Director of Public Prosecutions v Cindy Benson[1]
[2017] VSCA 148
•13 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0198
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| CINDY BENSON[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Respondent.
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| JUDGES: | WEINBERG, WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 June 2017 |
| DATE OF ORDERS: | 13 June 2017 |
| DATE OF REASONS: | 21 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 148 |
| JUDGMENT APPEALED FROM: | DPP v Pollard and [Benson] (Unreported, County Court of Victoria, Judge Meredith, 31 August 2016) |
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CRIMINAL LAW – Crown appeal – Sentence – Aggravated burglary, recklessly cause serious injury, theft, committing indictable offence whilst on bail – Total effective sentence four years’ imprisonment with non-parole period of two years and six months – Whether sentence imposed manifestly inadequate – Whether Hogarth v The Queen (2012) 37 VR 658 required heavier sentence for confrontational aggravated burglary – Personal circumstances of accused mitigatory – Sentences arguably lenient but within range – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Lewis | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Ms C M Randazzo SC with Mr R Chaudhuri | Melasecca, Kelly & Zayler |
WEINBERG JA
WHELAN JA
PRIEST JA:
On 13 June 2017, this Court heard an appeal by the Director of Public Prosecutions against a total effective sentence of four years’ imprisonment, with a non-parole period of two years and six months, that had been imposed upon the respondent in the County Court. At the conclusion of the hearing, the Court ordered that the appeal be dismissed. We said we would publish our reasons in due course. These are those reasons.
The respondent had pleaded guilty to one charge each of aggravated burglary, recklessly causing serious injury, theft, as well as a summary offence of committing an indictable offence whilst on bail.
The Crown contended that the individual sentences that were imposed for each charge, as well as the total effective sentence and non-parole period, were all manifestly inadequate.
The respondent was one of three co-offenders. The others were Troy Pollard and Ismail Ferrer.
The respondent, Benson, was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated Burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 30 months 9 months 3 Recklessly cause serious injury [Crimes Act 1958 s 17] 15 years [Crimes Act 1958 s 17] 3 years Base 4 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 9 months 3 months Summary Offence Commit indictable offence whilst on bail [Bail Act 1977 s 30B] 3 months or 30 penalty units 1 month ‑ Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 6 months Pre-sentence Detention Declared: 287 days 6AAA Statement: 5 years and 3 months with a non-parole period of 3 years and 6 months Other orders: Forfeiture order.
The co-offender, Pollard, was sentenced at the time as Benson as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated Burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 18 months imprisonment and 2 year CCO 2 Intentionally cause injury [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 18] 18 months imprisonment and 2 year CCO Total Effective Sentence: 18 months imprisonment and 2 year CCO Non-Parole Period: N/A Pre-sentence Detention Declared: 126 days 6AAA Statement: 3 years and 6 months, with a non-parole period of 2 years Other orders:
CCO conditions of supervision for first year, treatment and rehabilitation for drug abuse, programs to address offending behaviour and 150 hours community service.
The co-offender, Ferrer, was sentenced separately and by a different judge as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Intentionally cause injury in circumstances of gross violence [Crimes Act 1958 s 15A] 20 years [Crimes Act 1958 s 15A 8 years Base 2 Aggravated Burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 6 years 10 months 3 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 1 year 2 months Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 6 years Pre-sentence Detention Declared: 208 days 6AAA Statement: 12 years, with a non-parole period of 9 years and 6 months
The Director’s Notice of Appeal was expressed in somewhat elaborate terms. Essentially, however, it contended simply that the sentence, and its various components, that were under challenge were manifestly inadequate.
Circumstances of the offending
The background facts were somewhat complex. They were helpfully set out in the Registrar’s Neutral Summary, which incorporated the Summary of Prosecution Opening that was tendered on the plea.
Relevantly, that Summary read as follows:
On Sunday 8 November 2015 Mr Ferrer planned to attack Mr Camilleri, and prepared by packing a backpack, which included a hammer from his own toolbox, and cable ties, amongst other items. Mr Ferrer wanted to torture Mr Camilleri and another man [Ms Benson] had also implicated in the alleged rape. [Ms Benson] was aware of the plan to attack Mr Camilleri, and supplied Mr Ferrer with the address.
At about 8pm Mr Ferrer contacted the co-offender Mr Pollard, and asked him to drive him and [Ms Benson] to an address in Glenroy. Mr Pollard collected [Ms Benson] and Mr Ferrer at around 10.30pm. The three travelled together in Mr Pollard’s Volkswagen Golf to the victim’s address [address deleted].
Upon arriving … at around midnight, Mr Ferrer and [Ms Benson] noticed a light on in the victim’s apartment. They instructed Mr Pollard to do a u-turn and park the car. Mr Pollard parked on the opposite side of the road to the apartment. Mr Ferrer and [Ms Benson] told Mr Pollard that [Ms Benson] had been raped by the victim. Mr Ferrer said that he was going to ‘fix him up’. Mr Ferrer got out of the car and went over to look inside the apartment through the windows. Mr Ferrer returned, got back into the car and said to Mr Pollard and [Ms Benson] ‘He’s in there’ or ‘He’s by himself’. The three offenders then got out of the car. Mr Ferrer told Mr Pollard to knock on the door of the victim’s unit, which he did. Mr Camilleri had just turned the lights off and went to bed, when he heard the knock at the front security door.
Mr Camilleri got out of bed, went to the front door and opened the door. He saw Mr Pollard, who he did not know. Mr Pollard said to him ‘Geoff, your friend Malakai sent me over’. Mr Camilleri had not seen anyone else at this point, and he began to open the security door. As he did so Mr Pollard pulled the door towards himself very quickly and Mr Ferrer ran up the stairs, wielding the hammer towards Mr Camilleri, who was standing in the door way of his apartment.
As Mr Ferrer reached Mr Camilleri he struck the victim with the hammer, to the face. Mr Camilleri could immediately taste blood. Mr Ferrer repeatedly hit the victim with the hammer to the head. The victim felt around 10 blows to the head within the first few moments of the attack. Mr Pollard was yelling at Mr Camilleri ‘Ya fucking dog, get inside’. [Ms Benson] remained at the bottom of the stairs whilst the assault occurred.
Mr Pollard started pushing the victim in the chest, pushing him back into the apartment. Mr Ferrer was now behind the victim trying to pull him back inside. The victim could feel that he was bleeding, and feared what might happen to him if he was taken into the apartment. Still being hit with the hammer to the head by Mr Ferrer, the victim used his right arm to reach back and grab Mr Ferrer, whilst pushing Mr Pollard forward with his left arm. The victim was effectively pushing Mr Pollard and dragging Mr Ferrer out with him, and upon getting out of the doorway, the victim launched himself and both men down the stairs. Upon going down the stairs, Mr Ferrer grabbed at the victim and ripped his shirt off. He continued to strike the victim with the hammer to the head. Mr Pollard could see that the skull of the victim was exposed, and white in colour.
Mr Camilleri landed at the bottom of the stairs on his knees and immediately felt his whole head ringing and incredible pain, so he went for help. He managed to make it to the car park, which was approximately 20m from his apartment when Mr Ferrer, who chased after him, struck him again to the head with the hammer, a few more times. [Ms Benson] followed behind Mr Ferrer. The victim stumbled and fell to the ground against a car. Mr Ferrer stomped on his head a few times. The victim got up, and Mr Ferrer swung at the victim with the hammer again. Mr Camilleri, attempting to defend himself swung his right fist at Mr Ferrer, and connected with his jaw. The victim then grabbed a hold of the hammer and the two fought for control of it. At this stage Mr Pollard returned to his car, and waited for the offender and [Ms Benson].
As the two men were struggling over the hammer, [Ms Benson] approached from behind, and struck the victim to the back of the head. [Ms Benson] said to the victim ‘See I told you I would be back’. The victim thought he recognised [Ms Benson] from a week ago. [Ms Benson] then ran off, and Mr Ferrer walked away, back towards Mr Camilleri’s apartment.
Mr Camilleri then set off on foot towards Plenty Road in search of help. On Plenty Road he raised the occupant of a house, … by knocking on his door. However [that person] who was too scared to open the door for him, spoke through the door, telling Mr Camilleri that he would phone an ambulance for him.
Feeling faint, and still unassisted, Mr Camilleri walked to the Rose Shamrock Hotel at 709 Plenty Road, Reservoir. There he spoke with security staff, who called an ambulance for him. The Police and ambulance arrived a short time later, locating him at a bus stop on Plenty Road outside of the Rose Shamrock Hotel. The victim was conveyed to the Royal Melbourne Hospital for treatment.
The Registrar’s Neutral Summary then went on to say:
At Mr Ferrer’s instigation, the offenders then returned to Mr Camilleri’s apartment and stole his goods. Mr Ferrer told his co-offenders that he had not finished with the victim and that he was ‘going to kill him’, and he suggested at one point after leaving that they return and get more ‘stuff’.
The victim sustained injuries to his skull from the repeated blows with the hammer. He was treated for multiple open wounds to his head in the left temporal, right occipital and right parietal regions. His skull was fractured requiring a craniotomy and elevation of depressed skull fragment. Photographs of the victim’s injuries were tendered on the plea hearing. They show the very considerable extent of the lacerations which the victim suffered to his head.
When arrested and interviewed, the respondent made certain admissions. She acknowledged:
that she told Mr Ferrer that the victim and one of his friends had made her do things for drugs. She also said that Mr Ferrer said that he was just going to ‘touch [the victim] up a bit’ and that he had brought a backpack with a hammer and a bigger hammer and that the respondent had become aware of the contents of the backpack at a late stage. The respondent denied hitting the victim and admitted she had previously been at his house to score drugs.
During the course of the plea, evidence was led to resolve a factual dispute as to whether the respondent had herself struck the victim with a hammer, or, as she claimed, not struck him at all. There was also evidence led, by way of a psychological report tendered, concerning the respondent’s previous background, and history of diagnosed mental illness.
On the plea, it was submitted on behalf of the respondent that she was a candidate for a sentence of imprisonment combined with a Community Correction Order. In effect, having regard to the law as it then stood, this meant a total effective sentence of less than two years. Not surprisingly, the sentencing judge rejected that submission.
In his sentencing remarks, his Honour noted:
When you were interviewed by police [Ms Benson], you stated that it was not until you got to the residence that you became aware of what was in the backpack, and that Mr Ferrer had told you that he was going to touch up your victim.[2]
[2]DPP v Pollard &[Benson] (Unreported, County Court of Victoria, Judge Meredith, 31 August 2016) (‘Sentencing Remarks’), [10].
The sentencing judge concluded that the respondent had struck the victim to the back of the head, but was not satisfied that she did so with a hammer. In effect, she was sentenced on the basis that she had struck him to the head with her hand or fist, and without the use of any implement or weapon.
His Honour correctly noted that the respondent’s liability for the offences in question rested upon her participation in a joint criminal enterprise, but with a completely different, and less culpable, state of mind than that of Ferrer. He characterised the offending as being serious, as it plainly was. He added, however, that he considered Ferrer to be the instigator and therefore more culpable than the respondent.
With regard to the respondent’s personal circumstances, the sentencing judge observed:
[Ms Benson], turning to your personal circumstances, you are now 26 years of age. Much of your background is contained in a report of Ms Caroline Walker, psychologist, which was tendered on your plea.
You were born in Florida in the United States of America, but relocated to Tasmania with your mother when you were approximately six years of age. Your biological parents separated not long after you were born, and you have told Ms Walker that you do not have any form of relationship with your biological father. You do however report having a positive and supportive relationship with your step-father. Your mother remains supportive of you and she currently resides in Queensland.
Your mother and step-father separated when you were approximately 16 years old. You had been placed in foster care between the ages of about 18 months to three years of age, whilst you were resident in America. You told Ms Walker that you recall being sexually abused by a neighbour whilst you were in foster care. Ms Walker states in her report that it would be ‘quite unusual’ for a person to remember sexual abuse at such a young age. She notes that this does not necessarily suggest that such an event did not occur, but rather the event may have occurred at an older age than that which you have reported.
You have been involved in two intimate significant relationships during the course of your adult life. The first relationship was with a man named Shane. You met Shane in Tasmania and moved to Victoria with him in 2010. You reported to Ms Walker that Shane was murdered shortly after you moved to Victoria and that you were the one who discovered his body. Currently, you are in a relationship with your co-offender, Mr Ferrer. You report to Ms Walker that Mr Ferrer has been physically abusive towards you during the course of that relationship and that you have been the victim of serious domestic violence in both of your relationships.
You have two children, Samuel and Raphael. Samuel was born when you were 15 years of age and fostered at birth. You have chosen not to have contact with him because you view that to be in his best interests. Your second child Raphael, was born from your relationship with Mr Ferrer. Raphael is four years of age and he currently lives with Mr Ferrer’s parents. Prior to you being remanded in custody, you reported to Ms Walker that you saw Raphael regularly, but you have not had contact with him since your remand. You indicated to Ms Walker that you have never been employed and that you have relied on Centrelink benefits and your partner’s income, in order to meet your financial needs.
You have indicated to Ms Walker a long and chronic history of drug abuse. This commenced with your use of cannabis at the age of 12, which you indicated you used daily until you were 18 years of age. You then progressed to the use of morphine at around age of 15, and in 2008, commenced using methylamphetamine (Ice). You have reported to Ms Walker that you were consuming a significant amount of Ice on a daily basis, prior to the offences that are the subject of this hearing. You have indicated to Ms Walker that the catalyst for your drug use was a desire to suppress negative emotional states and memories which related to past experiences of trauma and grief that you had experienced.
You have a prior criminal history which includes convictions for offences such as burglary, theft, attempted armed robbery, criminal damage, robbery and other matters. You have received a number of terms of imprisonment, the longest of which has been a term of one year and nine months with a non-parole period of 11 months having being fixed in December of 2013.
You have reported to Ms Walker that you were seeing a psychologist when you were at school, and that you had been admitted to a private psychiatric facility at the age of about 12. You reported that you have had several psychiatric admissions since 2010 and that you have a history of self-harming behaviour and have attempted suicide on previous occasions.
Ms Walker states at p 3 in her report:
‘[Ms Benson] disclosed a long and significant history of mental health issues, including diagnosis of borderline personality disorder, schizophrenia, major depressive disorder, as well as substance addiction, and trauma related symptoms primarily from discovering the body of a former partner, being raped and partner perpetrated physical violence.’
Ms Walker further notes:
‘That it is always difficult to retrospectively diagnose mental health issues, as any diagnoses are dependent upon an accurate recollection from the client. In this instance, I was only able to rely upon the recollection of [Ms Benson] in the positive correlation between this and her offending behaviours.’
It appears that on the basis of your self-report, in combination with a 50 minute video link interview, Ms Walker has indicated that you meet the criteria for a diagnosis of borderline personality disorder. Ms Walker further states that you present with many of the symptoms of Post-Traumatic Stress Disorder and that you further meet the criteria of battered women syndrome which, Ms Walker indicates, is a sub-category of Post-Traumatic Stress Disorder.
Ms Walker further goes on to say in her report:
‘It is highly likely that the interplay between [Ms Benson]’s diagnoses of borderline personality disorder, post-traumatic stress disorder, battered women syndrome and substance use disorder would have had a detrimental impact on her decision making and influence the way in which she offended.’
So far as your report of your Ice usage to Ms Walker is concerned, at p 5 of the report Ms Walker states that you told her that your usage escalated and prior to the offences currently before the court, you reported that you were consuming significant amounts daily.[3]
[3]Ibid [42]–[54].
His Honour said that he was not satisfied that the principles in Verdins[4] were applicable, there being insufficient evidence to establish a nexus between the respondent’s mental condition and the offending.
[4]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Next, in dealing with some of the mitigating factors that were present, the sentencing judge said:
I do accept however, that you have had a difficult, traumatic and deprived life. I have taken into account in a general sense, the matters raised in the history which you have provided to Ms Walker, and I accept that difficulties in your earlier life have followed you into the present day. In light of this, I am prepared to allow for some moderation of the sentence I impose on you.
When you were interviewed by police, you indicated that the victim had sexually assaulted you. In giving your history to Ms Walker, you enlarged on this claim. Your victim denies this conduct, and you have not called any evidence in support of your assertion. Having regard to the whole of the evidence, I cannot find that you were sexually assaulted as you allege. I will sentence you on the basis that the motive for your offending is unable to be determined by me.
I have taken into account that in your police interview, you expressed concern at the extent of the injuries which your victim sustained. That in effect Mr Ferrer, the oldest of all of you, was the prime mover in the offending, and that your agreement with Mr Ferrer is reflected in the lesser charges which you face as opposed to the charges that he faced. In your interview, you also express concern at the consequences of Mr Ferrer’s temper.
You pleaded guilty at what I accept, given the forensic reality of your case, is a fairly early time and, your plea of guilty has facilitated the course of justice and does evidence some remorse on your part. You will receive an appropriate discount of your sentence for this.
Having regard to your prior history, entrenched drug usage and limited support in the community, I can only have a guarded optimism concerning your prospects of rehabilitation, notwithstanding your comparatively young age.
On the plea hearing, your counsel urged me to impose a combined community corrections order and term of imprisonment on you. Having regard to the seriousness of your offending and other matters, I am of the view that such a sentence would not adequately address the need for general deterrence and just punishment and, accordingly, I cannot agree with this submission. In my view, in your case, the only applicable sentence is one of an immediate term of imprisonment.
I was advised that your co-accused, Mr Ferrer, was sentenced by Her Honour Judge Cannon of this court. I have had access to the sentencing remarks in that matter and I have had regard to the sentence imposed on Mr Ferrer, which was a total effective sentence of nine years with a six year minimum being fixed.
In sentencing both of you, Mr Pollard and [Ms Benson], I have had regard to the important sentencing principle of parity. This rests on the principle of equal justice which requires that like should be treated as like, and that the difference in treatment of different persons should be rational. Different sentences may reflect differences in culpability or personal circumstances in offenders. In reaching the sentences which I impose, I have had regard to your respective roles, personal matters as they have been made known to me, and the different charges which you face.[5]
[5]Sentencing Remarks, [59]–[66].
The Crown’s submissions
In its written case, the Crown relied to a significant degree upon what it submitted was a failure on the part of the sentencing judge to give proper effect to the principles laid down by this Court in Hogarth v The Queen.[6]
[6](2012) 37 VR 658 (‘Hogarth’).
In Hogarth, the appellant pleaded guilty to charges of aggravated burglary, theft and handling stolen goods. He received a total effective sentence of five years, with a non-parole period of three years and six months. The appellant had sought revenge against a person who, he believed, had committed a wrong against him. Along with two co-offenders, he drove to that person’s parents’ house, which was quite near where the person lived. While the appellant waited outside, his two co-offenders entered the house and tied up the person’s mother. They threatened her and stole valuable goods from the house.
The sentencing judge had found that, although the appellant did not have any knowledge of what the co-offenders were planning to do, the appellant had instigated the offences, and was the motivating force behind their commission.
In Hogarth, the Crown challenged current sentencing practice for the offence of aggravated burglary. It claimed that current sentencing practice for that offence could not be justified in light of the increase in maximum penalty for that offence to 25 years.
The Court (Maxwell P, Neave JA and Coghlan AJA) concluded that the sentences generally imposed in this State for ‘confrontational aggravated burglary’ were too low, and that sentencing practices needed to change to reflect the objective gravity of this kind of offending. Considering the appellant’s circumstances in that particular case, however, the sentence was entirely orthodox. The appeal was dismissed.
In the Crown’s written case, it was submitted, implicitly, that Hogarth required a sentence that was significantly greater than the 30 months’ imprisonment imposed upon the respondent for the aggravated burglary alone. Indeed, it was seemingly suggested that a sentence of between six and eight years (which was the sentence spoken of in Hogarth as being possibly appropriate for the confrontational aggravated burglary committed in that case) set a benchmark for the sentence that should have been imposed for that offence in the present case.
During the course of oral argument, and very much to his credit, counsel for the Director specifically eschewed any such proposition, recognising that each case must be considered in the light of its own particular facts.
Counsel for the Director also acknowledged that, as the offending occurred as part of the one criminal episode, the principle of totality had to be borne in mind. He submitted, however, that the total effective sentence imposed in this case fell well short of what would have been required to satisfy the principles of general and specific deterrence, punishment and denunciation.
Respondent’s submissions
In her written case, the respondent submitted that the sentencing judge had taken into account all of the relevant matters concerning the offending, as well as matters personal to herself. Plainly, his Honour had paid due regard to the maximum penalties for each of the offences charged.
The respondent submitted that the sentencing judge had not underestimated the nature and gravity of the offending. She noted that, in the sentencing remarks, the judge had referred to the serious nature of what had occurred, including the entry into the victim’s home in the early hours of the morning, the possession and use of weapons, the intention to assault the victim, and the presence of multiple offenders. His Honour had also referred, at some length, to the serious injuries suffered by the victim.
Additionally, the respondent submitted that the sentencing judge had placed appropriate emphasis upon the principles of general and specific deterrence, denunciation and just punishment.
Further, the respondent submitted that his Honour had properly allowed for some moderation of the sentence on account of the respondent’s difficult, traumatic and deprived life. He had taken into account the matters raised by Ms Walker, the psychologist whose report was tendered on the plea. These included: parental neglect, sexual abuse, domestic violence, drug use, a history of psychiatric admissions and self-harm.
The respondent also submitted that, given that a substantial sentence was to be imposed upon the charge of recklessly causing serious injury, and a further sentence of imprisonment was to be imposed on the charge of theft, there was a need to avoid ‘double punishment’ on the aggravated burglary charge.
The respondent submitted that even the limited reliance that the Crown now placed on Hogarth as a comparative case was problematic. It was said that there were significant differences between both the respective offending, and the respective offenders.
In oral argument, the respondent referred to R v Vella.[7] There, the respondents had been convicted of aggravated burglary and false imprisonment. Essentially, relations between themselves and the victim had been strained due to the belief that the victim had handled goods stolen from Vella’s friends, and that he was also involved in the theft of Ray’s property.
[7][2014] VSCA 140.
The respondents went to the victim’s house and assaulted him. Vella was sentenced to three years and three months’ imprisonment, with a non-parole period of one year and nine months. Ray was sentenced to three years and six months’ imprisonment with a non-parole period of two years. The Crown appealed against sentence. The Court (Maxwell P, Whelan and Beach JJA) dismissed the appeal. In so doing, the Court referred to Hogarth, saying:
In Hogarth, the offender, AH, was sentenced to four-and-a-half years’ imprisonment on a count of aggravated burglary. This Court said in Hogarth that that sentence highlighted the inadequacy of then current sentencing practices for confrontational aggravated burglaries. After analysing a large number of cases involving sentences for aggravated burglary, the Court concluded that if the constraints of current sentencing practices were removed, ‘the applicable range for the sentencing of AH would be a total effective sentence of six to eight years, with a non-parole period of four to six years’. Contrary to the appellant’s written case, Hogarth did not set a revised guidepost for confrontational aggravated burglaries generally. The ranges referred to in Hogarth only related to the appellant in that case. Counsel for the Director properly conceded this morning that that was so.[8]
[8]Ibid [19].
The respondent submitted that this passage correctly stated the law applicable to sentencing for aggravated burglary in this State, having regard to what was said in Hogarth.
Conclusion
It should be said at once that Hogarth, as is the case with any other sentencing decision of this Court, does not stipulate an exact range within which a particular offence must fall.
Having regard to the unusual features of this case, including the somewhat limited role played by the respondent in the implementation of this entire criminal enterprise, as well as her very different state of mind to that of Ferrer, it is clear, as the sentencing judge appreciated, that the objective gravity of her offending was far less than that of the main offender.
In addition, the respondent pleaded guilty at an early stage. She exhibited remorse, and was also able to call in aid significant features of mitigation based upon her background and mental state.[9]
[9]Albeit short of Verdins.
The sentencing judge seemed to us to have given proper weight to the gravity of the offence and its impact upon the victim. In his sentencing remarks, which were commendably clear, he explained just why, despite the respondent’s previous criminal history, he considered a total effective sentence of four years’ imprisonment to be adequate punishment.
It is clear that other judges might have taken a more stern approach in sentencing this respondent. That is a far cry, however, from establishing that this sentence was wholly outside the range reasonably available to his Honour.
It was for these reasons that this appeal was dismissed.
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