DPP v Bowden
[2016] VSCA 283
•23 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0249 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| SHANE SCOTT BOWDEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 May 2016 |
| DATE OF JUDGMENT: | 23 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 283 |
| JUDGMENT APPEALED FROM: | [2015] VCC 1659 (Judge Wilmoth) |
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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:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary[1] 25y 3y Base 2 Causing injury recklessly[2] 5y 18m 4m 3 Causing injury recklessly 5y 12m 4m 4 Theft[3] 10y 6m 1m Total Effective Sentence: 3y and 9m imprisonment Non-parole Period: 2y and 4m 6AAA Statement: 5y with a non-parole period of 3y [1]Crimes Act 1958 s 77(1).
[2]Crimes Act 1958 s 18.
[3]Crimes Act 1958 s 74.
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 analysed by this Court in Hogarth v The Queen,[4] and again in Director of Public Prosecutions v Meyers.[5]
[4](2012) 37 VR 658 (‘Hogarth’).
[5](2012) 44 VR 486 (‘Meyers’).
In those decisions, the Court stated very clearly that sentencing practice for this type of offending needed to change, so that sentences would properly reflect the gravity of the offending and the guidance provided by the maximum penalty of 25 years’ imprisonment. Although the sentencing judge referred to Hogarth, the sentence imposed was reflective of the former sentencing practice, and the Director was right to challenge it.
Such appeals by the Director are an essential part of ensuring that sentencing practice for an offence changes once this Court has decided that it should. In this way, the criminal justice system is properly to be viewed as ‘self-correcting’.[6]
[6]See Harrison v The Queen (2015) 74 MVR 58, 77 [89].
We would uphold each aspect of the Director’s challenge. As we have said, the sentence fixed on the charge of aggravated burglary failed to properly reflect the objective gravity of the offence or Bowden’s moral culpability. The principle of parity means, however, that the sentence imposed on his co-offender limits the degree to which Bowden’s sentence on that charge may be increased. We would therefore fix a sentence of four years on the charge of aggravated burglary. We wish to emphasise that this is a significantly lower sentence than would have been appropriate had the constraint of parity not applied.
We also consider that the orders for cumulation on the offences of recklessly causing injury (to two of the occupants of the premises) are manifestly inadequate. When combined with the sentence for aggravated burglary, they resulted in a total effective sentence that manifestly failed to reflect Bowden’s total criminality. The orders for cumulation on the charges of recklessly causing injury must also be increased, to make a total effective sentence of five years and five months, with a non-parole period of three years and six months.
Circumstances of the offending
At approximately 11:00 pm on 19 January 2015, Bowden and Unlu drove her black Land Rover to a block of flats in South Yarra. They parked in the driveway. At about 4:00 am, they gained entry to a house two doors down from where they had parked. Bowden was wearing a camouflage suit, including a hood and was carrying a jemmy bar, a set of ground-down keys, night-vision goggles and a large hunting knife. They entered an upstairs bedroom where two of the victims, A and E, were sleeping. E woke up. She screamed loudly. A then woke up and tried to get out of bed. Bowden ran towards him and they started fighting. Bowden was waving the knife around (Charge 1 – Aggravated burglary).
E heard A say ‘Call the police’ several times and saw blood splashing on the wall and carpet. A few seconds later, another occupant of the house, S, came into the room and the three men fought. Bowden dropped the knife. E picked it up, along with a phone, went outside and called police. She threw the knife into the bushes.
A fell to the ground. Bowden kicked him to the face and stomped on his head. S dragged Bowden away. A saw Unlu enter the room. Unlu began hitting S with a large shifter. A punched her to the face and she removed her mask. S and Unlu left the room. Bowden said to A, ‘Where’s the money? I know the money’s here.’ A told Bowden, ‘There’s no money here, come downstairs. I have money in my wallet. I will give you that money.’
A went downstairs with Bowden. He took $500 to $700 from his wallet and gave it to Bowden, saying ‘Take it’ (Charge 4 – Theft).
A saw Bowden and Unlu heading towards the back door very calmly. Police arrived around 4:30 am and found Bowden and Unlu hiding near the intersection of Yarra Street and Alexandra Avenue, South Yarra. A handbag and personal property belonging to E were found at that location.
At the house, police found a jemmy bar, an eyepiece from night vision goggles, night vision goggles, a large shifting spanner and a large hunting knife. Next door, they found a black and silver backpack with a pair of camouflage boots.
As a result of the confrontation, S received lacerations and bruising, including a laceration to the left hand with severed tendons, requiring surgery. He was taken to hospital (Charge 2 – Recklessly cause injury).
A received a small laceration to a finger on his left hand and bruising and swelling to his face (Charge 3 – Recklessly cause injury).
Context of offending
There was a dearth of information to explain why Bowden had engaged in the aggravated burglary. Unlike many offences of this sort, the offending was not ‘hot blooded’, nor did it involve Bowden having any personal grievance against the victims. The only insight into Bowden’s behaviour comes from the psychologist’s report, where it was noted:
[Bowden] stated that he is a friend of one of the co-accused. He stated that she works as an escort and had not been paid by one of the victims. He stated ‘I just got back from Bali that day and got involved … I was half-asleep … it was a stupid thing to do, I’d had heaps of Xanax because [I] just flew back from Bali’.
There was no evidence before the sentencing judge as to why Unlu had enlisted Bowden’s help to enforce the alleged debt owing to her. There was some reference made by the prosecution during the opening, and accepted on the plea, that Bowden had been involved in motorcycle gangs. The Director conceded on the appeal that such a fact was of limited relevance, and did not bear on the objective gravity of the offending.
Manifest inadequacy — aggravated burglary
Sentencing for aggravated burglary
The sentencing judge referred to the burglary as ‘very serious offending’,[7] and a ‘violent confrontational home invasion’.[8] The Director’s submission was that the sentence of three years did not reflect the objective seriousness of the offending. The Director submitted that, in the circumstances of this offending, the sentence imposed on Bowden in respect of charge 1 was manifestly inadequate.
[7]DPP v Bowden [2015] VCC 1659 [16] (‘Reasons’).
[8]Ibid [25].
As was recognised by this Court in Hogarth,[9] confrontational aggravated burglary or ‘home invasion’—
is a particularly nasty form of criminal conduct. Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders — acting in anger and often fuelled by alcohol — is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.[10]
[9](2012) 37 VR 658.
[10]Ibid 659 [1].
In Hogarth, the Court analysed current sentencing practice by reference to a number of sources, including the Sentencing Advisory Council’s 2011 report Aggravated Burglary — Current Sentencing Practices.[11] The Court found that sentencing for confrontational aggravated burglary did not reflect the objective seriousness of this ‘egregious form of aggravated burglary’.[12] In the Court’s view, the ‘clustering’ of sentences around a median of two years[13] demonstrated that sentencing practice had departed significantly from the parameters set by the maximum penalty of 25 years. The Court noted that the upper limit, even in the worst cases, was six or at most seven years’ imprisonment.
[11]Sentencing Advisory Council, ‘Aggravated Burglary: Current Sentencing Practices’ (Report, June 2011).
[12]Hogarth (2012) 37 VR 658, 660 [6].
[13]Ibid 673 [58].
In recommending that sentences for aggravated burglary cases should be increased, the Court said:
In our view, current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practice. The necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases.[14]
[14]Ibid 674 [62] (citations omitted).
Hogarth was further refined in Meyers.[15]The Court (Maxwell P, Redlich and Osborn JJA) said that determining the appropriate sentence for an offence of aggravated burglary would ‘in large part depend on a careful assessment of the (relative) seriousness of the offence.’[16] The Court then set out the following considerations as being relevant to such an assessment:
[15](2012) 44 VR 486.
[16]Ibid 498 [47].
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage’);
·the mode of entry (eg, by forcing a door or breaking a window);
·whether the offender was carrying a weapon;
·whether the offender was alone or in company;
·the time of day at which the burglary took place;
·what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
·whether the offender was someone of whom the victim was particularly frightened.[17]
[17]Ibid 498 [48] (citations omitted).
In Director of Public Prosecutions v Barnes,[18] Croucher AJA (with whom Redlich and Kyrou JJA agreed) referred to the above factors in Meyers and concluded that the aggravated burglary in that case — involving a weapon, offending in company, in the early hours of the morning, and with an intention to assault — was a particularly serious instance of the offence. The sentence for aggravated burglary was increased from two and a half years to four years, the Court noting that a longer sentence would have been required but for the issue of parity with a co-offender’s sentence.
[18][2015] VSCA 293 (‘Barnes’).
Croucher AJA said:
Aggravated burglary can be a serious and terrifying enough offence on its own — that is to say, even without the commission of comparatively serious offences against the person after entry to premises. The unlawful invasion of another’s home with a weapon and a violent intention can be, and usually is, a very serious crime. Indeed, considered in that confined way, Trevor’s offence was still a very nasty aggravated burglary, particularly given the aggravating features of the offence. The combination of factors to which Mr Silbert referred makes it so. While, unlike in DPP v Meyers, the entry did not involve a graphic smashing of a door or being armed with a shotgun or a nail-gun or carrying cable ties and the like, nevertheless, to have entered, uninvited (albeit through an unlocked door), in the early hours of the morning, carrying a jemmy bar, as Trevor did, with an intention to assault his estranged wife, whom he knew was frightened of him because of past instances of violence, and to have done so having just been released from gaol and in breach of an intervention order and a partly-suspended sentence imposed only a short while earlier, still makes this a very serious offence. Further, that the offence was committed in company, and that Trevor was the driving force behind it, makes it all the more serious. Indeed, I consider this offence to be of a similar order of gravity to the aggravated burglary considered in DPP v Meyers.[19]
[19]Ibid [48].
The Director submits that the sentence imposed here for aggravated burglary does not accord with the analysis in Hogarth nor, when considering the factors outlined above in Meyers, does it accurately reflect the objective gravity of the offending. As in Barnes, the offending involved an entry in the early hours of the morning, in company; Bowden was dressed in camouflage clothing and wearing night goggles, and was armed with a jemmy bar and large hunting knife; and the unsuspecting occupants of the house were awoken to shouted threats and demands by Bowden. The sentencing judge was clearly correct to describe the offending as ‘very serious.’[20]
[20]Reasons [16].
Counsel for Bowden did not seek to minimise the seriousness of the offence, and conceded that the sentence imposed here could be viewed as lenient. He submitted, nevertheless, that this offence of aggravated burglary had to be considered in the context of the other offences charged, and that care had to be taken not to impose some form of double punishment.
As was noted in Barnes, the offence of aggravated burglary is complete —
when the offender enters the premises as a trespasser while having the requisite intention (whether it be to steal, assault or damage property) and accompanied by the particular form or forms of aggravation.[21]
In the present case, Bowden was charged with entering with intent to steal. The charge alleged both elements of aggravation set out in s 77 of the Crimes Act 1958. That is, Bowden was armed with an offensive weapon and he was reckless as to whether anyone was in the house.
[21]Barnes [2015] VSCA 293 [45].
Viewing those elements in isolation from what occurred after entry, we remain of the view that the offending had to be categorised as very serious.
Use of weapon
The taking of a weapon for the purposes of committing a burglary markedly increases the objective gravity of the offence. As was conceded by counsel for Bowden, the presence of a weapon makes the situation inherently dangerous. The carrying of a weapon goes to both of the aggravating features highlighted in Meyers, as mentioned above.
In the present case, Bowden was carrying a jemmy bar and a hunting knife, which demonstrates both his careful premeditation and his conscious anticipation that, should there be persons home, the weapons would serve a purpose. While he was not alleged to have entered with intent to assault, it was significant that he deliberately dressed, and armed, himself in a way that was designed to frighten. The potential for danger is sharply increased when an intruder carries an instrument designed to create such a danger.
In the present case, the fact that Bowden was carrying weapons when entering the property unlawfully, and was evidently prepared to use them, points to the correct categorisation of the offending here as being at the higher end of the middle category of offending.
Factors in mitigation
As noted earlier, counsel for Bowden conceded that the sentence was lenient, but submitted that the leniency was to be explained by the judge’s having taken a sympathetic view of Bowden’s circumstances. Counsel referred in particular to his dysfunctional background, his remorse, and his plea of guilty.
The sentencing judge noted, correctly, that Bowden had shown remorse for his actions. Such a finding was necessarily given some significance in the sentencing exercise. The forensic psychologist, Carla Lechner, expressed the view that
Mr Bowden acknowledges his role in the above offending making no attempt to shirk responsibility or to minimize the seriousness of his actions … he further states that he feels sorry for the victims — ‘I’m sorry for what I’ve done to them, I didn’t want to be there … it would have been frightening.’
Counsel also pointed out that Bowden had extremely limited cognitive ability, with an IQ of only 66. While accepting that the use of camouflage demonstrated an ability to plan, counsel submitted that the way in which the offending was actually committed showed that the crime was not a sophisticated one. He pointed to the fact that Bowden had driven Unlu’s vehicle, which had personalised number plates, and had left the car two houses down from where the offending occurred. Aside from this lack of sophistication, however, it cannot be said that Bowden’s limited executive functioning had any bearing upon an assessment of his moral culpability.
Bowden had no personal grievance against the victims of the offending. As he acknowledged, he was affected by substance abuse when he embarked on this offending. His significant criminal history demonstrated, his counsel submitted, that he had often been treated as the ‘muscle’. In our view, such circumstances, rather than mitigate such offending, should be viewed as requiring specific deterrence. Such an offender is precisely the type of person who needs to be deterred from pressing other people’s grievances.
Bowden was also assessed as suffering clinical depression in the ‘extremely severe’ range. This was relied upon by Bowden in relation to the fifth Verdins limb, as showing that his mental condition would make imprisonment more onerous. Bowden also relied upon the fact that he had been sentenced on the basis that prison would be particularly onerous for him, as he was required to be in ‘lockdown’ for 23 hours per day. The prosecution had accepted on the plea that this was so and Bowden had been sentenced on that basis.
During the course of the hearing of the appeal, Bowden maintained that he was still required to be in lockdown for 22 hours per day. The Director disputed that this was so. The issue was deferred in the hope that the parties could reach agreement on the facts. When this proved impossible, the matter was listed for mention.
On the mention, the Director acknowledged that, on the plea, the prosecutor had accepted that Bowden was then in lockdown, as asserted by his counsel, and that the judge had sentenced him on that basis. The Director fairly conceded that, for the purpose of reviewing the adequacy of the sentence, this Court must proceed on the same basis.
Before leaving this issue, we should observe that the reasons for which Bowden was assigned maximum security status, and was placed on some form of more onerous lockdown, were not made clear on the plea or on appeal. Such onerous conditions would not necessarily be mitigatory if — for example — they had been implemented to protect other prisoners, rather than protect Bowden. In view of the Director’s concessions, however, it is unnecessary to consider this question further.
The aggravated burglary
The aggravated burglary in this case was unequivocally serious. The offending involved a frightening entry into the victims’ house early in the morning. The offender was armed with dangerous weapons and dressed in such a manner as to demonstrate that this offending was not a spur of the moment occurrence. Reference to the factors outlined in Meyers underlines the seriousness of the offending.
Since the decision in Hogarth, sentencing courts have endeavoured to impose higher sentences for aggravated burglaries, in accordance with that decision. The Director relied on a helpful table published by the Judicial College of Victoria (‘JCV’),[22] which set out the cases decided by the Court of Appeal from 2007 where aggravated burglary was the principal offence.
[22]Judicial College of Victoria, Victorian Sentencing Manual, Chapter 32.14.4.1 ‘Overview of aggravated burglary sentenced as the principal offence’.
In Flood v The Queen,[23] the offender, acting alone, broke into a home and demanded money and property from the residents. The offender was unarmed, but did assault one of the victims. The offender had a long history of chronic substance abuse, a low IQ, suffered from depression, dysthymia and PTSD, and had a lengthy criminal history. He pleaded guilty at an early stage. For the individual count of aggravated burglary, he received a sentence of four years.
[23][2016] VSCA 37.
In Anthony v The Queen,[24] the offending involved a home invasion by three men. A sustained attack on one of the inhabitants included repeated punching and, at one point, slicing with a sharp instrument. The defendant, who pleaded guilty, had a long criminal history. There were, however, exceptional circumstances of family hardship which called for mercy. On the individual charge of aggravated burglary, the offender received a sentence of four years.
[24][2016] VSCA 22.
In Hogarth, the offender received an individual sentence of four and a half years on the aggravated burglary charge. The offending involved a home invasion by two armed men (not Hogarth), who intended to rob the victim. Hogarth himself was not an active participant in the offence, but knew that the co-offenders wanted to do something to the victim. He was the instigator and motivator for the offences.
It is also instructive to look at cases which have attracted a sentence of three years. Anderson v The Queen[25] concerned an invasion of the home of the offender’s former partner and her new partner, who was also assaulted. The offender had good character and work history, had shown remorse, and was found to have good rehabilitation prospects. The Court (Weinberg and Santamaria JJA) dismissed his appeal against the sentence of three years on the aggravated burglary charge, holding that the principles enunciated in Hogarth were clearly applicable.[26]
[25][2014] VSCA 255.
[26]Ibid [36].
In Filiz v The Queen,[27] the offender pleaded guilty to a confrontational aggravated burglary and was sentenced to two years and six months’ imprisonment. The Court (Maxwell P and Redlich JA) rejected his contention that the sentence imposed was ‘very severe’, saying:
The plea of guilty in this matter was entered after this court’s decision in Hogarth v R had been published. In Hogarth, it was noted that current sentencing practice for aggravated burglary offences — which involved a median sentence of two years, with the upper limit generally being six or seven years — failed to adequately reflect the 25 year maximum which Parliament prescribed for the offence. It was anticipated that sentencing practice for aggravated burglaries, in particular those committed with the aim of confrontation, would increase in the coming years. - 4 A significantly higher sentence than that imposed in this instance would therefore have been within range.[28]
[27][2014] VSCA 212.
[28]Ibid [15] (citations omitted, emphasis added).
As counsel for Bowden frankly acknowledged, the sentence imposed here conveys the impression that the reasoning in Hogarth has not been applied. As the Court said in Meyers:
Hogarth established that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.
It is necessary to re-emphasise that sentences for this type of aggravated burglary must properly reflect the increase in sentencing practice which Hogarth said was necessary. In our opinion, the sentence in the present case does not reflect that increase and is manifestly inadequate.
Parity
As noted earlier, the co-offender, Unlu, was sentenced to an 18 month Community Correction Order, with 200 hours of unpaid community service. The Director did not appeal the adequacy of Unlu’s sentence, despite the fact that she had instigated and participated in a particularly serious aggravated burglary. Despite the obvious leniency of that sentence, the Director did not suggest that her sentence was inadequate or that it should be disregarded for the purpose of assessing the appropriate sentence which should be imposed on Bowden.[29]
[29]Cf DPP v Holder (2014) 41 VR 467, 473 [27].
The Director accepted that the parity principle made it necessary to take account of Unlu’s sentence, but submitted that the Court should nevertheless conclude that the sentences imposed on Bowden were manifestly inadequate. The Director contended that the co-offender’s sentence could not be used to justify the imposition of a sentence if it was manifestly inadequate.
The principle of parity is an expression of the fundamental concept of equality before the law. In Lowe v The Queen,[30] Mason J said:
Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[31]
In Green v The Queen,[32] French CJ, Crennan and Kiefel JJ said:
The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.[33]
[30](1984) 54 ALR 193.
[31]Ibid 196.
[32](2011) 244 CLR 462 (‘Green’).
[33]Ibid 480 [45].
The parity principle is not confined to offenders who committed the same crime but includes those who were engaged in the ‘same criminal enterprise’.[34] At the same time, there can be no legitimate complaint where a more lenient outcome in a co-offender’s case can be explained by differences in the nature of the offences, the role each has played and/or the personal circumstances of the co-offenders.[35]
[34]Green (2011) 244 CLR 462, 473 [30].
[35]Kamay v The Queen [2015] VSCA 296 [61]; Henderson v The Queen [2012] NSWCCA 65 [57]; Jimmy v The Queen [2010] NSWCCA 60.
In R v Gunn,[36] in circumstances not dissimilar to the present case, the prisoner had been sentenced in the County Court to a substantial term of imprisonment, following a plea of guilty to one count of aggravating burglary, one count of causing injury intentionally, and one count of handling stolen goods. The prisoner appealed inter alia on the ground that the sentencing judge had breached the parity principle. The prisoner’s co-offender had been sentenced in the Magistrates’ Court to an aggregate sentence of six months, wholly suspended for a period of 12 months. It was submitted that, even allowing for the fact that the prisoner had a more significant criminal history, and that the co-offender was sentenced in the lower jurisdiction, the difference involved an ‘excessive and unjustified disparity’.[37]
[36][2007] VSCA 214.
[37]Ibid [13].
In rejecting that submission, Nettle JA (with whom Buchanan JA and Curtain AJA agreed) said:
In his sentencing remarks the judge expressly referred to the sentence imposed on [the co-offender] and noted that [the co-offender]’s criminal history was far less extensive than the appellant’s. It is also to be noted that, as well as being less extensive, [the co-offender]’s prior convictions had been punished with fines as opposed to sentences of imprisonment imposed on the appellant. I allow that there is a significant degree of disparity between the two sentences, but in all the circumstances, particularly that the two prisoners were dealt with in different jurisdictions and on different bases, I do not consider that the difference is so manifestly excessive as to engender a justifiable sense of grievance in the appellant or to leave an objective observer with the impression that justice has not been done. It may be that the order for total cumulation would be seen to result in an unacceptable degree of disparity but, for reasons already given, in my view that order should not stand.[38]
[38]Ibid [14] (citations omitted).
The relevance, on a Crown appeal, of a low sentence imposed on a co-offender was discussed by this Court in Director of Public Prosecutions v Peng.[39]In that case, both offenders had been sentenced in the same jurisdiction. The Court said:
The principle of parity must be approached in the same way on a Crown appeal against sentence where there is a very lenient co-offender’s sentence. The co-offender’s sentence, whether low or inappropriately low, cannot justify the imposition of the sentence in question if it is manifestly inadequate. If on a Crown appeal, the sentence in question is manifestly inadequate and the prisoner falls to be re-sentenced, the co-offender’s sentence is to be taken into account in order to minimise the disparity that will be created by the new increased sentence. That outcome may be achieved by increasing the sentence to a level which is at the lower end of the range of adequate sentences. But the co-offender’s sentence may not have such a constraining effect as to require a new sentence which remains wholly inappropriate or disproportionate to the circumstances.[40]
The Court concluded that, due to the differences in the conduct and level of involvement of each of the co-offenders, parity had a limited role to play.[41]
[39][2014] VSCA 128.
[40]Ibid [38].
[41]Ibid [40].
In the present case, as already noted, both offenders were charged with aggravated burglary. There was a scarcity of information as to the details of the agreement between them. We referred earlier to the statement, recorded by the psychologist, that Bowden had been enlisted to assist Unlu. Otherwise, there is no evidence as to any shared knowledge between the co-offenders or any monetary incentive which Unlu may have provided to induce Bowden to assist. Further, apart from the fact that Unlu was sentenced on the basis that she had no knowledge that Bowden was carrying a knife, there is little material.
For the reasons already given, however, the fact that Bowden was carrying weapons at the point of entry makes his offence significantly more serious than Unlu’s. Moreover, there are stark differences in their respective criminal histories. Unlu had one prior conviction, in 1995, for intentionally cause serious injury, for which she received a community based order of 12 months. Bowden, by contrast, has spent 13 of the last 15 years in custody (in Queensland) for a range of serious crimes, including serious assaults, drug offences and an offence equivalent to aggravated burglary. Considerations of specific deterrence and community protection were particularly important in his case. These are highly material differences between the co-offenders and they justify a substantial sentencing differential.
Although the roles of Bowden and Unlu in the aggravated burglary should be distinguished for the above reasons, the principle of parity still remained applicable when considering the sentence imposed on Bowden for aggravated burglary.
It was accepted by counsel for Bowden in oral argument that, if his sentence was thought to be manifestly inadequate, there remained a range of higher sentences which could be fixed without breaching the principle of parity. Constrained by the High Court’s decision in Barbarov The Queen,[42] the Director was unable to assist the Court with any submission as to the range reasonably open to the Court on resentencing if proper weight were given to the principle of parity.
[42](2014) 253 CLR 58.
Manifest inadequacy — Orders for cumulation on charges 2, 3 and 4, and total effective sentence
The Director has not appealed against the individual sentences imposed on charges 2 and 3, but contends that the orders for cumulation and the total effective sentence are manifestly inadequate, when regard is had to the confrontation and assaults which occurred following the entry to the premises. The Director contends that the orders for cumulation are so disproportionate to the criminality involved in those separate offences as to be manifestly inadequate. In turn, the Director submits, they have contributed to a total effective sentence that manifestly fails to reflect Bowden’s total criminality.
Where an offender falls to be sentenced on multiple counts, each individual sentence must be proportionate to the seriousness of the offence, and the total sentence must be proportionate to the offending taken as a whole. In Azzopardiv The Queen,[43] Redlich JA (with the concurrence of Coghlan and Macaulay AJJA) explained the rationale underlying the principle of totality, in these terms:
[43](2011) 35 VR 43.
In the case of sentencing for multiple offences, the principle of totality was explained by the High Court in Postiglione v R as requiring a sentence that is a ‘just and appropriate measure of the total criminality involved’. Kirby J considered that the principle defies ‘precision either of description or implementation’. The sentence should be proportionate to the total criminality of an offender’s conduct. Fox and Freiberg suggest totality is the product of proportionality and mercy. Sometimes it is described as a requirement that the sentence be commensurate with the gravity of the whole of the offending and the offender’s just deserts. As the current argument illustrates, these propositions, frequently cited, do not by themselves provide a ready means of answering the question, is the sentence ‘too much’.
…
The rationale underlying the principle is that a ‘just measure’ of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all of the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment.
One explanation for why it is ordinarily only necessary to order that the offender serve a portion of each multiple count to produce a proportionate sentence which satisfies all relevant sentencing principles may be that articulated in Fox and Freiberg on Sentencing and by Malcolm CJ in Clinch v R, that the severity of a term of imprisonment is an exponential, not a linear function. The severity of the sentence increases exponentially as it increases in length. Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender’s overall conduct, the sentence is then proportionate to the offender’s criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.
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All of the individual sentences including the largest, usually the base sentence, must reflect all relevant sentencing objectives where the preferred method of adjustment of sentences is followed. Punitive sentencing objectives such as denunciation, deterrence, retribution and community protection as well as matters in mitigation will then ordinarily be satisfied by relatively modest orders for cumulation on the base sentence. An aggregate sentence must be arrived at that is sufficient punishment, but no more than is necessary to satisfy those sentencing objectives. It will then be proportionate to the offender’s overall criminality. If the aggregate sentence is not a just and appropriate measure of the total criminality, the sentencing judge will have assigned the incorrect weight to the various sentencing objectives in fixing the individual sentences or in the method of aggregation of the sentences or both.[44]
[44]Ibid 59-63 [57]–[68] (citations omitted).
As appears from the table set out above at [2], the judge ordered cumulation as follows: four months of an 18 month sentence on charge 2,[45] four months of a 12 month sentence on charge 3,[46] and one month of a six month sentence on charge 4.[47] The submission on behalf of Bowden was that, in each case, the cumulation ordered represented a significant proportion of the sentence and could not be said to fall outside the range of sentences reasonably available to the sentencing judge. We reject that submission.
[45]With a maximum available penalty of five years.
[46]With a maximum available penalty of five years.
[47]With a maximum available penalty of 10 years.
In our view, the orders for cumulation did not adequately reflect the violent nature of the offending within the victims’ premises; the frightening circumstances in which it took place; Bowden’s use of a weapon; or the injuries the victims sustained. This was criminal conduct which had to be viewed as objectively grave. It called for the imposition of not insubstantial periods of actual imprisonment for each discrete offence, so as to produce a sentence commensurate with Bowden’s overall degree of criminality.
The orders for cumulation fell well short of sufficiently reflecting the objective gravity of the entirety of Bowden’s offending. The orders, in combination with the inadequate base sentence, resulted in a total effective sentence which was egregiously low.
The Director has thus made out his contention that the orders for cumulation and the total effective sentence are manifestly inadequate.
It should be recognised that the sentence imposed on the co-offender is of little relevance in resentencing Bowden on charges 2 and 3. Unlu faced only a single charge of common assault. It was a lesser charge for offending which was different from the conduct of Bowden which formed the basis of charges 2 and 3.
Residual discretion
Counsel for Bowden submitted that, even if his sentence was considered to be manifestly inadequate, the Court should exercise its residual discretion not to allow the appeal.
It is well recognised that caution must be exercised in Crown appeals to ensure that, in resentencing an offender, the appeal court does not create an unjustified disparity of treatment between the offender and a co-offender. As was explained in the joint reasons of the majority in Director of Public Prosecutions v Karazisis,[48] considerations of parity may also be relevant to the question of whether the court should exercise its residual discretion. In that case, Ashley, Weinberg and Redlich JJA said:
Parity can also operate as a constraint upon a Crown appeal against sentence. It sometimes happens that the Crown elects to appeal against the sentence imposed upon one offender, but not another. In the same way as want of parity can require a court to moderate a sentence that it would otherwise consider appropriate, it may act as a limiting factor when the Crown challenges the adequacy of just one of a number of sentences. In such circumstances, a sentence which is regarded as inadequate might still be permitted to stand. [49]
[48](2010) 31 VR 634.
[49]Ibid 659 [109].
Counsel contended that the requirements of parity between co-offenders would so confine the scope of any increase in the sentences that the Court would only be ‘tinkering’ if Bowden were to be resentenced. We do not accept that parity so circumscribed the sentencing discretion as to require the Court to decline to intervene. As noted earlier, however, parity constrains us to moderate the sentence on the charge of aggravated burglary, below what would otherwise have been imposed. Parity did not require any moderation of the orders that should be made for cumulation on charges 2 and 3.
Conclusion
The appeal must be allowed and Bowden resentenced.
The aggravated burglary offence was dangerous, frightening, and objectively serious. Multiple weapons were used, the entry was in company and in the early hours of the morning. Bowden was wearing camouflage clothing and night goggles. He was aware of the likelihood that persons would be asleep in the premises and broke in to the apparently well secured premises armed with a hunting knife. He had a significant criminal history. The objective gravity of Bowden’s conduct called for a sentence that would adequately denounce and deter this type of criminality and provide community protection. A sentence must be imposed which satisfies these requirements.
As we have said, the parity principle means that the sentence we propose is substantially less than would otherwise have been the case. As we have sought to emphasise, this is no mere technicality. Parity of treatment of co-offenders is a fundamental requirement of justice and the rule of law.
We would resentence Bowden to a term of imprisonment of four years on the charge of aggravated burglary. But for the constraint of parity, applying Hogarth we would have fixed a head sentence of six years and six months on the charge of aggravated burglary.
As to charges 2 and 3, we would increase the order for cumulation to 10 months and six months respectively. When combined with the increased base sentence of four years on charge one and the one month cumulated on the charge of theft, that produces a total effective sentence of five years and five months. We would fix a non-parole period of three years and six months.
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