Culibrk v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2024 0140
JOVAN CULIBRK	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2025
DATE OF JUDGMENT:	23 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 137
JUDGMENT APPEALED FROM:	[2024] VCC 141 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Multiple offences of burglary and theft – Whether prosecution could prove applicant’s involvement in any of the offending – Use of coincidence evidence – Whether judge erred in finding coincidence evidence was significantly probative – Whether use of coincidence evidence occasioned unfair prejudice – No error established – Application for extension of time in which to seek leave to appeal refused.

Evidence Act 2008, ss 98, 101.

CGL v DPP (2010) 24 VR 486, followed.

PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; R v Dupas (No 2) (2005) 12 VR 601; Pfennig v The Queen (1995) 182 CLR 461, referred to.

CRIMINAL LAW – Appeal – Sentence – Whether 3 years and 9 months’ sentence for attempted aggravated burglary manifestly excessive – Extensive and relevant prior criminal history – On bail at time of offence – Serious example of serious offence – Sentence not manifestly excessive – Application for extension of time in which to seek leave to appeal refused.

DPP v Meyers (2014) 44 VR 486; Clarkson v The Queen (2011) 32 VR 361, referred to.

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms E Ruddle KC with Ms E Allan
Solicitors
Applicant:	Sarah Pratt and Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
TAYLOR JA
OSBORN JA:

On 22 November 2023, the applicant was convicted by a jury empanelled in the County Court of attempted burglary, attempted aggravated burglary, theft of a motor vehicle, four charges of burglary and four charges of theft. The offending related to six incidents occurring between 9 and 21 June 2022.
He was sentenced on 20 February 2024,[1] as follows:
[1]DPP v Culibrk [2024] VCC 141 (Judge Murphy) (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted burglary[2]	5 years[3]	2 years	4 months
2	Burglary [4]	10 years	3 years	4 months
3	Theft[5]	10 years	2 years	Nil
4	Theft of a motor vehicle[6]	10 years	1 year	1 month
5	Attempted aggravated burglary[7]	20 years[8]	3 years 9 months	Base
6	Burglary	10 years	3 years	4 months
7	Theft	10 years	2 years	Nil
8	Burglary	10 years	3 years	4 months
9	Theft	10 years	2 years	Nil
10	Burglary	10 years	3 years	4 months
11	Theft	10 years	2 years	Nil
Total Effective Sentence:		5 years 6 months’ imprisonment
Non-Parole Period:		3 years 3 months
Pre-sentence Detention Declared:		607 days

[2]Contrary to ss 321M and 76 of the Crimes Act 1958.

[3]See s 321P of the Crimes Act 1958.

[4]Contrary to s 76 of the Crimes Act 1958.

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

[6]Contrary to s 74 of the Crimes Act 1958.

[7]Contrary to ss 321M and 77 of the Crimes Act 1958.

[8]See s 321P of the Crimes Act 1958.

The applicant seeks an extension of time in which to seek leave to appeal against both conviction and sentence. The proposed grounds with respect to conviction are:
(1)The learned trial judge erred by finding that the proposed coincidence evidence was significantly probative.
(2)The use of coincidence evidence resulted in unfair prejudice to the applicant.
The single proposed ground with respect to sentence is that the sentence was, in all the circumstances, manifestly excessive.
The principles relevant to the granting of an extension of time in which to seek leave to appeal are uncontroversial. Guided by where the interests of justice fall in any particular case, the Court will consider the reasons for the delay in seeking leave and the merits of the proposed grounds.[9] The reasons for the delay were explained in an affidavit sworn by Richard Jakobson, the applicant’s solicitor, on 1 August 2024. For the reasons below, none of the proposed grounds of appeal have merit. Accordingly, the application for an extension of time in which to seek leave to appeal both conviction and sentence should be refused.
[9]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

The prosecution case

The prosecution case was that the applicant committed all 11 offences with a co-offender, Matthew Messenger. Messenger pleaded guilty.[10] He did not give evidence in the applicant’s trial.
Incident 1
[10]There was substantial, but not complete, overlap between the charges to which Messenger pleaded guilty and those to which the applicant did not. The differences are not, for present purposes, material.
At 6:25 am on 9 June 2022 CCTV footage from a Shell Service Station in Narre Warren captured Messenger driving and refuelling a grey Volkswagen Amarok. The Amarok was stolen and displayed false registration plates.
The first incident took place an hour later at 1 Sarnia Court, Narre Warren. The offence was established largely by CCTV footage from that address. There were CCTV cameras in various locations inside and outside the residence. Bunhong Kouch, who lived there, also gave evidence.
At 7:26 am the Amarok, driven by Messenger with the applicant as front seat passenger, parked in the driveway of 1 Sarnia Court. Mr Kouch and his wife were then asleep. The applicant, wearing a high-vis yellow jacket over an orange hoodie, went to the front door and knocked on it before returning to the Amarok, looking about the cul de sac as he did so. The Amarok sat in the driveway for a short time before driving away.
At 7:35 am the Amarok returned to the address. The applicant exited the car carrying a small bag and walked around the side of the house. Messenger drove away.
At 7:41 am the applicant entered the backyard of 1 Sarnia Court wearing, in addition to the yellow high-vis jacket over the orange red hoodie, a black cap, black face mask and black gloves. Two minutes later, at 7:43 am, Messenger returned to the address in the Amarok. He exited the car and walked to the front door. His face is clearly visible in the CCTV footage. Messenger remained at the front door, periodically banging on it and ringing the doorbell, for about five and a half minutes. He then returned to the driver’s seat of the Amarok and waited.
In the interim the applicant was in the backyard. At 7:51 am he had taken a yellow screwdriver out of his bag and used it to remove the flyscreen from a window while holding a mobile phone to his face. At 7:53 am the applicant had walked from the window to the back sliding door and used the screwdriver to try to break in. Mr Kouch, having heard a banging noise, came downstairs and saw the applicant, masked, trying to break through the sliding door with the screwdriver (charge 1 – attempted burglary). Mr Kouch yelled at the applicant but was unable to leave by the sliding door as it had been dislodged from its tracks. The applicant ran to the back fence and climbed over. Further CCTV footage showed him to walk and then run – with a limp – along the footpath outside the side fence.
At around 7.54 am, when the shouts of Mr Kouch could be heard, Messenger reversed out of the driveway and drove along Sarina Court, stopping just beyond the property line. Mr Kouch ran to the Amarok which then drove away.
Mr Kouch next saw the applicant run, limping, towards the Amarok and drop the yellow screwdriver before entering the front passenger seat.
On 15 June 2022 Detective Senior Constable (‘DSC’) Andrew Vallas, as a part of the investigation into the applicant and Messenger, observed the applicant in Dandenong Park for 45 minutes. During this time, DSC Vallas noted the applicant limping when he walked.

Incident 2

The second incident occurred later on the same day as incident 1, namely 9 June 2022.
Between 10:30 am and 1:20 pm the applicant and Messenger broke into the home of Yingzi Mao at 18 Trenton Avenue, Glen Waverley. They stole jewellery, $8,000 cash, Ms Mao’s passport and Medicare card as well as the keys to her white Toyota Camry (charge 2 – burglary, charge 3 – theft).
Between 6:00 pm that evening and 8 am on 10 June 2022 the applicant and Messenger returned to 18 Trenton Avenue and stole the Camry, valued at $36,500 (charge 4 – theft of motor vehicle).
There was no CCTV (or other evidence) to establish the modus operandi of the burglary and thefts.
Incident 3
The third incident occurred shortly after 12:00 am on 11 June when the applicant and Messenger attended at 21 Olympic Avenue, Springvale. Like incident 1, the offending was largely established by CCTV (and doorbell) footage. Andy Nguyen, an occupant of the house, also gave evidence. Mr Nguyen was at the house with his parents, girlfriend and three younger siblings.
The applicant and Messenger attended the address in the Amarok. Together they walked to the front door. Each wore a cap and long sleeved jacket. Both banged forcefully on the door. Mr Nguyen told them to ‘fuck off’. They returned to the Amarok and departed the address.
About 10 minutes later the Amarok returned to the address. The applicant walked towards the front door holding a mobile phone to his face. Mr Nguyen opened the door and said ‘what do you want?’. The applicant replied, ‘I am looking for James’. Mr Nguyen explained that no James lived there and asked what number in the street the applicant was looking for. The applicant said 24. Mr Nguyen said that his house was 21. The applicant apologised and walked away. Doorbell footage of this interaction shows the applicant. Stills taken from the footage were tendered in evidence along with a reference photograph of the applicant taken 11 days later on his arrest.
Mr Nguyen called the police.
About 20 minutes later the Amarok again parked outside the front of the address. Messenger and the applicant walked to the front door. They were both wearing masks and caps. Together they kicked at the front door. The applicant was armed with a crowbar. Mr Nguyen obtained a knife from the kitchen. Messenger and the applicant succeeded in kicking open the front door (charge 5 – attempted aggravated burglary). When they were confronted by Mr Nguyen armed with the knife, they ran to the Amarok and departed.
Recovery of the Amarok
On 13 June 2022 police recovered the stolen Amarok. It contained a black beanie, black gloves, head torch, sweatband and ice pipe. Upon forensic analysis none of these items were linked by DNA to either Messenger or the applicant.

Incident 4

Incident 4 occurred on 20 June 2022 at 52 Penton Way, Lynbrook. Again, the offending was captured on CCTV footage.
At about 10 am Messenger arrived at the address in the white Camry. He went to the front door and rang the bell, dressed in an orange hi-vis jacket. He waited for a few minutes. There was no answer. Messenger returned to the Camry.
At about both 10:06 am and 10:09 am the Camry drove past 52 Penton Way with a person in the front passenger seat.
At about 10:17 am the applicant, also wearing an orange hi-vis jacket, approached the address and climbed over bins at the side of the house before dropping over a fence.
At about 10:33 am Messenger reversed the Camry into the driveway of 52 Penton Way. Messenger got out and approached the garage door, which opened. The applicant exited through the garage door, which then closed. Both men returned to the Camry and it drove away.
At about 2:22 pm the Camry returned to the address and parked on the street in front of it. Messenger and the applicant walked to the garage door and opened it. Both wore caps but were no longer wearing hi-vis jackets. They entered the garage, closing the door behind them. Less than two minutes later they emerged from the garage, closed the door and ran down the driveway to the Camry, which then departed. Jewellery, a mobile phone and the hard drive from the CCTV system were taken (charge 6 – burglary, charge 7 – theft).
Incident 5
Incident 5 occurred the same day.
Between 8:30 am and 4:30 pm the applicant and Messenger broke into the home of Mari Saski at 27 Wurundjeri Boulevard, Berwick, and stole property including jewellery and designer handbags (charge 8 – burglary, charge 9 – theft).
There was no CCTV (or other evidence) to establish the modus operandi of the burglary and theft.

Incident 6

Incident 6 occurred the following day.
Between 8 am and 1:00 pm on 21 June 2022 the applicant and Messenger broke into the residence of Elizabeth and Jonathan Eager at 2A Service Road, Blackburn, and stole a safe from the master bedroom that contained $10,000 worth of jewellery, legal documents, passports, keys, bank cards and bank account details belonging to Mrs Eager (charge 10 – burglary, charge 11 – theft).
At 1:44 pm $1,000 was withdrawn from a bank account held in the name of Elizabeth Eager.
There was no CCTV (or other evidence) to establish the modus operandi of the burglary and theft.

Arrest

On 22 June 2022 the applicant and Messenger were seated in the Camry as it was parked outside the house in which the applicant’s mother and girlfriend resided, Messenger in the driver’s seat and the applicant in the front passenger seat. The Camry was displaying false registration plates. A stolen Toyota HiAce van displaying false registration plates was parked outside the property. Messenger had the keys to the HiAce in his pocket. The applicant had a yellow screwdriver in his pocket.
The Camry was found to contain:
(a)the CCTV hard drive from 52 Penton Way, Lynbrook (incident 4);
(b)the passport cover and passport photo of Jonathan Eager (incident 6); and
(c)a red hoodie.
The HiAce was found to contain:
(a)Ms Mao’s passport and Medicare card (incident 2);
(b)four handbags belonging to Ms Saski (incident 5);
(c)keys, bank cards, a will and hard drives belonging to Mr and Mrs Eager (incident 6);
(d)a crowbar;
(e)an orange hi-vis jacket;
(f)bank statements and Centrelink paperwork in the name of Messenger, along with his wallet; and
(g)a medical script in the name of the applicant’s mother.
A mobile phone seized from Messenger at the time of his arrest contained:
(a)a record of multiple calls to the landline of 52 Penton Way, Lynbrook on 20 June 2022 (incident 4).
(b)a photograph of 2A Service Road Blackburn (incident 6); and
(c)a photograph of Ms Eager’s address, PIN, passwords, email addresses and other confidential information (incident 6).

Conviction Appeal

Issue at trial

The issue in the trial was whether the prosecution could prove beyond reasonable doubt the applicant’s involvement in any of the offending.

Coincidence notice

In advance of the trial the prosecution gave notice pursuant to s 98(1) of the Evidence Act 2008 that it intended to adduce certain evidence to support coincidence reasoning relating to the identification of the applicant as the offender in respect of the 11 charges he faced. The prosecution relied upon the coincidence evidence to prove that it was the same person (along with Messenger) who was responsible for each of the six incidents.
In written and oral submissions the prosecution argued that the similarities in the incidents and surrounding circumstances in which they occurred made it improbable that the incidents occurred coincidentally. The evidence was said to be significantly probative of the applicant’s involvement in each of the offences due to a combination of factors including:
(a)the physical similarity of the second man in incidents 1, 3 and 4, each captured by CCTV footage, coupled with the similarity between that second man and the photograph of the applicant taken on the day of his arrest;
(b)the evidence linking Messenger to each of the incidents, coupled with the arrest of the applicant in company with Messenger;
(c)the theft of the Camry during incident 2, the use of a Camry during incident 4, the recovery from the Camry of items from incidents 4 and 6 and the fact that immediately prior to their arrest, the applicant and Messenger were seated in the Camry;
(d)the use of the Amarok during incidents 1 and 3;
(e)the modus operandi of incidents 1, 3 and 4 in which Messenger drove a stolen vehicle with the second man as passenger by the targeted address several times, coupled with the knocking on the front door before any burglary was attempted;
(f)the pattern of behaviour of the second man during incidents 1 and 3 including holding a mobile phone to his face near CCTV cameras and the wearing of a mask and cap;
(g)the pattern of behaviour of the second man during incidents 1 and 4, being to enter the back garden while Messenger remained out the front; and
(h)the number of incidents (six) together with their temporal and geographic connection.
The applicant argued that the trial was ‘an ID case’ based upon his arrest in company with Messenger and the prosecution were seeking to use the coincidence evidence to ‘reason backwards’. It was submitted that the modus operandi was nothing more than a standard ‘stock-in-trade’ for burglary and theft. There was no evidence that two people were involved in incidents 2, 5 and 6. Accordingly, the purported coincidence evidence was said to be both prejudicial and of low probative value.
The trial judge held that the evidence identified by the prosecution could be used to support coincidence reasoning. Although that ruling was given absent detailed reasons, the extensive prior discussion between the judge and counsel illustrates the basis upon which the judge applied ss 98 and 101 of the Evidence Act.

Suggested pathway of reasoning

In addressing the jury the prosecutor suggested a pathway of reasoning which used the coincidence evidence to establish the involvement of the applicant in each of the offences charged. Starting with incident 3, it was argued the jury could be satisfied beyond reasonable doubt that the man depicted in the doorbell footage and the man carrying the crowbar in the CCTV footage were both the applicant. The similarities in the modus operandi between that incident and incident 1 allowed the conclusion beyond reasonable doubt that the applicant was involved in incident 1. The joint similarity between incidents 1 and 3 and incident 4 permitted the same conclusion with respect to incident 4. Next it was suggested that the circumstances of the three incidents not captured by CCTV made it improbable that, by coincidence, Messenger acted alone or with another offender with respect to – in order – incidents 2, 5 and 6. The commonality of the Camry between incidents 2 and 4 and the stolen items found in both the Camry and HiAce were also relied upon.
Defence counsel argued to the jury that the reasonable possibility that other people were involved with Messenger in the offending had not been excluded. Counsel referred to the absence of DNA evidence linking the applicant to any of the items recovered from the Amarok on 13 June 2022. It was argued that the identification of the applicant in the doorbell footage was uncertain and any similarity between the second man in each of incidents 1, 3 and 4 was likewise uncertain.

Applicant’s contentions

The applicant acknowledged the similarity in his two proposed grounds of appeal but argued that they were put on different bases. The first ground was directed to the admission of the coincidence evidence. It was put that the admission of the evidence by the judge was an error of law that resulted in a significant miscarriage of justice which this Court cannot be satisfied did not affect the outcome of the trial. The second ground was directed to the use made by the jury of coincidence reasoning. It was put that the prosecution case with respect to charges 8, 9, 10 and 11 (that is, incidents 5 and 6) was so weak as to make the convictions on those charges insupportable. This, it was argued, demonstrated the prejudice to the applicant of the coincidence evidence as it was only impermissible tendency reasoning that could explained the returned verdicts.

As to the admission of the evidence, it was argued that there was insufficient similarity in the specified events to find that it was improbable that the events occurred coincidentally. The applicant argued that there was nothing striking, peculiar or distinctive about the modus operandi of the offending in incidents 1, 3 and 4 that made it an improbable coincidence that it was not carried out by the same two offenders. That is, the modus operandi of the offending was not distinct enough that it was more likely to be committed by the same two offenders than not. The victims were apparently chosen at random and there was a wide geographic and temporal spread. Further, the modus operandi of the offending in incidents 2, 5 asnd 6 is unknown. Accordingly, it was submitted that the coincidence evidence lacked significant probative value and should have been excluded pursuant to s 98 of the Evidence Act had the judge made a proper (or any) assessment of whether the coincidental events tended to prove the applicant’s involvement.
As to prejudice, the applicant submitted that the low probative value of the coincidence evidence did not substantially outweigh its prejudicial effect and therefore should not have been used against him pursuant to s 101(2) of the Evidence Act. The ‘global verdict’ returned was said to demonstrate the prejudice. It was argued that there was scant evidence of the applicant’s involvement in incidents 5 and 6 and his conviction for that offending could only have been based on the jury believing he was the ‘kind of person’ to have committed the relevant offences. This impermissible tendency reasoning was said to have been encouraged by the pathway of reasoning advocated to the jury by the prosecutor, particularly when the jury came to consider incidents 5 and 6.

Respondent’s contentions

The respondent contended that the coincidence evidence had significant probative value and the judge was correct to admit the evidence. It was emphasised that coincidence evidence must be assessed as a whole and that ‘striking similarity’ is not required. In this case, where the involvement of the applicant in the offending was the primary issue, the geographic and temporal proximity of the offending, the association between the applicant and Messenger and other surrounding circumstances, including the doctrine of recent possession, made it improbable that the links between the incidents and the applicant were coincidental.
The respondent further contended that the significant probative value of the coincidence evidence substantially outweighed any prejudicial effect such that the jury was entitled to employ coincidence reasoning to return verdicts of guilty with respect to all charges. Further, the judge took care to require the prosecution to be clear about what coincidence evidence was relied upon. The jury was directed as to coincidence evidence both before the evidence commenced and in the charge. The jury was also directed as to separate consideration of each charge and the dangers of identification evidence and circumstantial reasoning. Defence counsel argued to the jury that the incidents could have occurred coincidentally without the involvement of the applicant. It was submitted that the rejection by the jury of that argument does not demonstrate impermissible prejudice.

Discussion and analysis

Coincidence evidence is evidence which uses the improbability of two or more events occurring coincidentally to prove, relevantly, that a person performed a particular act. The use of coincidence evidence relies on a process of inferential reasoning in which it is open to a jury to draw two inferences. First, from evidence of similarities between two or more events and the circumstances in which those events occurred, that it is improbable that the events occurred coincidentally. Secondly, from the improbability of such a coincidence, the existence of a relevant fact in issue.
The coincidence rule in s 98 of the Evidence Act states that evidence is generally not admissible as coincidence evidence unless the party seeking to adduce it has given reasonable notice and the court thinks that the evidence will have significant probative value. Section 101 of the Evidence Act establishes that where the prosecution seeks to lead coincidence evidence about the accused, the evidence will only be admissible if its probative value substantially outweighs any prejudicial effect that it may have on the accused.
In CGL v DPP, this Court summarised those legislative requirements as involving four questions:
1.Are the similarities in the specified events and/or in the circumstances in which they occurred such that it is improbable that the events occurred coincidentally?
2.If so, would the evidence of those events and circumstances tend to prove that the accused:
(a) did the specified act; or
(b) had the specified state of mind
where doing that act or having that state of mind is a fact in issue or is relevant to a fact in issue?
3.If so, does the evidence have significant probative value, either by itself or having regard to other evidence adduced or sought to be adduce by the prosecution?
4.If so, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?[11]
[11](2010) 24 VR 486, 493 [22] (Maxwell P, Buchanan and Bongiorno JJA); [2010] VSCA 26.
Sections 98 and 101 of the Evidence Act do not require a ‘striking similarity’ in circumstances before two or more events may be admitted as coincidence evidence. Rather, what is required is a sufficient ‘underlying unity’, which is dependent upon the facts in issue, the nature and circumstances of the other acts, the degree of similarity between the events, the relationship between any relevant parties and all the circumstances of the case.[12]
[12]PG v The Queen [2010] VSCA 289, [70] (Nettle JA, Neave JA agreeing at [79], Harper JA agreeing at [80]) (‘PG’); see also CW v The Queen [2010] VSCA 288 (‘CW’).
Thus, in PG, Nettle JA said
Sometimes, it will be a matter of striking similarity as between one act and another which bespeaks the underlying unity that makes evidence of the former admissible in proof of the latter. Sometimes, there will be something peculiar about the acts which makes evidence of one admissible in proof of the commission of the other. Sometimes, it will be the circumstances of the offending which makes evidence of one act admissible in proof of the other, and examples can be multiplied. In short, it is a question to be assessed in all the circumstances of the case, bearing in mind what has been said in previously decided cases as to what is sufficient in kindred circumstances.[13]
[13]PG [2010] VSCA 289, [71] (Nettle JA, Neave JA agreeing at [79], Harper JA agreeing at [80]).
Where a modus operandi used makes it likely that the same person is responsible for two or more particular offences, coincidence evidence may be used to establish the identity of the offender.[14] The evidence of connection between the modus operandi used on another occasion (or occasions) and the modus operandi of the charged offence must demonstrate more than the ‘stock-in-trade’ of that type of offending.[15] In such cases, the evidence can only be used if the jury is satisfied that both offences were committed by the same person and that the accused committed one of them.[16]
[14]Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 (‘Pfennig’); R v Dupas (No 2) (2005) 12 VR 601; [2005] VSCA 212.
[15]CW [2010] VSCA 288, [24] (Maxwell P, Buchanan and Neave JJA).
[16]Pfennig (1995) 182 CLR 461; [1995] HCA 7.
In this case, it was not disputed that Messenger was involved in all six incidents the subject of the indictment preferred against the applicant. It was open to the jury to conclude beyond reasonable doubt that the applicant was the second man who committed the attempted aggravated burglary at 21 Olympic Avenue, Springvale, in the hour after midnight on 11 June 2022, based on the doorbell footage (and the stills taken from it) captured during incident 3 and the photograph of the applicant taken on the day of his arrest.
That being so, the modus operandi of that offence involved:
(a)a two man operation;
(b)the use of a stolen vehicle fitted false registration plates in which Messenger was the driver and the applicant the passenger;
(c)several attendances at the targeted property;
(d)a ringing of the doorbell prior to the attempted burglary;
(e)the applicant holding a mobile phone to his face beneath a CCTV camera;
(f)the wearing of caps and masks; and
(g)the applicant being in possession of a tool to assist entry.
Although it might be expected that there will be a general commonality to the modus operandi of burglary type offending, these are a particular combination of features that characterise the modus operandi of incident 3 and are common with incident 1. That is, the attempted burglary of 1 Sarnia Court, Narre Warren, less than 48 hours before, was a two man job in which one was Messenger driving a stolen vehicle fitted with false registration plates that had made several attendances at the targeted property. The second man was the passenger who rang the doorbell before the attempted burglary. When the car next attended it was the second man, wearing hi-vis, a cap and a mask, and in possession of a tool to assist entry, who entered the backyard and attempted to break in, holding a mobile phone to his face when beneath a CCTV camera.
Further evidence indicating that the second man was the applicant was his limp visible in the CCTV footage after he had left the backyard, the evidence of Mr Kouch that he saw the second man run with a limp and the evidence of DSC Vallas that on 15 June 2022 he observed the applicant to be limping.
This particular modus operandi was then repeated with respect to incident 4 on 20 June 2022. Again, it was a two man job in which Messenger drove a stolen car fitted with false registration plates that had made several attendances at the property. Messenger rang the doorbell. The second man, wearing a cap and hi-vis jacket entered the backyard and broke into the premises.
Accordingly, the particular similarities of the modus of incidents 1, 3 and 4 went beyond ‘stock-in-trade’ behaviour for burglary and rendered it improbable that the events occurred coincidentally within a relatively short period of time. As Messenger was involved in all three incidents, it is improbable that he used different ‘second men’. As it was open on the direct evidence to conclude to the criminal standard that the second man in incident 3 was the applicant, the evidence of the constellation of behaviours forming the modus operandi of all three incidents tends to prove that the applicant was the second man during incidents 1 and 4.
It follows that the evidence of the modus operandi common to incidents 1, 3 and 4 had significant probative value on its own. That value was augmented by the other evidence adduced by the prosecution, particularly the circumstances in which the applicant and Messenger were arrested.
The admissibility of the coincidence evidence relevant to incidents 2, 5 and 6 was not dependent upon a common modus operandi. The modus operandi of those incidents was unknown. All that was known was that at least Messenger was involved. It does not follow, however, that the established modus operandi of incidents 1, 3 and 4, being two man offending, was irrelevant to the analysis of those incidents and the circumstances in which they occurred.
Incident 2 occurred on the same day as incident 1. The suburbs in which these incidents occurred are 25 km apart. It is improbable that having attempted the burglary at Narre Warren between 7:30 am and 8:00 am with the applicant, Messenger would then, in Glen Waverley, between 10:30 am and 1:20 pm, break into the residence alone or with a different accomplice. This is particularly so because the established modus operandi involved Messenger being the driver, sometimes being the door knocker on the first approach to the premises and, on subsequent approaches to the address, remaining with or near the car while the applicant, possessed of a tool, physically broke in.
This analysis is also relevant to incident 5, both generally and because of its temporal connection with incident 4. It is improbable that having been in company with the applicant at various times between 10 am and 2:22 pm in Lynbrook, and effecting the burglary and theft at 52 Penton Way (incident 4), Messenger either alone or with a different accomplice broke into and stole items from 27 Wurundjeri Boulevard in Berwick between 8:30 am and 4:30 pm. The suburbs are 12 km apart.
Although incident 6, unlike incidents 2 and 5, did not take place on the same day as an incident in which Messenger and the applicant were captured by CCTV footage in joint offending, the general proposition that Messenger offended as part of a two man team in which his role was driver and scout remains true. Further, incident 6 took place the day after incidents 4 and 5 and the day before Messenger and the applicant were arrested. Immediately before their arrest, they were observed in the Camry with Messenger seated in the driver’s seat and the applicant in the front passenger seat. The applicant had a screwdriver in his pocket.
When regard is also had to all of the other circumstances at the time of arrest, including that the Camry was at the house in which the applicant’s mother and girlfriend resided, Messenger had the keys to the HiAce in his pocket, a medical script in the applicant’s mother’s name was located in the HiAce, both the HiAce and the Camry had false registration plates fitted, and there was – in both vehicles – stolen items from incidents 2, 4, 5 and 6, as well as accoutrements consistent with those used by Messenger and the applicant during incidents 1, 3 and 4, namely a crowbar and hi-vis clothing, it is improbable that the six incidents occurred coincidentally.
In this manner, when taken as a whole, the evidence of those events and circumstances tended to prove that the accused was involved in the offences charged. It had significant probative value. The judge was correct to so rule.
Moreover, any prejudicial effect it carried was substantially outweighed by that significant probative value. The pathway of coincidence reasoning was logical and readily understood. It did not invite impermissible tendency reasoning. That the applicant was convicted of every charge does not indicate that the jury returned a ‘global verdict’ or must have employed impermissible tendency reasoning. The judge gave a very strong direction as to the dangers inherent in identification evidence relevant to the identification of the applicant as the man in the doorbell footage and CCTV footage. The judge also clearly identified the way in which the coincidence evidence could be used as well as the way in which it could not. Defence counsel’s argument that the coincidence that another or others was or were involved with Messenger notwithstanding the circumstances of the applicant’s arrest was a reasonable possibility consistent with innocence, was accurately summarised by the judge. It was open to the jury to reject that argument.
In short, the judge did not err in admitting the coincidence evidence. Having been so admitted, it was open to the jury to use the evidence to conclude beyond reasonable doubt that the applicant committed each of the offences of which he was charged.
As neither proposed ground of appeal against conviction can succeed, the application for an extension of time in which to seek leave to appeal against conviction must be refused.

Sentence appeal

Applicant’s contentions

The applicant contended that the sentence of 45 months’ imprisonment imposed for the attempted aggravated burglary (charge 5) relevant to incident 3 was manifestly excessive. It was argued that notwithstanding the applicant’s prior criminal history and long struggle with drug addiction, the term of almost four years’ imprisonment was not open to the judge. The applicant highlighted that he was 27 years of age at the time of sentencing and had no particular relationship with the victim.

Respondent’s contentions

The respondent submitted that the judge correctly characterised the attempted aggravated burglary as a serious example of a serious offence. The impact upon the victims was very considerable. Accordingly, general deterrence, just punishment and denunciation assumed prominence in the sentencing exercise. The judge considered what circumstances the applicant could rely upon in mitigation of penalty. It was argued that they were insufficient to make the term of imprisonment imposed outside the range available to the judge.

Discussion and analysis

As is often observed, a ground of manifest excess is difficult to make out. An applicant must establish that the sentence imposed was wholly outside the range of sentences available in the sound exercise of the judge’s sentencing discretion.[17]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]); [2010] VSCA 350; R v Boaza [1999] VSCA 126, [42] (Chernov JA, Winneke P agreeing at [1], Phillips JA agreeing at [54]); DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
In this case the applicant has failed to do so.
In DPP v Meyers, this Court identified the following factors as relevant to the assessment of the gravity of an instance of (attempted) aggravated burglary:
·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.[18]
[18](2014) 44 VR 486, 498 [48] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314.
The judge was correct that this was a serious example of a serious offence. The applicant’s behaviour was confrontational. The judge’s description of the offending as a ‘very determined attempt’ is borne out by the CCTV footage.[19] The applicant attempted to breach the sanctity of a private home by repeatedly kicking at the front door at night, in company and while armed with a crowbar. The victim impact statements are eloquent as to the effect it had on the occupants of the house.
[19]Reasons, [130].
Moreover, the applicant was on bail at the time of the offence and had a lengthy and relevant prior criminal history. In his 27 years, he had served nine terms of imprisonment for like offences. Deterrence, both general and specific, denunciation and just punishment were factors of significance in the formulation of the sentence.
Nonetheless, the judge gave express consideration to matters personal to the applicant and, based particularly on a psychological report, structured the sentence imposed on the applicant to allow for a longer than usual period under parole supervision to allow for his best prospect for successful return to the community.
In all the circumstances, the sentence imposed on the applicant for charge 5 was well within the range of sentences available to the judge.
As the proposed ground with respect to sentence cannot succeed, leave for an extension of time in which to appeal against sentence must be refused.

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[2025] VSCA 137

23 June 2025