David Dughetti v The Queen
[2019] VSCA 217
•2 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0150
| DAVID DUGHETTI | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE AP, WEINBERG JA and TINNEY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2019 |
| DATE OF JUDGMENT: | 2 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 217 |
| JUDGMENT APPEALED FROM: | DPP v Dughetti (Unreported, County Court of Victoria, Judge Stuart, 4 July 2018) |
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CRIMINAL LAW – Sentence – Aggravated burglary, handling stolen goods, theft, dangerous or negligent driving while being pursued by police, causing injury recklessly, damaging property – Further 18 summary offences – Offences committed whilst on bail – Offender aged 22 at time of conduct – Pleas of guilty – Sentenced to a total effective sentence of 8 years and 8 months’ imprisonment – Non-parole period of 5 years and 6 months – Sentence to be served in addition to earlier sentence for breach of community correction order – Manifest excess – Totality – Whether circumstances of aggravated burglary rendered it a less serious instance of offence – Whether insufficient weight given to steps taken towards rehabilitation whilst on remand and to prospects of rehabilitation – Total effective sentence a function of the sheer number of crimes committed by the appellant, and the resultant number of charges he faced – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms E Clark | Balmer & Associates |
| For the Respondent | Mr P Bourke | Mr J Cain, Solicitor for Public Prosecutions |
TATE AP
TINNEY AJA:
Introduction
In April 2018, the appellant pleaded guilty before a judge in the County Court to 13 charges contained on two indictments, and to 18 related summary offences.
On 4 July 2018, the judge sentenced the appellant to be imprisoned for eight years and eight months, with a non-parole period of five years and six months, according to the following table:
Charge Offence Maximum Penalty Sentence Cumulation Indictable offences: 1 Dangerous or negligent driving while being pursued by police 3 years 20 months 6 months 1 Theft 10 years 3 months 1 month 2 Handling stolen goods 15 years 3 months 1 month 3 Causing injury recklessly 5 years 9 months 3 months 4 Theft 3 years 12 months 4 months 5 Dangerous or negligent driving while being pursued by police 3 years 15 months 6 months 6 Theft 10 years 12 months 4 months 7 Conduct endangering persons 5 years 2 years 6 months 10 months 8 Damaging property 10 years 9 months 3 months 9 Damaging property 10 years 3 months - 10 Aggravated burglary 25 years 4 years 2 months Base 11 Theft 10 years 12 months 4 months 12 Handling stolen goods 15 years 3 months 1 month Summary offences: 51 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.152 Driving whilst disqualified 240 penalty units and/or 2 years 2 months 2 months
Aggregate S.253 Contravene conduct condition of bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.316 Fail to stop vehicle of police direction 60 penalty units and/or 6 months imprisonment 2 months 2 months
18 Driving whilst disqualified 240 penalty units and/or 2 years 2 months 2 months
Aggregate S.219 Using unregistered vehicle 25 penalty units or 50 penalty units (subsequent offence) $500 fine - 56 Contravene conduct condition of bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.358 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.121 Dangerous driving 240 penalty units and/or 2 years 9 months 3 months 60 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.161 Contravene conduct condition of bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.332 Driving whilst disqualified 240 penalty units and/or 2 years 2 months 2 months
Aggregate S.263 Contravene conduct condition of bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.364 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.165 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.166 Driving whilst disqualified 240 penalty units and/or 2 years 2 months 2 months
Aggregate S.267 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.169 Commit indictable offence whilst on bail 30 penalty units and/or 3 months 2 months 2 months
Aggregate S.1Total Effective Sentence 8 years’ and 8 months’ imprisonment Non-Parole Period Fixed 5 years’ and 6 months’ imprisonment Pre-Sentence Detention 173 days Ancillary Orders Forfeiture and disposal orders 6AAA statement 12 years’ imprisonment, with a non-parole period of 8 years and 6 months
On 4 October 2018, pursuant to an application on the papers, Priest JA granted leave to appeal against the sentence, limited to the second of two grounds which had been filed.[1] The ground was as follows:
The individual sentence on charge 10, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars:
a)The learned sentencing judge failed to have proper regard to the principle of totality and the sentence already served by the applicant whilst awaiting trial.
b)The learned sentencing judge gave insufficient weight to the steps towards rehabilitation taken by the applicant whilst on remand awaiting sentence.
c)The learned sentencing judge gave insufficient weight to the applicant’s prospects of rehabilitation.
[1]Dughetti v The Queen (Unreported, Court of Appeal, 4 October 2018).
The offending
In order to place the offending represented by charge 10, the aggravated burglary, into its proper context, it is necessary to say something about the background to the offending, and to very briefly summarise the eight incidents of the overall offending of the appellant.
The appellant was 22 years old at the time of the offending. He had what was described by Priest JA in his judgment on the leave application as an ‘unenviable criminal history’ to which we will later turn.
On 17 August 2016, the appellant was bailed from the Sunbury Police Station to appear at the Broadmeadows Magistrates’ Court on 21 October 2016 in respect of unrelated offending. Amongst other conditions of bail was a curfew condition requiring him to be at his place of residence between the hours of 9:00 pm and 6:00 am unless in the company of his mother. The appellant was subject to this bail undertaking throughout the course of his offending. In addition, he was subject to a community correction order (‘CCO’) which had been made by the County Court on 18 March 2016 in respect of firearms, dishonesty, and serious driving offences. He was a disqualified driver.
The offending took place between 20 September and 8 October 2016 and comprised eight incidents.
Incident 1 – Indictment G12828856B, Theft (charge 1), related summary charges 51-53
On 22 September 2016 at 12:20 am, the appellant stole an iPhone from a male whom he had met through a dating application.
Incident 2 – Related summary charges 16, 18, 19 and 56
On 3 October 2016 at 1:00 am, the appellant was found by police asleep in a vehicle which had its engine running and head and tail lights operating. The number plates of the vehicle did not match the registration. One of the police members recognised the appellant. Enquiries revealed that he was disqualified, and on bail. Police woke the appellant and directed him to get out of the vehicle. He drove away from police at a fast speed. Later, the vehicle was found again by police, this time with no number plates affixed. The appellant was directed to stop, but again, drove away, and eluded the police.
Incident 3 – Indictment G12828856B, handling stolen goods (charge 2) and recklessly causing injury (charge 3); related summary charges 21, 58, 60 and 61
Later the same day, shortly after 10:08 pm, the appellant and a passenger were involved in a serious ‘road rage’ incident, during which the passenger and the appellant punched another motorist numerous times to the face and head, rendering him unconscious. One of the men tried to pull another person from the vehicle of the victim. The two men also kicked the vehicle, and the appellant side-swiped it as he drove away from the scene. The victim suffered bruising and swelling to his face and bleeding from the mouth.
Incident 4 – Indictment G12828856B, theft (charge 4) and dangerous or negligent driving whilst pursued by police (charge 5); related summary charges 32, 63 and 64
A few days later on 8 October 2016 at about 12:20 am, the police located the appellant in Sunbury in a stolen Toyota Landcruiser. On two separate occasions, the appellant sped away from police when they endeavoured to intercept and apprehend him.
Incident 5 – Indictment G12828856B, theft (charge 6); related summary charge 65
Later that morning between 5 am and 6 am, the appellant stole the motor vehicle of a friend of his who had been in the Landcruiser earlier on and whose handbag and car keys had been left by her in the vehicle.
Incident 6 – Indictment G12828856B, conduct endangering persons (rolled up, two police and other road users in general (charge 7)) and damaging property (charge 8); related summary charges 66 and 67
At about 7:30 am on 8 October 2016, police were called to the Calder Freeway near Castlemaine where the appellant was observed driving a stolen Commodore erratically and against traffic in the emergency lane on the incorrect side of the freeway. Police activated their flashing lights and attempted to intercept the appellant, stopping the police vehicle facing the appellant in the emergency lane. The appellant accelerated towards the police vehicle, passing it on the left hand side and striking it on the way through, disabling the police vehicle. The appellant continued travelling south on the wrong side of the freeway against oncoming traffic, travelling at a speed of the order of 75-80 km/h. About 35 minutes later, the vehicle was again observed by police, now travelling south on the correct side of the Calder Freeway towards the earlier collision scene. Police deployed stop sticks in order to stop the appellant. The appellant drove over the stop sticks, causing the tyres of the Commodore to deflate. The appellant still did not stop, and drove for approximately 15 kilometres on the deflated tyres and damaged rims, causing significant damage to the vehicle and the roadway.
Incident 7 – Indictment G12828856B, damaging property (charge 9), aggravated burglary (charge 10), theft (charge 11) and handling stolen goods (charge 12); related summary charge 69
Having evaded police, the appellant continued driving until a point where he smashed the vehicle through the locked front gate of a rural property in Elphinstone, damaging the gate and causing further damage to the vehicle. By now it was about 9:10 am.[2] The appellant kicked in the front door of the house, forcing open the door and damaging the door and door frame. One of the occupants, Mr L, heard the loud bang made by the breaking of the door. At the time, he assumed the noise had been made by his two year old daughter playing. A few minutes after he heard the noise, Mr L was in his bedroom when the appellant opened the bedroom door and Mr L saw him standing there. The appellant looked agitated and drug affected. He said to Mr L, ‘I need your car keys, I’m being chased, I need your help’. Fearing for his safety and that of his wife and young child and in order to ensure their safety, Mr L walked the appellant to the kitchen area where the keys were located. The appellant grabbed the keys from the kitchen bench. Mr L, attempting to pacify the appellant and keep him calm, walked him outside to his wife’s BMW motor vehicle and then showed him how to unlock it. The appellant drove away in the vehicle, leaving the stolen Commodore behind. A number of stolen vehicle number plates were located in the Commodore.
Incident 8 – Indictment G12828856A, dangerous or negligent driving while pursued by police (charge 1)
[2]The prosecutor on the plea informed the sentencing judge that the appellant arrived at the Elphinstone property at approximately 7:30 am. In sentencing the appellant, his Honour, seemingly reliant on the statement of Mr L, stated that the time of the entry to the premises was about 9:10 am.
Following the aggravated burglary, a photograph of the appellant and the stolen black BMW were circulated to police. The vehicle was observed by members of the police driving into a service station in Kangaroo Flat. A police divisional van pulled into the service station alongside the BMW at about 6:10 pm. The appellant then drove out of the service station. The police vehicle activated lights and siren and took off in pursuit of the appellant, who, driving at speed, drove through a red light, turned without indicating, overtook a vehicle, causing oncoming traffic to take evasive action to avoid being hit, then drove through a roundabout in the wrong direction, again causing vehicles to take evasive action to avoid colliding with him. In the end, the pursuit was terminated by police out of concern for the safety of other road users. The BMW was last seen driving at excessive speed in a built up area before disappearing out of sight.
Arrest
On 12 October 2016, the appellant was arrested by police at a rural property in Malmsbury. He had serious burns to his left arm and a gunshot wound to his right leg. He was taken to the Royal Melbourne Hospital by ambulance for treatment. He was discharged from hospital on 13 October 2016 and transported to the Melbourne West Police Station for interview. In the interview, the appellant answered ‘no comment’ to many of the questions asked of him, and otherwise denied the offending. He was remanded in custody.
The plea hearing
Numerous character references and a letter from the appellant were submitted on his behalf on the plea in support of the contention that he had taken great strides in the direction of his rehabilitation since in custody, and that his efforts in that regard were ‘extensive and genuine’. In connection with that, it was submitted that his prospects of rehabilitation were good. The pleas of guilty were in most cases made at the earliest opportunity and his remorse, as demonstrated by the pleas of guilty and other matters, was genuine. Counsel for the appellant conceded that nothing less than a term of imprisonment with a non-parole period would suffice for what she described as his ‘spree’ of offending. She later indicated he had accepted that a significant term of imprisonment would be imposed. She urged his Honour to take into account the additional time the appellant had already spent in custody as a result of having breached his previous CCO and not having applied for parole at the end of the minimum term. Defence counsel conceded that there should be some cumulation in respect of some of the charges. Counsel described the appellant’s criminal history as ‘brief, but it’s serious’. She pointed to the involvement of drugs in his past and present offending.
The prosecutor on the plea hearing, after highlighting some of the aggravating features of the crime, submitted that the aggravated burglary was a serious example of that crime, albeit without some of the features sometimes present. A number of the charges involving pursuits and other bad driving by the appellant involved danger being caused to members of the police force, an aggravating feature.
It was submitted by the Crown that denunciation, general deterrence and specific deterrence were important sentencing purposes to be served.
The sentence
Having set out the circumstances of the appellant’s offending, his Honour described the offending as ‘remarkable’. He stated that the appellant showed no thought for committing offences whilst on bail, or for stopping his conduct. The driving engaged in was of high risk to police officers and members of the public. His Honour said of the aggravated burglary that the appellant kicked in the front door of a house which he knew to be occupied in order to substitute another car for the wrecked car. His Honour noted that it was ‘remarkable’ that the respondent did not kill another road user or member of the police force. He showed no regard whatsoever for anybody else. It was all about him and his endeavours to avoid apprehension. He said, ‘In short, for other members of the community, you could not care less.’ He described the appellant’s criminal history as ‘extraordinary’ for a man so young. He then dwelt on that history for a time.
His Honour indicated that general deterrence was the principal sentencing factor, but that there was also a need for just punishment and denunciation. As for specific deterrence and protection of the community, these would usually assume great importance in the ordinary course, but this was not an ordinary case. In that regard, his Honour spoke of the ‘remarkable use’ the appellant had made of his time in custody to rehabilitate himself. His Honour set out these efforts aimed at rehabilitation in great detail, concluding with a description of the appellant’s rehabilitation in prison as being ‘striking’.
As for the prospects of rehabilitation, his Honour said these were excellent as long as the appellant remained drug free. Were he to so much as dabble in drugs on his release, however, serious offending would be inevitable and the prospects of rehabilitation would be ‘nil’.
As a result of the steps towards and the prospects of rehabilitation, the need for specific deterrence and protection of the community were diminished.
There was still, however, the need for stern punishment.
His Honour noted that the pleas of guilty were early ones, and had utilitarian value as well as evidencing remorse. His Honour was satisfied that the appellant was remorseful and had insight into his offending.
His Honour passed the sentences indicated in the table in [2] of this judgment.
Written cases and submissions in the appeal
The appellant
It was submitted on behalf of the appellant that the sentence on charge 10 was itself manifestly excessive, and that that fact and the orders for cumulation resulted in a head sentence and non-parole period which were manifestly excessive.
Two central matters were highlighted by Ms Clark in her capable and admirably economical submissions that went to the heart of the case. First, it was submitted that the aggravated burglary charge upon which the appellant was sentenced was an instance of the crime the objective seriousness of which fell towards the lower end of the scale. Secondly, it was submitted that the exceptional progress made by the appellant towards rehabilitation took this case well out of the ordinary.
In respect of the objective seriousness of the crime, whilst acknowledging that it had some serious features, Ms Clark submitted that the crime was particularised as one involving an intent to steal, with a person present. This was not an entry accompanied by an intent to assault. Nor was the appellant in company or in possession of a weapon. The crime was committed in daylight hours. Although the appellant had an interaction with Mr L inside the premises, which would have been terrifying for Mr L, no threats were uttered or violence inflicted. The appellant did not spend a prolonged period of time inside Mr L’s house. The crime lacked planning and sophistication. Ms Clark took the Court to the decision of Director of Public Prosecutions v Meyers[3] and noted that the instance of aggravated burglary in the present case did not possess many of the features noted by the Court of Appeal in that case as pointing to the seriousness of crimes of aggravated burglary. Ms Clark went as far as to submit that this was a crime of a type commonly heard in the Magistrates’ Court and that but for the value of the motor vehicle stolen, this matter would have been triable summarily. Ms Clark disputed that the motivation of the appellant in carrying out the aggravated burglary, namely, to acquire another vehicle to assist him in his efforts to evade capture by the police, was an aggravating feature of the crime.
[3](2014) 44 VR 486 (‘Meyers’).
Turning to the second principal issue, the rehabilitation of the appellant since in custody, Ms Clark submitted that the appellant ‘has demonstrated a commitment to rehabilitation that is quite extraordinary and long-lasting, and goes above and beyond what the courts often see in terms of efforts made towards rehabilitation’. Amongst other matters referred to, she pointed out that he had taken part in no fewer than three courses aimed at dealing with his drug issues, and that when he was in the position of being able to apply for parole should he wish to, he declined to do so in order to further his rehabilitation. For a person of his age, all of this demonstrated great insight into his offending, and was also demonstrative of his remorse. It was submitted that the steps taken by the appellant towards rehabilitation entitled him to a significant discount on sentence, which amongst other things would send a message to others in his position that acting in that fashion would attract a benefit. Further, Ms Clark submitted that there was nothing self-serving about his conduct in that regard.
Ms Clark submitted that although the sentencing judge had seemingly been particularly conscious of these rehabilitative steps, that matter was not properly reflected in either the sentence imposed for aggravated burglary or the orders for cumulation. In the result, the total effective sentence was unduly stern for a person of his age. This was especially so in light of the fact that many of the offences upon which he was sentenced were either summary offences or indictable offences triable summarily with a maximum penalty of five years or less. Ms Clark submitted that the aggravated burglary and the crimes connected with incident 7 were the two matters of real significance. The other offences were of much less seriousness.
As for the degree of cumulation ordered, although on the face of it, this may seem modest, Ms Clark submitted that the end result was a total effective sentence which was too high.
Ms Clark further submitted that when the sentence already served by the appellant on the County Court matter was taken into account, were he to serve every day of the present sentence, it would have the effect of him being required to spend nine years and nine months in custody. For a person of his age, this would be disproportionate in the circumstances of this case.
The respondent
The written case for the respondent, to which Mr Bourke spoke in his clear and concise submissions, outlined the considerable seriousness of charge 10 by reference to what were said to be its aggravating features. Mr Bourke dealt with a number of those serious features in his submissions, pointing out that this was an isolated residential property and that the entry of the appellant was a dramatic and violent one. Furthermore, the fact that the motive behind the burglary was the acquisition of a vehicle to use in his continuing avoidance of the police was an aggravating feature. He submitted that this was a serious example of the crime of aggravated burglary.
The sentence of 50 months for that crime reflected the serious nature of the intrusion into the home of the victims and was within range for such offending. The sentence was well in keeping with the sentence the subject of consideration in Borg v The Queen.[4]
[4][2017] VSCA 71 (‘Borg’). We discuss Borg further at [62]–[64] below.
The driving offences the subject of charge 1 on indictment A and on charges 5 and 7 on indictment B were all serious, involving speed and high risk to road users, while the appellant, who was disqualified, was being pursued by police. Charge 7 was particularly serious, involving the appellant side-swiping a police car and driving on the wrong side of a freeway against traffic. All of the driving offences presented a high risk to police officers and members of the public, for whose safety the appellant showed little regard.
All of the sentences for these matters, so the written case asserted, were plainly within range, especially given the appellant’s lengthy and serious driving history. General deterrence was correctly considered by the sentencing judge to be a principal sentencing factor.
As to the issue of concurrency, the sentencing judge had correctly acknowledged the need to order concurrency between various of the sentences imposed in spite of the presumption in favour of cumulation brought about by s 16(3C) of the Sentencing Act 1991 due to the fact the appellant was on bail at the time of the offending.[5] The orders for cumulation were appropriately moderated as a result. The difficulty for the appellant was the sheer number of offences he had carried out. His Honour, in the end, arrived at the eventual sentence by modest and appropriate cumulation.
[5]The respondent’s written case mistakenly refers to s 16(3E) of the Act.
In addition, his Honour, favourably to the appellant, said he reduced the overall sentence by 10 months for the time spent in custody by the appellant after the expiration of his non-parole period for the breach of the CCO. Careful consideration was given by the sentencing judge to the need for totality, and no error had been demonstrated.
Whilst clearly his Honour was impressed by the steps taken towards rehabilitation, his assessment that the prospects of rehabilitation were excellent, carried the proviso that the appellant remain abstinent. The long drug history of the appellant and the fact that the current offending was committed whilst he was under the influence of drugs made it entirely appropriate for his Honour to express his view as to the prospects of rehabilitation in qualified and contingent terms. In this regard, it cannot be ignored that the appellant has a long history of offending and that the sentences imposed upon him over that history were designed to assist in his rehabilitation dating back to his three year period of detention in 2013.
Nothing in the sentence would indicate that the sentencing judge did not give appropriate weight to the rehabilitation of the appellant. He devoted careful attention to it. In the circumstances, the sentences imposed adequately reflected the appellant’s prospects of rehabilitation.
The total effective sentence and the non-parole period could not be described as unreasonable or plainly unjust.
Analysis
This Court has had cause to point out on countless occasions in recent years that the test for manifest excess is a stringent one, very difficult to make out. Error will not be established unless the appellate court is persuaded that the sentence was wholly outside the range of sentencing options available to the sentencing judge.
As Redlich and Priest JJA stated in McPhee v The Queen:[6]
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences. … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[7]
[6][2014] VSCA 156.
[7]Ibid [8] citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing).
As was stated by the High Court in R v Pham:[8]
It is only if the sentence is found to be ‘unreasonable or plainly unjust’ that the challenge of manifest excess succeeds. Manifest excess is a conclusion, relevantly in the context of sentencing for this offence, that the sentence is manifestly too long. To observe that a sentence is ‘very heavy’ when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencer’s discretion.[9]
[8](2015) 256 CLR 550.
[9]Ibid [56] (Bell and Gageler JJ).
We are mindful that manifest excess, as a ground of appeal, is not to be judged by reference to the particular sentence an appellate judge would have imposed had he or she been the sentencing judge. Reasonable minds may differ. The yardstick is the much more stringent one of determining whether the sentence imposed is so far outside the permissible limits of the discretionary judgment as to itself bespeak error.
One of the contentions at the heart of the appeal in this case was that the particular aggravated burglary the subject of consideration was not a very serious one because it did not possess many of the aggravating features commonly seen in such crimes.
It is easy enough to accept that the fact of the appellant acting alone, without a weapon, and with the intent to steal rather than to carry out an assault inside the premises, dictates that his crime was less serious than many crimes of aggravated burglary which come before the courts. That is not to say, however, that his crime was not still a serious one. In our view, a consideration of the objective circumstances of the crime reveals that it was, indeed, serious.
Prior to his entry into the house, the appellant, on the run from the police in a stolen and damaged motor vehicle, saw the need to acquire another vehicle to continue in his endeavour to evade capture. That was his reason for selecting the particular home to burgle. In our view, the motivation behind his commission of the burglary informs the seriousness of his crime. Having selected the property, he used his vehicle to smash through the locked front gate of the property before kicking in the front door and gaining entry to the house. He was, of course, punished separately for the first of those two acts of criminal damage to property although he received no cumulation for that offence.
It is true that once inside, the appellant neither threatened nor carried out any assault. That is not to say, however, that his unexpected presence inside the dwelling would not have caused great fear to its occupants, particularly considering the dramatic manner of his entry and his obviously drug-affected and desperate state. A two year old child was present and potentially within harm’s way, a matter which would no doubt have been of great concern to her parents. In our view, this was a frightening and entirely unwarranted invasion of the sanctity and safety of that home.
Ms Clark made the submission that this crime was only removed from potential summary disposition by the value of the motor vehicle stolen. We cannot accept that submission. In our view, this crime, even considered in isolation, was far too serious to be heard summarily.
Going beyond the objective seriousness of the crime itself, the other surrounding facts and personal circumstances of the appellant go to explain the sentence passed on the appellant for this crime. Those matters were summarised in [5] and [6] of this judgment, but we will note them again.
First, although the appellant was only 22 years old at the time of the offending, he had a serious and concerning criminal history stretching back to 2013 when he was 19. He had accrued serious criminal convictions including for multiple armed robberies, drug offences, being a prohibited person in possession of a firearm, dishonesty offences, serious driving offences including dangerous driving and driving whilst disqualified, and dangerous driving while being pursued by police.
At the time of all of the instant offending, the appellant was on bail which had a curfew condition which he broke in the commission of many of his offences. In addition, he was subject to a CCO which was made by a judge of the County Court on appeal from a Magistrates’ Court sentence of imprisonment. That order related to serious offending including, tellingly, an offence of dangerous or negligent driving while pursued by police. Furthermore, the appellant had no driver licence, and was disqualified from obtaining one at the time of his offending.
The carrying out by the appellant of the spree of criminality in the course of which the aggravated burglary was committed, in circumstances where he was on bail and subject to a CCO, bears strong testament to his total lack of regard for the law and proper behaviour. This cannot be explained by his age. He was not a thoughtless child. He was a 22 year old man who was accustomed to breaking the law, and had no compunction at all about placing others in danger while doing so.
There is no doubt that the steps taken by the appellant towards rehabilitation and the resultant enhanced prospects of rehabilitation were very important sentencing considerations and the appellant is to be commended for those steps. Particular (b) of the ground of appeal asserts that the sentencing judge gave insufficient weight to the steps towards rehabilitation taken by the appellant whilst on remand.
That is a contention which would be difficult to make out in light of the very detailed consideration devoted to that very matter during the plea, and during the sentence. His Honour devoted no fewer than 39 paragraphs of the total of 123 paragraphs of the sentence to the issue, commencing with his description at [75] of the ‘remarkable use’ made by the appellant of his time in custody to rehabilitate himself. He set out portions of the material pointing to those steps in the appellant’s letter to the Court and the letters of his mother, grandfather, stepfather, and Andrew Sturgess of Parkville College. In addition he set out relevant portions of the reports of the psychologists Harley Mitchell, Melissa Pardy, and Geoffrey Cummins. He also, in this regard, made particular mention of the fact that the appellant had chosen to remain in custody for the full 15 months of the County Court sentence and to continue with his rehabilitation rather than to apply for parole. At the end of this analysis, his Honour described the appellant’s rehabilitation in prison as being ‘a striking one’.
It is clear from the careful analysis he devoted to the issue that his Honour was well aware of the need to make due allowance in the sentence for these steps the appellant had taken. There is no reason to suppose he did not do so.
As for the closely related particular (c) of the ground of appeal, it asserts that the sentencing judge gave insufficient weight to the appellant’s prospects of rehabilitation. His Honour described the appellant’s prospects of rehabilitation, should he stick by the decision he had made in prison to not use drugs, to be excellent. On the other hand, he expressed the view that if the appellant even dabbled in drugs on his release, he would reoffend in a serious way, and his prospects of rehabilitation would be ‘nil’.
Mr Bourke submitted that his Honour was perfectly entitled to hold this contingent view as to the prospects of rehabilitation. We agree. True it is, as pointed out by Priest JA in the decision on the leave application, that the appellant had returned eight urine screens negative for illicit drugs in his time in custody between November 2016 and April 2018. Also, he had undergone three courses in prison focusing on his drug addiction. Those facts, however, to our mind, fell some way short of proving the strength of the appellant’s resolve, particularly considering the concerning criminal history he had accrued and the apparent involvement of drug abuse in much of it. As the sentencing judge pointed out, the efforts towards rehabilitation had occurred in the prison setting. The outside world is a starkly different place.
The appellant also placed some reliance, in respect of the individual sentence imposed on charge 10, on a comparison between the seriousness of the aggravated burglary in this case and those considered in Hogarth v The Queen[10] and Meyers, both of which decisions were also referred to by Priest JA. Whilst the offending in those cases was objectively more serious than the offending in this aggravated burglary, the proper role of current sentencing practices after the decision in Director of Public Prosecutions v Dalgliesh[11] must be borne in mind. Current sentencing practices are but one of the matters required to be taken into account in arriving at an appropriate sentence. No other sentence passed stands as a precedent for the sentence in this case. It is also noteworthy that Hogarth and Meyers were decided some years ago. Sentences generally for aggravated burglary have increased in the interim.
[10](2012) 37 VR 658 (‘Hogarth’).
[11](2017) 262 CLR 428.
In that regard, we make mention of the decision of Borg,[12] to which the Court was referred by Mr Bourke. In that case, which was an application for leave dealt with by Tate JA, the applicant faced a charge of aggravated burglary, amongst a number of other charges including a number of charges of reckless conduct as a result of his driving and a charge of armed robbery. There were some parallels between that case and the present case. The aggravated burglary involved an intent to steal and did not involve co-offenders or the use of a weapon. The applicant received a sentence of 51 months for the charge of aggravated burglary, and a total effective sentence of seven years and 10 months. The spree of offending in that case went for some two hours. Her Honour stated:
Although the offending was in one sense not prolonged, in another sense it involved the commission of multiple serious offences in a lengthy and deliberately-pursued course of conduct with the aim of avoiding capture. Those offences placed innocent persons (including police officers) going about their ordinary business at serious risk of injury and it involved an intrusion into a private house causing fear to the vulnerable occupier, a mother and two children with special needs. The smashing of a glass door with a chair must have terrified the occupants. Many people were exposed to danger by reason of Borg’s deliberate and reprehensible conduct.[13]
[12][2017] VSCA 71.
[13]Ibid [25].
In respect of the age of the applicant as a sentencing consideration, her Honour noted:
the youth of an offender has limited relevance when one is considering risk-taking driving, especially where the driver is, as Borg is, an experienced offender in his mid-20’s who has persisted with criminal activity when given the opportunity for rehabilitation in the community.[14]
[14]Ibid [27].
In the end, her Honour concluded that the sentence imposed on the applicant was ‘well within range’.[15]
[15]Ibid [28].
We consider that the sentence passed for aggravated burglary in this case was not at odds with current sentencing practices.
Turning to the question of cumulation of the various sentences on the base sentence for aggravated burglary, no particular sentence, or order for cumulation on a particular sentence, was pointed to on behalf of the appellant as being excessive. That is unsurprising when the various offences and the resulting sentences and orders for cumulation are considered. In our view, they can all be seen to be moderate.
By way of illustration, we refer to one, only, of the sentences and orders for cumulation. The rolled-up charge of reckless conduct endangering persons (charge 7) resulted in a sentence of two years and six months. Ten months of this sentence was ordered to be served cumulatively on the base sentence. This charge encompassed the considerable danger caused to multiple road users and members of Victoria Police when the appellant drove a stolen vehicle in quite outrageous fashion along the emergency lane on the wrong side of the Calder Freeway, against oncoming traffic and striking and disabling a police vehicle parked in his path to try to halt him.
In our view, for that serious offence, correctly described by Priest JA as ‘nothing short of outrageous’, to incur an additional sentence of only ten months was modest. It was certainly not excessive. So, too, in the case of all of the other sentences, and the periods of cumulation ordered. There was nothing excessive about any of them.
Ms Clark accepted that fact, but submitted that because of the number of instances of cumulation, the resultant total effective sentence was manifestly excessive.
As Weinberg JA observed during the appeal, however, the total effective sentence was a function of the sheer number of crimes committed by the appellant, and the resultant number of charges he faced.
In our view, a consideration of the transcript of the plea and the reasons for sentence makes it abundantly clear that his Honour was acutely aware of the need to comply with the principle of totality. In spite of the fact that there was a statutory presumption in favour of cumulation of the sentences, his Honour imposed only very moderate cumulation on the base sentence. He was well aware of the fact that the combination of the sentence he imposed and the sentence already served by the appellant would result in the appellant serving nine years and nine months in custody should he end up serving the entirety of the head sentence. His Honour clearly considered that would be an appropriate outcome in the circumstances.
Furthermore, a consideration of the maximum penalty for the charge of reckless conduct, namely, five years, illustrates the lack of force to the contention of Ms Clark that it was relevant that many of the offences on which the appellant was sentenced were summary offences or indictable offences triable summarily and have maximum penalties of five years or less. Ms Clark also relied, in this regard, on the fact many of the offences could strictly have been heard summarily.
The seriousness of the offending of the appellant should be judged on all of its circumstances, rather than on a consideration of the maximum penalty for particular crimes or whether or not, legally, they could have been heard summarily. The sentencing judge expressed some disquiet about the low maximum penalties for some of the offences. The fact remains, the offending of the appellant, some of it in respect of crimes which had maximum penalties of five years or even three years imprisonment,[16] was nonetheless exceedingly serious.
[16]This is the maximum penalty for dangerous or negligent driving while pursued by police; Crimes Act 1958, s 319AA.
Whilst of course the main focus in this appeal was on the offending represented by charge 10 and the resulting sentence for that crime, the ground of appeal calls into question the entire sentence, including the non-parole period. It is worth noting, we think, that the aggravated burglary committed by the appellant occurred in the context of a lawless spree of shocking driving and other unlawful behaviour which occurred on three separate days and spanned a period of more than two weeks. As noted earlier, the appellant during this time showed a complete disregard for the law and a complete lack of regard for the wellbeing of the many road users and members of the police whose safety he imperilled. It is true, and, we repeat, commendable, that he has taken significant steps towards rehabilitation in prison. The fact remains, however, that the objective seriousness of his offending, its protracted and persistent nature, and its sheer volume, could only properly be met by very strong punishment.
The sentencing judge correctly considered that general deterrence, just punishment and denunciation were all important purposes for which sentence needed to be passed. He somewhat generously was prepared to moderate specific deterrence and protection of the community in light of his conclusion about the steps taken towards, and the prospects of, rehabilitation. Taking into account all of the relevant matters in aggravation and mitigation, his Honour, an experienced criminal judge, arrived at the sentence he did.
It is unnecessary to comment upon the circumstance that his Honour indicated that, in the exercise of his broad discretion, he would have passed a sentence of five years in respect of charge 10 had he not deducted 10 months for the additional sentence already served by the appellant. We do not consider it appropriate to evaluate a ground of appeal based on manifest excess by reference to a notional sentence. Whether a sentence of five years could have been justified for charge 10 is irrelevant given that we are of the view that this Court should not interfere because we are not satisfied that, in any event, a different total effective sentence should be imposed.[17]
[17]Criminal Procedure Act 2009, s 281(1)(b) and (2). See Gillespie (a pseudonym) v The Queen [2018] VSCA 151 [66]; McGrath v The Queen (2018) MVR 189, 192 [7]; Trinh v The Queen [2016] VSCA 307 [106].
In spite of the careful and moderate submissions on behalf of the appellant, he has failed to make good the claim of manifest excess. In the circumstances, we do
not believe the sentence passed for aggravated burglary was excessive, less still manifestly so. As for the periods of cumulation, they were perfectly appropriate. Furthermore, the resultant total effective sentence and the non-parole period fixed were also within range. We do not consider the sentence imposed to be unreasonable or plainly unjust.
Conclusion
It follows that we would dismiss the appeal.
WEINBERG JA:
As the majority judgment makes clear, in April 2018, the appellant, now aged 25, pleaded guilty in the County Court to 13 charges contained within two indictments. He was also dealt with for 18 related summary offences.
On 4 July 2018, the appellant was sentenced to be imprisoned for a total term of 8 years and 8 months, with a non-parole period of 5 years and 6 months. The individual components of that sentence are set out in the majority judgment.
The appellant sought, and was granted leave to appeal on the papers.[18] Leave was granted in respect of the following ground:
[18](Unreported, Court of Appeal, 4 October 2018, (Priest JA)).
The individual sentence on charge 10, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars:
a)The learned sentencing judge failed to have proper regard to the principle of totality and the sentence already served by the applicant whilst awaiting trial.
b)The learned sentencing judge gave insufficient weight to the steps towards rehabilitation taken by the applicant whilst on remand awaiting sentence.
c)The learned sentencing judge gave insufficient weight to the applicant’s prospects of rehabilitation.
The majority would dismiss this appeal. For the reasons that follow, I respectfully disagree. I would allow the appeal and set aside the sentence imposed below. I would resentence the appellant to a total effective term of 6 years and 6 months’ imprisonment, and I would fix a non-parole period of 4 years.
However, as mine is a minority view, I need not go through the process of setting out what sentence I would impose on each individual charge. Nor do I need to indicate what precise orders for cumulation I would make. I need only state why I consider that the sentence below should be set aside, and what I would regard as being an appropriate total effective sentence and non-parole period.
Bearing in mind that before being sentenced for these offences, the appellant had already served some 15 months in custody for other, quite unrelated offending, and that no part of that 15 month period could be taken into account as pre-sentence detention, the total effective sentence that I would impose is, as I will explain, broadly speaking, consistent with an overall sentence of 7 years and 4 months. It is also broadly consistent with a non-parole period of 4 years and 10 months. That is because I would take into account the same period of 10 months, as did the sentencing judge, to be credited to what is commonly described as ‘Renzella[19] time.’
[19]R v Renzella [1997] 2 VR 88 (‘Renzella’). See also, Karpinski v The Queen (2011) 32 VR 85.
Circumstances surrounding the offending
As Priest JA indicated when he granted leave to appeal, the offending could be characterised as comprising eight separate incidents. These are identified in the majority judgment, at [7]–[15], and there is no need for me to repeat what is set out there.
The appellant’s offending took place between 22 September and 8 October 2016. In fact, all but one of the indictable offences (a relatively minor matter involving the theft of an iPhone), took place over a five day period between 3 October and 8 October 2016.
As would be expected, the majority of the related summary matters concerned either driving offences, or committing indictable offences whilst on bail.
With regard to the indictable offences charged, there were four charges of theft, two of handling stolen goods, and two of intentionally damaging property. There was also a single charge of recklessly causing injury.
Without seeking to diminish the gravity of these offences, they would not ordinarily be expected to result in lengthy custodial sentences. This was, in fact, reflected in both the actual sentences imposed on these individual charges, and the orders made for cumulation.
Of particular concern, however, were four specific charges. This included charge 1 on Indictment G12828856A (dangerous or negligent driving while being pursued by police — sentence of 20 months with 6 months cumulative). On Indictment G12828856B, this included charge 5 (dangerous or negligent driving while being pursued by police — sentence of 15 months with 6 months cumulative), charge 7 (reckless conduct endangering persons — sentence: 30 months with 10 months cumulative), and most importantly, charge 10 (aggravated burglary — sentence: 50 months, base sentence). With regard to charge 10, the sentencing judge made it clear that the sentence that he would have imposed for that offence, save for a reduction of 10 months as Renzella time, was 5 years’ imprisonment.
Submissions before this Court
The appellant’s primary submission before this Court was that the sentence of 50 months’ imprisonment (or notionally 5 years’ imprisonment) on the charge of aggravated burglary was manifestly excessive. This was said to have had a flow-on effect, resulting in a total effective sentence that was also manifestly excessive. In my view, that submission should be accepted.
The sentencing judge recognised that the particular aggravated burglary in this case, subject of charge 10, was not a classical ‘confrontational’ aggravated burglary in the strict sense, as discussed in cases such as Hogarth v The Queen[20] and DPP v Meyers.[21] In Hogarth, this Court made it clear that sentences for aggravated burglaries of that type should be significantly increased in the future.
[20](2012) 37 VR 658 (‘Hogarth’).
[21](2014) 44 VR 486 (‘Meyers’).
The appellant’s conduct giving rise to charge 10 was, undoubtedly, highly culpable. There were some features of that offence that elevated its objective gravity. The victims present in the house when the appellant forced his way in would, no doubt, have been terrified by his actions. In addition, I accept that conduct of that kind has become somewhat more prevalent in recent years.
That said, however, the objective gravity of this particular aggravated burglary still fell well short of that which gave rise to this Court’s admonition that sentences for confrontational aggravated burglary should be significantly uplifted.
Making due allowance for the problems associated with the use of broad sentencing statistics, I note that according to the Sentencing Advisory Council’s ‘Sentencing Snapshot’ for aggravated burglary between the 2012–13 and 2016–17 financial years, the median sentence for that offence was 2 years and 9 months.
That median figure was for all sentences imposed in the higher courts during that period. It, of course, took no account of the vast number of sentences imposed for aggravated burglary in cases dealt with summarily in the Magistrates’ Court.[22] In those cases, the median figure for this offence would undoubtedly be far lower than the figure for the higher courts. Indeed, in many such cases, there would be a non-custodial disposition, perhaps in the form of a Community Correction Order (‘CCO’).[23]
[22]The Sentencing Advisory Council Statistics of sentences imposed for this offence in the Magistrates’ Court between the 2013–14 and 2015–16 financial years indicate that of a total of 404 offenders sentenced to a term of imprisonment, 2.5 per cent (equating to approximately 10 offenders) received sentences of 3 years’ imprisonment or more.
[23]Once again, the Sentencing Advisory Council Statistics of sentences imposed for this offence in the Magistrates’ Court between the 2013–14 and 2015–16 financial years highlight that of a total of 870 sentences passed in the Magistrates’ Court during this period, almost 30 per cent of these involved non-custodial dispositions. These included wholly suspended sentences (prior to being abolished), CCOs, and fines.
Relevantly for present purposes, of those offenders sentenced to 5 years’ or more imprisonment (it being recalled that this was the notional figure that the sentencing judge considered appropriate for charge 10 in the present case, before deducting 10 months as Renzella time), there were a total of only 42 offenders, almost all of whom received sentences of between 5 and 7 years. These would have included examples of the very worst forms of aggravated burglary.
That figure of 42 offenders should be compared with the total of 362 offenders who received sentences of less than 5 years. It should, perhaps, also be noted that 11 per cent of all offenders sentenced for aggravated burglary during the relevant period were given CCOs without any custodial component.[24]
[24]It is also noteworthy that this percentage has increased significantly since the period observed in the recent snapshot. The Sentencing Advisory Council Statistics of sentences imposed for this offence in higher courts between the 2013–14 and 2017–18 financial years demonstrate that of the 932 sentences passed for aggravated burglary during this time, the number of CCOs imposed have increased to 21.2 per cent (or approximately 198 offenders).
These figures alone would tend to suggest that the sentencing judge’s notional term of 5 years’ imprisonment for charge 10 was, at the very least, a very stern sentence. It would have been, and was, significantly out of kilter with the vast majority of sentences typically imposed for aggravated burglary, including offences of this nature. Indeed, the notional sentence of 5 years put the appellant into the most serious category of offending of this type.
The question to my mind is whether there was anything about the objective gravity of this particular offence that warranted treating it as falling within the worst 10 per cent or so of aggravated burglaries dealt with in the higher courts over the past few years.
In that regard, it must be remembered that the facts surrounding the commission of this offence were as follows. Shortly after 9.00 am, the appellant kicked in the front door of a house, damaging the door and the doorframe. One of the occupants, an adult male, assumed that the sound was that of his young daughter, playing.
A few moments later, that occupant was in his bedroom when the appellant entered. The appellant appeared drug affected, as indeed, he was. He said ‘I need your car keys, I’m being chased, I need your help.’
Fearing for his family’s safety, the occupant accompanied the appellant to the kitchen area and permitted him to grab the keys from the kitchen bench. He then accompanied the appellant outside the house, and showed him how to unlock the vehicle. The appellant then drove off.
Bad as this offending was, it seems to me to fall a considerable way short of the objective gravity typically associated with other cases involving aggravated burglary of residential premises. Many of those cases have resulted in significantly less severe sentences than the notional 5 years fixed for this offender. That, of itself, raises questions as to whether this sentence for this offence, and this offender, was manifestly excessive.
Some assistance, in that regard, can perhaps be gained from an examination of the three comparable cases to which counsel made reference before this Court.
The starting point must, of course, be Hogarth. In that case, the offender pleaded guilty to one charge of aggravated burglary, two charges of theft and one charge of handling stolen goods. He, in company with two co-offenders, had carried out a ‘home invasion’ involving what was described as a ‘confrontational aggravated burglary.’ One of the co-offenders was brandishing a hammer, and the entire home invasion was intended to assuage a grievance that Hogarth had against an occupant whom he knew or believed would be at home at the time.
In addition, the female occupant had her hands and feet bound, and was threatened with violence. Her rings and other jewellery were taken from her, as were several suitcases containing stolen goods of considerable value. The victim observed that another of the co-offenders was armed with a ‘long sharp thing.’
The Court noted that the maximum penalty for aggravated burglary had been increased in 1997 from 15 to 25 years’ imprisonment. The sentencing judge had imposed a sentence of 4 years and 6 months’ imprisonment on the charge of aggravated burglary, as part of a total effective sentence of 5 years’ imprisonment. He fixed a non-parole period of 3 years and 6 months.
It should be noted that the prosecution had submitted, on the plea, that an appropriate disposition for offending of this considerable gravity would be a total effective sentence of between 6 and 8 years, and a non-parole period of between 4 and 6 years.
Unsurprisingly, Hogarth’s appeal against sentence was rejected. The Court (Maxwell P, Neave JA and Coghlan AJA) observed that current sentencing practices for ‘confrontational aggravated burglary’ did not adequately reflect the ‘yardstick’ against which that offence should be viewed, having regard to the maximum penalty. Referring to R v MacNeil-Brown[25] (which was, at that stage, still good law),[26] the Court held that the Crown’s submission as to the appropriate sentencing range put on the plea had been appropriate.
[25](2008) 20 VR 677.
[26]Having not yet been overruled by Barbaro v The Queen (2014) 253 CLR 58.
In Meyers, the offender pleaded guilty to damaging property, aggravated burglary, false imprisonment, intentionally causing injury, and possessing an unregistered firearm. These offences were all committed as part of a single course of conduct.
Meyers was armed with a double-barrelled sawn-off shotgun. He was also in possession of a bag containing various items including cable ties, a nail gun, knives, and other cutting instruments. He had broken into the home of his former wife, and then assaulted her repeatedly, placing his hands around her neck and causing her difficulty in breathing. At one stage, he dragged her around by the hair. He struck her on the back of the head with the shotgun. He began to strangle her a second time. He earlier had threatened her with the shotgun, and bound her with the cable ties. Police entered the house and Meyers released his victim, though this was not until some three and a half hours had elapsed after he first detained her.
There was evidence on the plea that Meyers was suffering from depression at the time of the offending. He received a sentence of 3 years’ imprisonment on the charge of aggravated burglary, and a total effective sentence of 3 years and 6 months’ imprisonment. A non-parole period of 18 months was fixed. It was hardly surprising that the Crown appealed against that sentence.
The appeal succeeded. This Court (Maxwell P, Redlich and Osborn JJA) held that Hogarth was not to be viewed as confined to cases falling narrowly within the actual factual parameters that were there present. Rather, the principles that were said to underlie Hogarth were to be applied more generally to sentencing for aggravated burglary ‘in all of its more serious forms.’
Meyers itself was described as an instance of ‘intimate relationship’ aggravated burglary. That characterisation was viewed as an aggravating factor in and of itself.
In Meyers, the Court went on to lay down some general principles that would assist in assessing the gravity of a particular instance of aggravated burglary. It stated:
Determining the sentence to be imposed for any particular offence of aggravated burglary will in large part depend on a careful assessment of the (relative) seriousness of the offence. There was argument on the appeal about how the gravity of this particular instance of aggravated burglary should be assessed.
In our view, the following considerations will ordinarily be relevant to such an assessment:
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
·the mode of entry (e.g. 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.[27]
[27]Meyers, [47]–[48] (citations omitted).
Meyers was resentenced to a term of 4 years on the charge of aggravated burglary, and a total effective sentence of 5 years and 6 months. A non-parole period of 3 years was fixed.
It need hardly be said that the present case falls well below both Hogarth and Meyers in terms of the objective gravity of the appellant’s offending. Counsel who appeared on behalf of the appellant before this Court relied, entirely justifiably, upon both cases in support of her submission that the notional sentence of 5 years’ imprisonment that the sentencing judge considered appropriate on charge 10 was seriously out of kilter with other sentences for this offence. It was but a short step from that conclusion to the conclusion that both the sentence on charge 10 and the total effective sentence were manifestly excessive.
Counsel pointed to the fact that in the present case, the appellant’s intent upon entering the house had been to steal a motor vehicle. There was nothing to suggest that he had intended to assault any of the occupants of the premises, or threaten to do so. Nor was there any indication that he intended to cause damage to property, save for the limited damage done to the door when it was kicked in.
In addition, counsel submitted that unlike both Hogarth and Meyers, the appellant in the present case had been unarmed. Unlike Hogarth, he had acted alone, rather than in company.
In dealing with the principles laid down in Meyers, counsel noted that the offence took place in daylight, rather than, as in some cases, at night. To the extent that the appellant may have believed that there would be a person or persons present inside the house based upon the car being parked outside, that was, to some degree, speculative. Clearly, unlike Hogarth, the appellant was not someone of whom the occupant of the house was particularly likely to be terrified.
Counsel submitted, with considerable force, that this particular offence, though undoubtedly serious, could not, realistically, be viewed as being on the same scale as Hogarth or Meyers. She emphasised again that the appellant had not used any actual force. Nor had he uttered any threats. There was minimal damage to property. The only words spoken by the appellant were a request for the keys to the vehicle so that he could continue in his effort to avoid capture. There was no victim impact statement, and nothing to indicate that any ongoing harm had been done to the occupant by what had occurred.
It is a nice question whether the fact that this offence was committed in order to facilitate the appellant’s escape from police was, itself, an aggravating factor. I am prepared to assume, for present purposes, that it was, though without finally deciding the point. Nonetheless, there is a further question as to how much weight should be given to the motivation for breaking into the house in dealing with the objective gravity of the aggravated burglary itself. It is, of course, essential to ensure that there is no measure of double punishment involved in dealing with the appellant for both his earlier, and subsequent, actions in seeking to avoid police.
Counsel for the Crown referred to a third comparator, Borg v The Queen,[28] a decision of Tate JA refusing leave to appeal against sentence. In that case, the applicant pleaded guilty to two charges of theft, three charges of reckless conduct endangering persons (driving a stolen car erratically at a police vehicle, causing the officer to take evasive action to avoid a collision, and driving on the wrong side of the road directly at oncoming traffic), one charge of robbery, one charge of aggravated burglary, and two summary charges (one of which was for committing an indictable offence whilst on bail). The total effective sentence was 7 years and 10 months’ imprisonment with a non-parole period of 5 years. A component of that sentence was 51 months’ imprisonment imposed for the aggravated burglary alone.
[28][2017] VSCA 71.
Borg’s conduct was described by the sentencing judge in that case as ‘utterly deplorable.’ After escaping from police in a stolen vehicle, at around midnight, he entered the rear yard of a house. He used a chair to smash through a glass sliding door. While searching the premises, he was confronted by the female occupant. He demanded the keys to her car, and these were handed over, the occupant fearing for herself and her children.
In some respects, Borg’s overall offending was significantly worse than that of the appellant in the present case. Yet, the sentence of 51 months that he received for the aggravated burglary (and the total effective sentence of 7 years and 10 months), were both significantly lower than the notional 5 year sentence imposed on the appellant for the aggravated burglary in the present matter, and the total effective sentence of 8 years and 8 months (a notional 9 years and 6 months).
In response, counsel for the appellant noted that while the offending engaged in by Borg was similar in nature to that of the appellant, the sentence in Borg on the aggravated burglary was ‘significantly less’ than that notionally imposed by the sentencing judge in the present case.
The comparable sentences in Hogarth, Meyers, and Borg, to which counsel referred seem, to me, to provide cogent support for the appellant’s submission that he appears to have been treated significantly more harshly, in this case, than the offenders in those cases. Yet, their offending appears, to me, to have been markedly more serious than his own.
Of course, it does not follow that this sentence on charge 10, or the total effective sentence, was manifestly excessive. It is necessary also to consider all of the mitigating factors that were present in this case in order to come to a conclusion regarding that contention. However, it can be said that the appellant appears to have received unequal, and therefore unfair, treatment for his offending in this case.
The second and perhaps more compelling limb of the appellant’s argument before this Court related to what was said to have been the extraordinarily powerful evidence of rehabilitation placed before the sentencing judge. From my reading of Hogarth, Meyers, and Borg, none of the offenders in those cases could call in aid anything even remotely approaching the mitigatory factors present in this case.
Counsel for the appellant highlighted the fact that her client had recently participated in three separate drug courses. He had, of course, abstained from drug use throughout his period in custody. She noted that the third of those three drug courses was of particular significance because the appellant had been ‘hand-picked’ by authorities to participate in that program.
Counsel also emphasised that the appellant had been in a position to apply for parole towards the end of his earlier term of imprisonment. He had, however, declined to do so. He had chosen to remain in custody in order to further his drug treatment and rehabilitation. It was submitted that this demonstrated, at the very least, a real insight into his offending, and a commitment towards not offending again.
In seeking to illustrate the way in which this commitment towards rehabilitation was beneficial to the community, counsel compared the appellant’s behaviour with the example of an accused giving a statement against his or her co-offenders. It was submitted that the appellant’s level of insight, and his commitment to rehabilitation, should be viewed as not dissimilar to the benefit that the community derived from those who inform on others. In other words, the appellant’s steps towards rehabilitation should be positively encouraged, and the best way of doing so would be to award such conduct by a tangible reduction in sentence.
Counsel encapsulated her submission as follows:
… in order to encourage people in [the appellant’s] circumstance to act in the same way, that there needs to be proper acknowledgment and a proper benefit for that. And it certainly doesn’t seem borne out on the materials that he’s only done these things in order to try and receive a discount on his sentence. He’s engaged in these things to really try and turn his life around.
When the presiding judge noted that the sentencing judge appeared to have been particularly conscious, throughout the plea, of the ‘extraordinary steps’ that the appellant had taken towards rehabilitation, counsel replied:
… his Honour does recognise, both during plea and in the course of the sentencing remarks, his Honour does recognise that. The submission is really that that’s not reflected in either the sentence imposed for the aggravated burglary, nor the orders for cumulation …
Conclusion
The appellant is a young man who, at the age of 22, committed a number of serious offences. The most serious of them was the aggravated burglary, for which he received an actual sentence of 50 months, that being reduced from a notional 60 months by reason of Renzella time. He now faces a term of 8 years and 8 months’ imprisonment (notionally 9 years and 6 months). The sentencing judge indicated that but for his plea of guilty, he would have received a sentence of 12 years’ imprisonment, with a non-parole period of 8 years and 6 months.
There were, as his Honour found, a number of powerful mitigating factors present in this case. These included the appellant’s somewhat dysfunctional upbringing, his father having suffered from schizophrenia, and having eventually suicided. The appellant had been drug addicted for a number of years, with methamphetamine having been a major part of his adult life. The offences that he previously committed appear to have been drug-related.
The most prominent mitigating factor was, in my view, the appellant’s commitment to rehabilitation. The sentencing judge correctly observed that if he is able to abstain from using drugs, and can maintain his deep commitment to defeating his drug habit, his prospects of rehabilitation would be excellent.[29]
[29]As his Honour observed, if the appellant were to relapse into using drugs after his release, his prospects of rehabilitation would be ‘nil.’
It might be said that there is likely to be little practical utility in a member of this Court dissenting as to the outcome of an appeal against sentence brought by an offender where only the dissentient would allow the appeal on the basis of manifest excess. Nonetheless, and for what it is worth, I have voiced my respectful disagreement with the conclusions arrived at by the majority. I have explained as best I can why I consider this sentence for this particular offence to be manifestly excessive.
I should add that the principle of totality would, in all likelihood, probably have led me to the same conclusion. That is so, notwithstanding the fact that most of the individual sentences imposed on charges other than the aggravated burglary seem to be within range. Indeed, I accept that some of the orders for cumulation could be regarded as moderate.
There comes a point, however, at which a judge, by reason of the application of the principle of totality, has to stop making orders for cumulation. That is so, no matter how many charges are brought, but particularly when a number of them are not all that serious.
I interpolate to say that I find it difficult, with respect, to understand how the sentencing judge could suggest, in his s 6AAA statement, that a 12 year sentence with a non-parole period of 8 years and 6 months would have been appropriate in these circumstances, had the appellant not pleaded guilty. A sentence of that order would, in my opinion, have been not merely excessive, but egregiously so.
I would, therefore, allow the appeal, and resentence the appellant as previously indicated.
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