CRIMINAL LAW – Appeal – Sentence – Crown appeal – Parity – Aggravated burglary, recklessly causing injury – Home invasion – Offender armed with knife – Sentence of 3 years on aggravated burglary charge – Whether manifestly inadequate – Objective gravity – Current sentencing practice – Court previously identified need for sentences to increase – Whether sentence reflected change – Relevance of co-offender’s sentence – Co-offender was instigator – Sentenced to 18 month community correction order – No appeal against co-offender’s sentence – Offender’s 3 year sentence manifestly inadequate – Appeal allowed – Resentencing constrained by parity – Resentenced to 4 years on aggravated burglary charge – Hogarth v The Queen (2012) 37 VR 658, DPP v Meyers (2014) 44 VR 486 applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr J Champion SC with Ms D Piekusis
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr D Gurvich SC with Mr C Farrington
Stephen Andrianakis & Associates
MAXWELL P
REDLICH JA KYROU JA:
Summary
This appeal concerns a serious instance of what is referred to as ‘confrontational aggravated burglary’. In the early hours of the morning, the respondent (‘Bowden’), dressed in camouflage, wearing night goggles and armed with a hunting knife, broke into a house in the company of a female co-offender. The co-offenders fought with the occupants, injured them and stole approximately $700.
Bowden pleaded guilty to one charge of aggravated burglary, two charges of recklessly causing injury and one charge of theft. He was sentenced as follows:
The Director contends that the sentence on aggravated burglary, the orders for cumulation, the total effective sentence and the non-parole period were manifestly inadequate. In assessing that contention, we are obliged by the parity principle to take account of the sentence imposed on Bowden’s co-offender, Unlu. She pleaded guilty in the Magistrates’ Court to aggravated burglary, common law assault and theft, and was sentenced to a Community Correction Order for a period of 18 months, with a condition requiring her to undertake 200 hours of unpaid community work.
We have concluded, nevertheless, that the sentence imposed on Bowden for aggravated burglary was manifestly inadequate. It did not reflect the objective gravity of offending of this kind, as…
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.
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Details
AGLC
DPP v Bowden [2016] VSCA 283
Case
[2016] VSCA 283
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions v Bowden involves an appeal by the Crown against the sentence imposed on the respondent for aggravated burglary and recklessly causing injury. The matter was heard in the Court of Appeal, where the primary issue was whether the sentence imposed by the trial judge was manifestly inadequate. Bowden was convicted for his involvement in a home invasion where he was armed with a knife. The trial judge sentenced him to three years in prison for the aggravated burglary charge, a term that the Crown argued was excessively lenient.
The central legal question before the Court of Appeal was whether the sentence was manifestly inadequate when assessed against the objective gravity of the offences and the principles of sentencing in similar cases. The Court considered the Court of Appeal's previous directions that sentences for such offences should reflect an increase in the perceived severity of the crime. The Court also evaluated the relevance of the sentence given to the respondent’s co-offender, who was the instigator of the crime and received a lesser sentence of an 18-month community correction order, which was not subject to appeal.
In reaching its decision, the Court of Appeal found that the sentence of three years was manifestly inadequate. The Court noted the increased seriousness of home invasions and the need for sentences to reflect this, following the guidance set out in Hogarth v The Queen and DPP v Meyers. The Court held that the original sentence did not adequately reflect the current sentencing practices for such offences. Given the need for parity with the co-offender’s sentence, the Court resentenced Bowden to four years for the charge of aggravated burglary, ensuring that the sentence was consistent with the Court's previous directions on the matter.