Bradshaw v The Queen
[2017] VSCA 273
•26 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0080
| JOEL BRADSHAW | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | WARREN CJ, KYROU and REDLICH JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 28 July 2017 | |
| DATE OF ORDERS | 28 July 2017 | |
| DATE OF PUBLICATION OF REASONS: | 26 September 2017 | |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 273 | 1st revision: 27 September 2017; paragraph 1 |
| JUDGMENT APPEALED FROM: | [2017] VCC 392 (Judge Hicks) | |
---
CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Common assault – Total effective sentence of two years and six months’ detention in a Youth Justice Centre – Whether judge erred in assessment of offence gravity – Whether judge erred in considering objective gravity of confrontational aggravated burglary precluded community correction order (‘CCO’) – Role of consistency in sentencing and individualised justice in instinctive synthesis – Youth and excellent prospects of rehabilitation required consideration of non-custodial sentence – Specific error – Appeal allowed – Appellant resentenced to time served in Youth Justice Centre and a CCO – Boulton v The Queen (2014) 46 VR 308; Hogarth v The Queen (2012) 37 VR 658 discussed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Mylonas | Brown McComish |
| For the Respondent | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
WARREN CJ:
I have had the considerable benefit of reading in draft the joint judgment of Kyrou and Redlich JJA. Substantially for the reasons of their Honours, I would allow the appeal on ground 2 and not allow the appeal on grounds 1 and 3.
For my part, I would not consider it necessary in this case to analyse the subject of consistency in sentencing other than to note that the view of counsel for the Director was out of kilter with well-established High Court authority on the point.
KYROU JA
REDLICH JA:
The appellant pleaded guilty in the County Court of Victoria to one charge of aggravated burglary and one charge of common assault. He was sentenced on 6 April 2017 as follows:[1]
[1]DPP v Bradshaw [2017] VCC 392 (‘Reasons’).
Charge
Offence
Maximum term of imprisonment
Sentence
1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years 2 years and 6 months’ detention in a Youth Justice Centre (aggregate) 2 Common assault [common law] 5 years Total effective sentence 2 years and 6 months’ detention in a Youth Justice Centre Non-parole period N/A Pre-sentence detention declared Nil 6AAA statement 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 4 months Other orders Forfeiture and forensic sample orders The grounds of appeal against sentence
The appellant applied for leave to appeal against sentence on the following three grounds:
1) The learned sentencing judge erred at law in concluding this was ‘a serious example of confrontational aggravated burglary’;
2) The learned sentencing judge erred at law by determining that the offending was too serious for a community correction order (‘CCO’) to be within range;
3) The sentence imposed in respect of the charges of aggravated burglary and common assault is manifestly excessive in all the circumstances.
The Crown, in its written submissions, conceded that ground 2 was made out. It also submitted that it was open to the Court to conclude that the sentence imposed was manifestly excessive and that a CCO was an appropriate disposition on re-sentencing the appellant. These submissions were maintained during the oral hearing.
The Court’s decision
The appeal was heard on 28 July 2017. As at that date, the appellant had served 114 days of his sentence in a Youth Justice Centre. Immediately after the hearing of the appeal, we granted the appellant leave to appeal, allowed the appeal and resentenced him to a CCO of three years’ duration on charge 1 and 114 days’ detention in a Youth Justice Centre on charge 2. The 114 days’ detention which the appellant had served was declared as pre-sentence detention. As a result the appellant was released on 28 July 2017 and immediately commenced his CCO.
In addition to the mandatory terms that apply to all CCOs, we ordered that the appellant complete 300 hours of unpaid community work, undergo treatment and rehabilitation, including assessment and participation in programmes that address factors related to his offending, and be subject to the supervision of a Community Correctional Services Officer for the duration of the CCO.
We declared, pursuant to s 6AAA of the Sentencing Act 1991 (‘the Act’), that but for the appellant’s plea of guilty we would have imposed a total effective sentence of three years’ imprisonment with a non-parole period of 22 months.
We stated that we would deliver reasons at a later date. These are those reasons.
Circumstances of the offending[2]
[2]This description is drawn from the Summary of Prosecution Opening (4 April 2017).
The appellant, who was 18 years old at the time of the offending, was part of a group that called themselves the ‘South West Bloods’. The incident occurred on 2 July 2016, at a unit in Warrnambool. A member of the group, aged 16, who had been trying to leave the group had been hiding at the unit. There were a number of people at the unit at the time of the offence who had been celebrating an 18th birthday party.
That evening the appellant picked up two other members of the group, aged 16 and 17, and drove to the unit. The appellant covered his face with a red bandana so that only his eyes and hair were visible. He approached the unit holding a large knife. His co-offender, also wearing a red bandana followed. His co-offender had armed himself with an axe and brought a pit bull cross terrier on a lead. The unit was on the first floor at the rear of the block. There were people sitting on a couch on the balcony outside the front door. Adjacent to the couch was a large speaker box. The appellant yelled aggressively at the people sitting on the couch as he came up the stairs and then stabbed the speaker box. As he approached the door to the unit, someone tried to stop him with a broom. The appellant said ‘put that fucking broom down you cunt or I’ll slit your fucking throat’. The appellant then yelled to his co-offender to come up the stairs and the two of them entered the unit together through the open doorway. This is the behaviour constituting the charge of aggravated burglary.
Upon entering the unit the appellant confronted a woman inside the unit with the knife and demanded to know where the defecting South West Bloods member was. One of the occupants of the unit then asked the appellant to leave and brandished a baseball bat. While the appellant swung the knife around at people inside the unit, the man with the baseball bat smacked it against a couch and told the appellant to leave. The appellant yelled at him and tried to stab him. This is the behaviour constituting the charge of common assault. The man swung the bat at the appellant, missing him and hitting the wall.
During the incident, a number of people — including the person they had come to confront — barricaded themselves in a bedroom, beyond the reach of the appellant and his co-offender. The appellant and his co-offender followed them and banged on the door. The co-offender struck the door with the axe. They yelled threats at the terrified people inside. Some of the people inside the bedroom called 000. One of them had a panic attack. The appellant and his co-offender then left the unit.
The appellant was arrested and interviewed on 7 July 2016. He admitted attending the unit looking for the person who was trying to leave his group. He made a number of false denials. He denied that he had attended the unit with a second companion, that he had a knife or the dog, or that he sought to conceal his identity.
The judge’s reasons
The sentencing judge stated that he considered the objective gravity of the appellant’s offending to be ‘serious’. His Honour referred to the appellant’s early plea of guilty and stated that the appellant deserved a ‘significant discount’ due to the utilitarian value of his early plea of guilty.[3] His Honour accepted the appellant’s plea of guilty was also a genuine sign of remorse. He considered the appellant to be of good character notwithstanding his ‘without conviction’ adjournment in the Children’s Court for writing graffiti.[4] He accepted that the appellant no longer associated with any of the other people involved in the offending.
[3]Reasons [25].
[4]Ibid [27].
His Honour also referred to the appellant’s youth; his personal circumstances; and his prospects of rehabilitation as factors relevant to mitigation of sentence. He acknowledged the principles relating to the sentencing of young offenders were relevant in sentencing the appellant.[5] However, he indicated that the weight to be given to the appellant’s youth was lessened by the objective gravity of his offending.[6] The judge further said:
Whilst the objective gravity and seriousness of your offending lessens the weight to be given to your youth, in my opinion, your youth must still play a significant role in the sentencing process, in particular for a young offender who has otherwise no other relevant prior offences.[7]
[5]Ibid [28].
[6]Ibid [29].
[7]Ibid [32].
The judge stated that he did not regard the offending conduct as nearing the upper levels of offences of this nature but did regard it as ‘a serious offence to commit a confrontational aggravated burglary at night time, in company, armed with weapons’.[8] His Honour referred to current sentencing practices for the offence of aggravated burglary as reinforcing the message that such offences are regarded by law as very serious offences which generally result in a custodial sentence.[9]
[8]Ibid [30].
[9]Ibid [31].
The judge took into account the appellant’s personal circumstances including the fact that he lived with his father and regularly attended to his sick mother. His Honour considered the appellant’s favourable work history and proximity to qualifying as a plasterer. He deemed the appellant’s mental and physical health to be good and took his various active hobbies into account. He noted that the appellant had no mental health or substance abuse issues.[10] Regard was also had to the fact that the appellant had been on bail since 2 July 2016 and had not reoffended.[11] The judge considered the appellant’s prospects of rehabilitation to be ‘excellent’.[12] His Honour acknowledged the appellant’s three character references, the support of his family and full-time employment.[13]
[10]Ibid [40].
[11]Ibid [42].
[12]Ibid [43].
[13]Ibid.
The judge then stated that the seriousness of the offending must be weighed against the above mitigating factors. He highlighted the principles of denunciation, general deterrence and protection of society as playing a part in the sentencing exercise together with the appellant’s youth.[14] His Honour further stated that ‘specific deterrence should not play a great part in this sentencing exercise’.[15]
[14]Ibid [45].
[15]Ibid [45].
The judge referred to the decisions of this Court in Hogarth v The Queen[16] and Director of Public Prosecutions v Meyers[17] and the fact that it had been concluded in Hogarth that ‘sentences generally imposed for confrontational aggravated burglaries were too low and that sentencing practices needed to change to reflect the objective gravity of this kind of offending’.[18] His Honour then referred to para 48 of the joint reasons of this Court in Meyers which listed the following factors relevant to an assessment of the objective gravity of an aggravated burglary:
[16](2012) 37 VR 658 (‘Hogarth’).
[17](2014) 44 VR 486 (‘Meyers’).
[18]Reasons [46].
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
·the mode of entry (eg, by forcing a door or breaking a window);
·whether the offender was carrying a weapon;
·whether the offender was alone or in company;
·the time of day at which the burglary took place;
·what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
·whether the offender was someone of whom the victim was particularly frightened.[19]
[19]Ibid [47] citing Meyers (2014) 44 VR 486, 498 [48].
Referring to these factors the judge then stated that he was satisfied beyond a reasonable doubt that the appellant’s intent at the point of entry was to carry out an assault, specifically upon the defecting gang member.[20] His Honour was satisfied that the appellant attended the property in company, carried a knife, and forced his way into the ‘victim’s house’ through an open door and past someone trying to prevent his entry with the use of a broom.[21] The time was midnight and he entered the property knowing the defecting member to be inside. His Honour made no finding in relation to whether the appellant was someone of whom the proposed victim was particularly frightened. The judge reiterated that he had assessed the appellant’s offending as a serious example of an aggravated burglary but noted that it was not ‘anywhere near the upper level for offences of this nature’.[22]
[20]Reasons [49].
[21]Ibid [49]–[50].
[22]Ibid [53].
His Honour considered the aggravated burglary and common assault to be founded on the same facts, and stated that an aggregate sentence for both offences would be appropriate. That conclusion was not put in issue on the appeal. Having
had the appellant assessed for the purposes of a Youth Justice Centre order,[23] the judge rejected the primary submission of the appellant that a CCO was an appropriate disposition. His Honour said in conclusion:
In my opinion, the purpose for which this sentence is imposed cannot be achieved by a Community Corrections Order. In my opinion the only appropriate sentence is a custodial sentence of some description. The question is how you are to serve that custodial sentence.[24]
In all the circumstances and considering your excellent prospects of rehabilitation, your continuous employment, your otherwise good character, your youth and your strong family support, in my opinion it is appropriate to convict and sentence you to a period of 2 years and 6 months in a Youth Justice Centre in respect of both offences.[25]
Ground 1 — the judge erred in concluding that the offending was a serious example of a confrontational burglary
[23]Pursuant to s 32 of the Act a court may make a Youth Justice Centre order in respect of an offender aged between 15 and 20 at the time of sentencing if it is satisfied that a sentence involving confinement is justified, and it believes that the offender has reasonable prospects of rehabilitation, or that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
[24]Reasons [59].
[25]Ibid [60].
Ground 1 contained three particulars:
a) The learned judge failed to consider the juvenile aspects of the offending;
b) The learned judge erred by seeking to draw adverse inferences impermissibly;
c) The learned judge erred by failing to correctly have regard to all the circumstances of the burglary.
As to the first particular, the appellant repeated the submission made before the sentencing judge, that ‘the narrative had the hallmarks of a juvenile dispute that had escalated out of control.’ He relied upon the fact that the participants were all teenagers, the dispute was petty and interpersonal rather than motivated by self-interest or financial gain, and the offending disclosed a lack of sophistication and planning. In short, he submitted, the judge failed to view the matter as a juvenile dispute.
As to the second particular, it was said that the judge drew an impermissible adverse inference in characterising his offending as ‘brazen.’[26] During the course of submissions on the plea the judge had described the appellant’s conduct in walking into a crowded room with a bandana and carrying a knife as ‘a brazen act’ and rejected the submission of counsel to the contrary. The appellant submitted, as he had on the plea, that he had entered the premises alone through an open door in the context of an ongoing party with lights on and that, as such, his offending could not be characterised as ‘brazen’. He submitted that adjectives such as ‘stupid’, ‘juvenile’ or ‘immature’ were equally open in the circumstances.
[26]The appellant here sought to rely on R v Storey [1998] 1 VR 359, 369.
The appellant further submitted that it was implicit in the judge’s assessment of the seriousness of the offence that his Honour inferred the knife was to be used offensively. The appellant contended that there was no evidence at the time of entry or any time thereafter that the knife was intended to be used other than defensively and that the inference drawn by the judge was not the only reasonable inference available.
As to the third particular, the appellant sought to rely on the fact that his offending could be distinguished from the factual circumstances in each of Harris v The Queen,[27] Hogarth,[28] Director of Public Prosecutions v Bowden[29] and Meyers.[30] He further submitted that the list of features articulated in Meyers is not exhaustive, and that the judge should have had regard to other, moderating features of the offending, including:
·the short duration of the incident;
·the fact that no-one was physically hurt;
·the appellant’s intention when entering the premises was solely to confront the defecting gang member;
·the threat constituting the common law assault occurred after a baseball bat had been swung in his direction; and
·the time of day and mode of trespass were not aggravating features given that a party was in progress.
[27][2013] VSCA 234 [5] (‘Harris’).
[28](2012) 37 VR 658, 674 [62].
[29][2016] VSCA 283 [9] (‘Bowden’).
[30](2014) 44 VR 486, 489 [9]–[10].
In response, the Crown submitted that it was open to the judge to categorise the offending as ‘a serious example of confrontational aggravated burglary’, based on all the circumstances of the offending. It stated that the offending ‘did not bear the hallmarks of a stupid childish prank’ and that his Honour’s description of the offending as ‘brazen’ was apt. With respect to the inference regarding the use of the knife, the Crown submitted that the judge made no finding of fact either way in the sentencing reasons. That was sufficient to dispose of that complaint. Nevertheless, it submitted that on the agreed facts the appellant had physically confronted an occupant and swung the knife at him, as was set out in the agreed facts. The Crown agreed that the list of factors set out in Meyers is not exhaustive but submitted that it is a ‘very useful checklist.’ Finally it submitted that, in any event, the judge had given sufficient regard to the broader circumstances of the appellant’s offending.
In our view, ground 1 is not made out essentially for the reasons submitted by the Crown. A premeditated incursion into another’s domicile, whilst armed, disguised and in the company of another, in the middle of the night (regardless of whether there is a party taking place), with the overt intention of assaulting someone on the premises could not be described as merely stupid immature juvenile behaviour. It was open to his Honour to view the offending as a ‘brazen’ and ‘serious’ example of confrontational aggravated burglary. Such conclusions did not depend upon the ability to draw an inference that the appellant’s intention was to use the knife offensively and the judge said nothing to suggest that he drew such an inference. Moreover, the fact that the appellant brandished the knife, threatened several occupants with it, and attempted to stab one of them, was difficult to reconcile with the contention that the knife was brought to the premises solely for defensive purposes. Finally, whilst it is plain that the factors listed in Meyers are not intended to be exhaustive, the judge addressed all aspects of the appellant’s offending in assessing its objective seriousness.
Ground 2 — the judge erred in determining that the offending was too serious for a CCO to be within range
This ground contained four particulars, which, following the amendment of the first particular during the hearing, were as follows :
a) The learned judge erred in his application of Hogarth and Harris in sentencing the appellant;
b) The learned judge failed to have regard to current sentencing practice as disclosed by sentencing statistics;
c) The learned judge failed to have regard to the principle of parsimony;
d) The learned judge failed to give specific and careful attention to the purposes of sentencing and whether a CCO was within range.
The appellant submitted that Hogarth does not provide authority for departing from the established principles as stated in R v Mills[31] that govern the sentencing of youthful offenders. He submitted that the judge misconstrued Hogarth, since the ‘adequacy of sentencing’ with respect to youth offenders may require greater leniency and focus on rehabilitation, rather than more punitive and deterrent sentences. He submitted that, while his Honour was correct to say that the gravity of the offending moderated the weight that could be placed on the appellant’s youth, he nevertheless erred by defaulting to a custodial sentence and sentencing the appellant as an adult.
[31](1998) 4 VR 235.
The appellant further submitted that, even if the judge was correct in finding that this was an objectively serious example of aggravated burglary, a straight CCO should not have been regarded as beyond range. To conclude otherwise, he submitted, would be to read down Boulton v The Queen[32] in two respects. Firstly, it would overlook the many statements as to the significant punitive impact of a CCO, and secondly it would contradict the Court’s refusal to place outer boundaries on its availability as a sentencing option.
[32](2014) 46 VR 308 (‘Boulton’).
At the plea hearing, the appellant sought to rely on the Sentencing Advisory Council’s statistics for aggravated burglary, published for the period July 2010 to June 2015. The sample of young offenders sentenced in the higher courts for aggravated burglary was extremely small, since there were only 37 cases of aggravated burglary involving an offender under the age of 20. But the appellant sought to rely upon the statistics for a narrow purpose, namely to show that a CCO was a sentencing disposition that was open for youthful offenders. They showed, as was further explained on the appeal, that the most common sentence for this group of offenders was a Youth Justice Centre order (35.1 per cent), that a CCO had been utilised in the case of 24.3 per cent of youthful offenders, and that only 21.6 per cent of offenders aged 20 years or less received a term of imprisonment. The statistics also showed that, for all offenders sentenced in the higher courts on the charge of aggravated burglary over that period, 61.2 per cent received a term of imprisonment. The judge stated at the plea hearing that these statistics were of no use as they included a substantial period before the decision in Hogarth.
The appellant submitted that the judge failed to have regard to the principle of parsimony as required by s 5(4C) of the Act. The judge was required to consider whether the purposes for which the sentence was imposed could be achieved by a CCO rather than by confinement of the offender. The appellant submitted that the judge’s sentencing reasons did not disclose whether the purposes of sentencing were dealt with in this way and that his Honour’s silence on this issue bespeaks error.
The appellant’s argument in support of particulars (a) and (b) was supported by counsel for the Director. He took the somewhat unusual course of amplifying it at considerable length. Most of these arguments rested upon the very strong views expressed during the plea by the sentencing judge. It is necessary to summarise the opinions which he articulated.
At the very commencement of the plea submissions, counsel for the appellant informed the judge that he wished to convince the judge that a CCO was within range. That drew the immediate response from the judge, who it should be said is one of the most experienced trial judges in this State, that it was ‘a rather audacious submission’ for ‘an aggravated burglary in company possessing a weapon.’ The judge shortly thereafter said that the ‘going rate for aggravated burglary in company is somewhere between four to five years, in prison’, and ‘that a CCO is a long way from that’. Somewhat later his Honour said:
The objective seriousness of this case cries out for a custodial sentence, all right? And it’s a question of how he serves that custodial sentence. Now, [the] Court of Appeal time and time again is emphasising the seriousness of confrontational aggravated burglaries on private dwellings.
Counsel then turned to the decision of this Court in Boulton:
COUNSEL: Now, in Boulton … the Court of Appeal stated that the critical question in assessing whether to impose a sentence of imprisonment or a CCO is, and I quote, ‘Is there any feature of the offence or the offender which requires the conclusion that imprisonment, with all its disadvantages, is the only option.’ Now – – –
HIS HONOUR: [Counsel], you can take it from me I’m more than familiar with Boulton’s case. I’m more than familiar with the principles involved. No-one sentencing anyone to custodial sentences, whether it be a youth or adult prison, does it lightly. It is a situation of last resort. But you really are ignoring — you’re almost living in a fantasy world, in my opinion, counsel, to be putting up a community corrections order for an aggravated, in company, with weapons, confrontational aggravated burglary.
None of the more recent cases, the Court of Appeal is suggesting that would be anywhere near the ball park unless you can find me a case that says otherwise.
COUNSEL:No, I accept that. Thank you, Your Honour.
The judge had indicated that he would have the appellant assessed to determine whether he was suitable for youth justice detention. The prosecutor, who was very experienced, then submitted in response, that having regard to decisions such as Meyers and Bowden, the offending was too serious for such a disposition. The judge, obviously concerned that the prosecutor would continue to maintain that imprisonment was necessary, urged the prosecutor to obtain further instructions as to youth justice detention. The following day the prosecutor informed his Honour that ‘without diminishing the seriousness of the offending, a youth justice disposition would be within range’.
Counsel for the appellant then stated that ‘he wished to put on record’ that he ‘still maintained that a CCO was within range.’ His Honour then repeated the view expressed the previous day that it was ‘so far outside the range for an offence of this nature to be audacious.’ Counsel then raised the matter we have referred to at [24] above. Counsel then directed the judge’s attention to s 5(4C) of the Act to which his Honour responded:
HIS HONOUR: Thank you very much, [counsel], but as I said to you, I’ve considered all those matters well and truly. Look, no one wants to ever send anyone to gaol, particularly a young person like this. And he’s not going to go to gaol, he’s going to go to Youth Justice. But unfortunately for him, which he never realised perhaps at the time, he stepped off the diving board at the 30 metre mark into the very deep pond called confrontational aggravated burglaries.
I am constrained by the principles of law in the matter. They are, as I said yesterday, that if he was an adult, even without prior convictions, he’s liable to get a sentence of between four to five years. That’s basically the going rate for confrontational aggravated burglary.
But the law also says, and I think absolutely properly says, that for a young person rehabilitation is a primary function in the sentencing process. But the weight to be given to youth lessens due to the objective gravity of the actual offending.
The Crown conceded in its written case that the sentencing judge had erred in his application of Hogarth (particular (a)) and in his failure to have regard to current sentencing practice as disclosed by sentencing statistics (particular (b)). It submitted that the judge’s treatment of the ‘going rate’ for confrontational aggravated burglary following Hogarth did not reflect the sentencing tariff currently imposed for this offence.
The Court in Hogarth was expressly invited by the Director to ‘express a view as to the expected sentencing range that ordinarily should be imposed for the “home invasion” category ofaggravated burglary’, being the ‘very type of crime the Parliament had in mind when dramatically increasing the penalty from 15 to 25 years’ imprisonment in 1997.’[33] In response the Court said inter alia that an indicative range for the sentencing of the offender in Hogarth would be a total effective sentence of six to eight years’ imprisonment.[34]
[33]Hogarth (2012) 37 VR 658, 669–70 [45].
[34]Ibid 674 [63].
Counsel for the Director emphasised that the judge stated he was constrained by Hogarth even before the appellant advanced his plea in mitigation. Counsel for the Director submitted during the hearing that the sentencing judge had allowed ‘current sentencing practice to override the necessary considerations of the individual case’ because of his Honour’s ‘inflexible adherence to this Court’s decision in Hogarth.’ That, it was said, was error as Hogarth should have been distinguished as involving an adult offender with a prior conviction for aggravated burglary, who committed the relevant offence some days after he had completed serving his parole in respect of a sentence imposed for burglary, theft and deception offences, whose prospects of rehabilitation were poor given his long history of drug use, and whose offending was a ‘very serious’ example of the crime of aggravated burglary.
It was at the suggestion of counsel for the Director that the appellant added the case of Harris to particular (a) of ground 2 because of what the Crown asserted was the judge’s misplaced reliance on Harris. The Crown submitted that his Honour was in error in stating during the plea hearing that Harris was a useful comparator in the context of sentencing a youthful offender for a confrontational aggravated burglary. This aspect of the Crown’s submission may immediately be put aside. The judge recognised during the plea that Harris contained ‘strong distinguishing features’ and made no reference to Harris in his sentencing remarks.
As to particular (b), the Crown submitted that the appellant’s sentencing statistics were important because they demonstrated that non-custodial sentences were regularly imposed for confrontational aggravated burglaries, especially those involving offenders aged less than 20 years. Counsel for the Director submitted that sentences imposed post-Hogarth did not invariably involve the imposition of custodial sentences. He listed over 30 cases decided in the 2015-16 period, in which the County Court had imposed a straight CCO on an offender charged with aggravated burglary. We have verified 11 of those cases that have been published and they reflect a range of offending and feature offenders of different ages and genders. Those cases are listed in Appendix A (attached to these reasons). At Appendix B we have provided a list of recent cases drawn from the Judicial College of Victoria Sentencing Manual in which a CCO has been imposed for the offence of aggravated burglary.
The sentencing judge correctly observed that the bare statistics relied upon before him contained no indication as to whether the non-custodial sentences for aggravated burglary were imposed before or after the guidance given in Hogarth. They were also silent as to whether current sentencing practice included straight CCO dispositions for an objectively serious aggravated burglary. By the time of the appeal, counsel for the Director had prepared a list of sentencing decisions to support the conclusion that a non-custodial disposition was not uncommon for aggravated burglary offences. It is regrettable that the sentencing judge was not given the same level of assistance. In particular, his Honour would have benefited from the list of cases supplied on appeal, which demonstrated that judges in the County Court in 2015 and 2016 had not infrequently imposed a straight CCO for aggravated burglary (see Appendix A). These decisions showed that, notwithstanding the uplift in sentencing practice following Hogarth, non-custodial sentences were amongst the range of sentencing dispositions utilised with respect to offenders of 20 years of age or less.
Analysis
The learned judge recognised that Hogarth provided guidance as to the principles and sentencing standards that should apply to aggravated burglaries of the objective gravity with which Hogarth was concerned. As we have said, in relation to ground 1, his Honour was not in error in viewing the appellant’s conduct as falling within that category. The learned judge rightly viewed the sentencing standard for aggravated burglary, as uplifted following Hogarth, as relevant to the appellant’s offending. But his Honour did not approach his task on the basis that the sentencing range that the Court stated would have been appropriate in the case of Hogarth applied in the present case.
It is necessary to address the extreme proposition advanced by counsel for the Director that the judge had ‘forsaken individualised justice for inflexible adherence to the legal principle’ of consistency of sentencing.[35] It is trite that the individual circumstances of the offender are always an essential component in the instinctive synthesis and that they remain so where the category of the offence is one for which, with the Director’s encouragement, this Court has determined that a sentencing standard should be uplifted.[36] As one would expect, particularly of a judge steeped in the experience of sentencing, he said nothing to suggest that the appellant’s personal circumstances were to be forsaken. They were not. It was the individual circumstances of the appellant’s youth and prospects for rehabilitation that led his Honour to urge the Crown to consider youth justice detention rather than imprisonment.[37]
[35]In his written submission, counsel asserted that, during the hearing of the High Court appeal in DPP v Dalgliesh, Bell J had made that statement. Curious as it is that reference should be made to any observation made by a judge during a hearing, particularly in an unrelated case, a perusal of the transcript shows that no such comment was made. Bell J observed only that there may at times ‘be a tension between consistency and the demands of individualised justice’.; See Transcript of Proceedings, DPP v Dalgliesh (a Pseudonym) [2017] VCATrans 122 (14 June 2017) 26.
[36]Winch v The Queen (2010) 27 VR 658; Hogarth (2012) 37 VR 658; Harrison v The Queen (2015) 49 VR 619; Stephens v The Queen [2016] VSCA 121; Nguyen v The Queen (2016) 311 FLR 289; Gregory (a Pseudonym) v The Queen [2017] VSCA 151.
[37]See [38] above and [53] below.
The submission of counsel for the Director is reflective of a mistaken view that ‘consistency in sentencing’ and ‘individualised justice’ are opposed and that consistency in sentencing is no more than one of the many factors listed in s 5(2) of the Act which must be taken into account. The correct view as to the role of equality of justice — that like cases be treated in a like fashion and that cases materially different be treated differently — was the subject of observations by Maxwell P and Redlich JA in their joint reasons in Kalala v The Queen,[38] with which we respectfully agree:
[38][2017] VSCA 223.
As invariably occurs in sentence appeals when the manifest excess ground is advanced, the applicant’s argument invoked the principle of consistency of sentencing. Arguments of this kind draw attention to cases of comparable seriousness and identify what is said to be an unjustified disparity between the sentences in those other cases and the sentence under appeal.
Senior counsel for the Director responded that it was difficult to meld the requirements of ‘equal justice’ with the intuitive synthesis which the sentencing judge undertakes. According to the Director, consistency was only one factor to be taken into account which at best might ‘modify’ the sentence to be imposed.
That submission understates the fundamental role that predictability and consistency must play in the sentencing process. Section 5(2)(b) of the Sentencing Act 1991 requires the sentencing court to have regard to ‘current sentencing practices.’ The obligation to consider current sentencing practices is intended to serve the rule of law’s objective of predictability and consistency in sentencing. As the High Court has emphasised, the fundamental principle of equality before the law, or equal justice, ‘requires identity of outcome in cases that are relevantly identical [and] requires different outcomes in cases that are different in some relevant respect’.
That fundamental principle underpins the rule of law and the administration of justice. As Mason J put it in Lowe v The Queen, consistency in criminal punishment is ‘a fundamental element in any rational and fair system of criminal justice’. Inconsistency is ‘regarded as a badge of unfairness and unequal treatment under the law’ and is ‘calculated to lead to an erosion of public confidence in the integrity of the administration of justice.’
It follows that there is no conflict between the need for predictability and consistency, on the one hand, and the requirements of individualised justice on the other. The exercise of the sentencing discretion in the individual case — the instinctive synthesis — necessarily takes place within a framework of principle, as McHugh J explained in Markarian:
The acceptance of the role of instinctive synthesis in the judicial sentencing process is not opposed to the concern for predictability and consistency in sentencing that underpins the rule of law and public confidence in the administration of criminal justice … [J]udicial instinct does not operate in a vacuum of random selection. On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion. Statute, legal principle and community values all confine the scope in which instinct may operate.
Thus understood, reference to current sentencing practices is necessary to ‘reduce the incidence of unnecessary and inappropriate inconsistency’. The relevant ‘practice’ for this purpose is usually to be found in a range or pattern of cases in the relevant category of seriousness, being cases said to be comparable because they contain common features with the subject case. Those cases embody the accumulated wisdom and experience of sentencing judges. Reasonable consistency is thus achieved when the sentence in question is in step with relevant comparators.
The range disclosed by comparable cases provides considerable latitude to accommodate different cases and differing value judgments of individual judges. Importantly, it does not fix the boundaries within which the discretion must be exercised. At the same time, it will usually provide important guidance in selecting an appropriate sentence.
Reference to comparable cases is also of assistance in determining whether a sentence falls beyond a reasonable exercise of the sentencing discretion. There will always be an area of uncertainty as one approaches the extremes of the range. In R v Young, Kourakis CJ described that area as the ‘penumbra between the core of sentences which can be properly be imposed, and those outlying sentences which cannot properly be imposed consistently with sentencing principle’.
As Gleeson CJ emphasised in Wong, however, while ‘discretionary decision-making carries with it the probability of some degree of inconsistency’, there are limits ‘beyond which such inconsistency itself constitutes a form of injustice.’ Manifest inadequacy or excess is usually demonstrated when an ‘appropriate relativity is absent’ between the sentence under challenge and the sentences imposed in those comparable cases.[39]
[39]Ibid [35]–[43] (citations omitted).
Parsimony requires sentencing judges to give proper consideration to non-custodial options. As this Court stated in Boulton, a CCO provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of re-offending by promoting the offender’s rehabilitation.[40] As the order of seriousness of offending conduct increases, so the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending. The error which his Honour made, with respect, was to view the gravity of the offending to be of such an order that the sentencing range could only include an order that involved confinement of the appellant.
[40](2014) 46 VR 308, 311 [2].
There were factors present that could have led the judge to conclude that the purposes of sentencing could be met without an order of confinement. It is rare to encounter an offender with such strong prospects for rehabilitation. The judge, who recognised this, characterised them in his sentencing reasons as ‘excellent’. Further, as a youthful offender, promotion of rehabilitation became a primary purpose of sentencing. It follows that in cases where rehabilitation is of paramount importance consideration of a CCO will take on greater significance.
It is evident, however, that his Honour treated offending of this gravity as precluding the possibility that a CCO could be imposed for this category of the offence of aggravated burglary.[41] His Honour also dismissed the possibility that the principles discussed in Boulton, that a CCO could be appropriately punitive whilst achieving the broader purposes of sentencing, could extend to the appellant’s circumstances.
[41]Hogarth (2012) 37 VR 658; Meyers (2014) 44 VR 486; Bowden [2016] VSCA 283.
We thus accepted the submissions of both parties, that his Honour misconceived the objective gravity of the offence as precluding a sentencing disposition that did not involve confinement and as excluding the reach of Boulton. That is not to say that it would not have been open to the judge to have concluded that confinement was necessary and that youth justice detention was the appropriate disposition having regard to the objective gravity of the offence and matters personal to the appellant. As we state under ground 3, reasonable minds may differ as to whether a period of youth justice detention was necessary, and whether a CCO would be sufficiently punitive. And nothing we have said is intended to suggest that judges must deal prescriptively with the sentencing guidelines set out in Boulton.
It is not without significance that the very experienced prosecutor maintained on the plea that the offending required a sentence of confinement. His initial submission, based upon instructions, was that even youth justice detention was not open. The prosecutor’s submission and the further instructions he obtained were calculated to confirm the judge’s view that the offending was too serious for anything other than a sentence of confinement. The prosecution advanced no argument that gave the judge reason to reconsider his opinion that Hogarth did not permit the imposition of a CCO. The submission now advanced by counsel for the Director on the appeal is at odds with the position firmly taken by the prosecutor on the plea. Yet on the appeal counsel for the Director persisted with the remarkable submission that the prosecutor’s stance did not contribute to the error made by his Honour. We do not accept that is so.
The sentencing judge was also unable to impose a CCO in combination with a Youth Justice Centre order. Section 44 of the Act provides only for the imposition of a CCO in combination with a term of imprisonment. However, there is no provision permitting the imposition of a CCO in combination with a Youth Justice Centre order, as the Act treats a Youth Justice Centre order as a sentence of ‘detention’ or ‘confinement’ as distinct from imprisonment. As counsel for the Director accepted, a combined youth justice detention order and a CCO would be a very valuable means of advancing the long term rehabilitation of youthful offenders. At present there is an unfortunate gap in the legislative provisions that does not enable a judge to adopt that course.[42]
[42]The Crown, with admirable fairness, conceded as much during the course of the appeal hearing. Counsel stated that he had been practising ‘for a long time’ and had seen this problem ‘crop up on a regular basis’. He agreed that the legislation should be amended to allow judges to impose this type of sentence.
Ground 3 — manifest excess
Although ground 2 has been made good, and the sentencing discretion reopened, we consider it necessary to deal with ground 3. It is necessary in order to ensure that our resolution of ground 2 does not give rise to a misunderstanding about current sentencing practices for aggravated burglary. In doing so we wish to address a number of submissions advanced by counsel for the Director.
The appellant listed the following factors in support of his submission that the sentence imposed was manifestly excessive:
1) The learned judge gave excessive weight to the gravity of the offending;
2) The learned judge gave excessive weight to contextual aspects of the offending;
3) The learned judge gave excessive weight to the principles of punishment, denunciation and deterrence;
4) The learned judge failed to have sufficient regard to factors in mitigation;
5) The learned judge failed to have sufficient regard to the fact that the appellant was to be sentenced as a youthful offender;
6) The learned judge failed to give sufficient regard to the purposes of sentencing and whether a CCO was within range;
7) The learned judge failed to give adequate regard to the effect that incarceration will have on the appellant’s prospects of rehabilitation;
8) There exists a prima facie disparity with the sentence for the co-accused.
Counsel for the Director submitted in support of the appellant’s argument that his early plea of guilty, genuine remorse, good character, strong family support, full-time employment and lack of mental health or substance abuse issues, meant that it was plainly open to this Court to conclude that the sentence was manifestly excessive.
We reject the submissions that it was not open to the judge to have concluded, having regard to all the circumstances of the case, that a sentence involving confinement was necessary. Reasonable minds could plainly differ on that question. And, as we have said, the submission now advanced by counsel for the Director was at odds with the submissions advanced by the experienced prosecutor on the plea and with the further instructions that he obtained.
The resentencing exercise
At the time of the hearing of the appeal, the appellant had served 114 days in a Youth Justice Centre. However, given the gap in the legislation discussed under ground 2, we were not able to combine that time served with a CCO. Therefore we imposed a separate sentence on each charge. We resentenced the appellant, on charge 2, to 114 days’ detention in a Youth Justice Centre, and, on charge 1, to a CCO of three years’ duration with additional conditions including 300 hours’ unpaid community work and supervision by a Corrections officer.[43] We were of the view that a CCO with those conditions was appropriate in respect of charge 1 because of the appellant’s youth, excellent prospects of rehabilitation, lack of relevant criminal history and strong family support. We considered that such a CCO would enable the appellant to build upon the strong progress he had already made towards his rehabilitation.
---
[43]See [6]–[7] above.
Appendix A: Published cases submitted by Crown where CCO imposed for aggravated burglary
| Case | Charges | Plea | Description | TES |
| Petersen [2016] VCC 642 | Aggravated burglary; and Intentionally causing injury. | G | Offending – O entered neighbour’s home and assaulted neighbour because O’s ex-partner was in neighbour’s home. O re-entered after first assault and continued assault. V was knocked out and sustained swelling, a black eye and cuts requiring stitching. V anxious and considering relocating. Sustained attack. Not most serious example of aggravated burglary. Offender – No prior convictions, male, work history, support of family and friends, new partner in Queensland where O wishes to relocate post CCO, psychological treatment in Queensland, remorse, out of character. | 24 month CCO (2 years): - community work (200 hours); and - offending behaviour programs (any program that is undertaken is considered to be part of community work). |
| Ross [2016] VCC 219 | Aggravated burglary; Criminal damage; and Recklessly causing injury. | G (early) | Offending - O and V1 had been in a relationship for 2 years. In O’s mind that relationship was still in existence, whereas V1 believed they were no longer in a relationship. O believed V1 had taken another man home from the pub. In the early hours of the morning, O kicked in the door when no one answered and broke latch off door frame. O pulled V2 out of shower and punched him in face with clenched fists and elbows and head-butted him. V1 attempted to hold O back and was abused by O. V1 hid in bedroom and O yelled and spat at V1. O returned to bathroom and hit V2 again. Serious offending. Offender – No prior convictions, intoxicated, young offender (22 y), male, remorse, fulsome admissions, out of character, counselling, valued member of community, employment, low risk of re-offending, excellent rehabilitation prospects. | 36 month CCO (3 years): - community work (250 hours). |
| Hansen [2015] VCC 13 | Aggravated burglary and intentionally causing injury | G (early) | Offending – O discovered V had slept with O’s girlfriend during brief separation. O drove to V’s house, entering at 10am, and confronted him by punching him in the face a number of times. V lost some teeth and sustained a fracture to a facial bone. Offender – Limited criminal history, young offender (aged 20), disrupted and disadvantaged childhood, psychological condition ‘intermittent explosive disorder’, Verdins, new father to baby with special needs, character references, good prospects of rehabilitation. | 18 month CCO: – drug treatment, - mental health treatment; and - offending behaviour programs. |
| Van Breda [2015] VCC 368 | Aggravated burglary, intentionally causing injury and theft | G (early) | Offending – O, Co-O1 and Co-O2 attended V’s house in the evening. Knocked on the door and front window loudly. Broke in through garage roller door. V hid in cupboard. Co-O2 carried a broom handle from V’s garage. O and Co-O2 held V down on bed while Co-O1 punched V to head and body. O and Co-O2 left room while Co-O1 continued to assault V. V then told to go into lounge room where Co-O2 stood with knife. Wallet and money taken from V. Co-O1 slapped V around the head and then Co-O2 hit V with baseball bat. All laughed at V then upended coffee table. Took V’s mobile phone and a pouch of tobacco. O told V to open front door to let them out and threatened to slit his throat if he contacted police. Offender – youthful offender (aged 20), early plea of guilty, remorse, lack of prior criminal convictions, excellent prospects of rehabilitation, learning difficulties, sporadically employed now on disability pension, | 18 month CCO: – 150 hours unpaid community work – drug treatment, – alcohol treatment and - mental health treatment. |
| Traiforos [2015] VCC 407 | Aggravated burglary, handling stolen goods, intentionally cause injury, criminal damage and theft | G (early) | Offending – O joined two Co-Os to confront an acquantaince over a dispute regarding money for a stolen caravan being stored on O’s property. He and Co-O1 were armed with aluminium baseball bats. Stuck V’s leg with bat and then struck his television. Offender – aged 38, solid employment history, early plea of guilty, remorse, good prospects of rehabilitation, sole custody of two children and in de facto relationship involving two more children, sole contributor to mortgage on family home, no further association with Co-Os | 36 months CCO (3 years): |
| Merrett [2015] VCC 500 | Recklessly cause injury x 2, aggravated burglary and criminal damage, summary assault | G (early) | Offending – O attended V1’s house (estranged wife), drunk and with V1’s dog. Suspected that another man (V2) was there, pushed V1 and entered house. Assaulted V2 by punching head. V1 intervened. O left premises and picked up outside table and threw at house. Described as lower scale Offender – aged 46, early guilty plea, no priors, compliance with intervention order, now reconciled with breakdown of the marriage, solid employment history, active member of local community, many references, remorse, ‘impeccable character’. | 36 months CCO (3 years): – 300 hours unpaid community work – supervision and – alcohol treatment. |
| Simmons [2015] VCC 506 | Aggravated burglary, common law assault, criminal damage x 2, possess unregistered longarm | G (early) | Offending – O was punched by girlfriend’s brother at the pub. O went home to retrieve an air rifle and then went to the brother’s (the V) house. O kicked the door three times, broke the lock and entered the premises intending to assault V. V and sister arrived in taxi. O ran out of house and pointed air rifle at V and made threats. V ran off. O used air rifle to smash in windscreen and windows of V’s car. O went back into house and smashed television. Offender – aged 43, on disability pension due to mental health, issues with alcohol, early guilty plea, remorse, co-operation, no priors for violence, good character, good prospects of rehabilitation. | 48 months CCO (4 years): – – 400 hours unpaid community work (over 2 years) – supervision and – drug treatment – alcohol treatment – mental health treatment and – offending behaviour programs. |
| Wade [2015] VCC 1148 | Aggravated burglary, breach of bail x 6 | G | Offending – O and her boyfriend came across her ex-boyfriend in the grocery store. They chased him from the store and pursued him. After they lost him, they drove to his house and entered. The ex-boyfriend wasn’t home, but his friend (the V) was. O and her boyfriend looked for ex-boyfriend but when they couldn’t find him, O’s boyfriend approached V with a knife and took his wallet. They then ran from the house. Denied aggravated burglary when interviewed. Offender – aged 26, came from a broken home, bullied at school, epileptic, learning difficulties, cognitive impairment, Verdins (all), history of sexual abuse, drug use, two children no longer in her care, significant criminal history, guilty plea, remorse, completed 14 courses in custody, committed to rehabilitation, length of CCO reduced due to significant time in custody. | 12 month CCO: |
| Campbell [2015] VCC 1999 | Aggravated burglary | G | Offending – O and Co-O attended property at 2 am after dispute over money the occupant or her partner owed. Four young children asleep inside. O followed Co-O and occupant into the house. Co-O yelled at occupant. O stood silently in house. O called occupant’s partner and demanded he return home. O told partner that he would not let Co-O hurt anyone in the house. Inactive participant in offending. Offender – aged 32, prior for assault, CCO for other offending has made him a changed man, employed in construction, remained drug-free, three children, offending connected to ice use, family support, guilty plea, remorse, responsibility, positive prospects of rehabilitation. | 36 month CCO (3 years): – 300 hours unpaid community work – supervision – drug treatment |
| Johnson & Fangaake [2015] VCC 1478 | Aggravated burglary and recklessly cause injury. | G (early) | Offending – V was at home watching television. O1 and O2 entered premises and found V hiding in bedroom. They forcibly removed him from the premises and drove him to a nearby location. O1 punched V repeatedly to the face and head and demanded he repay an outstanding drug debt. V left to find own way home. Offender 1 (Johnson) – aged 20, prior criminal history and youth probation, polysubstance abuse disorder, on a CCO, undertook residential detoxification program, strong family support, rehabilitation underway, abstinent from drugs and alcohol, undertaking traineeship. Offender 2 (Fangaake) – aged 20, prior criminal history and youth detention, abusive upbringing, no mental illness, history of drugs but no evidence of dependence. | Both Os received 24 month CCOs (2 years): – supervision – drug treatment – alcohol treatment – offending behaviour programs. |
| Lofthouse [2015] VCC 1661 | Aggravated burglary, making a threat to inflict serious injury, criminal damage, and committing indictable offence while on bail. | G (early) | Offending – O attended premises at 2am and confronted V who had alleged sold drugs to O’s 14yo son. O intoxicated and angry. Yelled at V and banged on door. Returned two hours later with another person, armed with a short metal pole. Started hitting house and tearing off fly screens from windows. Police were called and could hear O shouting threats. O returned to door and banged on it, then opened switchbox and turned off the power. O smashed a window near door and leaned upper torso into the house through window. V took aim with a metal bar. O left the premises. Police attended and intercepted O. O made full admissions. Considered a technical burglary. Offender – aged 40, on bail at time of offending, prior criminal history for low level offending, unemployed, six children, difficult upbringing, alcohol problems, history of cannabis use, voluntarily engaged with rehab programs, anxiety and anger management problems, early plea of guilty. | 24 month CCO (2 years): – 150 hours unpaid community work – supervision – drug treatment – alcohol treatment – offending behaviour programs |
Appendix B: Recent cases that have received a straight CCO for aggravated burglary (Judicial College of Victoria)
| Case | Charges | Plea | Description | TES |
| Hornsby [2016] VCC 1077 | Aggravated burglary; Recklessly causing injury; and Unlawful assault. | G (early) | Offending – Violent and disturbing intrusion by O into home of Vs (married couple who had been O’s long standing friends). O threatened V1 with bottle, overpowered V1 and forced his way into house. O then struggled with V1, including kicking and punching him. V2 went to help her husband and hit O with glass causing facial laceration. O grabbed V2 by the hair and pushed her head into doors. Must have been clear to Vs that O was irrational which must have made situation even more frightening. Significant and ongoing impact on Vs, including emotional consequences, financial impact and bruising, tenderness and pain. Serious offending. Offender – No relevant prior convictions, moral culpability Verdins, general deterrence Verdins, specific deterrence Verdins, imprisonment Verdins, mental ill health, somewhat delusional thinking, admissions as involuntary patient, 36 y male, motive said to be intention to confront V1 because of belief V1 had harmed O’s mother, not medicated, drug and alcohol use, support of family, currently compliant with medication, remorse, moderate rehabilitation prospects. | 48 month CCO (4 years): - community work (250 hours); - drug and alcohol treatment; - mental health treatment; and - supervision. |
| Blaby [2016] VCC 669 | Aggravated burglary; and Assault x 2. | G | Offending – O attempted to break into his ex-partner’s house at 3:00 am upon seeing her with his younger brother. O was asked to leave. O eventually entered and assaulted his ex-partner and fought with his brother. Offender – Dated prior violence convictions, 36 y male, alcohol use, single parent of 5 children, O supporting pregnant and sick partner and her children, support of father, no contact with Vs, work history, good reform prospects. | 36 month CCO (3 years): - community work (250 hours); - alcohol treatment; - mental health treatment; and - supervision. |
| Sykos & Anor [2016] VCC 696 Offender 1 | Aggravated burglary; Theft; and Handling stolen goods. | G | Offending - Co-offender paid deposit for purchase of property from corporate entity controlled by V. Corporate entity fell into liquidation and transaction fell through. O1 was a friend of co-offenders. O2 did not know co-offenders, but was a friend of O1. Os and co-offenders invaded V’s home and forced V to handover a BMW, boat and trailer to co-offender by way of intimidation to redress civil debt. Os gained no financial advantage. Low level offending. Offender 1 – Prior convictions, 42 y male, acted out of misguided loyalty, remorse, support of family, strong work ethic, very good rehabilitation prospects. | 36 month CCO (3 years): - community work (350 hours). |
| Sykos & Anor [2016] VCC 696 Offender 2 | Aggravated burglary; Theft; and Handling stolen goods. | G | Offending - Co-offender paid deposit for purchase of property from corporate entity controlled by V. Corporate entity fell into liquidation and transaction fell through. O1 was a friend of co-offenders. O2 did not know co-offenders, but was a friend of O1. Os and co-offenders invaded V’s home and forced V to handover a BMW, boat and trailer to co-offender by way of intimidation to redress civil debt. Os gained no financial advantage. Low level offending. Offender 2 – Limited and dated prior convictions, 51 y male, acted out of misguided loyalty, less prominent role than O1, remorse, no substance abuse, very good rehabilitation prospects. | 36 month CCO (3 years): - community work (350 hours). |
| Wolfe [2016] VCC 1170 | Aggravated burglary; Recklessly causing injury; and Criminal damage. | G | Offending – O and co-offender attended Vs’ house at night to confront V1 (co-offender’s girlfriend’s step-father) about allegation that co-offender’s girlfriend had made about V1 having assaulted her. Co-offender asked V1 to exit house and they had conversation. V2 (co-offender’s girlfriend’s mother) came out and stood between co-offender and V1 and attempted to guide co-offender away from front door. O hit V1 to back of head. V1 retreated into house, O followed him and punched him to head. O threw chairs at V1 that hit V1’s body and damaged walls. O and co-offender kicked and punched V1 repeatedly and co-offender threatened to cut V1’s throat. V2 went to get help after being assaulted by co-offender. V1 suffered bruising and lacerations to ear, chest and abdomen and sore knee. Very serious offending. Offender – No relevant prior convictions, pending matter relating to alcohol-fuelled street violence, anxiety, depressive condition, 23 y male, motivation initially to confront V1 but circumstances developed that brought about spontaneous intention to assault, co-operation, difficult and disruptive formative years, work history, drug and alcohol use and attempts to control it, remorse, support of family and partner, delay, employment, concerted attempt made to engage appropriately with current CCO, parity (differences between O and co-offender). | 36 month CCO (3 years): - supervision; - community work (150 hours); - drug and alcohol treatment; - mental health treatment; and - offending behaviour programs. |
| Bertus [2016] VCC 1178 | Aggravated burglary; and Recklessly causing injury. | G (early) | Offending – O and his girlfriend attended Vs’ home and were told by V1 (O’s girlfriend’s step-father) to leave. O continued banging on door until V1 opened it. O opened front security door and barged in throwing punches. V1 fell and hit his head on sliding door, breaking glass panel. V1 also sustained serious broken leg. O caused Vs fear and V2 (O’s girlfriend’s mother) has lost hope of re-establishing relationship with daughter. Offender – Relevant prior convictions, 27 y male, motive said to be accompanying girlfriend who wanted to confront her mother, problems with anger, alcohol use, no drug issues, employment, recent enrolment in studies, good rehabilitation prospects. | 30 month CCO (2 years and 6 months): - community work (300 hours); - supervision; - alcohol treatment; and - offending behaviour programs (including anger management). |
| Skonis [2016] VCC 139 | Aggravated burglary; and Intentionally causing injury. | G (early) | Offending – O entered V’s unit and assaulted V upon hearing that V had assaulted O’s fiancée’s sister. V suffered bruising, swelling, abrasions and a fracture that were treated conservatively. Not the most serious example of aggravated burglary. Offender – No relevant prior convictions, 30 y male, adherence to court orders, co-operation, fulsome admissions, remorse, insight, no substance abuse, support from family and friends, employment, low likelihood of re-offending, excellent rehabilitation prospects. | 24 month CCO (2 years): - community work (150 hours); - supervision; and - offending behaviour programs (including anger management). |
| Stewart [2016] VCC 1278 | Aggravated burglary; Criminal damage; and Assault. | G (early) | Offending – O attended V’s premises and yelled abuse, called V to come out and smashed 2 front windows. V and her 3 y old son hid in V’s bedroom. O kicked front door and bedroom door open. O grabbed V by hair and began scratching her face. V fought back, grabbing and punching. O and V ended up wrestling on floor. V suffered some small scratches and marks to her face and ended up with O’s blood on her. Injuries not of great significance. V was afraid. Offender – Prior violence convictions, on CCO, youthful offender (22 y), female, motivated by belief that V was having sexual relationship with father of O’s newly born son, admissions, very deprived background, Koori court, anger management problems, drug and alcohol use, disconnected from culture, past non-compliance with CCO due to concern for child, two older children with DHS, reunification plan being formed, pregnant, cessation of drug taking and alcohol, accommodation, support for cultural matters, remorse, good rehabilitation prospects. | 24 month CCO (2 years): - community work (150 hours - hours spent on programs deducted from work hours); and - offending behaviour programs. |
| Goodwin [2016] VCC 607 | Aggravated burglary; and Intentionally causing injury. | G | Offending - Argument ensued between O and V. O grabbed V, dropped him on the ground and punched him. V entered house and was followed by O who kept punching V. V sustained a split eyebrow requiring one stitch. Both offences at lower end of the scale. Offender – Prior violence and dishonesty convictions, 27 y male, on suspended sentence, drug use, difficult upbringing, mental health issues, ADHD, O protective of V’s partner who confided in O after domestic violence between V and her, O’s sister murdered as a result of domestic violence, support of family and partner, O caring for difficult children and half-brothers, delay, compliant with medication, rehabilitation attempts. | 24 month CCO (2 years): - supervision; - community work (125 hours); - drug treatment; - offending behaviour programs; and - mental health treatment. |
| Clark [2016] VCC 880 | Aggravated burglary; Recklessly causing injury; and Criminal damage. | G (early) | Offending – O and wife attended son’s friend’s home and O broke window and forced entry into house through locked door causing 18 y V1 and 24 y V2 to run from the home. O’s wife hit V2 and O punched V1 a couple of times to the back of his head. O and wife told Vs they were not allowed to see their son. V1 received minor injuries and suffered emotional and psychological consequences. Offending also impacted Vs’ parents. $300 in excess had to be paid for damage done to house. Offender – No prior convictions, no subsequent convictions, no pending matters, motive said to be concern about son’s drug use and role played by Vs in relation to drug use, 47 y (at time offending), male, prior good character, remorse, disparity with co-offender, strong bond with son, employment, no drug or alcohol use, counselling appointments made for family to address issues, very good rehabilitation prospects. | 24 month CCO (2 years): - community work (200 hours over 18 month period). |
| Egan [2016] VCC 1761 | Aggravated burglary; Recklessly causing injury; Criminal damage; Theft; and Breach of Intervention Order. | G (early) | Offending – O road bike by home of V1 (O’s ex-girlfriend) to check things after she advised him that she would be having a quiet night. O saw V1 using drugs and being intimate with V2 (O’s friend). In breach of IVO, O entered house through open window and confronted V2. V2 left. O became aggressive towards V1 and pushed her to the ground. O took V1’s phone, pushed V1 again and punched V1’s car window. Not most serious example of offences. Offender – Prior convictions, anxiety problems, male, admissions, drug use, O has moved on, accommodation with sister, support of family, full custody of daughter, moved away from area, past successful completion of CCO, remorse, excellent rehabilitation prospects. | 24 month CCO (2 years): - community work (100 hours); - supervision, - drug treatment, - mental health treatment; and - offending behaviour programs. |
| Smith [2016] VCC 581 | Aggravated burglary; Recklessly causing injury; Criminal damage; Theft; and Carrying a controlled weapon without excuse. | G (early) | Offending – O and his brother entered into V’s house and attempted to drag V out of house. V held onto doorframe. Door was closed on V’s right hand. O took phone that fell out of V’s jacket. O and co-offender hit V in upper body and head resulting in bleeding and swellings. O and his brother walked away. Later V and his father attended O’s mother’s home. V’s father and O’s brother argued in the street. O later stood in V’s driveway with large knife. O’s brother broke window of V’s house with a club. Offender – Prior dishonesty and criminal damage convictions, past breaches of court orders, no subsequent offending, 28 y male, alcohol and drug use, basis of fight with V said to be belief that V dealing drugs to O’s nephews, death of 2 siblings, Koori Court, O is a fairly committed father. | 18 month CCO (1 year and 6 months): - community work (100 hours); - alcohol treatment; - offending behaviour programs; and - supervision. |
| Smart [2016] VCC 1401 | Aggravated burglary; Assault. | G | Offending – O went to the home of V1 (O’s former partner) unannounced. O peered in the window and saw V1 sitting in bed with V2. O became upset and angry, forced his way into the house, and barged into the bedroom and punched V2 to the face a number of times. V1 called the police and O went back to the bedroom and apologised. Offender – Youthful, male, immediate remorse, support of family, unlikely to re-offend. | 12 month CCO (1 year): - community work (120 hours); and - supervision. |
| Lennane [2016] VCC 278 | Aggravated burglary; and Recklessly causing injury. | G (early) | Offending - O entered neighbour’s house and continuously hit V (neighbour), primarily to V’s face. Other unknown males kicked V. 2 of V’s stepchildren witnessed assault. V taken to emergency department for treatment of injuries and discharged following morning. Offender – Dated prior conviction, 35 y (at time of offending), male, motive said to be ongoing dispute between O and V and concern about V’s behaviour around O’s children when O away for work, family life, work history, employment. | 12 month CCO (1 year): - supervision; and - community work (50 hours). |
Source: Judicial College of Victoria, Victorian Sentencing Manual (at 30 August 2017) 32 Property and Dishonesty Offences ‘VCC Summaries – Aggravated Burglary – Sentencing Decision from 1 January 2016 to 31 December 2016, Arranged by Severity of Total Effective Sentence’ [32.14.4.5].
26
14
0