rise to one of the issues before the Court on this appeal. Many such crimes, including that of Monday 19 April 2010, are committed when both of the elements to which the section refers are involved: that is, when the building in question is entered by burglars who are not only armed as described in the section, but who also know that a person is inside, or are reckless about that possibility.
In our opinion, it would be wrong in such circumstances to charge an offender twice for this offence. Although each of the alternative forms of the offence were committed, their commission was, it seems to us, so inextricably intertwined as to be part of a single act of criminality.
Initially, however, the Crown took the opposite position. It charged both appellants not only with one count of aggravated burglary, characterised as such because the offenders knew that persons were present, but also with another, separate, count of the same offence - on this occasion alleging that the offence involved entry into the Antonopoulos’ home while bearing a firearm.
Negotiations followed. On 6 May 2010, Mr Vasile’s solicitor offered on behalf of his client to plead to one count of aggravated burglary while armed with an offensive weapon. This by letter dated 21 September 2010 became an offer to plead to ‘Aggravated burglary persons present/armed with an offensive weapon.’ Six days later, by letter dated 27 September, the Crown accepted this offer, noting that ‘The matter will proceed as a ... plea of guilty to aggravated burglary/intent to steal/person present and armed’.
For some reason not explained to this Court, probably because it is inexplicable, the Crown failed to frame the indictment in that way. It presented the appellants on a single indictment which included four charges (charges 1-4) in which both were named as co-offenders. Charge 1 alleged that on 19 April 2010 the two ‘entered as trespassers a building [identified by its address] with intent to steal therein and at the time Giuseppe Vasile had with him a firearm and an offensive weapon namely a knife and Luke Bonacci had with him an offensive weapon namely a crowbar.’ As part of the pleading of the first charge, under the sub-heading ‘Statement of offence’ there appeared the words ‘Aggravated burglary contrary to section 77(1) of the Crimes Act 1958’. The indictment did not allege that the appellants knew that, at the time of entry into the building, a person was then present, or were reckless as to whether a person might be present.
Charge 2 alleged that the appellants assaulted Mrs Antonopoulos; charge 3 that they assaulted her husband. The fourth charge was that on 19 April 2010 they ‘robbed Akrivi Antonopoulos of a quantity of jewellery and at the time Giuseppe Vasile had with him a firearm and Luke Bonacci had with him an offensive weapon namely a knife and a crowbar.’
Vasile faced additional charges: being a prohibited person in possession of an unregistered firearm (charge 5); and being in possession of drugs of dependence, namely methylamphetamine (charge 6) and cannabis L (charge 7). For his part, Bonacci alone was charged with using a drug of dependence, namely methylamphetamine.
Both appellants were on 4 March 2011 sentenced by the same judge at the same time; Vasile as follows:
Charge on Indict. Offence Maximum Sentence Cumulation 1 Aggravated burglary 25 y. 5 y. Base 2 Common assault 5 years’ imp. 18 m. 6 m. 3 Common assault 5 years’ imp. 18 m. 6 m. 4 Armed robbery 25 years’ imp. 4 y. 2 y. 5 Prohibited person possessing an unregistered firearm 15 years’ imp. or 1800 penalty units 12 m. 6 m. 6 Possession of a drug of dependence (Methylamphetamine) 30 penalty units or 1 year imp. $750 NA 7 Possession of a drug of dependence (Cannabis) 5 penalty units $300 NA Summ. Charge Use of amphetamine 30 penalty units or 12 months’ imp. $750 NA Summ. Charge Possession of a prohibited weapon (taser gun) 240 penalty units or 2 years’ imp. $1000 NA Summ. Charge Possession of a prohibited weapon (samurai sword) 240 penalty units or 2 years’ imp. $1000 NA Total Effective Sentence:
8 years, 6 months’ imp.
Fine of $3800Non-Parole Period:
6 years’ imp.
Pre-sentence Detention Declared: 33 days’ imp. 6AAA Statement: TES: 10 years, 6 months’ imp.
NPP: 8 years’ imp.Other orders:
- Disposal order
- Forensic sample order
- Forfeiture order
The sentences imposed upon Bonacci for the four offences committed by him as a co-offender were the same as for Vasile. On the charge of using methylamphetamine he was fined $750.
Both appellants have obtained leave to appeal. Vasile originally sought his leave on two grounds, but on 5 August 2011, Nettle JA rejected both. There has been no exercise of the right of election. At the same time, however, Nettle JA granted leave to appeal on a further ground, which his Honour allowed Vasile to add. Both appellants now seek to rely upon it, and Bonacci’s application in that behalf was granted by this Court. As set out in Vasile’s amended written case, the additional ground is that:
The learned sentencing judge erred in sentencing on Charge 1 as if it were in effect a charge of aggravated burglary with additional aggravating factors of persons being present at the premises and knowledge thereof and/or an intention to assault persons therein when the charge was pleaded only as alleging an intention to steal and possession of a firearm and an offensive weapon.
We reject this ground. The appellants committed but one act of aggravated burglary on 19 April 2010. The failure of the indictment to allege that at the time the burglars entered the house they knew that Mr and Mrs Antonopoulos were present constituted a defect in the indictment. But it was a defect in pleading which did not extend to a substantive defect in the framing of the charge such as to render the indictment to that extent invalid. The Crown alleged that, contrary to s 77(1) of the Crimes Act (which sub-section encompasses each of the two alternative forms of the offence) both accused committed an act of aggravated burglary. That allegation was pleaded in the indictment.
In these circumstances, the defect in the indictment might have misled the appellants into thinking that the Crown would not rely upon the fact that they entered the Antonopoulos’ home either knowing or expecting that Mr and Mrs Antonopoulos would be present. If so, there might have been grounds for legitimate complaint: the appellants might have pleaded guilty on a false assumption, induced by the Crown, about the case the Crown intended to put against them.
In fact, however, the appellants were not misled. They knew well before the hearing of the plea that the Crown would put its case in the way it did. There was no element of surprise. Accordingly, neither appellant made any complaint to the sentencing judge about the way the case was put by the Crown on the plea. On the contrary, all sides conducted the plea on a common basis as to the facts of the offending, which from the time of the first interviews between the appellants and the police were never substantially in dispute. Hence the offer, made by Vasile on 21 September 2010, to plead guilty to a charge of ‘[a]ggravated burglary persons present/armed with an offensive weapon’.
The judge was therefore not merely entitled, but bound, to take into account in the sentencing exercise that both appellants not only knew, or at least expected, that the house would be occupied, but planned the burglary on that basis. They anticipated that they would be told by one or other or both of Mr and Mrs Antonopoulos where to find the takings which the appellants intended to steal.
An attempt was made, on the hearing of the appeal, to link this case with those of R v De Simoni[1] and R v Newman and Turnbull.[2] There is no link. Those two cases are quite different from that now before this Court.
[1](1981) 147 CLR 383 (‘De Simoni’).
[2][1997] 1 VR 146 (‘Newman’).
De Simoni had pleaded guilty to stealing with actual violence. Under the relevant Western Australian legislation, this constituted the offence of robbery, which was defined as stealing when immediately before, or at the time of, or immediately after, the theft, the offender uses or threatens to use actual violence. The maximum sentence for robbery simpliciter was imprisonment for 14 years; but the legislation also provided that if the offender was armed with an offensive weapon, or wounded the victim, or was in company, the maximum penalty was imprisonment for life, with a whipping. The legislation further provided that a ‘circumstance of aggravation’ included any circumstance ‘by reason whereof an offender is liable to a greater punishment’, and that, if it was intended to be relied upon, it must be charged in the indictment.
After the plea was entered, the Crown asserted that the victim had been struck a heavy blow, inflicting a wound. It did not, however, contend that the higher maximum penalty applied. The High Court held that where an accused had been convicted of robbery in the course of which he wounded the victim and the indictment charged that he had used actual violence, the sentencing judge was entitled to take the actual violence into account but not any wounding caused by it. The wounding was purely a circumstance of aggravation. It was not an element in the offence of robbery; and it had not been charged in the indictment.
The relevant statutory provision in the present case is quite different from that in De Simoni. The present case is one of aggravated burglary, not one of stealing with actual violence. An element, albeit on occasion an alternative rather than a necessary element, of aggravated burglary, is that entry into premises occurs with the knowledge that a person is inside. Where it is alleged that an aggravated burglary was constituted by burglars who not only had a weapon or explosive materials with them, but also effected their entry into the subject premises with the knowledge that a person was inside, both elements should generally, if not invariably, be pleaded in the indictment. But that is so because good pleading practice requires as much, not because either element is an aggravating circumstance which is caught by legislation relevantly similar to that of Western Australia. At present, there is no such Victorian legislation.
In De Simoni Gibbs CJ referred to the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence. His Honour then observed that this principle is nevertheless:
… subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. … . The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[3] (emphasis added)
[3](1981) 147 CLR 383, 389 (Gibbs CJ; Mason and Murphy JJ agreeing).
In the present case, that problem does not arise. The ‘circumstances of aggravation’ surrounding this offence gave rise to one charge of aggravated burglary, not two. For the reasons to which we have already referred, those circumstances would not entitle the Crown to allege, or the court to convict of, a second offence of aggravated burglary – let alone a more serious offence.
De Simoni was applied in Newman. The offenders sought leave to appeal against the sentences imposed upon them following their pleas of guilty to one charge of aggravated burglary and one of unlawful damage to property. The victim had claimed compensation from Newman’s brother following a traffic accident. Compensation was not forthcoming. The victim remained dissatisfied, with the result that a feud arose between him and the Newman family. The offenders took the law into their own hands: they broke windows in the victim’s house, and then forced their way into the victim’s bedroom, where he was struck with an axe handle. The report of the case does not reveal what was stolen as part of the burglary; but that fact was not relevant to the Court’s decision.
The decision of this Court in Newman’s case was based upon the fundamental principle enunciated by Gibbs CJ in De Simoni: the principle that no-one should be punished for an offence with which they have not been charged. Newman and Turnbull had been sentenced for their assault on the victim, although assault was not an offence with which either had been charged or to which either had pleaded. They had, of course, pleaded to aggravated burglary; but assault is not an element of that offence.
Again, the present case is different. The conduct of Vasile and Bonacci on 19 April 2010 justified their being separately charged with assault. They were so charged; and they both pleaded guilty to those charges. They were sentenced accordingly.
In his revised written case, Vasile contends that, although there was never any formal allegation within the first charge of an intention to assault anybody in the house, nevertheless the sentencing judge sentenced on charge 1 (aggravated burglary) as if that allegation was an aggravating feature of the charge. This contention, however, fails to identify the true legal basis for judge’s approach. This was that the criminality associated with the appellants’ entry was to be judged against the circumstance that they knew or suspected that persons were inside the house at the time. As we have already observed, his Honour was entitled to approach his sentencing task in this way.[4]
[4]See [22] above.
For these reasons Vasile cannot successfully argue that the sentences imposed upon him were illegitimately increased because the sentencing judge took into account Vasile’s knowledge of the likelihood that Mr Antonopoulos and his wife were at home.
There remains Bonacci’s contention that the principle of parity was violated by his Honour when sentencing that appellant for the four crimes which he committed jointly with Vasile. The judge observed, when in his reasons for sentence he was addressing Vasile, that by contrast to Bonacci, Vasile had ‘a significant prior criminal history’ and, furthermore that ‘Bonacci’s prospects for rehabilitation must be regarded more favourably than yours.’[5] Yet the sentences imposed upon Bonacci for the charges they faced in common were precisely the same as those imposed upon Vasile.
[5]Reasons for sentence [59].
There thus exists a disconformity between what his Honour said and what his Honour did. Bonacci contends that this gives rise in him to a justifiable sense of grievance; and it is trite law that such a grievance will found a successful application for an adjustment in sentence sufficient to remove it.
It is unfortunate that the sentencing process has in this case given rise to such a state of affairs. Either the judge was wrong to differentiate the two appellants, as for this sentencing purpose he did; or it was wrong for his Honour to fail to reflect that differential in different sentences.
Were we to re-sentence Bonacci on the basis that his Honour made an error in imposing on Bonacci the same sentence as he did on Vasile because of the latter’s record and less favourable prospects of rehabilitation, we could not avoid assessing for ourselves what those factors amounted to. It is to that exercise that we now turn.
At first approach, the answer seems clear. If Vasile had a significant prior criminal history while Bonacci did not, and if the latter’s prospects for rehabilitation must be regarded more favourably than those of the former, then some differentiation in their punishments would seem to follow as of course.
The difficulty is that a careful review of facts leads to neither conclusion. Vasile did have convictions for drug-related offences. But he has never before the present case been punished by actual incarceration; his prison sentences were wholly suspended. Moreover, and more importantly, he has never before the present case been sentenced for burglary - let alone aggravated burglary - or assault, or robbery - let alone armed robbery. On this basis, we differ from the sentencing judge in his description of Vasile’s prior convictions as being relevantly ‘significant’ for sentencing purposes.
It must always be remembered that no-one is to be sentenced twice for the same offence. Vasile has been punished for the offences which he committed before the events of 19 April 2010. He cannot be punished for them again. Those offences are only relevant to the extent that they touch upon the genuineness of his remorse, or his prospects of rehabilitation, or the protection of the public.
The sentencing judge found that Bonacci’s prospects for rehabilitation were more favourable than those of Vasile. On the other hand, Vasile gave evidence on the plea. During the course of his evidence he on three occasions, twice in examination in chief, and once in re-examination, evinced what appears from the transcript to be unusually genuine remorse. In his evidence in chief he said that he was:
Extremely sorry for what I’ve done. … I do apologise to the elderly couple that were involved in what’s happened. I hope they’re OK and that they don’t have any ongoing suffering for what I’ve – what’s happened to them. And I’m just really sorry for whatever I’ve done to these people … . I’ve always been an honest, hardworking man. And I don’t know what came over me.[6]
[6]Plea transcript, 28.
Vasile was further asked in chief whether he accepted responsibility for the offending of 19 April 2010. He replied:
Definitely. One hundred percent … and I feel sorry for what I’ve done and I just don’t understand what came over me at the time but I feel sorry for these people as well. Like I’ve got elderly parents at home and the last thing I’d wish upon them is someone to do that to my parents.[7]
[7]Ibid 31.
Vasile’s evidence about his remorse was not challenged in cross-examination. In re-examination, Vasile’s counsel nevertheless seized the moment to have his client re-iterate that he was ‘very sorry for these old people … it’s the worst thing for anybody to have to experience’.
The judge made no comment, either during the course of the plea nor in his sentencing remarks, about the unusual circumstance that an offender gave sworn evidence on his plea in support of the proposition that he was remorseful. Yet not only is such evidence unusual; if it is unchallenged, or unsuccessfully challenged, it is generally the most powerful evidence possible of genuine remorse. It might of course be inherently implausible. The Crown did not suggest so in Vasile’s case, and the judge made no such finding.
Bonacci gave no evidence. Furthermore, as the Crown informed the sentencing judge, Vasile ‘gave a very detailed record of interview’ to the police in which ‘he made detailed admissions’. By contrast, as again the Crown informed the judge on the plea, Bonacci’s record of interview contains ‘scant detail’.
One further factor must, however, be taken into account. Vasile’s history of using illicit drugs must be assessed as a relevant factor apart from his drug-related convictions. It is true that in cross-examination he agreed that he had been using drugs for a long time, although only - as he said - ‘in short stints’.[8] A little later in his evidence he maintained that he had not since 19 April 2010 taken illicit drugs, and before that had been ‘pretty much clean.’[9] The possibility of relapse nevertheless necessarily remains. With a relapse could come further offending, as has already happened. Genuine remorse is the best possible barrier to such an eventuality, but not a guarantee against it.
[8]Plea transcript, 33.
[9]Ibid 34.
Here, however, Vasile is to be distinguished from Bonacci. There is sworn evidence of his remorse. There is no equivalent evidence from Bonacci. This must tell strongly in Vasile’s favour, to the extent that, were it ignored - with the result that Bonacci received a lesser sentence than did Vasile - the latter would have a justifiable sense of grievance. Indeed, given the importance of genuine remorse as a factor indicative of rehabilitation, it in our opinion negates the conclusion that his prospects for rehabilitation are less favourable than those of Bonacci. Moreover, now that he has experienced actual incarceration, it is to be hoped that he has learnt the lesson which his earlier convictions failed to teach.
In the result, having taken into account for ourselves all the material put before this Court on the issue of parity, we have come to the conclusion that Bonacci does not deserve a less severe sentence than Vasile on any of the offences for which they were jointly indicted.
In our opinion, both appeals should be dismissed.
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