DPP v Meyers
[2014] VSCA 314
•4 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0045
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ANDREW MEYERS | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 July 2014 |
| DATE OF JUDGMENT: | 4 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 314 |
| JUDGMENT APPEALED FROM: | DPP v Meyers (Unreported, County Court of Victoria, Judge Patrick, 20 February 2014) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Aggravated burglary, false imprisonment, intentionally cause injury – Violent attack on former domestic partner – Total effective sentence 3y 6m, non-parole period of 1y 6m – Whether manifestly inadequate – Whether judge constrained by current sentencing practices for aggravated burglary – Application of Hogarth v The Queen (2012) 37 VR 658 discussed – Whether error occasioned by Crown submission on plea – Impairment of mental functioning – Whether moral culpability reduced – Appeal allowed – Resentenced (TES 5y 6m, NPP 3y).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S M K Borg | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr J M McLoughlin | Victoria Legal Aid |
MAXWELL P
REDLICH JA
OSBORN JA:
Summary
The respondent, Andrew Meyers, pleaded guilty to the offences of damaging property, aggravated burglary, false imprisonment, intentionally causing injury and possessing an unregistered firearm, all committed during a single course of conduct. He was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Destroy or damage property[1] 10y 4m Concurrent 2 Aggravated burglary[2] 25y 3y Base 3 False imprisonment[3] 10y 12m 3m 4 Intentionally cause injury[4] 10y 12m 3m 5 Possessing (carrying or using) an unregistered category A or B longarm[5] 2y or 120 penalty units 6m Concurrent Total Effective Sentence: 3y 6m Non-Parole Period: 18m 6AAA Statement: 4y 10m with non-parole period of 3y [1]Crimes Act 1958 s 197(1).
[2]Ibid s 77(1).
[3]Ibid s 320.
[4]Ibid s 18.
[5]Firearms Act 1996 s 6A.
The Director has appealed on the ground of manifest inadequacy against each of the sentences imposed, the orders for cumulation, the total effective sentence and the non-parole period. For reasons which follow, we would allow the appeal and increase the sentences imposed on the charges of aggravated burglary, false imprisonment and intentionally cause injury. We would also change the orders for cumulation. The new effective sentence will be five years and six months, with a non-parole period of three years.
For the fourth time in six months, the Court is here concerned with sentencing for an offence of aggravated burglary, committed by a male offender against his former domestic partner. In each case, the offender entered the former partner’s premises intending to do violence, and in each case violence was meted out. In three of the four instances, the victim’s new partner was also attacked.[6]
[6]See [38]–[45] below.
In Hogarth v The Queen,[7] this Court concluded that the sentences generally imposed for ‘confrontational aggravated burglary’ were too low, and that sentencing practices needed to change to reflect the objective gravity of this kind of offending.[8] That terminology was taken from a 2011 Report of the Sentencing Advisory Council (‘SAC’) on sentencing for aggravated burglary. The offending in Hogarth did not involve a former domestic partner. The confrontation was prompted by a grievance of a different kind.
[7](2012) 37 VR 658 (‘Hogarth’).
[8]See Ashdownv The Queen (2011) 37 VR 341, 403 [180].
The four cases before the Court this year (including this one) concern offending classified in the SAC Report as ‘intimate relationship aggravated burglary’. On this appeal, as in each of the previous appeals, the offender submitted that what was said by the Court in Hogarth — about the need to increase sentences — had little or no application to aggravated burglary where the victim was a former domestic partner. That submission failed on each previous occasion, and we likewise reject it.
As these reasons demonstrate, the task of applying Hogarth does not require the classification of offences into categories. Put simply, 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.
In the present case, we propose to increase the sentence for aggravated burglary from three years to four years’ imprisonment. Had it not been for the position adopted by the prosecutor on the plea, as explained below,[9] we would have imposed a substantially higher sentence on that charge. But even by current sentencing standards, the sentence was manifestly inadequate.
[9]See [34] below.
Factual background
The circumstances of the offending were as follows.[10] Mr Meyers had been in a long-term relationship with the victim (R),[11] which ended in 2012. They have two sons, aged 18 and 21. In June 2012, R left their shared home. After leaving, she commenced a relationship with a person (SM) who had formerly been a good friend of Mr Meyers. R was living with SM at the time of this offending.
[10]Paragraphs [8]–[24] are taken from the Registrar’s Neutral Summary.
[11]Initials are used throughout the judgment in place of names for ease of reference.
At about 8:00am on 13 June 2013, Mr Meyers drove to R’s home in a recently hired car. He brought with him a double-barrelled shotgun, having earlier sawn off the stock and barrel. He also had a bag containing a number of items: a power nail gun connected to a small hand-held gas cylinder; a crow bar; cable ties and rolls of ‘gorilla tape’; various knives and cutting tools; and a plastic drop sheet or poncho.
Mr Meyers smashed the rear sliding door, entered the house and went upstairs to the main bedroom, taking the shotgun and bag. R was in the en suite bathroom. Mr Meyers banged on the door and asked if R was in there. Thinking it was SM at the door, R opened the door dressed in a towel.
Mr Meyers allowed her to get dressed in the en suite. When she came out, he was holding the looped cable ties. He pulled her out of the bathroom and pushed her onto the bed. She was fighting against him. He put cable ties on her left wrist and tried to put them on her right wrist. He put his hands around her neck. As a result, she had trouble breathing. He then put the cable ties on her right wrist.
The home phone then rang. Mr Meyers told R to answer it. He walked just outside the bedroom. It was SM. R told him what was happening. When Mr Meyers came back, she pretended it had been her sister on the telephone, and said goodbye.
Mr Meyers made R sit on the bed. He searched his bag outside the room, holding the shotgun. R managed to get the cable ties off one wrist and ran past him, down the stairs. As she opened the door, Mr Meyers dragged her back inside by the hair.
He lifted the shotgun over his head and, saying ‘I’m sorry I have to do this,’ struck R on the back of her head with the gun. She hit the floor, felt dizzy and had a laceration on the back of her head. R got up. Mr Meyers raised his shotgun again, and she raised her right arm to block it as he brought it down toward her face.
They struggled. R was on the floor. Mr Meyers stuck a finger into her eye and bit her on the back of her head. He rolled her onto her back and began strangling her. R pushed herself under a table. When Mr Meyers started to loosen his grip, she pushed him away, got up and tried to run away. He grabbed her and threw her on the floor.
Mr Meyers picked her up and pushed her past the door, telling her to walk towards the wall. He was carrying the shotgun. R ran to the toilet, closed the door and locked it. Mr Meyers forced it open.
They both went upstairs again. Mr Meyers put cable ties on R’s wrists and ankles, tightened them and joined them together. She was on the bed, unable to move. Mr Meyers then took the nail gun from the bag and sat on a chair outside the bedroom. He barricaded the upstairs area.
The police attended at 9:00am. They entered the house and called out. Mr Meyers said, ‘Don’t come up’. Police then spoke to Mr Meyers, who started sobbing uncontrollably. Special Operations officers attended.
R started talking to Mr Meyers about their sons, which calmed him down. She was bleeding onto the bed, and asked for something to clean herself up with. Mr Meyers burst into tears and said, ‘I can’t believe what I’ve done … This didn’t need to happen, you should have let me tie you up’.
R said she felt sick. Mr Meyers cut the ties and washed her face with a handtowel. He said she could go. Around 11:45am, R walked out of the house toward police. By then, she had been detained for over three and a half hours.
Mr Meyers remained in the house. He wrote ‘low life’, ‘fucking prick’ and ‘cunt’ on the walls, then surrendered himself to police at about 3:00pm.
R was hospitalised with an H-shaped laceration on the right occipital region, bruises to both forearms, bruises over her right shoulder tip and both sides of her upper neck and minor grazing above her left eye.
Mr Meyers was arrested when he left the house and was taken to Box Hill Police Station, where he was interviewed. He mainly answered ‘no comment’ when the allegations were put to him. When he was told his wife had been admitted to hospital, he said, ‘Is she all right?’ and, ‘I’m so ashamed of what I’ve done’.
Mr Meyers told police, ‘I’ve stuffed up the boys’ life worse’; ‘I just wanted her and the boys to fix their relationship for the boys’ sake’; ‘I went to talk to her she hasn’t talked to them for the last year, no contact at all’; and ‘I never would’ve hurt [her], I love her, always have. I was just trying to, I was just trying to make things better for the boys’.
Sentencing for aggravated burglary
Hogarth[12] concerned a sentence imposed on a participant in a home invasion for the offence of aggravated burglary, contrary s 77 of the Crimes Act 1958. The offence is constituted by an act of burglary (entering a building as a trespasser with intent to steal or commit assault or cause damage)[13] which has one or other (or both) of the following aggravating features:
[12](2012) 37 VR 658.
[13]Crimes Act1958 s 76(1).
(a) at the time of entry, the offender is carrying a weapon; or
(b) at the time of entry, there is a person in the building and the offender knows of the person’s presence, or is reckless as to whether any person is present.[14]
[14]Ibid s 77(1).
The presence of one of these aggravating features converts an ordinary burglary (maximum penalty 10 years’ imprisonment) into an aggravated burglary (maximum penalty 25 years’ imprisonment). In the typical home invasion, both aggravating features are present. That is, the offender is carrying some form of weapon and either knows or believes that someone is at home — being the person against whom the offender holds a grievance.[15]
[15]See, eg, Bonacci v The Queen [2012] VSCA 170, [9].
On the appeal in Hogarth, the Director had submitted that the Court should express a view about the adequacy of current sentencing for that type of aggravated burglary. The sentencing judge had urged the same course. The Court concluded that it was both appropriate and necessary to do so. The judgment of the Court placed particular reliance on the 2011 Report of the SAC entitled Aggravated Burglary — Current Sentencing Practices.[16]
[16]Sentencing Advisory Council, Aggravated Burglary — Current Sentencing Practices (June 2011).
In its Report, the SAC spelled out a ‘typology’ of aggravated burglary, and examined sentencing practices with respect to the different categories identified. In Hogarth, the Court concluded that the case at hand fell into the category of ‘confrontational aggravated burglary’ as defined in the SAC Report, that is, an aggravated burglary in which
the offender or co-offender/s entered the premises:
•intending to confront someone or use violence in the context of a dispute with someone in the premises or associated with someone in the premises, for example, a dispute about an unpaid debt or about a perceived wrong;
•to steal or damage property as ‘payback’ for a debt or other conflict situation;
•as a warning, threatening to use violence or take or damage property as a result of a dispute in the context of a drug trafficking transaction (colloquially known as ‘drug run-throughs’); or
•to confront or ‘punish’ the victim for some wrong that the offender believed the victim had done (ie vigilante type cases).
The common feature of all offences in this category is that they occurred in the context of a previous conflict or grievance between the offender and a person in the premises or associated with someone in the premises.
Incidents against the offender’s partner or former partner were not included in this category.[17]
[17]Ibid 30 (emphasis added).
As the Court noted, the SAC concluded that ‘[c]onfrontational aggravated burglaries tended to be less likely to result in an immediate custodial sentence than other categories of aggravated burglary’[18] and ‘skewed towards lower end sentences compared with all other categories’.[19]
[18]Ibid x.
[19]Ibid 31.
The Court in Hogarth[20] concluded that current sentencing for confrontational aggravated burglary did not reflect the objective seriousness of this form of the offence:
The clustering of sentences around a median of two years shows how far current sentencing has departed from the parameters set by the maximum penalty of 25 years.
…
To insist upon appropriate relativities between individual sentences and the maximum is to recognise that the maximum is to be treated as a sentencing yardstick, as explained by the High Court majority in Markarian v The Queen. For the reasons we have given, current sentencing practices for confrontational aggravated burglary do not adequately reflect that yardstick. As this court has said previously, where there is a conflict between the guidance afforded by the maximum penalty and that afforded by current sentencing practices, it is the maximum which must prevail.
It follows, in our view, that 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. The director will play an important role in this process, by assisting judges through the making of submissions on sentencing range.[21]
[20](2012) 38 VR 658.
[21]Ibid 673 [58], [61]–[62] (citations omitted, emphasis added).
In the present case, the sentencing judge sought submissions from both counsel about the implications of the decision in Hogarth. Her Honour expressed the view that Hogarth ‘would appear in this case to have some application’, but went on to say that the application of the decision had to be considered ‘very carefully because it clearly doesn’t … apply to every aggravated burglary’.
Her Honour noted that, in the subsequent decision in Suckling v The Queen,[22] this Court had concluded that the sentencing judge had erroneously regarded himself ‘as bound by Hogarth to impose a relatively high sentence for the aggravated burglary’.[23] It should be pointed out, however, that the conclusion in Suckling turned on differences in the facts of the offending as between that case and Hogarth.
[22][2013] VSCA 278 (‘Suckling’).
[23]Ibid [34].
In that case, Neave JA (with whom Coghlan JA agreed) said:
While the aggravated burglary in this case was motivated by Ms Shortis’ emotional upset and anger with Mr Y, the circumstances of her offending differ substantially from those in Hogarth. The offences were not planned but occurred spontaneously because the applicant was unable to control the build-up of distress, when she discovered that Mr Y was not going to be held accountable for his actions. She was not accompanied by a co-offender when she broke into the victim’s house. Although the victim must have been frightened by the invasion of his home, the applicant did not follow through with her intended assault on him, but simply waited for the police to come.
Stern sentences will usually be imposed on those who take the law into their own hands, but Ms Shortis was not acting as a vigilante when she offended. Rather she was overwhelmed by her emotions. Ms Shortis did not break into the victim’s house or attack him when her daughter alleged that he had sexually assaulted her and her little brother. Instead she reported the matter to the police in the expectation that Mr Y would be prosecuted and sought help for her daughter and herself from various agencies.[24]
[24]Ibid [33]–[34].
In the present case, there was debate on the plea about whether this instance of aggravated burglary should be viewed as falling within the scope of the decision in Hogarth. The following exchange between the prosecutor and the judge is illustrative:
PROSECUTOR: Your Honour has referred to the caution that needs to be exercised when applying Hogarth, and whilst Hogarth does relate to confrontational aggravated burglaries, in my submission, your Honour, it also serves as an important reference point for other comparable home invasion-type aggravated burglaries, whether they fall within strictly the confrontational aggravated burglary or, such as this case, intimate relationship aggravated burglary but has the home invasion-type aspect to it. If you look at this case, the case of Meyers, before your Honour, the behaviour once inside the house puts it in a very different situation to that of the case of Suckling that’s been handed up to your Honour, and the general guidelines of Hogarth would apply more to this case then they do in a case such as Suckling.
HER HONOUR: I can’t agree that Hogarth applies to every home invasion aggravated burglary, because there are home – it depends what you call it, I mean what you’re describing – that Hogarth, in my view, which is supported by the decision in Suckling, is directed at burglaries where there is – aggravated burglaries where there is some pre-existing situation which leaves the people who go in to want to go in and confront in some way the person. Now that may be the situation here, but I just think broadly saying, yes, it’s home invasion, but you’d have to have more than just a home invasion situation for Hogarth to apply.
PROSECUTOR: I agree with what your Honour is saying, and certainly Hogarth must be looked at and considered in the context of each individual case before it’s applied, but the case before your Honour, the nature of the aggravated burglary and what occurred once he’s inside the house is such that it’s closer to a home invasion-type situation albeit it’s very different – and I’m distinguishing a home invasion from a confrontational aggravated burglary. I’m not sure if I’ve made that distinction clear to your Honour.
HER HONOUR: Hogarth applies to confrontational aggravated burglary.
PROSECUTOR: Yes.
HER HONOUR: Home invasion, I don’t know what you mean by that. Home invasion just sounds like someone going into someone’s home with some bad purpose. Now confrontational-type of aggravated burglary, the situation that existed in Hogarth, where someone goes in because they’ve got a grievance and they want to sort out this grievance in some way by taking direct action against one of the occupants or more of the occupants of the house.
PROSECUTOR: Yes, your Honour.
HER HONOUR: We’re talking about a case where the Court of Appeal says sentencing courts may depart from current sentencing practices.
PROSECUTOR: Yes.
HER HONOUR: That’s a very, very serious step for a sentencing judge to take, and a sentencing judge could and should only take that if it is clear that the decision in the Court of Appeal applies in the situation and that that is what is mandated. Broadening Hogarth beyond confrontational – whatever you think fits within confrontational, broadening it beyond that is, in my view, improper legally, because you cannot just say this gives sentencing courts some guidance to increase sentences beyond current sentencing practices – that’s all we’re talking about, beyond current sentencing practices unless it’s really clear that Hogarth applies.
PROSECUTOR: I’m not submitting to your Honour that your Honour should extend Hogarth in that way. I’m not making that submission.
HER HONOUR: All right.
PROSECUTOR: What I am submitting to your Honour, that it serves as a reference point without extending current sentencing practices.
HER HONOUR: All right, that’s clearer.
PROSECUTOR: And what I’m saying to your Honour is that that reference point is more relevant in some aggravated burglaries than others and it’s more – and that’s notwithstanding whether they fall within the intimate relationship aggravated burglary or whatever type, it depends on the circumstances and the factual basis, and the factual basis before your Honour is one of a very serious aggravated burglary, very serious offences that occurred whilst the offender was in the house.[25]
[25]Emphasis added.
As can be seen, the prosecutor here referred more than once to ‘intimate relationship aggravated burglary’, which was one of the other categories identified by the SAC in its 2011 Report. As defined in the SAC Report, an aggravated burglary fell into this category if it related to
the dynamics of the offender’s relationship with his or her intimate partner or his or her former intimate partner. Cases placed in this category include aggravated burglaries by the partner or former partner of the victim or an associate of the victim in which the offender:
·entered the premises to confront, assault or commit another offence (such as theft or property damage) against his or her partner or former partner or did any of these things once inside the premises; or
·committed the above type of incidents against someone living with his or her partner or former partner (such as a family member, intimate partner, friend or acquaintance), for example, as a means of exercising control or taking revenge or threatening or punishing his or her partner or former partner.[26]
[26]Sentencing Advisory Council, Aggravated Burglary—Current Sentencing Practices (June 2011) 33.
Avoiding debates over classification
With great respect to the sentencing judge, it was not correct to treat what was said in Hogarth as confined to a particular subset of offending. As recent decisions of this Court have confirmed,[27] Hogarth is not to be viewed as if it established a carefully-defined zone of ‘exemption’ from current sentencing practices, such that a judge imposing sentence for aggravated burglary would have to decide whether the particular case fell within the scope of ‘confrontational aggravated burglary’ as defined by the SAC.
[27]Gale v The Queen [2014] VSCA 168 (‘Gale’); Filiz v The Queen [2014] VSCA 212 (‘Filiz’); Anderson v The Queen [2014] VSCA 255 (‘Anderson’).
Rather, the decision in Hogarth should be viewed as having removed the constraint of CSP for aggravated burglary in all of its more serious forms. As can be seen from the SAC definitions set out above, there is a very great degree of overlap between the essential features of ‘confrontational’ aggravated burglary, on the one hand, and ‘intimate relationship’ aggravated burglary on the other. Properly analysed, the latter is a subset of the former. Both are essentially grievance-driven; both involve confronting the person against whom the grievance is held; and, in both cases, the aggravated burglary is typically accompanied by violence or threats of violence.
It is not surprising, therefore, that in a series of recent decisions this Court has applied the principles in Hogarth to cases involving ‘intimate relationship aggravated burglary’. The first is Gale,[28] in which the offender breached an intervention order by entering the home of his former wife and her new partner, in the early hours of a Sunday morning. He shouted abuse at both of them while threatening the partner with a cattle prod.
[28][2014] VSCA 168.
The Court (Weinberg, Whelan and Beach JJA) rejected a Crown concession that the sentence of three years and six months for aggravated burglary (after a plea of guilty) was manifestly excessive. Their Honours said:
Despite the Crown’s concession that the sentence on charge 3 was manifestly excessive, we consider that the sentence of three years and six months for the aggravated burglary was within range. The applicant has not satisfied this Court that a departure from the principles laid down in Hogarth is warranted. This was a serious example of what might be described as ‘intimate-partner’ aggravated burglary. It could easily have had catastrophic consequences. The applicant broke into his ex-partner’s home armed with a cattle prod, intending to confront its sleeping occupants, in breach of an undertaking given nine days earlier. These types of incidents all too often conclude with a tragic outcome. General deterrence is paramount. Specific deterrence also needs to be accorded considerable weight, particularly in light of the applicant’s breach of the undertaking. Society demands that behaviour such as this be punished severely. We would therefore affirm the sentence imposed by the sentencing judge in relation to charge 3.[29]
[29]Ibid [40] (emphasis added).
The next was Filiz,[30] which also involved the breach of an intervention order. The offender’s former partner (M) had taken out the order to protect herself and her children against violence. Shortly before midnight, when the children were asleep, the offender entered the house where M was in bed talking to her new partner. The offender was holding a curtain-rod which he used to strike each of them several times. He pleaded guilty to several charges, including a charge of aggravated burglary with intention to assault.
[30][2014] VSCA 212.
A sentence of two years and six months was imposed on the charge of aggravated burglary. Although that sentence was not challenged on the appeal, the Court (Maxwell P and Redlich JA) made the following comments on the sentence:
First, we reject the contention that the sentence of two years and six months’ imprisonment for the aggravated burglary charge was ‘very severe’. The plea of guilty in this matter was entered after this Court’s decision in Hogarth v The Queen 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. A significantly higher sentence than that imposed in this instance would therefore have been within range.[31]
[31]Ibid [15] (citations omitted, emphasis added).
The Court also made the following general comments about violent offending against a former domestic partner:
Senior counsel for the applicant rightly conceded that general deterrence is a significant sentencing factor in this case, not only in relation to aggravated burglary generally, but most particularly in relation to violent offending against a former domestic partner. Of particular significance is the fact that the applicant was already subject to a Family Violence Intervention Order. Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection.
At the oral hearing it was said that the complainant’s fear would have been greater if her home had been invaded by strangers seeking to steal personal property. It was suggested that the context of the offending affected its seriousness. We do not accept that these matters affect the objective gravity of the offences. The level of fear engendered by the applicant, in kicking in the locked bedroom door and proceeding to beat the victims with an iron rod, did not have to be evaluated according to such niceties. The attack the applicant launched upon his ex-partner was strongly suggestive of a desire to do her and her partner serious harm, and anybody in their position would have feared that such harm would occur. The complainant’s victim impact statement makes clear that the physical and emotional effects will be lasting.
It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners. In such circumstances, the submission that the complainant’s level of fear when being attacked by her ex-partner was less than it might have been if she had been attacked by a stranger should be rejected.[32]
[32]Ibid [21]–[23] (emphasis added).
Most recently, in Anderson,[33] the Court was called on to consider an argument very similar to that advanced in the present case, to the effect that the decision in Hogarth had only limited application to ‘intimate relationship aggravated burglary’. That case, like the other two, involved an attack on the offender’s former partner (E) and her new boyfriend (S). At approximately 4.00 o’clock in the morning, the offender broke into the house where E and S were in bed. The 16 month old son of the previous relationship, between the offender and E, was in a cot in the same room. The offender burst through an unlocked door, dragged S out of the bed and punched him several times before stomping on his head. He then moved towards E and was about to punch her when he was overpowered.
[33][2014] VSCA 255.
In rejecting a challenge to the sentence of three years for aggravated burglary, the Court (Weinberg and Santamaria JJA) drew attention to the following passage from the decision in Hogarth:
Confrontational aggravated burglary is not necessarily any more serious than (say) the same offence when committed in relation to an intimate partner or with intent to commit a sexual offence. Offences of the latter kind are likely to be particularly terrifying for victims.[34]
[34](2012) 37 VR 658, 673 [56].
Their Honours continued:
In light of the Court’s comments in Hogarth … we do not think that it can be said that the principles articulated in that case apply only to confrontational aggravated burglaries, in the narrow sense. Nor do we accept that Hogarth in any way establishes that those cases necessarily warrant heavier sentences than the sentences to be imposed for ‘intimate relationship aggravated burglary’. The Court in Hogarth focussed on the former category in an attempt to address a clear systemic issue, as identified by the Sentencing Advisory Council, namely that sentencing statistics for ‘confrontational aggravated burglaries’ showed that these cases were receiving lower sentences than cases falling into other categories of aggravated burglary.
...
It is clear from Filiz and Gale that the principles laid down in Hogarth were applicable, as the sentencing judge correctly held, in the circumstances of this case. We do not think that her Honour erred in any way in her application of those principles.[35]
[35]Anderson [2014] VSCA 255, [31], [36].
We would wish to endorse the remarks in Filiz[36] about the particular seriousness of offending involving former domestic partners. Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.
[36][2014] VSCA 212: see [42] above.
General deterrence is, accordingly, a sentencing principle of great importance in cases such as these. Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison.
Assessing the seriousness of a particular instance of aggravated burglary
Determining the sentence to be imposed for any particular offence of aggravated burglary will in large part depend on a careful assessment of the (relative) seriousness of the offence. There was argument on the appeal about how the gravity of this particular instance of aggravated burglary should be assessed.
In our view, the following considerations will ordinarily be relevant to such an assessment:
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);[37]
·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.
[37]See the elements of the offence set out in [25] above.
The particular purpose which the offender has in mind at the point of entry is a significant feature going to the gravity of the offence. Of course, the intent on entry is conceptually distinct from what occurs after entry, but the offender’s conduct once inside the premises will usually enable inferences to be drawn about the intent on entry.
In the present case, counsel for Mr Meyers conceded that, by pleading guilty to entry with intent to assault, he was admitting that he had intended to restrain R physically, to prevent her from fleeing ‘so that he could have a conversation with her’. This meant, as his counsel accepted, that Mr Meyers intended to do whatever was necessary to restrain her, that is, to use such force as was required. On that view, although he did not have in mind the particular acts of violence which actually took place, what he did once inside was an effectuation of his actual purpose. That is, he intended to pursue R until he had her tied down. On that ground alone, this was a very serious instance of aggravated burglary.
In addition, it was a particularly terrifying entry. Mr Meyers smashed through the rear door; and he was carrying a sawn-off shotgun. Although R did not see him when he entered — as she was in the bathroom — that does not detract from the seriousness of the entry. Mr Meyers knew R was at home but had no idea where she would be.
Impairment of mental functioning
The alternative submission for Mr Meyers was that, even if we concluded that this case fell within the scope of Hogarth, it was ‘not a suitable vehicle’ for departing from CSP. That was so, it was said, because of his impaired mental functioning and the exceptionally high burden of imprisonment referable to his physical and mental impairments.
On the plea, defence counsel submitted that Mr Meyers’ conduct on this occasion was ‘irrational’. According to the submission, these were the actions
of a man whose capacity to make sensible decisions about what he should do was affected by his compromised mental health, in particular his experience of 35 years of chronic, severe pain and chronic depression.
Reliance was placed on a report prepared — at the request of Mr Meyers’ solicitors — by Dr Danny Sullivan, a very experienced consultant forensic psychiatrist. In his report, Dr Sullivan noted that Mr Meyers had not worked for 20 years and had been on the disability support pension since being struck by a drunk driver while riding a motor cycle. In that accident, he had fractured multiple bones and was in hospital for three months. He was in plaster ‘for about five years’ and, by his account, had undergone some 80 operations. The injuries were further complicated by infections (osteomyelitis and gangrene), which had required surgical intervention. He had also undergone a total knee replacement. He suffered chronic pain and was on MS Contin (morphine) for pain relief.
According to Dr Sullivan’s report, Mr Meyers gave the following account of the circumstances:
At the time of the alleged offence, he reported that he wanted to have his ex-wife ‘tell the truth’. He had been engaged in a family law dispute with her, predominantly related to assets. In particular he was anguished that this included an inheritance from his mother.
He wanted to talk to her before they attended the Family Court on the Friday. The previous week he had responded to the affidavit and felt that this was manifestly untruthful, including a number of incorrect statements about their children. He stated that he was increasingly worried that ‘she would take everything’. He stated that on the Wednesday he had decided to kill himself. He had written wills and left instructions. In addition, he had hoped to reconcile her with the boys, in the hope that she might leave them alone. He indicated that he had financial concerns that she would take half the house and he would have nowhere to live.
On the day of the offence he reported that he broke into the house with ‘a kit of stuff’. He told me that he had found the shotgun ‘that morning’ but it had no ammunition. He intended to use it to ‘keep the cops away’. He told me he had modified a nail gun and had cable ties. He indicated that he had brought these things in order to keep her there so that he could ‘talk to her … then let her go … and kill myself.
Dr Sullivan’s opinion and recommendations were as follows:
Mr Meyers has a longstanding severe substance use disorder. Notwithstanding that his medications are prescribed for pain, he is dependent on opiates and has had previous issues with benzodiazepines. When distressed he has overdosed on prescription medications, and despite tolerance, these medications may still impact upon his cognitions and mood.
He has a history of chronic mood disorder, likely persistent depressive disorder (dysthymia) which has not clearly responded to treatment over many years. In part there is an overlap with chronic pain but also with the impairment which arises from past injuries and the resultant impact upon his work capacity. It is likely that the treatment of his depression is best undertaken in the future by a psychiatrist, particularly one with experience with chronic pain.
He reports earlier anxiety disorder but it is difficult to determine this as a discrete diagnosis given his long-term prescription of opiates, benzodiazepines and other medications. In part symptoms of anxiety overlap with those of depression. There is no indication of cognitive impairment or of psychotic illness.
Mr Meyers has a past history of crisis presentations with self-harm and may at times struggle with emotional regulation or behavioural self-control. However there is limited evidence to support a borderline personality disorder or other significant personality traits which are not accounted for by pain and mood disorder. In particular he does not express ideas or have a history suggestive of antisocial personality structure.
At the time of the alleged offences Mr Meyers was facing imminent appearances in the family law jurisdiction and was ruminating about potential financial loss. He was embittered at the end of his relationship and its effect on him and his children. He is chronically despondent at his life and limited capacity to work through chronic pain.
Mr Meyers hatched a plan which was foredoomed. He harboured hostile thoughts to his ex-wife and her partner, and suicidal ideation. Depressive disorder impaired his capacity to think clearly or make calm and rational choices. His judgment was impaired and the intent of the offence was obscured through the irrationality of his plans and their lack of consonance with his expressed goals, to assist his children. It is possible that Mr Meyers was disinhibited through his pain medication, and that this also impacted upon his capacity to think clearly or exercise sound judgment.
Mr Meyers is experiencing incarceration as burdensome. He considers he is on inadequate pain medication and is at risk of being stood over for this, as it is prone to abuse and rarely prescribed in prison (generally morphine is switched to methadone). He is in a unit for people with psychiatric needs and is at escalated risk of self-harm. His mood disorder remains despite medication, reflecting a poor response and also entrenched mood problems which are unlikely to remit easily with medical treatment alone. He would be a challenging patient for a psychologist, and these have limited prison availability.[38]
[38]Emphasis added.
The judge’s finding was as follows:
I accept on the basis of Dr Sullivan's report that your capacity to make calm and rational choices was impaired by your depressive disorder. I am not able to conclude that your use of opiates had any such impact. You clearly set out deliberately with a very muddled and irrational plan which was inevitably going to be entirely counterproductive. That said, I have no doubt that you knew that what you were doing was wrong. Your moral culpability is reduced but to a limited extent by reason of your mental state.[39]
[39]DPP v Meyers (Unreported, County Court of Victoria, Judge Patrick, 20 February 2014) [38] (‘Reasons’).
On the appeal, counsel for Mr Meyers maintained the plea submission that his conduct should be seen to have been irrational, and that this warranted a substantial reduction in moral culpability. We are not persuaded by that argument. On the evidence, Mr Meyers appears to have acted rationally and purposefully. As his counsel said, his objective was to persuade R — in the interests of his sons — to resolve the property dispute in a way which protected their futures. He took a series of steps to equip himself in precisely the way required in order for him to achieve that purpose by confrontation. He was able to plan, and to give effect to his plan.
Whatever adverse effect his depressive condition may have been having on him, it did not relevantly interfere with his ability to function or to make decisions. Rather, it would seem, it was his anger and frustration, and his fear about the likely outcome of the property settlement litigation, which made him embark on this venture. That the plan was ‘foredoomed’ is beside the point. All too often, anger is the cause of foolish, self-destructive, criminal behaviour. But that has never been thought to reduce the culpability of the perpetrator.
Counsel pointed out — quite correctly — that Dr Sullivan had made a specific finding about how the depression had affected the respondent’s mental functioning at the time of the offending, and that this Court was bound by that finding. We accept, moreover, that this is the kind of evidence which the Court in R v Verdins[40] said was required before a sentencing court could entertain arguments about reductions in moral culpability and deterrence.
[40](2007) 16 VR 269 (‘Verdins’).
In the end, however, it was for the sentencing judge to determine whether the effect of the particular condition was such as to justify a reduction in moral culpability, or to reduce the importance of specific or general deterrence. In our view, there can only ever be very modest mitigation when a condition such as depression is said to have impaired the offender’s capacity to think clearly or make calm and rational choices. Occasionally, the evidence may establish that the impairment of mental functioning was so significant as to leave the offender with no real sense of what he/she was doing. In such a case, the attribution of criminal responsibility is properly mitigated. But the present case is not of that kind.
Put another way, the culpability of someone like Mr Meyers is not to be viewed as materially different — in relation to this aggressive conduct — from that of a person who was not suffering from depression. Although the first proposition in Verdins does not require a causal connection, in practice this is how sentencing judges have approached it.[41] That reflects what we think to be a correct view, namely, that it is only when there is a ‘real connection’ between the mental condition and the offending that the attribution of moral responsibility for the conduct is appropriately lessened.[42]
[41]Carroll v The Queen [2011] VSCA 150, [20] and the cases there cited.
[42]Arthars v The Queen [2013] VSCA 258, [13].
On the evidence in this case, the existence of the depression does not provide any real causal explanation of this offending. Plainly enough, it was Mr Meyers’ distress about the property dispute, and the anxiety occasioned by the imminence of the court proceeding, which prompted this action.
On that view, the true cause of this offending was Mr Meyers’ emotional state, exactly as his counsel explained it on the plea. He was very concerned about the prospect of losing the house in which he lived with his sons. This is hardly surprising, given his long-term disability. The security of the house and his ability to look after his sons were doubtless matters of very great importance to him. But those features tend only to confirm that this case was typical of the hostility which so often attaches to marriage or relationship break-up. Indeed, as can be seen from the extract above, Dr Sullivan himself referred to Mr Meyers’ ‘hostile thoughts’ towards his former spouse.
The burden of imprisonment is another matter, however. There is no dispute about Mr Meyers’ chronic pain, or about his high dependency on morphine for pain relief. Nor would we have any doubt that pain management is more difficult in prison than elsewhere. On the psychological side, the position is less clear. Being depressed in gaol is unfortunately very common — and understandable — and in the ordinary case would not justify a reduction in sentence.
Position of the Crown on the plea
Counsel for the Director on this appeal — who did not appear on the plea — submitted that Hogarth[43] was applicable and that the judge in this case was not constrained by CSP for aggravated burglary. Reliance was placed on the Director’s comprehensive policy on CSP for aggravated burglary, published in February 2013 in response to Hogarth. The policy statement begins as follows:
[43](2012) 37 VR 658.
Key points
·Hogarth v R [2012] VSCA 302 disapproves current sentencing practices for ‘confrontational’ aggravated burglaries. Judges are no longer constrained by past sentencing practices for this category of offence, and higher sentences should now be imposed.
·Hogarth also provides an influential indicator of appropriate standards for home invasion aggravated burglaries that do not fall within the ‘confrontational’ category. In the future these offences should also receive higher sentences.
·Close reference should no longer be made to old sentencing statistics and comparable cases for confrontational aggravated burglaries, and great caution should be exercised in using these resources for other categories of aggravated burglary.[44]
[44]Director of Public Prosecutions Victoria, Director’s Policy 39 — Current Sentencing Practices for Aggravated Burglary (12 February 2013) 1 (cross-references removed, emphasis added).
As appears from the exchanges on the plea set out above, the prosecutor’s submission to the judge was the reverse of the Director’s appeal submission. Counsel expressly disavowed any contention that Hogarth was applicable to the present case. For the purpose of this case, counsel submitted, Hogarth was merely ‘a reference point without extending current sentencing practices’. The relevant part of the Director’s policy made clear, however, that the sentencing guidance in Hogarth did apply to cases such as this:
Hogarth also provides positive guidance in respect of sentencing standards for aggravated burglary, beyond the ‘confrontational’ subset of the offence. Hogarth also serves as an important sentencing reference point for any comparable ‘home-invasion’ cases — including cases that do not meet the contextual criteria for ‘confrontational’ aggravated burglary.[45]
[45]Ibid [32].
It was also noted in the course of argument that the prosecutor made no submission to the judge about the offender’s intent at the time of entry. That should have been seen as a matter of the first importance, to enable the judge to assess the gravity of the aggravated burglary. All the judge was able to say in her reasons was that he entered ‘with the intent of assaulting a person’ and that he was carrying items ‘which clearly were intended for the purposes of potentially restraining [R].’
In a case such as this, it would have been of great assistance to the Court if the prosecutor had appeared, at least as second counsel, on the sentence appeal. As the Court pointed out in the preamble to Practice Direction No 2 of 2011, there are considerable advantages in having trial counsel appear in criminal appeals. Most importantly, this enables the Court to be fully informed of why the trial — or, in this case, the plea — was conducted as it was. Moreover, the experience of presenting — or responding to — an appeal gives trial counsel an insight into the rigour with which first instance proceedings must be conducted.
Avoiding double punishment for offences arising out of a single incident
It is often difficult to separate the bases of punishment in a case like this, where a number of offences are committed within the ambit of a single incident or enterprise. The position is further complicated where one of the offences is aggravated burglary. This particular type of incident or enterprise has given rise to a recurring complaint in sentencing appeals, to the effect that the offender has been doubly punished by the sentence for aggravated burglary and the sentences for the offences committed inside the premises.[46]
[46]R v Lacey [2006] VSCA 4; R v Spero (2006) 13 VR 225; R v Ziday [2006] VSCA 163; R v Henderson-Drife [2007] VSCA 211; R v Norris [2007] VSCA 241; R v Lambourn [2007] VSCA 187; R v Martin [2009] VSCA 142; Maurice v The Queen [2011] VSCA 197; DPP v Johnson (2011) 35 VR 25; Le v The Queen [2012] VSCA 43; Suckling (Shortis) v The Queen [2013] VSCA 278; Secombe v The Queen [2014] VSCA 28; Filiz v the Queen [2014] VSCA 212.
In accordance with the principles stated in Pearce v The Queen,[47] care must be taken in fixing the sentence for aggravated burglary to ensure that the offender is not doubly punished for offences committed after entry into the house. Apart from supporting an inference as to what it was that he intended to do, the seriousness of what took place after the entry cannot affect the sentence on the aggravated burglary charge. The offence of aggravated burglary is complete upon entry. The sentence on that charge cannot involve any element of punishment for what happens after entry.
[47](1998) 194 CLR 610.
Sentences for false imprisonment and intentionally cause injury and orders for cumulation
By contrast, the crime of false imprisonment is a continuing offence. In this case, it was committed over the seven hour period during which R was imprisoned. During that time, the offence of intentionally causing injury was also committed. The sentencing judge described the seriousness of the events in the house in these terms:
You used a shotgun to threaten the victim. You hit her, caused her injury and tied her up. You prevented her leaving. You physically restrained her, as I have said, in a very determined fashion. Despite her attempts to struggle against you, you persisted with your object of tying her up. Despite police arriving, you continued to detain her for a considerable period of time. Your behaviour was violent, threatening, intimidating and cruel.[48]
[48]Reasons, [37].
An assessment of the gravity of the imprisonment required some identification of the nature of the experience to which she was exposed. In the period of her confinement, she was subjected to a number of assaults which were no doubt accompanied by a fear that she would not survive. The threats and violence over that period made her imprisonment ever more terrifying. These circumstances aggravated R’s imprisonment and were matters which should properly be taken into account. Otherwise, however, the acts of intentional causing of injury could not be taken into account in fixing the sentence for false imprisonment.
The objective gravity of the conduct upon entry into the house must be reflected in the sentences on the false imprisonment and intentionally cause injury charges, and in the total sentence to be imposed. The forced imprisonment of R was protracted and terrifying. It involved the repeated use of cable ties, strangulation, manual restraint and the threat of the shotgun and/or the nail-gun being used. The infliction of injury involved a blow from the shotgun and a series of other assaults on R when she sought to escape. Repeated acts of violence, and protracted terror — as occurred here — obviously make the whole incident very much more serious than if, for example, the offender had desisted at the first sign of resistance.
Conclusion
We have concluded that the sentence on the count of aggravated burglary was manifestly inadequate. That conclusion is not, however, based on a view that the sentencing judge erred in regarding herself as constrained by pre-Hogarth CSP. Had that been our conclusion, then the fact that the error was induced by the position adopted by the Crown on the plea may well have merited a dismissal of the Director’s appeal, in the exercise of the residual discretion.[49]
[49]See DPP v Holder [2014] VSCA 61.
In Hogarth[50] itself, the sentence imposed for aggravated burglary was four years and six months. That was an illustration of CSP as they then stood. In our view, having regard to the seriousness of this offence and the importance of general deterrence, a sentence of four years’ imprisonment was warranted in this case, without any departure from CSP as they then stood. But for that constraint, we would have imposed a substantially higher sentence.
[50](2012) 37 VR 658.
The sentences imposed on the offences of false imprisonment and intentionally causing injury were also manifestly inadequate, as was the total effective sentence. We would therefore increase the sentence for false imprisonment from 12 months’ imprisonment to three years’ imprisonment, and the sentence for intentionally causing injury from 12 months’ imprisonment to one year and six months’ imprisonment, and increase the orders for cumulation on those sentences.
As her Honour said, this was very serious offending. For the reasons we have given, Mr Meyers’ mental condition warranted little mitigation of sentence except on the ground that his time in custody will be more burdensome than it would be for someone without that condition. Taking that matter and his chronic pain management problems into account, and recognising that he is entitled to a meaningful discount for pleading guilty, we would resentence him as follows:
Resentencing table
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Destroy or damage property | 10y | 4m | Concurrent |
| 2 | Aggravated burglary | 25y | 4y | Base |
| 3 | False imprisonment | 10y | 3y | 1y |
| 4 | Intentionally cause injury | 10y | 1y 6m | 6 m |
| 5 | Possessing (carrying or using) an unregistered category A or B longarm | 2y or 120 penalty units | 6m | — |
| Total Effective Sentence: | 5y 6m | |||
| Non-Parole Period: | 3y | |||
| 6AAA Statement: | 8y, with a non-parole period of 6y 6m | |||
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