Denman v The Queen

[2012] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0132

JOSHUA DENMAN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and WEINBERG JA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 October 2012
DATE OF JUDGMENT	15 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 261
JUDGMENT APPEALED FROM	R v Denman (Unreported, County Court of Victoria, Judge Rizkalla, 20 April 2012)

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CRIMINAL LAW — Appeal — Sentence — Aggravated burglary, assault with offensive weapon — Applicant believed victim was selling drugs to children — Applicant intended to threaten victim to dissuade him from criminal conduct — Total effective sentence of 6 years’ imprisonment with non-parole period of 3 years and 8 months — Whether sentence manifestly excessive — Criminality of aggravated burglary – Relevance of intent at time of entry — Vigilante action — Not for personal benefit — No intent to cause personal injury — No evidence of ongoing deleterious effect upon victim — Consideration of current sentencing practices — Sentence in the upper range not warranted — Appeal allowed — Applicant resentenced to total effective sentence of 4 years’ imprisonment with non-parole period of 2 years and 6 months — No point of principle. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M McGrath	James Dowsley & Associates
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

1. On 30 March 2012, the applicant, Joshua Denman, pleaded guilty in the County Court at Melbourne to one charge of aggravated burglary.  He also pleaded guilty to an uplifted summary charge of unlawful assault with an offensive weapon.  On 20 April 2012, he was sentenced to a term of six years’ imprisonment in respect of the aggravated burglary, and six months’ imprisonment, wholly concurrent, on the summary charge.  A non-parole period of three years and eight months was fixed. 

1. The circumstances surrounding the commission of these offences may be briefly stated.  On 2 April 2011, at about 11pm, the applicant broke in to the home of a man whom he believed had been selling drugs to young girls.  The applicant entered the man’s bedroom.  He was heard to say: ‘You’re fucked. Don’t sell drugs to little girls’.  The victim saw something in the applicant’s hand which he believed to be a gun.  Moreover, he heard clicking noises which he thought to be the trigger of that weapon being pulled.  He jumped out of bed, and punched the applicant to the face.  As a result, the applicant fell to the floor.  A scuffle ensued.  This led to the assault which was the subject of the summary charge. 

1. The applicant escaped.  However, before departing, he said: ‘I’m going to fucking kill you, don’t sell drugs to little girls’.  He added: ‘Don’t worry, we’ll be back;  there’s more of us’.  The victim followed the applicant out into the driveway.  He told the applicant that police were on their way.  The applicant turned and said: ‘You’re fucked’.  He pulled the object that he had previously had in his hand out of his right pocket, pointed it at the victim, turned and ran away. 

1. It seems that the applicant committed these offences whilst under the influence of a combination of Xanax and alcohol.  He had been told, shortly before he

went to the house, that the victim of this offending had been selling ‘ice’ to young teenage girls, and then sleeping with them.  It was on that basis that the applicant determined to go around to his house, and threaten and assault him. 

1. During the course of the plea, a psychological report, prepared by Dr Carla Lechner, was tendered.  It revealed that the applicant had conceded that he had been in an angry frame of mind at the time of these offences because of the many things that he saw as being ‘all wrong’ in his own life.  He decided to make the victim a scapegoat upon whom he could vent his anger. 

1. As it turned out, the information the applicant had been given was completely false.  The victim was entirely innocent of any wrongdoing.  The sentencing judge noted that this illustrated the sheer folly of the applicant’s actions.  Her Honour added that the law did not tolerate vigilante behaviour. 

1. The Crown was never in a position to prove what it was that the applicant had in his hand when he threatened the victim.  The applicant maintained that it was a mobile telephone.  The victim could not say definitively, but believed, at all times, that it was a gun.  The sentencing judge, quite rightly, proceeded on the basis that the applicant had an object of some kind in his hand, with which he threatened the victim, and which the victim thought to be a gun. 

1. The applicant was eventually identified as the intruder on the basis of DNA found on a hat which he left behind at the house.  He was arrested on 29 July 2011.  He declined to participate in a record of interview.  The matter proceeded to a committal in February 2012.  However, there was no dispute that the applicant had committed the offences charged.  The only matter put in issue was whether he had been in possession of a gun.  The Crown conceded, at that point, that it could not prove that the item in question had been a gun.  Accordingly, the matter proceeded by way of hand-up brief as a plea of guilty. 

1. On that basis, the Crown acknowledged that the applicant was entitled to a substantial discount by reason of his early plea of guilty.  In addition, the sentencing judge found that the plea indicated genuine remorse. 

1. On the other hand, the applicant had a significant criminal record.  Between 1998 and 2010, he had appeared in court on no fewer than 13 separate occasions, most of them involving multiple offences.  In 2004, he had been convicted of intentionally causing injury, unlawful assault, making a threat to kill and intentionally threatening serious injury.  He received a wholly suspended sentence of six months’ imprisonment for those offences. 

1. Importantly, the applicant had a previous conviction in 2007 for aggravated burglary.  On that occasion, he was sentenced to six months’ imprisonment.  He also had convictions, in that same year, for being a prohibited person in possession of a firearm, recklessly causing injury, and unlawful assault.

1. It was on the basis of that record that her Honour said that specific deterrence was an important consideration in the overall sentencing process. 

1. The applicant was aged 31 when he came to be sentenced.  He has five children: two step-children, two of his own with his partner (from whom he was separated at the time of the plea, though living under the same roof), and one from an earlier relationship.  There was positive character evidence led on his behalf from his partner’s mother.  That evidence was to the effect that he was a good father, and had never, in her presence, displayed any signs of violence.  In addition, although there had been a problem with alcohol in the past, the applicant appeared to have moderated his drinking and to have overcome that difficulty.  She said that he provided well for her daughter and, implicitly at least, that, by reason of the supportive family situation, he had reasonable prospects of rehabilitation.

1. The applicant had been employed as a bricklayer.  The evidence was that he had always worked hard, and had been, until fairly recently, constantly employed.  He had previously successfully completed a six month period of parole prior to the current offending.  This was said by her Honour to be to his credit.  Dr Lechner’s report described him as having good insight into his behaviour.  It referred to his having displayed symptoms of depressive illness, and having been placed on anti-depressant medication.  However, there had been deleterious side effects, and he had ceased taking that medication. 

1. Finally, it was said on the plea that the applicant had completed various programs whilst in custody, and had indicated a willingness to undertake others.  This, too, was said by her Honour to be to the applicant’s credit, and to be likely to assist in his rehabilitation. 

1. Notwithstanding these mitigating factors, the sentencing judge concluded that this was indeed a serious offence.  The victim had been asleep in his own home at night.  The applicant had broken in to the house, entered the bedroom, and threatened him with what appeared to be a weapon.  Both general and specific deterrence had to loom large. 

1. On the plea, the Crown put forward a MacNeil-Brown[1] submission which was to the effect that the applicant should receive a head sentence of between five and seven years, with a non-parole period of between three and four and a half years.  The only explanation that was offered as to how these figures had been arrived at was a reference to the applicant’s extensive criminal history.  As can be seen from both the head sentence of six years that her Honour imposed, and the non-parole period of three years and eight months, she largely accepted the Crown’s MacNeil-Brown submission. She stated, pursuant to s 6AAA of the Sentencing Act 1991, that but for the plea of guilty, she would have sentenced the applicant to seven years’ imprisonment with a five year non-parole period. 

   [1](2008) 20 VR 277 (‘MacNeil-Brown’).

Ground of appeal

1. The applicant relies upon a single ground of appeal in support of this application.  He submits that the sentence was manifestly excessive.  He argues that the following factors support that submission:

·no injury was caused to the victim and the incident was short-lived;

·there was no evidence of any actual weapon having been deployed;

·the applicant acted alone;

·he pleaded guilty at an early stage;

·the plea had considerable utilitarian value and exhibited genuine remorse;

·there were significant prospects of rehabilitation, including insight into the wrongfulness of his offending and willingness to undergo treatment and counselling;

·there was impressive evidence from the applicant’s partner’s mother as to his being a good father.  That evidence was particularly significant since she had twenty years’ experience in the social welfare sector;

·any term of imprisonment would be particularly burdensome because of the applicant’s closeness to his children;

·although the applicant had a number of prior convictions, they had all been dealt with summarily, and none of them approached the seriousness of the present matter;  and

·the June 2010 Sentencing Snapshot for aggravated burglary[2] showed that the average term of imprisonment for that offence, over the preceding five years, was between two years and two years and five months.  Sentences of six years or more accounted for a mere six cases out of a total of 309 that attracted actual terms of imprisonment.  Otherwise, these six cases represented 0.9 per cent of the total number of sentences imposed for this offence.

[2]Sentencing Advisory Council, Sentencing Snapshot No 98: Sentencing Trends for Aggravated Burglary in the Higher Courts of Victoria (June 2010).

1. In its Written Case, the Crown argued that it could not reasonably be contended that this sentence was manifestly excessive.  For my part, I consider that submission to be singularly unhelpful.  The Crown has a duty to act properly in assisting this Court in the discharge of its responsibilities.  Template submissions, of the kind filed in opposition to the grant of leave in this case, are of no benefit.  It is surely clear, and indeed beyond argument, that this is a case that warrants the grant of leave to appeal.  The Crown, whatever its final position might be as regards the disposition of the appeal, ought to have accepted that, at the very least, the applicant’s case was reasonably arguable. 

1. The Crown’s submission points to the fact that the sentencing judge, in her sentencing remarks, referred specifically to all of the mitigating factors that were identified on behalf of the applicant.  Obviously, that is an important consideration.  It does not mean, however, that those factors were given adequate weight.  Nor does it mean that the sentence itself cannot be impugned.

1. The Crown submitted, in its Written Case, perhaps by way of a fallback argument, that whatever might be said about the sentence of six years imposed for this offence, the non-parole period of three years and eight months should be viewed as lenient.  It was noted that this non-parole period came to only about 61 per cent of the total effective sentence.  That ratio may indeed be correct.  However, an excessive head sentence will not be permitted to stand merely because the non-parole period is thought to be within range. 

1. To be fair, the Crown did acknowledge that this sentence fell within the ‘upper range’ of sentences imposed for aggravated burglary.  On the other hand, the Crown could hardly do otherwise. 

Conclusion

1. Clearly, this was very serious offending.  As Maxwell P (with whom Buchanan and Weinberg JJA agreed) said in Maurice v The Queen:

Aggravated burglary is … viewed as an extremely serious offence, and the community expects the courts to impose sentences accordingly.  It is a crime which undermines the sense of security that people … are entitled to feel in their homes.[3]

[3][2011] VSCA 197, [37].

1. Equally clearly, both general and specific deterrence were of great significance in the synthesis that had to be undertaken when sentencing this offender.  It is also true that, unlike some other cases, the applicant could not call in aid any of the principles set out in R v Verdins.[4]

   [4](2009) 16 VR 269.

1. Nonetheless, one can only feel a sense of disquiet at the length of the sentence imposed in this case.  It is one thing to reject vigilantism.  That must, of course, be done.  It is quite another to ignore the fact that the applicant did not break into the victim’s home in order to steal, or commit a sexual assault, or even to inflict injury upon him.  The evidence went no further than to establish that, while in a state of drunkenness and confusion, he entered the victim’s house in order to threaten him with a view to dissuading him from selling drugs to children.  While the applicant’s motive for acting as he did can hardly be described as laudatory, it can at least be said that he did not set out to gain any particular benefit for himself.

1. The sentencing judge accepted that the applicant was not without some prospects of rehabilitation.  She referred, in that regard, to his supportive family background.  She noted that his offending occurred in the context of ‘depression, self-medication and use of alcohol’.  When one adds to these findings the various additional mitigating circumstances to which her Honour referred, and which she said she took into account, it becomes readily apparent that this sentence was, indeed, manifestly excessive. 

1. That conclusion seems to me to find support in the sentencing statistics for this offence.  The June 2012 Sentencing Snapshot states that the average length of imprisonment for males convicted of aggravated burglary ‘ranged from one year and 11 months in 2006–2007 to two years and 10 months in 2010–2011’. 

1. I note that there were only 10 cases of sentences of six years or more being imposed within the period covered by this Snapshot (out of 347 sentences, approximately 2.9 per cent).[5]  It is perfectly clear from these figures that the sentence imposed upon the applicant was very much in the ‘upper range’. 

   [5]Sentencing Advisory Council, Sentencing Snapshot No 124: Sentencing Trends for Aggravated Burglary in the Higher Courts of Victoria (June 2012). 

1. I should add that while aggravated burglary must always be viewed seriously, the circumstances under which that offence is committed will vary considerably.  The gravity of the offence will necessarily be greater where the victim is vulnerable, and suffers trauma or injury.  The victim in the present case chose not to file a victim impact statement.  For what it is worth, there is nothing in the material placed before her Honour which suggests that the incident had any ongoing, or seriously deleterious effect upon him. 

1. In my opinion, leave to appeal should be granted.  The appeal should be treated as having been instituted and heard instanter, and allowed.  The sentence of six years’ imprisonment imposed upon the charge of aggravated burglary should be set aside.  In lieu thereof, the applicant should be sentenced to a term of four years’ imprisonment upon that charge.  I would affirm the sentence of six months on the summary charge, and also the decision to make that sentence wholly concurrent with the sentence of six years on charge 1.  I would fix a non-parole period of two years and six months.

1. I would state, for the purpose of s 6AAA of the Sentencing Act 1991, that but for the plea of guilty, I would have imposed a sentence of five years’ imprisonment with a non-parole period of three years and three months.

MAXWELL P:

1. I agree.  I would resentence the applicant as his Honour proposes, for the

reasons that he gives. 

1. As is so often the case in this Court, this case concerns consistency of sentencing.  The applicant pleaded guilty and he was therefore entitled to be sentenced in accordance with current sentencing practices, that is, consistently with the sentences imposed in comparable cases.[6] 

   [6]See, for example, DPP v D D J (2009) 22 VR 444, 460 [65].

1. In ascertaining current sentencing practices for this offence, we have the assistance both of the Sentencing Advisory Council’s Sentencing Snapshots, to which his Honour has referred, and of the table which counsel for the applicant helpfully prepared.  These compilations make clear that, on the current state of sentencing, sentences for almost the entire range of aggravated burglary offences are clustered together in a band the upper limit of which is seven years’ imprisonment. 

1. The table which counsel for the applicant prepared was based on the Judicial College of Victoria’s Victorian Sentencing Manual.  It shows very clearly that the cases of aggravated burglary which attract six or seven years’ imprisonment are those where, at the time of entry, the offender intended to commit the gravest of offences, such as rape, armed robbery, and sexual penetration of a child under 16. I refer, for example, to DPP v Youlton;[7]  Johnson v The Queen;[8]  and Maurice v The Queen,[9] in each of which a sentence of seven years’ imprisonment was imposed for aggravated burglary.

   [7][2009] VSCA 62.

   [8][2011] VSCA 348.

   [9][2011] VSCA 197.

1. The present case involved serious offending but, as the reasons given by Weinberg JA demonstrate, this was far from the most serious example of aggravated burglary.  The intent at the time of entry must be taken to be one of the key measures of the criminality of an aggravated burglary.  Here, the intent was simply to put the victim in fear.  The applicant had no intention to cause physical harm, or to steal any of the victim’s property.[10]

   [10]Cf Zammit v The Queen [2012] VSCA 216.

1. As the Court said in Maurice v The Queen,[11] in the passage to which Weinberg JA has referred, aggravated burglary is and must always be viewed as an extremely serious offence.  The state of current sentencing for the offence remains, however, as described by this Court in 2009 in DPP v El Hajje.[12]  The relevant part of the joint judgment in that case (Maxwell P, Vincent JA and Coghlan AJA) was as follows: 

We set out below, in table form, the sentencing decisions in 20 recent cases in the County Court involving aggravated burglary.  This material was helpfully provided by senior counsel for the Director, at the request of the Court.

[11]Ibid [37].

[12][2009] VSCA 160.

Aggravated Burglary – County Court Sentencing Summary

Matter	Sentences imposed on single counts	Guilty Plea	TES	NPP
R v Seacombe & Butkovic	5 y;  5 y	Conviction after trial	6 y; 6 y	4 y[13]
R v Anderson	4 y	Guilty plea	7 y	5  y
R v Chimirri	4 y	Conviction after trial	5 y 2 m	2 y 9 m
R v Vasiliou	─	Guilty plea	4 y 6 m	3 y
R v Tovia	2 y 9 m	Guilt plea.	3 y 3 m	1 y 6 m
R v Metcalfe	3 y	Conviction after trial	4 y 2 m	2 y
R v Richmiller	2 y	Guilty plea	2 y 6 m	1 y 6 m
R v Van Le	5 y	Guilty plea	6 y 3 m	4 y
R v Kelly	4 y	Guilty plea	5 y	2 y 6 m
R v Lowe	3 y	Guilty plea	3 y 4 m	1 y 9 m
R v Shaw	2 y 6 m	Guilty plea	3 y 7 m	2 y
R v Tscherepko	4 y	Guilty plea	8 y	6 y
R v Martin	1 y 6 m	Guilty plea	7 y 8 m	5 y 3 m
R v Rodden & Lekic	4 y	Conviction after trial	6 y	4 y
R v Sutton	2 y	Guilty plea	4 y	2 y
R v Morgan	3 y 6 m	Guilty plea	4 y 6 m	2 y 6 m
R v Pierce & Pierce	3 y 6 m;  2 y 4 m	Guilty pleas	4 y 6 m; 2 y 10 m	2 y 6 m[14]
Matter	Sentences imposed on single counts	Guilty Plea	TES	NPP
R v Stephenson	3 y	Guilty plea	3 y 2 m	2 y
R v Glasgow	3 y	Guilty plea	3 y	1 y 9 m
R v Johnson	4 y	Guilty plea	5 y 1 m	3 y 6 m

[13]A new release date of 31 December 2011 was set for Seacombe, who was serving a sentence of imprisonment at the time the sentence was imposed.

[14]One of the offenders was ordered to serve 8 months in prison – the remaining 2 years and 2 months were suspended for 3 years.

No submission was advanced on behalf of the Director – either in writing or on the hearing of the appeal – questioning the adequacy of current sentencing practices for aggravated burglary.  This sentencing information raises a serious question, however, about the adequacy of current sentencing practices for this offence.  The sentences being imposed appear not to reflect the very high maximum which Parliament has fixed.  That is a matter of the first importance to the administration of criminal justice in this State.  The matter not having been the subject of argument on the appeal, we express no concluded view on the question.[15]

[15]DPP v El Hajje [2009] VSCA 160, [32]-[33].

1. Nothing has changed in the three years since that judgment was delivered.  That being so, and given the nature of the applicant’s offending as described by Weinberg JA, it can readily be seen that this sentence was outside the range.  That is, it was not reasonably open to the judge to impose this sentence on this offender for this offence.

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