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…
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- AGLC
- Dirbass v The Queen [2018] VSCA 272
- Case
- [2018] VSCA 272
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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