DPP v O'Brien

Case [2019] VSCA 254


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0129

DIRECTOR OF PUBLIC PROSECUTIONS Appellant
v
SHANE O’BRIEN Respondent

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JUDGES: MAXWELL P, NIALL and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 14 October 2019
DATE OF JUDGMENT: 8 November 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 254
JUDGMENT APPEALED FROM: [2019] VCC 738 (Judge Parrish)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Home invasion, assault, unlicensed possession of firearm and ammunition – Sentence 20 months’ imprisonment and 2 year Community Correction Order – Whether manifestly inadequate – New offence of home invasion – Whether sentencing practices for aggravated burglary relevant to sentences for home invasion – Serious offending – General and specific deterrence – Appeal allowed – Respondent resentenced – Crimes Act 1958 s 77A – Hogarth v The Queen (2012) 37 VR 658, DPP v Meyers (2014) 44 VR 486 considered.

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APPEARANCES: Counsel Solicitors

For the Appellant

Mr C B Boyce QC
with Mr P J Smallwood
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent Mr D C Hallowes SC
with Ms M O’Brien
Stary Norton Halphen

MAXWELL P
NIALL JA
T FORREST JA:

Summary

  1. As this Court said in Hogarth v The Queen,[1] 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.[2] 

[1](2012) 37 VR 658 (‘Hogarth’).

[2]Ibid 659 [1].

  1. Until 2016, those who participated in a home invasion were prosecuted, and sentenced, for the offence of aggravated burglary.  Indeed, home invasions were viewed as a very serious form of aggravated burglary, as appears from the Sentencing Overview for that offence published by the Judicial College of Victoria.[3]  The Sentencing Overview shows that, of the 15 highest sentences for aggravated burglary reviewed by this Court in the period 2009–2018, 12 were for home invasion.

    [3]Judicial College of Victoria, Victorian Sentencing Manual, ch 32.15.4 (VSCA Overview — Aggravated Burglary Sentenced as the Principal Offence, as at 16 July 2019).

  1. In 2016, the Victorian Parliament created a new, specific, offence of home invasion.[4]  That offence carries the same maximum penalty as aggravated burglary (25 years’ imprisonment).  The offence is committed if a person, in company with one or more others, enters a home as a trespasser, with intent to steal or to commit an offence involving assault or criminal damage (carrying a maximum of five years or more) and either:

(a)               the person is carrying a weapon or an explosive;  or

(b)               there is another person in the home, whether or not the offender knew that there would be a person present.

[4]Crimes Act 1958 s 77A.

  1. As the parties to this appeal accepted,…

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AGLC
Director of Public Prosecutions v Shane O'Brien [2019] VSCA 254
Case
[2019] VSCA 254
Decision Date

CaseChat Overview and Summary

The case of DPP v O'Brien involved an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent for multiple offences, including home invasion, assault, and unlicensed possession of a firearm and ammunition. The original sentencing took place in the County Court of Victoria, presided over by Judge Jones, who handed down a sentence of 20 months’ imprisonment and a two-year Community Correction Order. The Crown argued that the sentence was manifestly inadequate. The Court of Appeal was required to determine whether the sentence imposed was indeed manifestly inadequate and whether the principles applicable to aggravated burglary could be relevant in sentencing for home invasion, a newly defined offence.

The Court of Appeal examined the principles established in prior cases, such as Hogarth v The Queen and DPP v Meyers, to address the sentencing for the new offence of home invasion. It was noted that home invasion is a serious offence that warrants a significant punitive response, particularly in cases involving violence and the use of a firearm. The court considered the need for both general and specific deterrence in sentencing for such offences. The Court found that the original sentence did not adequately reflect the seriousness of the crimes committed and did not sufficiently address the need for deterrence. It held that the sentencing practices for aggravated burglary could be relevant to sentences for home invasion, as both offences share the common element of invasion of a person's home.

In light of the above considerations, the Court of Appeal allowed the appeal and ordered that the respondent be resentenced. The court emphasised that the sentence must appropriately reflect the seriousness of the offences and provide sufficient deterrence. The Court of Appeal did not specify the exact terms of the new sentence but left it to the County Court to impose a sentence that met the criteria set out by the appellate court. The case underscores the importance of considering both the gravity of the offence and the need for deterrence when sentencing for serious crimes such as home invasion.

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