Director of Public Prosecutions v Dennes
[2009] VSCA 33
•2 March 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 926 of 2007
DIRECTOR OF PUBLIC PROSECUTIONS
v
DARYLL JOHN DENNES
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JUDGES:
DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
2 March 2009
DATE OF JUDGMENT:
2 March 2009
MEDIUM NEUTRAL CITATION:
[2009] VSCA 33
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Criminal law – Sentence – Aggravated burglary, robbery, false imprisonment – Elderly couple tied up by respondent while he ransacked and burgled house – Respondent sentenced to four years and four months’ imprisonment with two years and six months non-parole period – Whether individual sentences, total effective sentence, and non-parole period manifestly inadequate – Offending could not be described as sentencing judge had done as ‘mid to lower range’ example of aggravated burglary – Appeal allowed – Total sentence increased to five years and eight months with three years and eight months non-parole period
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APPEARANCES: Counsel Solicitors For the Director Mr T Gyorffy Mr S Ward, Acting Solicitor for Public Prosecutions For the Respondent Mr P F Tehan QC with
Mr L C CarterMarkotich Lawyers
DODDS-STREETON JA
WEINBERG JA
WILLIAMS AJA:
This is an appeal by the Director of Public Prosecutions against various sentences imposed upon Daryll John Dennes for offences of aggravated burglary, robbery and false imprisonment.
The respondent was sentenced to a term of three years' imprisonment on one count of aggravated burglary (count 1), one year on each of two counts of robbery (counts 2 and 3) and one year on each of two counts of false imprisonment (counts 4 and 5). It was ordered that four months of the sentences imposed in respect of counts 2, 3, 4 and 5 be served cumulatively upon the sentence imposed in respect of count 1 and upon each other. Accordingly, the respondent received a total effective sentence of four years and four months' imprisonment. A non-parole period of two years and six months was fixed. We were told that that period would expire on 4 April 2009.
The appellant contends that the individual sentences, the total effective sentence and the non-parole period are each manifestly inadequate.
The circumstances surrounding these offences, as found by the jury, were as follows. At approximately 11.30 p.m. on 18 March 2006, the premises of Mauro and Carmella Montalto, part of a poultry farm complex in South Morang, were burgled. The respondent was the offender. He gained entry to the house by smashing a glass sliding door leading to the kitchen-dining area, after having forcibly opened a rear door to the sun porch. On hearing the door being forced, the Montaltos, an elderly couple both in their eighties, left their bed and went into the kitchen. There they observed the respondent outside the glass door. After smashing his way in, the respondent, disguised with a balaclava, asked where the money was and if there was a key to the safe. He tied each of the Montaltos to a chair, using cable ties for that purpose. He then ransacked the house. He took a biscuit tin containing cash, which had been saved by Mrs Montalto and which she described as 'death money'. The amount contained in that biscuit tin was contentious, but, on the Crown case, it was approximately $45,000.
The sentencing judge noted that the respondent had behaved considerately towards the Montaltos while they were tied up, providing them with blankets and water to drink.
Unfortunately for the respondent, he had cut himself when breaking the glass door and left some spots of blood on the tiled floor. DNA profiles were obtained from the blood. These matched the respondent's profile, which was already on the police database. In addition to the DNA, there was circumstantial evidence in relation to the payment by the respondent of large sums of cash into various bank accounts in Queensland, all within four or five days of the commission of these offences. There was other circumstantial evidence as well. His Honour described the case against the respondent as strong, which it certainly was.
Circumstances of the offender
The respondent had a number of prior convictions for offences involving dishonesty. These went back to 1992. He had been convicted of theft, being a felon in possession of a firearm, going equipped to steal, unlawful possession of an article of disguise, possession of a dangerous article and handling stolen goods. He had served a term of four months' imprisonment for the handling offences. However, the last time he had been convicted of any offence was in April 1994. The previous convictions therefore carried less weight, in terms of his prospects of rehabilitation, than they otherwise might.
Consequences for the victims
The victim impact statements that were tendered indicated that the Montaltos lived a simple life without displaying any obvious signs of wealth. After these offences, everything changed. Mr Montalto lost all confidence. He felt that he had let his wife down by not being able to protect her. He was frightened to be alone. Both he and his wife had lost their feeling of independence. His health had deteriorated. Indeed, so profound was the effect of this burglary upon them that their house remained in a state of disarray, even at the time the respondent was sentenced. They said that they could not bring themselves to rearrange the furniture because to do so would cause them to relive the terrible events of that evening.
Sentencing judge’s reasons
The sentencing judge characterised the offences as well planned and as involving probable surveillance. There was ample justification for these conclusions.
In dealing with the mitigating factors upon which the respondent relied, his Honour first observed that there had been no plea of guilty and that there was no indication of any remorse. A forensic psychologist who gave evidence on the plea, Wendy Northey, confirmed that the respondent did not accept the jury's verdict but continued to maintain his innocence.
What could be said in mitigation was that the respondent had had a difficult life. He was born in December 1957. That meant that at the time of sentencing, he was almost 50 years of age. He had had a good relationship with his mother but had been totally alienated from his father.
Ms Northey's report indicated that the respondent's father had been an abusive husband who degraded his wife and alienated his children. The marriage had been 'highly conflictual'. The parental relationship had provided a confusing and inadequate model to the respondent, and this had been reflected in his own problematic relationship history and complex psychological profile.
The respondent had completed an electrical apprenticeship but had gone on to establish a successful trucking business. He had formerly been married and had two children, but the marriage had broken down. His wife had remarried. He had lost contact with his children and there had been a difficult financial settlement.
Ms Northey's report suggested that the respondent had difficulty coping with his emotions. He was said to be suffering from a reactive form of depression. While he took antidepressants as prescribed, his depression was considered unlikely to respond well to medication. His was a defensive personality. He believed that he operated on the basis of plain, simple and direct principles. Unfortunately, that rigid approach to life was not adaptive. She considered that he needed counselling. She said that if he received appropriate treatment, his prospects of rehabilitation would be good.
Having identified the various aggravating and mitigating factors, the sentencing judge observed that the offence of aggravated burglary carried a maximum penalty of 25 years' imprisonment. Robbery carried 15 years, and false imprisonment 10 years. His Honour noted that the respondent's conduct involved the home invasion of two elderly people in what must have been terrifying circumstances. He said such conduct must be deterred. His Honour's next comment provoked some discussion during the course of this appeal. He said:
Your counsel described you as a gentle burglar, and that the aggravated burglary was at the lower range of such crimes. I consider such conduct to be to the mid to lower range of aggravated burglary, bearing in mind your attitude to your victims.
The sentencing judge then sentenced the respondent as previously indicated.
Submissions on the appeal
It was submitted on behalf of the appellant that the individual sentences imposed, the total effective sentence and the non-parole period were all manifestly inadequate. It was further submitted that this manifest inadequacy constituted error in principle and that the sentences were so disproportionate to the seriousness of the crimes as to shock the public conscience.
The appellant pointed to the passage from the sentencing remarks set out earlier. It was submitted that his Honour's finding failed adequately to reflect the gravity of the particular aggravated burglary in this case. It was noted that the offence of aggravated burglary is complete on entry into the premises. It was submitted therefore that any kindness shown to the Montaltos thereafter could not significantly mitigate the seriousness of that offence.
The appellant further submitted that this was a case with a number of aggravating features. Entry to the house was gained by breaking a glass door late at night while disguised. A considerable amount of planning had gone into the commission of this offence. At least one other person was involved. A conversation which the Montaltos had overheard, whereby the respondent told his co-offender over a walkie-talkie that he could not find any money, made that plain. Moreover, the respondent's statement that 'it's impossible that the Montaltos have got no money' indicated that this elderly couple had been specifically targeted for this offence.
It was submitted that the manner by which the respondent gained entry to their home would have been particularly frightening for the Montaltos. It is hardly surprising that they had been profoundly affected by what had occurred. It was further submitted on behalf of the appellant that the individual sentences imposed for the robberies and for the false imprisonment were inadequate. In relation to counts 4 and 5, it was said to be a particularly aggravating circumstance that the victims were in their eighties, the imprisonment lasted for some hours and violated what might be described as the sanctity of their home.
On behalf of the respondent, it was submitted that the individual sentences, the total effective sentence and the non-parole period were not manifestly inadequate. Reliance was placed upon those authorities which establish that Crown appeals should be rare and exceptional and approached by appellate courts with considerable restraint.[1] It was submitted that the sentencing judge had referred to all relevant circumstances, including the gravity of the offences, the impact on the victims, and the need for specific and general deterrence. The respondent urged the Court to take into account that the aggravated burglary was not associated with the kind of violence which often accompanied such offences and might warrant its description as more serious. At the same time, it was submitted, the respondent was entitled to some credit for the consideration which he had shown to the victims after he had tied them up, providing them with blankets and water.
[1]Director of Public Prosecutions v Josefski (2005) 13 VR 85, [4]-[20] and Director of Public Prosecutions v Bright (2006) 163 A Crim R 538, [10]-[11].
It was also submitted on behalf of the respondent that his personal circumstances should be regarded as significantly mitigating, particularly his dysfunctional relationship with his father. In addition, his last conviction was in 1994, some thirteen and a half years before the date on which he was sentenced. His prior convictions were described as 'relatively minor'.
The respondent argued that his Honour's observation regarding the aggravated burglary as being in the 'mid to lower range' had been taken out of context. It was submitted that a reading of the transcript of the plea showed that what his Honour truly meant by that comment was merely that the offending as a whole should be viewed in that way, not the aggravated burglary standing alone.
Finally, the respondent submitted that although he had pleaded not guilty, and given no indication of any remorse, these were not to be regarded as aggravating circumstances but merely meant that he could not call in aid a plea of guilty or remorse as mitigation. That last submission was, of course, plainly correct.
Conclusion
In our view, this appeal must be allowed. We consider that the individual sentences imposed on the counts of aggravated burglary and false imprisonment were manifestly inadequate. So, too, were the effective sentence and the non-parole period.
We find it difficult to understand how his Honour could reasonably have characterised this particular aggravated burglary as falling within the ‘mid to lower range’. We reject the respondent's submission that this observation was intended to apply to the overall offending and not to the aggravated burglary standing alone. To read his Honour's sentencing remarks in that way involves a complete distortion of his carefully chosen language.
That is so even when one has regard to the fact that during the course of the plea, his Honour said, in answer to a submission regarding the 'gentle' treatment accorded to the Montaltos by the offender, that this might 'possibly … lower the range'.
In any event, irrespective of whether this passage reveals specific sentencing error, we are satisfied that this was a particularly grave offence warranting severe punishment. To smash one's way into the home of an elderly couple late at night, whilst disguised, intending to tie them up and rob them of a substantial amount of money, cannot, we think, properly be described as a ‘mid to lower range’ example of aggravated burglary, or the offending as a whole.
This particular aggravated burglary was both premeditated and carefully planned. It was carried out in a fashion that involved more than one offender and the use of cable ties and walkie-talkies.
The offence was significantly aggravated by the fact that the victims were both very elderly, and known to be so by the respondent. It was a grave affront to their dignity, as well as a significant threat to their well-being, to tie them up while their home was being ransacked before them.
Any home invasion of this nature must warrant severe punishment. It is not to the point that there are cases in which greater violence has been used. If injury is caused in the commission of such an offence, that would normally warrant additional punishment.
In our view, the term of three years' imprisonment that his Honour imposed for this particular offence falls far short of what the respondent's criminality merited. The same can be said of the twelve months imposed on each count of false imprisonment. To tie up two elderly and obviously vulnerable victims, while robbing them at night in their home, must be regarded as a most serious offence. It certainly warrants a considerably heavier sentence on each count than the twelve months' imprisonment that his Honour imposed.
As we have said, the respondent has prior convictions for offences of dishonesty. These go back some years and are accordingly not of great weight. However, they are not to be totally ignored when considering the respondent's prospects of rehabilitation.
Even making full allowance for such mitigating factors as there were, we consider that the individual sentences imposed in relation to the counts of aggravated burglary and false imprisonment were manifestly inadequate. We think that the community would be rightly disturbed at the extraordinary leniency extended to the respondent for these offences.
It was submitted on behalf of the respondent that, as he was eligible for parole in only a month, we should exercise our undoubted discretion and dismiss the appeal. We have taken the respondent's imminent eligibility for parole into account, but we cannot accept that submission. Had the respondent not sought, at almost the very last moment, an extension of time within which to appeal against his conviction, this Crown appeal against sentence would have been heard in July 2008, when it ought to have been. The respondent can hardly complain of any delay from July of last year to the present time, he being solely responsible for that delay.
We also have regard to the constraints imposed by the principle of double jeopardy. Were it not for that principle, the sentences that we now fix would have been heavier.
We would allow the appeal, set aside the sentences imposed below and in lieu thereof re-sentence the respondent as follows:
count 1 - aggravated burglary: four years' imprisonment;
count 2 - robbery: 12 months' imprisonment;
count 3 - robbery: 12 months' imprisonment;
count 4 - false imprisonment: 18 months' imprisonment;
count 5 - false imprisonment: 18 months' imprisonment.
We would order that four months of the sentences on counts 2 and 3 and six months of the sentences imposed on counts 4 and 5 be served cumulatively upon the sentence imposed on count 1 and upon each other. That results in a total effective sentence of five years and eight months. We would fix a period of three years and eight months before being eligible for parole.
We would affirm the order made by the sentencing judge, pursuant to s 464ZFB(1) of the Crimes Act 1958, regarding retention of a DNA sample obtained from the respondent on 6 October 2006.
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