Brown v The Queen
[2021] VSCA 204
•27 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0251
| JOSHUA MATTHEW BROWN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and SIFRIS JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 May 2021 |
| DATE OF JUDGMENT: | 27 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 204 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1969 (Judge Carmody) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Whether sentence of 5 years and 6 months’ imprisonment manifestly excessive – Violent entry, after midnight, in company of co-offender – Knowledge or expectation that victim would be present – Vigilante action – Absence of other aggravating factors immaterial - Specific deterrence – Breach of community correction orders – Sentence reflects objective gravity of offence – Sufficient weight given to mitigating factors including applicant’s youth – Leave to appeal granted – Appeal dismissed – Director of Public Prosecutions v Meyers (2014) 44 VR 486 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B J Newton | Stephen Peterson Lawyers |
| For the Respondent | Mr L Fluxman | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
SIFRIS JA:
On 27 November 2019, the applicant pleaded guilty to multiple charges and was sentenced as set out in the table below.
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1 Aggravated burglary[1] 25 years’ imprisonment 5 years and 6 months Base 2 Damaging property[2] 10 years’ imprisonment 6 months 1 month 3 Theft[3] 10 years’ imprisonment 6 months 3 months 4 Blackmail[4] 15 years’ imprisonment 1 year 6 months Related
Summary
Offence
Common assault[5] 15 penalty units or 3 months’ imprisonment 1 month Concurrent with base Related
Summary
Offence
Use of drug of dependence[6] 1 year imprisonment 7 days Concurrent with base Total Effective Sentence: 6 years and 4 months’ imprisonment Non-Parole Period: 4 years and 3 months Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 26 days 6AAA Statement: 7 years and 6 months with a non-parole period of 5 years 3 months. Other relevant orders: Nil. [1]Contrary to s 77(1)(b) of the Crimes Act 1958.
[2]Contrary to s 197(1) of the Crimes Act 1958.
[3]Contrary to s 74(1) of the Crimes Act 1958.
[4]Contrary to s 87 of the Crimes Act 1958.
[5]Contrary to s 23 of the Summary Offences Act 1966.
[6]Contrary to s 75 of the Drugs, Poisons and Controlled Substances Act 1981.
The applicant seeks leave to appeal against sentence. For the reasons which follow, we will grant leave to appeal and dismiss the appeal.
Circumstances of the offending[7]
[7]This summary is taken from DPP v Brown [2019] VCC 1969 (‘Reasons for Sentence’), the Summary of Prosecution Opening dated 4 November 2019 and the Registrar’s neutral summary.
At the time of the offences, the applicant was 21 years old. The victims, PM and NV, were friends and resided together in a permanent shack at a caravan park. PM was 42 years of age and NV was 37 years of age. PM was an acquaintance of the applicant’s, through family friends, but they had not seen each other for approximately one year.
In the early hours of 12 June 2019, the applicant was driven to PM’s residence by an unknown co-offender. The applicant had heard allegations that PM was selling drugs to teenagers and intended to attend PM’s residence to steal drugs from him.
The applicant forced entry into the premises by kicking in the side door with his foot, causing damage to the door (charge 1 – aggravated burglary).
The unidentified co-offender had picked up a small axe, located nearby, prior to entering the premises. The prosecution did not allege that the applicant was aware that the co-offender was armed at the point of entry.
PM was asleep and woke to his dog barking. He then noticed two males at the end of his bed shining a torch in his face. The applicant identified himself to the victim as ‘Joshy’ and PM recognised him as ‘Joshua Maxwell’.[8] At some point, the applicant became aware that the co-offender was in possession of the small axe.
[8]Maxwell was his natural father’s surname.
PM was then struck in the leg by one of the offenders and was questioned about allegations involving a 14-year-old female. PM denied knowledge of any such matters.
The applicant and co-offender then asked PM where his money was. After stating that he did not have any money, PM was struck a couple more times on the leg (related summary offence – unlawful assault). The strikes resulted in scratches and welts to the PM’s leg.
During the offending, damage was also caused to PM’s television located in his bedroom (charge 2 – damaging property).
The applicant left the premises and soon after smoked approximately three or four points of ice (related summary charge – use of drug of dependence).
After the applicant and co-offender had left the premises, PM was in fear and immediately phoned NV, who was at a nearby ATM. He informed her of what had just occurred. PM noticed various belongings to be missing, including a cash box containing approximately $500, a wallet containing cards and approximately $100 and a brown male Staffordshire Bull Terrier/Rottweiler puppy known as Dargo (charge 3 – theft).
After police attended the scene, NV sent a Facebook message to the applicant requesting the return of Dargo. At about 4:00am, she received a phone call from the applicant. He said that he had been to her place earlier that night. He then said words to the effect of ‘You’re in my game now. You do what I say and you’ll get your puppy back. Give me $1,500 and I’ll give you the dog back.’
Approximately 20 minutes later, the applicant called back demanding that the victims pay him money in return for the dog. He then sent a text message stating:
I’ve already gone back [home]. You missed me by a mile. If you want ya puppy back, then you do as I ask you and will get it back straight away. No good arguing with me. Lol. It ain’t gonna get you anywhere. Ring me when you wanna pay me the coin into my account. The puppy will be delivered to your door.
The applicant was arrested and interviewed on 12 June 2019. He initially denied any knowledge of the incident, until a third interview when he admitted his involvement. The applicant explained to police that it was his intention to enter the property to steal drugs, based on his belief that the victim was selling drugs to minors. He had ‘wanted to take matters into his own hands’. The dog was ultimately returned to the victims.
Reasons for sentence
After setting out the circumstances of the offending, the sentencing judge referred to the two victim impact statements. PM said that he had suffered anxiety and severe interference with his sleep as a result of the offending. He was in fear of the applicant and his associates returning to his residence. He said that he was unable to gain employment because of his lack of sleep and inability to concentrate. He said that he felt unsafe in his home. The sentencing judge concluded that the applicant’s offending had had ‘a significant long-lasting adverse impact on [PM]’s life’.[9]
[9]Reasons for Sentence [24].
NV said that she suffered from severe anxiety and was undergoing counselling on a weekly basis.
His Honour then dealt with the applicant’s personal circumstances, namely that:
(a) he did not meet his biological father until about the age of 14, following which his father had introduced him first to cannabis and then to ice. The judge recorded that the relationship with his biological father had ‘revolved around drug taking’;
(b) his drug use and the rejection of his mother and stepfather meant that he had little contact with his mother’s family;
(c) notwithstanding that rejection, he had been offered the opportunity to work in his mother’s family business, a transport and excavation business;
(d) he had dropped out of school in Year 7, and had not worked for two years prior to sentencing; and
(e) he had fathered four children with three different women. He had no contact with his first and third child and his mother cared for the second and fourth children.
The sentencing judge then referred to a Psychological Report prepared by Ms Carla Lechner (the ‘Report’) for a proceeding heard 3 months earlier, in respect of a breach by the applicant of a Community Correction Order (‘CCO’). At that time, the applicant had been sentenced to 6 months’ imprisonment. (At the time of the offences the subject of this application for leave to appeal, the applicant was serving two concurrent CCOs, imposed on 18 September 2018 and 7 March 2019 respectively.)
Ms Lechner assessed the applicant as in the borderline range for cognitive functioning. In her view, he presented with symptoms of substance use disorders for cannabis and methamphetamine and suffered from a major depressive disorder ‘in the extreme range’.
The Report also stated that the applicant had been assaulted while in custody. As a result of the assaults, for which he had been hospitalised, the applicant was now in protective custody. The sentencing judge accepted and took into account that the applicant’s time in custody would therefore be more burdensome.
The sentencing judge took the following matters into account:
·the early plea of guilty, which demonstrated remorse;
·the applicant’s acceptance of personal responsibility for his criminal behaviour; and
·that at the time of commission of the offences, the applicant was serving two CCOs, which had been imposed, respectively, for wilful damage and threat to inflict serious injury (2018) and assault with a weapon (2019).
Noting that aggravated burglary was ‘a very serious offence’, his Honour said that the seriousness of the applicant’s offending was indicated by the following features, namely that :
·his intention when he entered the premises was to steal drugs;
·he had forced entry to the premises by kicking the door in;
·he was in company with an unidentified co-offender;
·the offence occurred just after midnight;
·the applicant knew or expected that PM would be inside the premises; and
·he was on two different CCOs at the time.
The sentencing judge regarded the applicant’s prospects of rehabilitation as guarded, given that he had a ‘significant criminal history for someone so young’.[10] His Honour said:
The rehabilitative solution of a CCO in September 2018 and March 2019 was to no avail. I regard you as a young offender who is not yet beyond rehabilitation.
The protective factors for your rehabilitation are that you have reconnected with your mother, step-father and your mother’s family. This reconnection to family opens up the opportunity of employment upon your release from prison. All of this relies on your ability and your desire to have a drug-free life upon release from prison.[11]
[10]Ibid [49].
[11]Ibid [49]–[50].
Finally, the sentencing judge said:
Your offending is serious and calls for a substantial punishment. I have taken into account your personal circumstances when finalising your total sentence. I have cumulated only those parts of the individual sentences to reflect the additional criminality in those offences whilst at the same time applying the principles of totality so as not to impose a crushing sentence upon you. I also take into account you have already been in custody as a total for 168 days.
The principles of general and specific deterrence have significant relevance to your sentence. Denunciation of your actions and protection of the community dictate that the only just sentence is a substantial sentence of imprisonment with a non-parole period.[12]
[12]Ibid [51]–[52].
Sentence not manifestly excessive
The applicant’s proposed ground of appeal is as follows:
Ground 1 – The base sentence of 5 years 6 months imprisonment imposed on charge 1 (aggravated burglary on Indictment No. K11511828) and by its virtue, the total effective sentence, are manifestly excessive because:
a)The learned sentencing Judge placed manifestly too much weight on the objective gravity of the charge 1 offending where:
i.The intention at entry was to steal rather than to assault or damage property;
ii.The Applicant was not knowledgeable as to the weapon carried by the co-offender at the time of entry or until its production;
iii.The Applicant was not a person of whom the victim was particularly fearful;
iv.The figure of the sentence is such that it inappropriately reflects a most serious example of aggravated burglary offending.
b)Failure to give sufficient weight to the mitigatory factors in favour of the Applicant being:
i.The Applicant’s relative youth;
ii.Guilty plea at the earliest practicable opportunity;
iii.Challenged personal circumstances;
iv.Good rehabilitation prospects;
v.Significant hardship in custody.
The contention of manifest excess drew attention to three of the features which the Court in Director of Public Prosecutions v Meyers (‘Meyers’)[13] identified as ordinarily being relevant to the assessment of the seriousness of an instance of aggravated burglary, as follows:
[13](2014) 44 VR 486; [2014] VSCA 314.
(a) the offender’s intent at the time of entry: the submission for the applicant was that entry with intention to assault or to damage property was a ‘more grave’ form of aggravated burglary, whereas the applicant’s intention upon entry was to steal drugs, as recognised by the prosecution;
(b) whether the offender was carrying a weapon: here, it was accepted that the applicant had not carried a weapon and had had no knowledge of the axe in possession of the co-offender until it was produced inside the premises; and
(c) whether the offender was someone of whom the victim was particularly fearful: that was not the case here.
As this Court has often said, little benefit is to be gained from arguments which draw attention to the absence of aggravating features which might have been but were not in fact present in the offending before the court. Sentencing judges — and this Court on appeal — are required to assess the objective gravity of the offence, and the offender’s moral culpability, on the basis of what actually happened. That assessment must be based on the relevant features of the offence as committed.[14]
[14]Adamson v The Queen (2015) 47 VR 268, 299 [83]; [2015] VSCA 194 (Warren CJ, Redlich and Weinberg JJA); Stephens v The Queen (2016) 50 VR 740, 747 [26]; [2016] VSCA 121 (Redlich, Santamaria and Beach JJA); Dennis v The Queen [2017] VSCA 251, [66] (Kyrou and Hansen JJA); Crawford (a pseudonym) v The Queen [2018] VSCA 113, [77] (Maxwell P and Kyrou JA); Gurovski v The Queen [2018] VSCA 3, [72] (Whelan and Kyrou JJA); Sutic v The Queen [2018] VSCA 246, [55] (Kyrou and Kaye JJA); Clarkson v The Queen (2011) 32 VR 361, 382 [80]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
In the present case, the sentencing judge correctly identified the following aggravating features:
·the forced entry to the premises by kicking the door in;
·offending in the company of a co-offender;
·offending just after midnight, and with the knowledge or expectation that PM would be present; and
·offending in breach of court orders (two CCOs).
As to the intention on entry, this was no mere intention to steal drugs. The applicant knew or expected that PM would be at the premises and — as his counsel candidly acknowledged on the plea — he was motivated by ‘misplaced outrage’ at PM for what he believed to be the selling of drugs to young people.[15] This was in the nature of vigilante action. Given the nature and purpose of the entry into the premises, the applicant knew that it was likely to involve confrontation.
[15]Reasons for Sentence [45].
As the prosecutor correctly submitted on the plea, this feature of the offence placed it ‘at the more serious end’ of aggravated burglaries involving intent to steal. In the usual case, as the prosecutor pointed out, the would-be thief does not want to disturb anyone.
The applicant also relied on the Sentencing Advisory Council’s Sentencing Snapshot for aggravated burglary for the period 2014-15 to 2018-19. The Snapshot showed that the highest average term of imprisonment for aggravated burglary in any single year in that period was 3 years and 3 months, in 2016-17. It was submitted that, because the sentence imposed on the applicant was 2 years and 3 months longer than that (highest) average, it was therefore ‘amongst the highest echelon of severity for like offences’. The applicant also referred to recent cases[16] and submitted that the sentence was equivalent to sentences imposed in far more serious examples of aggravated burglary.
[16]Lim v The Queen [2018] VSCA 222 (‘Lim’); Fisher v The Queen [2018] VSCA 222; Dughetti v The Queen [2019] VSCA 217 (‘Dughetti’).
We reject those submissions. When used properly, aggregate statistics can be most illuminating — for example, in giving a picture of the overall spread of sentences in a given period or in revealing whether a particular sentence is an ‘outlier’ under current sentencing practice. But, because such statistics are wholly lacking in key details, such as the nature of the plea and whether the offender had relevant prior convictions, they will rarely shed any light on whether a particular sentence is outside the range reasonably open. That is especially so where what is relied on is an ‘average’ or ‘median’ sentence, which is simply the statistical product of a particular chronological sequence of sentences.[17]
[17]DPP v Walters (a pseudonym) (2015) 49 VR 356, 365 [30]–[31]; [2015] VSCA 303 (Maxwell P, Redlich, Tate and Priest JJA).
Further, as the respondent correctly pointed out, sentencing standards for aggravated burglary have been undergoing a steady transition since this Court’s 2012 decision in Director of Public Prosecutions v Hogarth (‘Hogarth’).[18] In that case, the Court held that sentences generally imposed for ‘confrontational aggravated burglary’ were too low, and that sentencing practices needed to change to reflect the objective gravity of this kind of offending. The significance of that decision was clarified in Meyers,[19] the Court holding that Hogarth was to be viewed as having removed the constraints of current sentencing practice for aggravated burglary in all of its more serious forms. We deal further with this issue below.
[18](2012) 37 VR 658; [2012] VSCA 302.
[19](2014) 44 VR 486; [2014] VSCA 314.
As to the matters in mitigation, the judge noted that the applicant’s reconnection with his mother and her family, and with his stepfather, was a protective ‘factor’ for his rehabilitation, as it opened up the opportunity of employment on his release from prison. But, as his Honour correctly stated, ‘all of this depends on your ability and your desire to have a drug-free life upon release from prison.’[20]
[20]Reasons for Sentence [50].
As the sentencing judge noted, the applicant has not taken the rehabilitative opportunities offered to him through successive CCOs. We note that it was a condition of the September 2018 CCO — which the applicant breached by this offending — that he undergo ‘assessment and treatment (including testing) for drug abuse or dependency as directed’. And his refusal to comply with court orders is further demonstrated by his repeat convictions (September 2018 and May 2019) for ‘persistent contravention’ of a family violence order.
Against that background, the commission of this very serious offence of aggravated burglary — coupled with what the sentencing judge described as the ‘gratuitous’ criminal damage and the ‘nasty afterthought’ of the blackmail — left his Honour with no alternative but to treat specific deterrence and protection of the community as significant sentencing considerations.[21] As this Court said in Comensoli v The Queen (‘Comensoli’):
The inability of the applicant to take advantage of previous CCOs, with their unique capacity to promote rehabilitation and encourage personal responsibility, meant that ‘the retributive and deterrent purposes of punishment must take precedence’.[22]
[21]Ibid [47]–[48].
[22][2020] VSCA 2, [27] (Maxwell P and Whelan JA), citing Boulton v The Queen (2014) 46 VR 308; 335 [112]–[114]; [2014] VSCA 342 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
In our opinion, the sentence on charge 1 and the total effective sentence were reasonably open to the sentencing judge in sentencing this offender for this offending. That conclusion is reinforced by an examination of post-Hogarth sentences.
In the 2017 decision of Hi v The Queen,[23] this Court rejected an appeal against a sentence of 7 years’ imprisonment for serious aggravated burglary on the ground that it was manifestly excessive, taking into account the ‘uplift’ that the Court in Hogarth considered should apply to such sentences.
[23][2017] VSCA 315.
In Robinson v The Queen,[24] this Court upheld a sentence of 5 years’ imprisonment imposed on two brothers for aggravated burglary. In the context of a domestic dispute, the Robinsons forced their way into a house and started assaulting one of the occupants. The Court said:
The offending, in charge 1, was quintessentially the type of offending that this Court has discussed in a trilogy of recent cases, namely, Hogarth, Meyers and DPP v Bowden. In Hogarth, the Court concluded that the current sentencing practices, in respect of the type of offending described as ‘confrontational aggravated burglary’, had been inadequate to properly reflect the seriousness of that type of offending, and to address the requirements of appropriate sentencing. In reaching that conclusion, the Court drew attention to the maximum sentence prescribed by Parliament for the offence (25 years’ imprisonment), the prevalence of the offending and the intrinsic gravity of that type of offending. The views expressed in Hogarth, as to the seriousness of that category of offending, and the need for sentences to increase substantially above the then current sentencing practice, have been repeated and reflected in the subsequent decisions of the Court in Meyers and Bowden.[25]
[24][2017] VSCA 304.
[25]Ibid [68] (Kaye JA and Beale AJA) (citations omitted).
In Bux v The Queen,[26] this Court upheld a sentence of 6 years’ imprisonment for aggravated burglary. The appellant had grabbed the victim outside his house, dragged him into the bedroom and struck him multiple times.
[26][2017] VSCA 70.
In three cases in 2018 this Court upheld sentences of 6, 7 and 8 years respectively in relation to aggravated burglary.[27] In Maslen, three masked assailants forced the front door open, demanded money and drugs and took a number of items with them. There was no assault. A sentence of 6 years’ imprisonment was upheld. In Till, the applicant and a co-offender[28] entered the premises with a key, attacked the occupant and ransacked the flat. A sentence of 8 years’ imprisonment for aggravated burglary was upheld.
[27]Maslen v The Queen [2018] VSCA 90 (‘Maslen’); Till v The Queen [2018] VSCA 122 (‘Till’); Sovolos v The Queen [2018] VSCA 149 (‘Sovolos’).
[28]The co-offender was Hi (see para 39 above).
In Sovolos, the occupant was confronted at the open rear door of his house by three men with their faces covered. One man held a rifle. The occupant was assaulted and shots were fired. A sentence of 7 years’ imprisonment for aggravated burglary was upheld. Indeed, in the Court’s view, a more severe sentence was warranted on the charge of aggravated burglary.[29]
[29]Sovolos [2018] VSCA 149, [43] (Priest JA, Maxwell ACJ agreeing at [1] and Kyrou JA agreeing at [45]).
In Director of Public Prosecutions v Simmonds,[30] this Court increased a sentence of 12 months’ imprisonment to 4 years and 6 months’ imprisonment for aggravated burglary. The offender, wearing a balaclava and carrying a baseball bat, entered a unit through a window, tied the occupant with rope, and stole a number of items. Because the offender had completed his 12 month sentence without incident and drug free, the Court was required to impose ‘a significantly lower sentence than otherwise should have been imposed by the judge at first instance’.[31]
[30][2019] VSCA 288.
[31]Ibid [41] (Priest, Beach and Kaye JJA).
In Comensoli,[32] the applicant entered a house by jemmying open the front door. The occupant, in the house with her two children, screamed and the applicant fled the house. In refusing leave to appeal, the Court regarded the sentence of 3 years’ imprisonment on the aggravated burglary charge as ‘a lenient sentence indeed’ and that a ‘substantially higher sentence would have been within range’.[33] The Court said:
[32][2020] VSCA 2.
[33]Ibid [30] (Maxwell P and Whelan JA).
In this Court, counsel for the applicant … acknowledged that the ‘species’ of aggravated burglary involving intent to steal was not inherently less serious than that involving intent to assault or cause damage. He accepted that, depending on the circumstances, entry with intent to steal could be just as serious. These concessions were properly made.
In Hogarth, the Court set out what had been said by the Attorney-General about the seriousness of aggravated burglary, at the time the maximum penalty was increased to 25 years’ imprisonment:
The prevalence of burglary and home-invasion-style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The Government wishes to send a message to offenders that these crimes will not be tolerated. Under the Bill, where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of a person on the premises, the offender will be guilty of aggravated burglary. Aggravated burglary will carry a new maximum term of 25 years’ imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.
Against that background, there is no justification for viewing the type of aggravated burglary committed by the applicant as inherently less serious than the ‘home invasion’ or ‘confrontational’ type discussed in Hogarth and Meyers. On the contrary, offending of this kind is — subject always to the particular circumstances — capable of being every bit as serious, because it destroys the sense of security that people are entitled to feel in their homes and because of the psychological trauma which a forced entry of this kind inevitably causes.[34]
[34]Ibid [18]–[20] (Maxwell P and Whelan JA) (citations omitted).
The cases relied on by the applicant are of very limited assistance. In Lim v The Queen[35] and Dughetti v The Queen,[36] the offenders’ conduct, although worse, was addressed by additional charges and the offending lacked the serious feature of offending in company. In Lim, the Court found that it was likely that the judge placed too much weight on the offender’s prior criminal history, was overwhelmed by the gravity of the offending or gave insufficient weight to mitigating factors, or some combination, and resentenced the applicant from a sentence of 6 years and 6 months’ imprisonment to a sentence of 5 years’ imprisonment on the aggravated burglary charge.
[35][2019] VSCA 182.
[36][2019] VSCA 217.
In Dughetti, the Court dismissed an appeal against a sentence of 4 years and 2 months’ imprisonment on a charge of aggravated burglary. In Fisher v The Queen,[37] the offender received an aggravated burglary sentence of 6 years and 3 months, which this Court assessed as moderate. The special circumstances of that case, including three failed manslaughter trials, distinguish it from the case before us.
[37][2018] VSCA 222.
Since 2017, there have been sentences imposed on charges of aggravated burglary that are both lower and much higher than the sentence imposed on the applicant. The applicant’s sentence is not in the ‘highest echelon’ of sentences imposed for this offence. That the sentence was at the higher end, based on statistics and other current sentencing practices, does not of itself mean that the sentencing judge was in error. Further, the sentence is only just over 20 per cent of the statutory maximum penalty of 25 years’ imprisonment. Given the objective gravity of the offending, the sentence was well within range.
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