Director of Public Prosecutions v Markhail

[2023] VCC 1702

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01702

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD MARKHAIL

---

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2023
DATE OF SENTENCE:	20 September 2023
CASE MAY BE CITED AS:	DPP v Markhail
MEDIUM NEUTRAL CITATION:	[2023] VCC 1702

REASONS FOR SENTENCE
---

Subject:Criminal law - sentence

Catchwords:              Plea of guilty – aggravated home invasion – intention to steal methylamphetamine – co-offenders armed with a knife and a machete – whether accused armed with an imitation handgun – prior criminal history – guarded prospects of rehabilitation –prior criminal history – need for specific deterrence - sentencing principles of general deterrence, denunciation and community protection are to be given prominence.

Legislation Cited:      Crimes Act 1958 s77B; Sentencing Act 1991 ss10AC & 10A

Cases Cited:DPP v. Markhail & Anor [2022] VCC 286; Worboyes v. The Queen [2021] VSCA 169; R. v. Verdins (2007) 16 VR 269; DPP v. O’Neill [2015] VSCA 325; R. v. Renzella (1997) 2 VR 88

Sentence:                  Total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and four months’ imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Davison	Office of Public Prosecutions Victoria
For the Accused	Mr P.F. Bloemen	Garde Wilson Lawyers

HER HONOUR:

1Richard Markhail, you have pleaded guilty to one charge of aggravated home invasion contrary to s 77B of the Crimes Act 1958, the maximum penalty for which is 25 years' imprisonment.

2You have also pleaded guilty to a related summary offence of committing this indictable offence while you were on bail contrary to s 30B of the Bail Act 1977, the maximum penalty for which is 30 penalty units or 3 months' imprisonment.

3You were 25 years old at the time of this offence. You have admitted a prior criminal history.

Circumstances of the offending

4The offending for which you are to be sentenced arises from the events on 12 February 2022 when you, in company with two others, forcibly entered the home of the victims with the intention of stealing methylamphetamine. The three of you were armed with offensive weapons at the time.

5The circumstances of your offending are detailed in the summary of prosecution opening for plea hearing dated 29 August 2023. This summary represents the agreed basis upon which you are to be sentenced, with one exception. The defence argues the prosecution is unable to establish, to the requisite standard, that the offensive weapon possessed by you was an imitation handgun.

6The background to your offending is as follows.

7On 11 February 2022, one of your co-offenders, 25-year-old Dylan Aslan, visited the home of Tegan Miller in Craigieburn at 7.12 pm, and remained there until 9.48 pm.  His visit was recorded on CCTV footage.

8The next morning, at approximately 3.30 am, you, Mr Aslan and another male, 23‑year-old Baceil Moussa, returned to the property in a red Ford Falcon. You left the car and walked up the driveway to the home. This was also captured on CCTV footage. Mr Aslan was wearing dark clothes, gloves, and he was carrying a knife. His face was covered with a skull mask. Mr Moussa also had his face covered, and was wearing a dark hoodie and gloves. Mr Moussa was carrying a machete.

9You were also wearing a dark hoodie with a cap down low, red runners and your face was also covered by some form of mask. This is apparent from the CCTV footage at the front of the property, which I have viewed. The prosecution case is that you were carrying a small imitation handgun. By your plea, you admit you were carrying an offensive weapon, but dispute it was an imitation firearm. I return to the evidence regarding this disputed fact later in my reasons.

10Ms Miller was asleep in the upstairs bedroom of the house with her two-year-old daughter at this time. Her partner, Christopher Sturrock was downstairs in the backyard with Ms Miller's three-year old son, who happened to be awake at this time.

11Mr Aslan, then you, attempted to force the garage door at the front of the house open, but were unable to do so. You had placed the weapon on the ground as you tried to lift the garage door, and then you placed your foot over the item.  You then picked the weapon up and carried it with you to the front door.

12CCTV footage captured your entry to the house.

13When the three of you reached the entrance, you pulled the front fly-screen door open, before kicking the front door in. The force with which you did so splintered the timber surrounding the lock and sent parts of the lock into the house. The three of you then rushed into the home.

14From where Mr Sturrock was situated outside, he observed the three of you inside the house and saw you run upstairs. He believed you were carrying bats. When he heard screaming from upstairs, Mr Sturrock grabbed Ms Miller's son, and called Triple 0.

15Police began to arrive at the house approximately 7 minutes later, at 3.39 am. Once the first police arrived, Mr Sturrock saw two of you run back upstairs.

16You and Mr Moussa ran out onto the second-floor balcony attached to the main bedroom upstairs. Police deployed OC spray in your direction, and called for you to come down. Another police officer climbed to the balcony and attempted to restrain you. Having moved to an adjacent roof area, you then jumped from the roof to the ground, where you were restrained by police before being searched and arrested.

17Upon searching you, police located the key to the Ford Falcon driven to the property and $610 in cash. A hospital identification bracelet for one of Ms Miller's children was also found in your possession.

18While this was happening, Mr Aslan ran from the house, past Mr Sturrock in the backyard, before climbing over the back fence. In the neighbouring property, he dropped a purse, a hunting knife, digital scales and a packet of cigarettes. He then climbed the neighbour's side gate and fled on foot.

19After Mr Moussa was arrested on the roof adjacent to the balcony, the police located $9,580 in cash and a quantity of methylamphetamine lying on the roof. Subsequent analysis revealed the quantity of methylamphetamine to be 67 grams, which is an amount equivalent to a commercial quantity of that illicit drug. Inside the house, the police also located the black machete carried by Mr Moussa, and the black skull mask worn by Mr Aslan.

20The weapon carried by you was never located.

21When interviewed by police on 12 February 2022, you made no comment to questions asked of you in accordance with your rights.

22Neither of the co-offenders has been sentenced at this time. Mr Aslan was found guilty of aggravated home invasion following a trial. Mr Moussa's matters have resolved to a guilty plea following a sentence indication hearing, but he is yet to be sentenced. The prosecution concede that the totality principle which moderates your sentence, has no application to Mr Moussa's sentence.

Nature and gravity of offending

23Aggravated home invasion is a serious criminal offence, as can be gauged from the maximum penalty of 25 years' imprisonment fixed by Parliament. The offence of aggravated home invasion is also classified as a Category 1 offence and as such, pursuant to s 10AC of the Sentencing Act 1991, a sentence of imprisonment must be imposed and a non-parole period of not less than three years fixed, unless special reason exists. Such provisions reflect the intention of Parliament that conduct such as yours is to be recognised as inherently serious offending.

24The objective gravity of your offending is borne out by a number of aggravating features:

a)The offending was well planned and co-ordinated. The victim's home was deliberately targeted in order to steal methylamphetamine.

b)The three of you wore dark clothing and items to disguise your identity, including hoodies and masks.

c)The home was entered in a violent manner by breaking down the front door in the early hours of the morning.

d)You entered the home accompanied by two other offenders, all armed with weapons.

e)Entering the home at 3.30 am,  was highly likely that at least some of the occupants would be present at the home. As it transpired, Mr Sturrock and Ms Miller's young son were aware of your presence, which would have been terrifying, particularly for a child that age.

f)Although your presence in the victims' home was brief, this was only as a consequence of the police being called immediately by Mr Sturrock.

25I accept that some of these features, namely your intention to steal and your entry of the house in company while carrying offensive weapons, form part of the elements of the offence of aggravated home invasion. As such, they cannot be described as having aggravating features additional to the offence. Nonetheless, the manner in which the offence was committed and the features that I have identified that are additional to the elements of the charge, highlight the seriousness of this offending.

26An issue arose at the plea hearing about whether Ms Miller was physically confronted during the home invasion. Mr Sturrock says he heard screaming after observing the three of you run upstairs where Ms Miller's bedroom was located, and police investigators found the door to her bedroom had been damaged. Ms Miller did not provide a statement to police. In my view, the evidence is insufficient for me to conclude that you or any of the co-offenders physically confronted Ms Miller in the house. However, I am satisfied that Ms Miller was at least aware of your presence in the house.

27It is also relevant that you were on bail at the time of this offending. I accept that other aggravating features sometimes found in cases such as these, such as a violent confrontation with the victims or the use of the weapons to threaten or otherwise injure the occupants, are absent in this case. Fortunately, the entire incident was interrupted by the arrival of police and was of relatively short duration.

28Your counsel argued that Mr Aslan was the principal offender but in my view there is little to distinguish between the role played by you and the co-offenders in the actual offending, beyond Mr Aslan's attendance at the property the day prior. It can reasonably be inferred that Mr Aslan used this opportunity to assess the property, as a result of which you were aware of the presence or likely presence of methylamphetamine, when you attended the next morning. From there, it is clear you all entered the house with the same objective. You each carried weapons, including a knife and machete while you, also armed with a weapon, smashed in the front door. You all jointly and actively participated in the commission of the aggravated home invasion.

29The prosecution case is that the offensive weapon carried by you was an imitation handgun. For this to be considered an aggravating feature of the offence, I must be satisfied the item carried by you was an imitation firearm, beyond reasonable doubt. I have viewed the CCTV footage and considered the photograph tendered on your plea, being a still frame of the CCTV. This image depicts the item next to you as you attempt to open the garage door. However, given the distance from which the photograph is taken, the item is small-scale and lacks clear definition. While the item appears to resemble a small firearm in size, shape and colour, it is not possible to reach a conclusion with any certainty. No close up or enhanced image of the item was provided. Nor is it possible to discern the nature of the item given the poor quality of the CCTV footage.

30While there is a basis to suspect you were carrying an imitation handgun, I cannot be satisfied of that fact beyond reasonable doubt.

31By your plea, you accept that you entered the property for the purpose of stealing. You did so knowing or anticipating methylamphetamine was located at the property.[1] In the event, police located a commercial quantity of methylamphetamine, together with a significant amount of cash, proximate to where you and Mr Moussa were located attempting to flee the property. I note that you are not charged with the theft or attempted theft of these items. The fact these items were located is relevant only to my conclusion that the presence of the illicit drugs was the reason the three of you forcibly entered the house, armed with weapons.

[1]Defence written submissions dated 30 August 2023

32While none of the victims have provided victim impact statements, there can be no doubt this would have been a frightening experience for those in the house. There is no evidence that you knew any children would be in the home at that time of night. However, given the presence of the young child outside, plainly these events would have been distressing for him to witness. In his 000 call, Mr Sturrock refers to the child 'shaking'. It is undeniable the offending undermined the entitlement of all the occupants to be safe in their home.

33Balancing these matters, I assess this as a mid-range example of an inherently serious offence.

34Your moral culpability for your role in the offence is high, although this is also informed by your personal circumstances to which I now turn.

Personal circumstances

35You were born in and raised in Melbourne and are now 26 years old.

36You and your sister enjoyed a stable childhood. Your parents separated when you were around 13 years of age. From this time, you continued to live with your mother but had frequent contact with your father.

37However, your schooling was disrupted by disruptive behaviours from a young age. You were expelled from Penola College in Year 8 for fighting. You then enrolled at Roxburgh College, where you were also suspended on a number of occasions before being asked to leave the school in the early stages of Year 11.

38In May 2020, Dr Mathew Staios, a clinical neuropsychologist, assessed your level of cognitive functioning by administering the Wechsler Adult Intelligence Scale. In his report dated 4 May 2020, Dr Staios assessed your level of intellectual functioning as falling within the borderline to low average range, with your 'general intelligence falling within the extremely low range (95 per cent CI of 61-72, 1^st percentile)'.

39You also began experimenting with drugs from an early age. Your early adolescence was characterised by significant substance abuse, periods where you would abscond from home for days on end, poor school attendance and offending.

40In Dr Staios' opinion, your low level cognitive functioning is further compromised by drug abuse, stating:

'Mr Markhail's ongoing substance use, in conjunction with his pre-existing psychological vulnerabilities, has likely impacted on his emotion regulation skills and reasoning skills during a crucial developmental period, where he was vulnerable to the influence of negative peer influences. In instance[s] where Mr Markhail is acutely intoxicated, his limited intellectual abilities are highly likely to be further reduced, which will further compromise overall cognitive skills.'

41You have only had one brief period of employment in construction, being a period of two months before you were remanded in custody. You have had no other paid employment.

42You first commenced abusing drugs by using amphetamines, MDMA and cocaine on a recreational basis. By the age of 19, you were heavily addicted to methylamphetamine (ice), and were abusing Xanax. You report being significantly drug-affected due to Xanax abuse at the time of this offending.

43You have previously made attempts to deal with this addiction through residential rehabilitation programs. In October 2020, you were bailed subject to a condition that you attend 'The Cottage' rehabilitation program in Shepparton. You completed that 16-week program. However, despite this treatment, you suffered a relapse and returned to old associations. Arrangements had been made for you to reattend that residential program when you were remanded in February 2022. This offending occurred ten days prior to your planned readmission.

44Your prior criminal history began at a young age and you were sentenced in the Children's Court between 2013-14 for offences including reckless conduct endangering serious injury, possession of a firearm, burglary and other dishonesty offences.

45As an adult, you have a significant criminal history, having been sentenced to four community correction orders and various periods of imprisonment between 2015 and 2021. You have breached each community correction order imposed. Your past offending has included multiple drug related offences, including trafficking in cocaine in 2019 and other traffic and dishonesty offences.

46Of concern, you also have prior convictions for possessing weapons and weapons‑related offences. In addition to Children's Court matter, you were convicted of possessing a general category handgun in 2015, possessing cartridge ammunition and a silencer in 2019, and being a prohibited person in possession of an imitation firearm in 2021. You are subject to a Firearm Prohibition Order.

47You were also sentenced subsequent to this offending for your role in an affray and for being complicit in recklessly causing injury arising from an incident in February 2021. You were sentenced by me to 21 months' imprisonment with a non-parole period of 12 months for this offending on 11 March 2022.

48The circumstances of that offending are detailed in my reasons for sentence dated 11 March 2022.[2] In summary, you and the principal offender attended at the victim's factory on 11 February 2021. During an altercation inside the factory, you were holding a small knife and made stabbing motions in the direction of the victim as the co-offender moved closer to him. The co-offender then took the knife from you and used it to stab the victim in the arm, stomach and ribs. Your role in this offending was not as significant as the co-offender who intentionally inflicted injury to the victim in a fast-moving, violent attack. You were 23 years old and were on bail, as well as being subject to a community correction order, at the time of that offending.

[2]DPP v Markhail & Anor [2022] VCC 286

49You completed that sentence on 26 May 2023. You were not granted parole, no doubt due to the fact you were also remanded on this offending. You have remained on remand ever since.

50You have been in a relationship with your current partner for the past three years, with whom you have a child, who was born while you were in custody. Your partner remains supportive of you.

Matters in mitigation

51On your behalf, Mr Bloemen detailed a number of matters that operate in mitigation of your sentence.

52Firstly, and significantly, you have pleaded guilty. Although yours was not a plea entered at the earliest opportunity, your guilty plea has utility and facilitates the administration of justice. By your plea you acknowledge responsibility for your offending. Not only does your guilty plea save the resources of the court and the community associated with a trial, it also saves witnesses from being required to give evidence or cross-examined at trial. I note that you did not seek to cross‑examine any civilian witness at the contested committal. As your guilty plea was entered at a time when delays in the criminal justice system continue in the wake of the pandemic, it has even greater utility.[3] You are entitled to, and will receive, a discernible sentencing discount for your guilty plea.

[3]The Queen v. Worboyes [2021] VSCA 169

53In letters you wrote to the court and to the victims, you express remorse for your conduct, acknowledging that your actions were 'disgusting' and that everyone deserves to feel safe in their home. I accept that your plea is accompanied by remorse for your conduct.

54Secondly, your time in custody has been difficult.

55You have been in custody since February 2022. In November 2022, you were stabbed eight times by another inmate at Port Phillip prison, suffering multiple puncture wounds. This followed an earlier attempted stabbing. You were treated at the prison infirmary, but did not make a statement to police.

56In order to manage your safety in custody, prison authorities moved you to various management units, where you were held in a cell for all but between 30 minutes to 1 hour each day. You remained in management units between November 2022 to 15 April 2023, save for six days. This period of five months in highly restricted custodial conditions, following this assault, made this period in custody considerably more onerous. I note that you are now back in a mainstream unit at Barwon prison. 

57You were further assessed for the purposes of this plea by Dr Staios, whose report dated 29 August 2023 was tendered on your plea.[4] This report is an addendum to his earlier report dated 4 May 2020.[5]

[4]Exhibit 4 - Psychological report of Dr Mathew Staios dated 29 August 2023

[5]Exhibit 5 - Psychological report of Dr Mathew Staios dated 4 May 2020

58Dr Staios states that after being stabbed in custody, you experienced a significant decline in your mental health with 'symptoms consistent with post-traumatic stress disorder, including nightmares, hypervigilance, anxiety, avoiding contact with mainstream prisoners, and difficulty getting to sleep and staying asleep'. You remain fearful for your safety. Having conducted psychometric testing, Dr Staios diagnosed you with a resulting 'post-traumatic stress disorder and major depression (with anxious distress) as a result' of this assault.[6]

[6]Exhibit 4 at [7.1]

59Dr Staios expresses the opinion that further time in custody 'will likely serve to exacerbate [your] symptoms of post-traumatic stress disorder and depression, and may negatively impact on [your] rehabilitation potential', stating:[7]

'The impact of ongoing exposure to an environment in which he was initially traumatised is likely to impede intervention and result in further exacerbating his underlying psychological vulnerabilities. In my opinion, the impact of exposure to a custodial setting is likely to result in further deterioration of his mental state and will be particularly onerous in [comparison] to individuals who do not share his vulnerabilities'.

[7]Exhibit 4 at [7.5]

60Dr Staios' conclusion regarding the additional burden resulting from your diagnosed PTSD and depression enlivens limb 5 of Verdins[8] which operates in mitigation of your sentence. This is because these mental health disorders, characterised by symptoms of hypervigilance, anxiety and sleeplessness, are likely to make your experience of custody more difficult than that experienced by others without these conditions.

[8]R. v.Verdins (2007) 16 VR 269

61It was further argued there is a serious risk that imprisonment will have a significant adverse effect on your mental health, thus enlivening limb 6 of Verdins. In this regard, Dr Staios' opinion is more equivocal. He states that you are yet to engage in treatment to assist in managing these symptoms, and it is possible you may experience 'stabilisation [in your] mental state'. On the other hand, he expresses reservations about this given the nature of your condition and the fact you remain in prison, which is the source of your trauma.

62On the material before me, I am not satisfied there is a high risk that imprisonment will have a significant adverse effect on your mental health. However, this conclusion does not take away from my finding that your mental health conditions make your experience of prison more onerous which I have had regard to in mitigation.

63On your behalf it was submitted that limbs 1 and 3 of Verdins apply to reduce your moral culpability for this offending and the need for the sentence to operate as a general deterrent. This argument was founded on Dr Staios' opinion that at the time of your offending you met the criteria for an adjustment disorder and have a 'dependent personality' type making you more vulnerable to negative peer influences. It is not argued, and could not be, that your subsequently diagnosed PTSD and depression are relevant to this assessment.

64For limbs 1 and 3 of Verdins to be enlivened, the impairment of mental functioning must have caused or contributed to the offending or have some realistic connection with the offending. As the case of O’Neill[9]  makes clear, whether there should be any moderation of general deterrence, and if so, its degree, will depend on the nature and severity of the impairment of mental functioning.

[9]DPP v. O’Neill [2015] VSCA 325

65In this case, Dr Staios draws a nexus between your adjustment disorder and your relapse into ongoing substance abuse as 'a coping' mechanism. Beyond the connection to your ongoing drug abuse, I am not satisfied that the adjustment disorder caused or contributed to the role you played in this aggravated home invasion.

66While I accept that your dependant personality style may contribute to your ongoing association with negative peers, so too does your continued drug use. Although I have regard to the matters raised in Dr Staios' report in a general sense, and in particular to my assessment of your prospects of rehabilitation, I do not consider your dependant personality style reduces your moral culpability for this offending, or the weight that must attach to general deterrence in accordance with the principles enunciated in Verdins.

67Finally, it was argued that at the age of 25 at the time of this offending, you remain a youthful offender and that your rehabilitation should be given some prominence in the sentence to be imposed. Now 26 years old, you have much of your life to live and your rehabilitation remains important, but you could not be described as a particularly youthful offender. You must have appreciated the wrongfulness of this serious offending. I have given some, but limited weight, to your age at the time of the offending, particularly given the gravity of the offending. More significantly, I have had regard to your borderline to low average intellectual functioning, and its impact on your decision-making, in moderating sentence.  

68As I observed when sentencing you in 2022, your future prospects very much depend upon your ability to remain drug free upon your eventual release from custody and to remove yourself from all previous associations. Although you have struggled to do so in the past, you are not without support.

69Despite your criminal history, there are some positive indications for your future. Since being in custody, you have taken the opportunities where available to undertake courses and programs, including a Certificate III in Business through Box Hill TAFE, reading and numeracy assessments and other courses.[10] You have submitted to random drug testing, which have been clear for drugs, on ten separate occasions.[11]

[10]Exhibit 2 – Certificates of Completion

[11]Exhibit 1 – Urine Screen Results

70Significantly, you retain the support of your partner and family. In letters written by your parents and sister which were tendered on your plea, they speak of your long‑standing addiction to drugs, their efforts to support you through this addiction, and their hope that you can make positive changes into the future.[12] You retain their support and have expressed a desire to turn your life around for your newborn child.

[12]Exhibit 6 – References dated 29 August 2023 from accused’s parents and sister

71In light of your prior criminal history, I am presently unable to conclude that your prospects of rehabilitation are favourable. It is positive however that despite the challenges you have faced in custody, you have taken some early steps to promote your future rehabilitation prospects. This is to your credit.

Other sentencing considerations

72In helpful written submissions that were expanded upon at your plea hearing, Mr Bloemen submitted that a special reason exists under s 10A of the Sentencing Act 1991 to impose a mandatory non-parole period of less than three years.

73This submission relies on s 10A(2)(c) of the Act, which provides that a court may make a finding that a special reason exists for the purposes of s10AC if an offender proves, on the balance of probabilities that –

'(ii)he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.'

74In advancing this argument, Mr Bloemen relied on the opinion expressed by Dr Staios that a further term of imprisonment will 'likely serve to exacerbate' your PTSD symptoms and depression, stating:[13]

'the impact of exposure to a custodial setting is likely to result in further deterioration in his mental state and will be particularly onerous in [ comparison] to individuals who do not share his vulnerabilities.'

[13]Exhibit 4 at [7.5]

75Although there is some evidentiary basis for this argument to be made, I have ultimately concluded that the gravity of your offending warrants a lengthier non-parole period than that prescribed by s10AC of the Act. Accordingly, I do not express a concluded view about whether special reason exists to impose a non‑parole period of less than three years.

76In cases such as these, the sentencing principles of general deterrence, denunciation and community protection are to be given prominence in the sentencing synthesis.

77As stated, the offence of aggravated home invasion is an inherently serious one. In sentencing you, I must clearly signal to others who contemplate forcefully invading other people's homes - in company, disguised, armed and intending to rob the occupants - that they do so in the knowledge that a significant period of imprisonment will follow if they are apprehended.

78In light of your prior criminal history, the sentence I impose must also operate to deter you specifically from future offending, most particularly for offences involving the use of weapons.

79Against that, it is relevant that you have been in custody since 11 February 2022 and have since served the entirety of the sentence of 21 months' imprisonment imposed for your role in the offending committed in February 2021 and during which you remained on remand for this matter. I have had regard to the Court of Appeal decision in Wheldon[14], in taking into account the period over which you were 'warranted twice over'; that is, where you were detained in custody on this offending and for the offending for which I sentenced you in March 2022. This period is to be taken into account in a broad sense, even though it is not strictly pre-sentence detention pursuant to s 18(1) of the Sentencing Act 1991.[15]

[14](2011) 31 VR 297

[15]R. v. Renzella (1997) 2 VR 88

80The sentencing principle of totality also looms large in the sentence I impose to ensure that the sentence is not crushing and reflects the totality of your criminality across both instances of offending, no more. In this regard, the various factors that compounded the burden of your imprisonment during this period must also be factored into the sentencing synthesis.

81In my view, totality is best reflected in a moderate reduction in your head sentence, and by fixing a non-parole period that is not as lengthy as I would otherwise have considered appropriate.

82Finally, I have also had regard to the cases to which I was referred by both counsel as indicative of current sentencing practices. In particular, I have had regard to the decisions of the Court of Appeal in Dean[16] and Lowell[17] and in this Court, to the sentence imposed in the matter of Goodfellow[18].  I have also considered the sentences to which I was referred by the prosecution in its supplementary submissions, including that of Sikoulabout[19] and Abela-Rogers & Anor[20]. However, I consider the different factual scenario in the case of Wol[21], which involved a confrontational home invasion where the offender pointed and discharged his firearm, makes that a more egregious example of the offence when compared with your offending.

[16][2020] VSCA 100;

[17][2022] VSCA 134

[18][2019] VCC 1600

[19][2018] VSCA 268

[20][2020] VCC 1412

[21][2019] VSCA 268

83What can readily be discerned from an examination of these cases is that the offence of aggravated home invasion invariably results in significant sentences of imprisonment, even where there are compelling factors in mitigation. For instance, in Abela-Rogers & Anor, the offender was between 18-19 years of age, had no prior criminal history, and whose difficult childhood engaged the principles in Bugmy. In that case, the offender was sentenced to five years, eight months' imprisonment for the offence of aggravated home invasion, although I note his offending involved a violent confrontation with the victim, which is an aggravating feature not present here.

84I have had regard to these cases insofar as they illuminate current sentencing practices. However, current sentencing practices are no more than a guide, and do not determine or limit the appropriate exercise of the sentencing discretion. Every case must turn on its own facts and circumstances.

Sentence

85Balancing the factors to which I have had regard, while having regard to the maximum penalties imposed for each offence, I sentence you as follows:

86On Charge 1 – aggravated home invasion – you are convicted and sentenced to 5 years, six months' imprisonment.

87On summary Charge 3 – being the related summary offence of committing an indictable offence whilst on bail – you are convicted and sentenced to 1 month's imprisonment.

88I order that the sentence of one month's imprisonment imposed on summary Charge 3 be served concurrently with the sentence imposed on Charge 1, having regard to the sentencing principal of totality.  

89This gives a total effective sentence of five years, six months' imprisonment. I fix a non-parole period of three years, four months' imprisonment.

90Pursuant to s 18 of the Sentencing Act 1991, I order that 119 days of pre-sentence detention be reckoned as a period of imprisonment already served under the sentence I have imposed.

91Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your guilty plea, I would otherwise have sentenced you to seven years' imprisonment with a non-parole period of five years.

92Finally, I make the disposal order sought by the prosecution, noting it is not opposed.

93Do either counsel require any clarification?

94MS GARDE-WILSON:  No, Your Honour.

95HER HONOUR:  Ms Garde-Wilson, do you want an opportunity to speak with your client now?

96MS GARDE-WILSON:  No, Your Honour.  I'll have an AVL later today.  Thank you.

97HER HONOUR:  All right, thank you.  If there are no other matters, we will adjourn the Court.

- - -