Degney v The Queen
[2019] VSCA 183
•19 August 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0265
| GRANT DEGNEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 August 2019 |
| DATE OF JUDGMENT: | 19 August 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 183 |
| SENTENCE APPEALED FROM: | DPP v Degney [2018] VCC 2245 (Judge Marich) |
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CRIMINAL LAW — Appeal — Sentence — Attempted aggravated burglary and associated offences — Attempt to enter a house armed with a machete — Intent to assault by causing fear — Domestic violence setting — Whether total effective sentence of 3 years and 7 months’ imprisonment with 2 years non-parole manifestly excessive — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Boston | Stary Norton Halphen |
| For the Respondent | Mr C B Boyce SC | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
KIDD AJA:
Introduction
On 8 November 2018, following a plea of guilty, the applicant was sentenced in the County Court as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Attempted aggravated burglary [Crimes Act 1958 (Vic) s 321M and s 77(1)] | 20 years’ imprisonment | 3 years and 6 months’ imprisonment | Base |
| 2 | Use unregistered general category handgun [Firearms Act 1996 (Vic) s 7B(1)] | 7 years’ imprisonment | 3 months’ imprisonment | 1 month |
| Related summary offences | ||||
| 3 | Possess controlled weapon without excuse | 1 year | 2 months’ imprisonment | Nil |
| 4 | Possess cartridge ammunition without permit | 40 penalty units | Convicted and fined $600 | Nil |
| Total Effective Sentence: | 3 years and 7 months’ imprisonment | |||
| Non-Parole Period: | 2 years | |||
| Pre-sentence detention declared: | 256 days | |||
| S 6AAA Statement: | But for the plea of guilty, on charges 1, 2 and 3 a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years would have been imposed | |||
Grounds of appeal
The applicant now seeks leave to appeal against the sentence on charge 1, attempted aggravated burglary. There is one proposed ground of appeal, being that the sentence is manifestly excessive, having particular regard to:
(a) The objective gravity of the offending;
(b) The applicant’s limited criminal history, and a lack of relevant history;
(c) That the applicant is a youthful offender who has never before received a term of imprisonment;
(d) The early plea of guilty, admissions in record of interview, expressions of remorse and utilitarian value of the plea;
(e) Current sentencing practices.
Circumstances of offending
At the time of the offending the victim was residing with the applicant at his home in Frankston North, as she had been evicted from her premises. The victim and applicant had been in a relationship for about 6 years, although ‘on and off.’
On 28 February 2018, around 6.30 pm, the victim returned to the Frankston North property with some money. The applicant accused the victim of receiving the money from working as a prostitute. They argued for several hours, before the victim left the property to purchase groceries for dinner.
While the victim was shopping, the applicant sent abusive text messages to her. Later, the victim returned to property. The applicant was even angrier upon her return.
At this point, one of their dogs bit the applicant on the leg. The applicant went to his bedroom and retrieved a Ramset nail gun, which was modified to a handgun. It was loaded with .22 calibre ammunition.
The applicant took their two dogs out to the back yard, along with the modified handgun. He said to the victim, ‘Look what you made me do, I’m going to kill them’. The applicant then discharged one round of ammunition to scare the dogs (charge 2 – use unregistered handgun).
A short time later a family friend attended the property in Frankston North. The friend heard arguing and took the applicant aside to try and calm him down.
At this time, the victim took the opportunity to pack up some of her belongings. The applicant heard this. The family friend told the victim to get out of the house.
Both the victim and the family friend left the applicant’s property and attended at the family friend’s home.
About an hour later, the applicant telephoned the family friend, to speak to the victim. The applicant and the victim spoke on the phone, but the victim hung up when the applicant began to verbally abuse her. The applicant tried to call several times after this, but these calls were ignored.
After this, around 12.35 am on 25 February 2018, the applicant attended at the address of the family friend, in possession of a large machete (charge 3 – possession of controlled weapon without lawful excuse).
The applicant entered the driveway of the premises to the rear and approached the sliding door at the rear of the property. The family friend and the victim were able to observe the applicant approach as the premises were monitored by CCTV footage. The family friend called triple zero.
While at the sliding door, the applicant took the machete out of the back of his pants and raised it at the door whilst yelling to the family friend to let him. The applicant was also yelling abuse and making threats to do harm to the victim.
The applicant then used the butt of the machete to bang on the door, before attempting to jemmy the sliding door open with the machete (charge 1 – attempted aggravated burglary).
The applicant tried to jemmy the sliding door open several times without success. At the same time, he was hitting the sliding door with his fists and yelling threats that he would smash his way into the house.
During this time, the victim and the mother of the family friend were in the front part of the house.
Shortly after this, the applicant left via the driveway and as he passed the front porch he used the machete to strike the wooden handrail. This left a large cut in the wood.
Police attended the property around 1.45 am, by that time the applicant had departed. When initially spoken to by Police, both the victim and the family friend were unwilling to make a statement for fear of retribution.
While Police were at this address, the applicant returned and was arrested.
Several hours later, Police conducted a search on the Frankston North property where the applicant lived. During the search, Police located the modified handgun used by the applicant and ziplock bags containing spent cartridges for various calibres. Police also located ziplock bags containing live ammunition (including .22 calibre ammunition and other ammunition used in assault rifles). This forms the basis for the related summary offence charge 4 — possess cartridge ammunition without a permit.
The applicant was interviewed and made full admissions to the offending.
The following day, on 26 February 2018, the victim made a statement about the events.
When the modified handgun was dismantled by Police, a live .22 calibre round was located in it.
Criminal history
The applicant has a relevant criminal history (albeit limited).
Relevantly, in 2012, at the Frankston Magistrates’ Court, the applicant was sentenced, without conviction to a community correction order (‘CCO’) of 6 months’ duration for several offences, including a charge of unlawful assault, charges of possession and use of cannabis, and descending on to a railway track. This unlawful assault involved the applicant, while on board a train, approaching the driver’s cabin at the front of the train to remonstrate with the driver for leaving the platform too quickly, putting his arm into the open window and knocking a cup of coffee onto the train driver.
The applicant did not complete that CCO and in 2013 was fined, without conviction, $800 for that offending, and $500 in relation to a charge of contravening the CCO.
In 2010, at the Frankston Children’s Court, the applicant was given an adjourned undertaking, without conviction, for offending that included possession of a controlled weapon without lawful excuse (being a Swiss Army knife).
Applicant’s arguments
On behalf of the applicant, it was submitted that a sentence of imprisonment of 3 years and 6 months was wholly outside the range of sentences available.
Ultimately, it was submitted that a combination sentence of immediate imprisonment (12 months and 265 days) and a CCO was open.
It was submitted that the offending was not towards the more serious end of the spectrum because of a number of factors. First, the offending was brief (although not momentary), with the whole episode lasting around 90 seconds to two minutes. Second, there was minimal evidence of planning or sophistication and no use of disguise. Third, the offending was not committed in company. Fourth, there was the absence of an additional aggravating feature sometimes present in attempted aggravated burglaries of this kind — namely that there is present an intention to inflict actual physical harm. Here there was only an intention to assault, but this was an assault through the creation of fear, so it was submitted.
In considering the applicant’s criminal history, it was submitted that it was limited and relatively minor, with one relevant prior finding of guilt for an unlawful assault.
Further, the applicant’s prior offending had resulted in non-custodial dispositions. At a relatively young age, this is the applicant’s first period in custody.
The applicant’s prospects for rehabilitation, demonstrated in part by his recent abstinence from drugs, and also taking into account his relative youth, family support and good employment history, could be sustained once released from custody if provided with the opportunity to undertake programs as part of a CCO to address his underlying anger issues, substance abuse issues and unresolved grief issues. The ‘moderate’ risk of violent re-offending which the applicant presented could be appropriately managed through this type of treatment.
Counsel for applicant submitted that there was evidence of remorse, which was accepted by her Honour. This evidence of remorse, in combination with the utilitarian value of the early guilty plea, should have been given more weight, it was argued.
Finally, it was submitted that the sentence on charge 1 was starkly out of step with current sentencing practices. The applicant relied upon the fact that the sentence imposed on the charge of attempted aggravated burglary ‘far exceeded the sentences imposed’ in the comparable cases identified.[1]
[1]The comparative case table, contained the following cases: DPP v Abrahama & Anor [2015] VCC 1436; DPP v Talker [2018] VCC 227; DPP v McDowell [2018] VCC 275; DPP v Neil [2014] VCC 1888; DPP v Neilson [2013] VCC 1985; DPP v Crozier [2017] VCC 621; DPP v Bowler [2015] VCC 1061.
Respondent’s arguments
It was submitted by the respondent, that the objective gravity of this offending was correctly characterised by the sentencing judge as ‘a serious example of the offence of attempted aggravated burglary’, which was also aggravated by the circumstances of family violence. The fear that would have been experienced by the victim during the events that form the basis of charge 1, must be considered in the context of the overall offending, it was submitted.
The number of mitigating factors relied upon by the applicant, including his age, early guilty plea, admissions in his record of interview, expression of remorse, utilitarian value of the guilty plea, and the fact that this was the applicant’s first time in custody were all recognised by the sentencing judge and given appropriate weight in the sentencing exercise, it was submitted.
Her Honour, it was submitted, had due regard to the applicant’s limited criminal history, and did not give it undue weight.
The applicant’s moderate risk of violent reoffending was a further relevant consideration for the sentencing judge.
In response to the ultimate submission by counsel for applicant that a combination sentence was open, counsel for the respondent submitted that the objective seriousness of this offending demanded a sentence greater than what could have been imposed as a combination sentence.
Dealing with current sentencing practices, counsel for the respondent submitted that the sentencing judge was well informed by the comparable cases and sentencing data, but emphasised, as did the sentencing judge, that current sentencing practices are just one of many factors that may be taken into account in sentencing.
Analysis
As has been repeatedly emphasised by this Court, the ground of manifest excess will only be established if it can be demonstrated that the sentence was wholly outside the range of sentencing options available to the sentencing judge. That is, that it was not reasonably open for the sentencing judge to come to the sentencing conclusion he or she did, if proper weight had been given to all of the relevant circumstances.
The charge of attempted aggravated burglary is a serious offence, as reflected in the maximum penalty of 20 years’ imprisonment.
Here, the gravity of the offending is elevated by a number of factors: it involved an attempted forced intrusion into a residence in the middle of the night, while armed with a menacing weapon (large machete) with an intention to assault a terrified and vulnerable domestic partner inside (albeit by creating fear).
As to the argument that the offending was of a brief duration, the facts detailed above show that the applicant’s efforts to gain entry were persistent, and were accompanied by verbal threats, all the while holding a most intimidating weapon.[2]
[2]See [14]-[17] above.
The applicant’s conduct must also be seen within the context of his abusive behaviour towards the victim in the hours preceding the offending the subject of charge 1, to fully understand how frightening this episode must have been for her. Such conduct included sustained verbal abuse towards the victim, threatened violence, and shooting a nail gun towards the dogs at their home.[3] It is plain from the prosecution opening, and from the unchallenged factual findings made by the sentencing judge, that the victim sought refuge from the applicant’s fury by going to what she thought would be the safety of a trusted friend’s house. Undeterred, the applicant then sought out the victim at this location, and brought with him another weapon, this time a large machete.
[3]Ibid.
In the circumstances, in our view it is somewhat misleading to characterise the applicant’s conduct the subject of charge 1 as brief or short-lived.
The applicant places much emphasis upon the fact that his plea was made upon the basis that he had no intention to physically assault the victim. It is true that had the applicant had an intention to physically harm, rather than create fear, the offending would have been graver still.[4] That distinction, however, should not be over stated. The applicant clearly intended to terrorise the victim. As this Court has previously recognised, such a purpose is reprehensible.[5] While at the sliding door, with the large machete in his hand, the applicant not only continued to be verbally abusive, but was ‘making threats to do harm’ to the victim. The victim was not to know that the applicant intended to create fear alone. The fact that a triple zero call was placed immediately signifies the fear which the occupants of the house must have felt. Indeed, the applicant admitted in his record of interview that the victim ‘would have been terrified’. Thus, the absence of an intention to physically harm does not much diminish the inherent gravity of the circumstances of this offending.
[4]Hayes v The Queen [2017] VSCA 285 [52].
[5]Ibid.
An aggravating feature of this offending is that it was committed in circumstances of family violence. It was rightly conceded by the applicant’s counsel (in the written case) that the great emphasis placed on family violence context by the sentencing judge was ‘not misplaced’. There is now far greater recognition of the devastating effects of family violence on victims, including, and importantly for this case, the effects which are not confined to physical injury.[6]
[6]Kalala v The Queen [2017] VSCA 223 [61] (‘Kalala’), citing with approval observations made in Pasinis v The Queen [2014] VSCA 97 [53]-[54].
As the sentencing judge recognised, the family violence context here is exemplified by the fact that the applicant’s conduct was motivated by a sense of entitlement. This was evidenced by his sense of expectation that he had a right to confront her when she had retreated for safety to the home of the family friend. This sort of behaviour reflects on his moral culpability and ‘is expressive of the very worst of male attitudes towards women’.[7]
[7]Kalala [2017] VSCA 223 [62].
It follows, as her Honour accepted, general deterrence had to be a significant sentencing purpose here. There has been an increasing community disquiet over violence of males towards their female partners (or ex-partners) and this is one reason why denunciation of this conduct must be given full expression in the sentence.[8]
[8]Gale v the Queen [2014] VSCA 168.
The applicant argued that unlike in some cases involving domestic violence, there was an absence of a history of family violence. In our opinion, the offending conduct in its own terms was a serious instance of offending in a family violence context, involving alarming conduct towards a vulnerable female partner. The absence of a history of family violence does not diminish those features.
As to the absence of a victim impact statement, the summary of the prosecution opening notes that, at least initially, the victim did not wish to make a statement to police at all, being ‘in fear of retribution’. While we must not speculate about any long term harm, that provides some evidence of the acute and immediate impact of this offending behaviour upon the victim.
The sentencing judge concluded that this offending was ‘very serious’. We agree.
It may be accepted that this sentence does appear high by comparison with the cases relied upon by the applicant on the plea in the court below and on this appeal.[9]
[9]Refer to the cases identified in footnote [1].
While sentencing practice informs this Court’s task on this application, for the following reasons, the cohort of cases relied upon by the applicant must be approached with care.
The fact is that there is only a small number of sentencing decisions involving attempted aggravated burglary. The applicant relied upon seven such decisions handed down over the last four years by sentencing judges at first instance. Four of the seven cases do not involve crimes of family or domestic violence. In our view, such a small cohort makes it difficult to discern a clear or established sentencing practice for attempted aggravated burglary. Still less do these cases assist the applicant when considering the appropriateness of a sentence committed within a family violence setting.
There are also very few sentences for attempted aggravated burglary which have come before the Court of Appeal[10] and none which assists the applicant’s case.
[10]One such case is Hayes v The Queen [2017] VSCA 285. In that case the appellant committed an attempted aggravated burglary by attending at the residence of his ex-partner and attempting to break into her home, while she was inside with her three children. This conduct was preceded by persistent abuse. The appellant wielded a shovel, smashing a window. He attempted to climb in more than once and ripped a screen door off its hinges. The sentence imposed on appeal there was an aggregate of 3 years’ imprisonment for one charge of attempted aggravated burglary and two charges of criminal damage. The sentence imposed on appeal was reduced from an aggregate sentence of 4 years’ imprisonment. However, significantly, and unlike the instant case, the appellant in Hayes had an intellectual disability and was not a suitable vehicle for general deterrence.
In any event, current sentencing practice for an offence is to be viewed as but one of many factors to be taken into account by a sentencing judge in arriving at a just sentence.[11] The same applies when this Court is determining whether the sentence imposed was within the range reasonably open.[12] It must be remembered that the question on this application is not whether the sentence imposed here is more severe than other sentences that have been imposed for the same offence.[13]
[11]R v Kilic(2016) 259 CLR 256; DPP v Dalgleish(2017) 349 ALR 37, 47–8 [49].
[12]Arico v The Queen [2018] VSCA 135 [334].
[13] Hi v The Queen [2017] VSCA 315 [51].
By way of a point of comparison, had the applicant crossed the threshold and gained entry to the residence, it would have been a serious instance of aggravated burglary, and in our opinion, he would have been exposed to a sentence of perhaps five years’ imprisonment or more.[14] This observation illuminates the range of sentences that were available for the incomplete, attempted aggravated burglary offence.
[14]DPP v Meyers (2014) 44 VR 486, 504 [76].
The applicant’s mitigating factors including his early plea of guilty, relative youth, limited prior history, and remorse, which her Honour had due regard to in her sentencing remarks, needed to be balanced against the objective gravity of this offending. When all things are considered, we are unpersuaded that the sentence imposed on charge 1 was wholly outside the range of sentences reasonably available to the sentencing judge.
Conclusion
Since the application was reasonably arguable, we would grant leave to appeal against the sentence on charge 1. For the foregoing reasons, however, we would dismiss the appeal.
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