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Dirbass v The Queen

Dirbass v The Queen

Case [2018] VSCA 272 26 October 2018

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0009

JASON DIRBASS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2018
DATE OF JUDGMENT:	26 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 272
JUDGMENT APPEALED FROM:	DPP v Dirbass [2017] VCC 890 (Judge Davis)

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CRIMINAL LAW – Sentence – 3 years and 3 months’ imprisonment for aggravated burglary charge – 1 year and 3 months’ imprisonment, with 6 months cumulation for theft charge – Extensive criminal history including 3 prior aggravated burglary offences – Whether sentencing judge erred in assessing objective gravity of aggravated burglary offence – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M Fitzgerald	Fitzgerald Legal
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA

ASHLEY JA:

Introduction and summary

On 19 June 2017, the applicant pleaded guilty to the charges set out in the following table. On 30 June 2017, he was sentenced as set out in that table.[1]
[1]DPP v Dirbass [2017] VCC 890 (‘Sentencing remarks’).

Charge

Offence

Maximum

Sentence

Cumulation

1
Aggravated burglary

[Crimes Act1958 s 77(1)]
25 years 3 years, 3 months Base

2 Theft [Crimes Act s 74(1)] 10 years 1 year, 3 months 6 months

Total Effective Sentence: 3 years, 9 months’ imprisonment

Non-Parole Period: 2 years, 6 months

Pre-Sentence Detention Declaration: 375 days

6AAA Statement: 5 years, 4 months

The offending occurred during a single incident, when the applicant broke into a residential property and stole a Mercedes vehicle worth approximately $50,000 and other property worth approximately $30,000.

The applicant applied for leave to appeal on the sole ground that the judge ‘erred in assessing the objective gravity of the aggravated burglary’. On 23 March 2018, Priest JA refused the application.[2] The applicant has elected to renew his application pursuant to s 315(2) of the Criminal Procedure Act 2009 (‘CPA’).
[2]Dirbass v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 23 March 2018) (‘Priest JA’s reasons’).

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of offending

On 16 February 2015, at approximately 3:24 am, the applicant went to a two level house in Barkly Street, St Kilda where the Harwood family resided. At the time the applicant arrived, Rob Harwood was home alone, sleeping in an upstairs bedroom. His Mercedes was parked in the garage.

The applicant was equipped with a jemmy bar, which he used to force open a glass sliding door on the side of the house, through which he entered the house (charge 1).

Once inside, the applicant searched the house while still carrying the jemmy bar, including upstairs to an area near where Mr Harwood was sleeping. The applicant located two sets of keys to the Mercedes during his search and loaded computer equipment, sunglasses, golf clubs and other household property into the vehicle. He then used the keys…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dirbass v The Queen

Details

AGLC: Dirbass v The Queen [2018] VSCA 272
Case: [2018] VSCA 272
Decision Date: 26 October 2018

CaseChat Overview and Summary

The matter before the court involved Dirbass, who was sentenced to three years and three months' imprisonment for an aggravated burglary charge, and an additional one year and three months' imprisonment, with six months to be served consecutively, for a theft charge. The defendant appealed against the severity of the sentence, contending that the sentencing judge had misconstrued the objective seriousness of the aggravated burglary offence. The appeal was heard by the High Court of Australia, which ultimately dismissed the appeal and refused the defendant leave to appeal.

The primary legal issue before the court was whether the sentencing judge had erred in assessing the objective gravity of the aggravated burglary charge, which formed the basis of the defendant's appeal against the severity of his sentence. The defendant argued that the judge had placed undue emphasis on certain factors, resulting in an overestimation of the seriousness of the offence. The court was tasked with examining the sentencing judge's assessment of the objective seriousness of the offence and determining if there had been an error in the process.

The High Court found that the sentencing judge had not erred in assessing the objective gravity of the aggravated burglary offence. The court held that the judge had correctly considered the relevant factors and had not placed undue emphasis on any particular aspect of the offence. The court also noted the defendant's extensive criminal history, which included three prior aggravated burglary offences, and considered this in the context of the overall sentence. The High Court was satisfied that the sentence imposed was appropriate and did not constitute an error in the assessment of the objective seriousness of the offence.

The High Court dismissed the appeal and refused the defendant leave to appeal. The court held that the sentencing judge had not erred in assessing the objective seriousness of the aggravated burglary charge and that the sentence imposed was appropriate, taking into account the defendant's criminal history and the nature of the offences committed.

Orders