DPP v Wol
[2019] VSCA 268
•21 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0269
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| WOL WOL | Respondent |
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| JUDGES: | KYROU, KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 November 2019 |
| DATE OF JUDGMENT: | 21 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 268 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1872 (Judge Grant) |
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CRIMINAL LAW – Sentence – Crown appeal – Aggravated home invasion – Prohibited person possess firearm – Common assault – Conspiracy to steal – Respondent and co-offenders forcibly gained entry into victims’ home in early hours of morning intending to steal – Respondent discharged firearm in presence of victim – Respondent sentenced to total effective sentence of 5 years, 3 months’ imprisonment with non-parole period of 3 years, 6 months – Whether individual sentences, cumulation, total effective sentence and non-parole period manifestly inadequate – Appeal allowed – Respondent resentenced to a total effective sentence of 7 years, 6 months’ imprisonment with a non-parole period of 5 years, 3 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R L Gibson QC with Ms G A Coghlan | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D C Hallowes SC with Mr J Miller | James Dowsley & Associates |
KYROU JA
KAYE JA
T FORREST JA:
Introduction and summary
On 8 November 2018, the respondent pleaded guilty to the charges set out in the following table and on 14 November 2018 he was sentenced in accordance with that table.[1]
[1]DPP v Wol [2018] VCC 1872 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Prohibited person possessing firearm [Firearms Act 1996 s 5(1)] 10 years 12 months 4 months 2 Aggravated home invasion [Crimes Act 1958 s 77B] 25 years 4 years, 6 months Base 3 Common assault [Common law] 5 years 9 months 3 months 4 Conspiracy to steal [Crimes Act s 321(1)] 10 years 4 months 2 months Total effective sentence: 5 years, 3 months’ imprisonment Non parole period: 3 years, 6 months Pre-Sentence detention declaration: 377 days 6AAA Statement: 6 years, 9 months’ imprisonment, non-parole period of 5 years, 3 months
The Director has sought leave to appeal on the sole ground that the sentences imposed on charges 1, 2 and 3, the cumulation on charges 1 and 3, the total effective sentence and the non-parole period are manifestly inadequate. The particulars on which the Director relied allege that the judge:
(a) failed to properly reflect the gravity of the offending;
(b)failed to have sufficient regard to the impact of the offence upon the victims;
(c)failed to give sufficient weight to the sentencing principles of protection of the community, just punishment, denunciation, general deterrence and specific deterrence;
(d)failed to have sufficient regard to the maximum penalties for the offences;
(e) gave too much weight to the mitigating circumstances;
(f)made orders for concurrency and cumulation in respect of the individual sentences imposed that resulted in a total effective sentence and non-parole period that are manifestly inadequate in all the circumstances.
For the reasons that follow, the appeal will be allowed and the respondent will be resentenced as set out at [78] below.
Circumstances of the offending
On 28 October 2017, the respondent contacted his co-offender, Shane Foster, and informed him that he was seeking a particular type of vehicle. Foster provided the respondent with the victims’ address in Leopold and told him that the type of vehicle he was seeking was located at that address (charge 4, conspiracy to steal).
At around 1:50 am on 2 November 2017, the respondent and two unidentified co-offenders drove a stolen vehicle with false number plates to the victims’ home. The vehicle was stolen by an unknown person from outside a home in Frankston on 27 August 2017. The respondent carried a loaded firearm with him and he and the other offenders wore disguises.
When the offenders arrived at the home, they kicked the front door until the glass broke. The noise woke one of the victims, Dale McDonald, who got out of bed and went downstairs. The respondent pointed what looked like a short barrelled .22 calibre rifle at Mr McDonald and said ‘[o]pen the door, open the door’ (charge 1, prohibited person possessing firearm). Mr McDonald ran to the kitchen and took cover.
The offenders continued kicking the front door until it gave way and they gained entry to the home. The respondent walked towards Mr McDonald, pointed the firearm at him and said ‘[w]here’s the money, give me the money’. The two co-offenders ran upstairs. Mr McDonald said ‘I don’t have any money’. The respondent then ran upstairs. This conduct constitutes charge 2, aggravated home invasion.
Mr McDonald’s wife, Tracey McDonald, was in her bedroom when the offenders entered the house. She used her mobile phone to call 000 when one of the offenders came into the bedroom and took the phone from her. He rummaged through a set of drawers in a bedside table and said ‘[w]here’s the money’ before he left the room and went downstairs. The keys to Mr McDonald’s car were kept on the bedside table.
Mr McDonald heard his wife screaming and went towards the stairs when he saw one of the offenders coming down the stairs. Mr McDonald chased him out of the house.
Mrs McDonald left her bedroom and found her mobile phone on the stairs. She used it to call 000 and spoke with police. The respondent pointed the firearm at her when she picked up her phone.
Mr and Mrs McDonald’s son, Brock McDonald, was asleep in his bedroom when the offending commenced. He woke up when he was hit in the face with his laptop. He then saw an unknown male running out of his bedroom.
After he had chased one of the offenders out of the house, Mr McDonald went back inside and saw the respondent at the top of the stairs with the firearm pointed at him. Mr McDonald yelled ‘get out’ and the respondent fired the firearm (charge 3, common assault). Mr McDonald was not physically injured.
The respondent and the remaining co-offender then ran downstairs past Mr McDonald and out the front door.
Mr McDonald followed the respondent and his co-offender and saw the stolen vehicle pull up. The respondent and his co-offender got into the vehicle and it drove away quickly. Mr McDonald was able to record part of the vehicle’s registration number.
Mr McDonald later found the keys to his car on the stairs inside the house.
Shortly after the incident, police attended the McDonalds’ home and located a .22 calibre fired cartridge on the staircase and a .22 calibre unfired cartridge on the floor near the front door. The fired .22 calibre cartridge tested positive for the presence of the respondent’s DNA. Police also obtained CCTV footage from the McDonalds’ CCTV system.
On 2 November 2017, police seized the stolen vehicle with false registration plates outside a home in Hampton East. The vehicle’s false registration plates matched the partial registration number provided by Mr McDonald. That same day, the respondent was arrested outside the home in Hampton East.
The respondent was interviewed by police and denied the offending. He stated that he was at home on the night that the offending occurred and that a number of unknown males had taken his phone and left.
Respondent’s personal circumstances
The respondent was 18 years old at the time of the offending and 19 when he was sentenced. He was born in Sudan and has four siblings, of which he is the second eldest. When he was nearly two years old his family fled the civil war in Sudan. In 2003, when he was four, his family resettled in Australia under a refugee and humanitarian program.
The respondent’s mother died of cancer when he was six years old. His father remarried when the respondent was 11. The respondent’s father and step-mother have five children. The respondent did not have a close relationship with his step-mother. He felt that she and his father directed their attention towards the younger children.
The respondent’s family moved many times during their early years in Melbourne and the respondent’s schooling was disrupted as a result. He struggled at school and fell behind academically. He had poor literacy and numeracy skills which were well below his year level. His attendance at school became sporadic and he did not complete Year 10.
The respondent began using alcohol at age 14. He began using amphetamines at 16.
The respondent began offending when he was 16 and since January 2016 he has spent a substantial amount of time in youth detention. His criminal record in the Children’s Court includes the offences of aggravated burglary, theft, theft of a motor vehicle, armed robbery, dishonesty offences, weapons offences, reckless conduct endangering serious injury, intentionally causing injury, unlawful assault and breach of youth supervision and probation orders. Some of these offences involved multiple charges, including eight charges of aggravated burglary and four charges of armed robbery.
The circumstances of two of the prior offences of aggravated burglary, which were committed on 23 April 2016, are described in a presentence report dated 29 November 2016 that was prepared for the Children’s Court.
The first offence involved the respondent and five co-offenders entering the victims’ home, while they were asleep, by using rocks to smash a glass panel beside the front door. Several of the offenders had sticks and poles in their possession. When one of the occupants confronted the offenders, they threw rocks, striking the occupant five or six times.
The second offence occurred several hours later. The respondent and four co-offenders entered a home through an unlocked front door and by forcing open an unlocked kitchen window. Two of the occupants were assaulted with hammers that were carried by some of the offenders and two other occupants were punched in the face.
The respondent was on youth parole when he committed the present offences.
When released from custody in mid-2017, the respondent enrolled in a pre-apprenticeship carpentry and building course at TAFE.
Plea hearing
At the plea hearing, the respondent tendered a report by a clinical psychologist, Guy Coffey, dated 28 October 2018. He stated that whilst the respondent has never had a serious mental illness, his mental health has been precarious since at least early adolescence. Mr Coffey stated that he did not believe that the respondent had an intellectual disability, but did note that his cognitive abilities were not far above the threshold for an intellectual disability. Mr Coffey was of the opinion that the respondent was immature for his age and that this immaturity diminished his ability to regulate his behaviour. He concluded that:
[The respondent’s] ability to regulate his behaviour becomes substantially diminished only when the immature elements in his personality are amplified by the effects of substance abuse. The combined effect of his immaturity, a disinhibiting drug, and peer influence would appear to significantly reduce his ability to reflect on the wisdom of his actions and their consequences.[2]
[2]Emphasis in original.
As to the respondent’s remorse, Mr Coffey stated in his report that the respondent’s capacity for empathy for victims appeared to be fairly superficial.
Mr Coffey stated in his report that when initially remanded for the present offending the respondent experienced some suicidal thoughts but that these had abated. He noted that the respondent has kept to himself while on remand and has not made any friends nor has he had any conflicts with other prisoners or prison officers. Mr Coffey said that the respondent had telephoned his girlfriend of four years daily and had been visited by her weekly while on remand. The respondent told Mr Coffey that his father had not visited him for two months and he did not have any other visitors or contacts.
The prosecutor tendered a victim impact statement by Mr McDonald. He stated that he feels on edge, has trouble sleeping and has sought treatment for depression and anxiety. He described how after the incident his wife and son were unable to stay in the house after dark as they were scared and that the family had spent approximately $20,000 of their savings on securing their home. Ultimately, as they felt they could no longer remain in the house, they were in the process of moving to Western Australia.
Sentencing remarks
The judge found that the respondent’s offending was ‘[o]bviously … serious’ as, amongst other things: it was planned; it was committed in the company of co-offenders; disguises were used; it occurred at 1:50 am; the respondent was armed with a loaded firearm which he pointed at two of the victims; and the respondent behaved in a threatening manner and discharged the firearm.[3]
[3]Sentencing remarks [9].
The judge said that, with such serious offending, general deterrence is a central sentencing consideration and just punishment and denunciation were also highly relevant.[4]
[4]Sentencing remarks [10].
The judge stated that the offending was a terrifying experience for the victims, that their lives had been turned upside down and that they no longer felt safe in their home.[5]
[5]Sentencing remarks [9].
The judge described the respondent’s criminal history as ‘significant and relevant’.[6] He said that the respondent had been a regular and persistent offender since June 2015, that he had received numerous sentences of detention since January 2016 and was on youth parole when the current offences were committed. In those circumstances, the judge considered specific deterrence and community protection to be relevant sentencing considerations.[7]
[6]Sentencing remarks [11].
[7]Sentencing remarks [11].
The judge had regard to the respondent’s background — including his childhood, schooling and drug and alcohol abuse — and matters raised in mitigation. He also took into account, in a general way, Mr Coffey’s assessment that the respondent demonstrated a very low level of intellectual functioning.[8]
[8]Sentencing remarks [21].
The judge found that efforts to support the respondent in the community by way of youth justice orders or parole had proved unsuccessful and that the respondent had been unable to stop abusing drugs or associating with other young offenders. He said that this explained why he was ‘so guarded’ about the respondent’s prospects of rehabilitation.[9]
[9]Sentencing remarks [16].
The judge said that the respondent’s guilty plea was not early but was nonetheless acceptance of his responsibility for the offending. He found that the plea had saved the victims from the trauma of giving evidence at trial and also saved the community the cost and expense associated with a trial. He gave the respondent credit for these matters.[10]
[10]Sentencing remarks [19].
The judge stated that as a general rule, great weight is placed on the principle of rehabilitation when dealing with young offenders. However, he ultimately concluded that the serious nature of the offences combined with the respondent’s prior criminal history meant that rehabilitation was not the paramount sentencing consideration in his case. The judge held that appropriate weight must also be given to deterrence, just punishment, denunciation and community protection.[11]
[11]Sentencing remarks [20].
The judge had regard to the principle of totality and the fact that this was the respondent’s first sentence of imprisonment.[12]
[12]Sentencing remarks [22].
Section 10AC of the Sentencing Act 1991 provides that a term of imprisonment must be imposed for the offence of aggravated home invasion and that a non-parole period of not less than 3 years must be fixed unless the sentencing court finds under s 10A that a special reason exists. At the plea hearing, the respondent did not argue that any special reason existed and the judge did not make a finding under s 10A.
Parties’ submissions
The Director submitted that in all of the circumstances, the sentence is so low that it shows error in the exercise of the sentencing discretion. According to the Director, the inadequacy of the sentence imposed is clear and egregious.
The Director argued that the offending contained features, set out below, which demonstrated that the objective gravity of the offending and the respondent’s moral culpability were high.
The Director contended that aggravated home invasion is an inherently serious offence and that the present offending was a grave example of this offence. The Director relied on the conclusions of the judge in support of this submission, including that the offending was planned, it was committed in company, disguises were used, it occurred in the early hours of the morning, it involved the use of a loaded firearm and was a terrifying experience for the victims. The Director described the respondent’s conduct as ‘high end’ offending.
As to charge 1, prohibited person possessing a firearm, the Director contended that the instant offending had the aggravating features of the firearm being loaded and was carried specifically for the purpose of use in the commission of a crime.
In relation to charge 3, common assault, the Director submitted that any offence involving the discharge of a firearm is a serious one. It was said that the present offending was particularly serious as it occurred in the presence of three victims, in their home and in the middle of the night.
The Director argued that whilst the judge acknowledged Mr McDonald’s victim impact statement and concluded that the offending was a terrifying experience for the victims, he had failed to properly reflect the impact on the victims in the sentence imposed.
The Director submitted that the sentencing principles of deterrence, denunciation, just punishment and protection of the community were relevant even in the case of young offenders such as the respondent and this is especially so in the context of serious offending. The Director further submitted that in the present case specific deterrence was an important consideration given the respondent’s prior convictions for violent offences. The sentence imposed was said not to properly reflect these principles.
According to the Director, notwithstanding the matters in mitigation upon which the respondent was entitled to rely, the circumstances of the case required the judge to impose a higher term of imprisonment which promoted deterrence and denunciation for the offending.
The Director argued that the judge failed to have sufficient regard to the maximum penalties, in particular the maximum penalty of 25 years prescribed for the offence of aggravated home invasion. It was said that the sentences imposed in relation to charges 1, 2 and 3, when expressed as percentages of the maximum penalty, assist in demonstrating that the sentences were inadequate. The Director noted that: the sentence imposed in relation to charge 1 attracted 10 per cent of the maximum penalty, with 3.33 per cent of the sentence to be served cumulatively; the sentence on charge 2 attracted 18 per cent of the maximum penalty; and the sentence on charge 3 attracted 15 per cent of the maximum penalty, with 5 per cent of the sentence to be served cumulatively.
The respondent did not dispute that the offending was serious, however he submitted that having regard to the matters in mitigation when balanced against his criminal history and the gravity of the offending, the Director has failed to demonstrate that any aspect of the sentence is manifestly inadequate.
The respondent argued that the judge appropriately considered the impact of the offending on the victims and that such impact was adequately reflected in the sentence imposed.
The respondent submitted that the judge took into account relevant sentencing principles including general deterrence, specific deterrence, just punishment, denunciation, community protection and totality. He further contended that the judge had regard to all of the relevant circumstances of the case in determining the appropriate sentence.
According to the respondent, the judge gave careful consideration to all of the factors in aggravation and mitigation. He contended that commission of the offending in company and carrying the firearm constituted elements of the offence of home invasion as pleaded[13] and cannot be said to be aggravating features.
[13]Charge 2 was pleaded as follows in the indictment:
The Director of Public Prosecutions charges that WOL WOL at Leopold in Victoria on the 2nd day of November 2017 entered as a trespasser a home situated at … with intent to steal therein and at the time was in company of unknown others and had with him a firearm and knew or was reckless as to whether there was or would be another person present in the home while WOL WOL was present in the home, and DALE MARK MCDONALD, TRACEY MCDONALD and BROCK MCDONALD were then present in the home.
The respondent submitted that the judge gave appropriate weight to the respondent’s age, the fact that this was his first time in adult custody and Mr Coffey’s assessment that he had limited cognitive abilities. The respondent relied on Mr Coffey’s opinion about the role of his immaturity and drug use in his offending and emphasised that he was not someone that did not have any prospects of rehabilitation.
The respondent contended that in his sentencing remarks, the judge acknowledged the maximum penalties and that reducing the sentences to percentages of the maximum penalty available is of little assistance to the Court.
Decision
In our opinion, the ground of appeal is made out.
The offending the subject of the aggravated home invasion charge was particularly egregious having regard to the following features:
(a)The offending was planned. The victims’ home was deliberately targeted in order to steal from it a vehicle of a particular model which the respondent desired to possess.
(b)The offenders wore disguises.
(c)The home was entered in a violent manner by breaking down the front door at around 1:50 am.
(d)The respondent entered the home accompanied by two other offenders.
(e)At the time of entry, the respondent knew that there was at least one occupant in the home.
(f)The respondent took into the home a loaded firearm and carried it with him throughout the entire period that he was there.
(g)The respondent confronted two of the victims and he threatened them by pointing the firearm at them, resulting in a terrifying experience for them in their own home.
(h)Although the respondent’s presence in the victims’ home was brief, it cannot be described as fleeting.
We accept the respondent’s submission that some of the above features — namely his intention to steal, his entry in company, his possession of the firearm and his state of mind regarding the presence of the victims — form part of the elements of the offence. As such, they cannot be described as aggravating factors that are additional to the offence. Further, as possession of the firearm and its discharge in the presence of Mr McDonald are the subject of charges 1 and 3 respectively, those acts cannot be regarded as aggravating features. Nevertheless, the manner in which the offence was committed and those features set out in [59] above which constitute aggravating factors that are additional to the offence, more than justify the offending being described as a grave example of the offence of aggravated home invasion. This description is amply supported by the terrifying images and the victims’ hysterical screams that were captured on the CCTV footage.
The respondent’s moral culpability was very high. He deliberately targeted the victims’ property and violated their entitlement to feel safe in their own home purely because they possessed something he wanted. He was so focused on his selfish quest to take and treat as his own the victims’ vehicle that he was callously indifferent to the rights of the victims. His conduct was brazen and left the victims terrified and fearing for their lives.
In these circumstances, denunciation, protection of the community and general deterrence were paramount sentencing considerations.
We accept that the respondent was entitled to moderation of his sentence due to his plea of guilty and youth. However, the weight to be given to rehabilitation on account of the respondent’s age was diminished due to the gravity of his offending and the need to protect the community.
The respondent was not able to call in aid any other significant mitigating factors. His extensive criminal history, including for eight charges of aggravated burglary and four charges of armed robbery, and the fact that he was on youth parole when he offended meant that specific deterrence was an important sentencing consideration. There was no evidence that the respondent was remorseful other than what may be inferred from his plea of guilty. He had not been deterred by previous sentencing dispositions by the Children’s Court. Also, although he has not served a custodial sentence in an adult prison prior to the current offending and has undertaken various courses while on remand, the judge was justifiably ‘guarded’ about his prospects of rehabilitation. The evidence before the judge was not capable of engendering any real confidence that the respondent would change his ways as he grew older.
The seriousness of the offence of aggravated home invasion is reflected in the maximum penalty of 25 years’ imprisonment. The sentence of 4 years and 6 months’ imprisonment for charge 2 fails to have sufficient regard to the maximum penalty and does not properly reflect the gravity of the respondent’s offending, his very high moral culpability and the impact on the victims.
The sentence is also inconsistent with current sentencing practices.
The recent case of Director of Public Prosecutions v O’Brien[14] is instructive. It involved the 36 year old offender, O’Brien, and a co-offender smashing their way into a home using a large sledgehammer carried by O’Brien at approximately 10:00 pm on 7 July 2018. The co-offender was armed with a firearm. The offenders wore masks and their intention was to intimidate the female occupant. They demanded that she hand over methylamphetamine and cash. The co-offender sought to steal the female occupant’s motorcycle and pointed the firearm at her when she intervened. The offenders left the house when the female occupant’s partner arrived. At that time, O’Brien was carrying both the sledgehammer and the firearm.
[14][2019] VSCA 254 (‘O’Brien’).
O’Brien pleaded guilty and was sentenced to 20 months’ imprisonment and a community correction order for 2 years for the offence of home invasion.[15] He was also sentenced to 2 months’ imprisonment for possession of the firearm and 1 month’s imprisonment for unlawful assault, both to be served concurrently with the sentence for the home invasion offence.
[15]O’Brien was charged with the offence of home invasion rather than aggravated home invasion because one of the requirements for the latter offence — namely that the offender and at least two co-offenders enter a home as trespassers — was not satisfied.
This Court upheld the Director’s appeal on the ground of manifest inadequacy. It held that the sentence for the home invasion offence was not a proportionate response to the ‘grave offending’ and that the judge must have accorded inadequate weight to the objective gravity of the offending, the need for general and specific deterrence and the need to denounce conduct constituting that offence.[16] The Court described the home invasion as ‘very nasty’ and ‘egregious’ and said that O’Brien was ‘the leader of the violent attack on the house, using a sledgehammer in attempting first to break down the front door and then in smashing windows, before terrorising those inside’.[17] The Court resentenced O’Brien to 6 years’ imprisonment for the home invasion offence. The sentences for the other offences and the orders for concurrency were affirmed. A non-parole period of 3 years and 6 months was fixed.
[16]O’Brien [2019] VSCA 254 [36]–[37].
[17]O’Brien [2019] VSCA 254 [5], [37].
The Court acknowledged the following mitigating factors: O’Brien’s guilty plea was entered at an early stage; he had no relevant prior convictions; he had a solid work and family history; he assisted the authorities by making a statement; he had strong prospects of rehabilitation; and he suffered from an adjustment disorder with mixed anxiety and depressed mood which would make any prison sentence more burdensome. The Court stated that these mitigating factors led it to impose a lower head sentence and minimum term than it would otherwise have imposed.
The offending in the present case also involved disguised offenders who smashed their way into a home. The respondent’s offending was more serious than that of O’Brien because the respondent was armed with a firearm, which he discharged inside the house in the presence of the occupants. As in O’Brien, the offenders terrorised the occupants. The mitigating factors upon which the respondent was able to call in aid were not as extensive as those of O’Brien. The main factor in the respondent’s favour was that, unlike O’Brien, he was a youthful offender. However, for the reasons we have already discussed, the gravity of the offending diminished the weight to be given to his youth. It follows that a higher sentence is warranted in the case of the respondent compared to that of O’Brien.
The Court in O’Brien stated that, as the new offence of home invasion[18] was a form of aggravated burglary, sentences for the latter offence remain directly relevant to sentencing for the new offence.[19] The Court stated that ‘[a]n examination of the sentences imposed in recent times for “confrontational aggravated burglary” demonstrates that much higher sentences of imprisonment than was imposed in this case are regularly imposed — often higher by a factor of three or even four’.[20]
[18]The offence was created in 2016. The background to the offence is briefly discussed in O’Brien [2019] VSCA 254 [2]–[3].
[19]O’Brien [2019] VSCA 254 [4].
[20]O’Brien [2019] VSCA 254 [38] (emphasis added).
The parties in the present case also made submissions on this Court’s decision in Sikoulabout v The Queen,[21] which dealt with an offender’s appeal against sentence in respect of two charges of aggravated home invasion, and other charges, to which he had pleaded guilty. However, as the circumstances of the aggravated home invasion offences in that case were very different to those in the present case, the sentences of 7 and 8 years’ imprisonment, respectively, for those offences are of no assistance.
[21][2018] VSCA 268.
It follows from the above discussion that the sentence for charge 2 is wholly outside the range of sentencing options reasonably open to the judge.
The sentence of 12 months’ imprisonment for charge 1 is lenient having regard to the maximum penalty of 10 years. However, as there is some overlap between this offence and the aggravated home invasion offence, we are not satisfied that that sentence or the cumulation of 4 months are manifestly inadequate.
The offending the subject of charge 3 was constituted by the respondent discharging the firearm in the presence of Mr McDonald. This was a serious example of the offence of common assault. The discharge of the firearm in the McDonalds’ home at night in the dynamic situation that was created by the respondent and his co-offenders exposed Mr McDonald to a risk of death or serious injury. In our opinion, the sentence of 9 months’ imprisonment does not properly reflect the seriousness of the offending or have sufficient regard for the maximum penalty of 5 years’ imprisonment. Likewise, the order for cumulation of 3 months in respect of that sentence fails to adequately reflect the separate criminality that the discharge of the firearm involved. It follows that we are satisfied that the sentence and the order for cumulation are outside the range of sentencing options reasonably open to the judge.
For the above reasons, we are satisfied that the sentencing discretion seriously miscarried in relation to charges 2 and 3 and the order for cumulation in relation to charge 3. Those sentences and order for cumulation are so disproportionate to the seriousness of the respondent’s offending that they bespeak of error in principle in the exercise of that discretion. In these circumstances, the sentences and order for cumulation cannot be allowed to stand. Accordingly, we are satisfied that this is not an appropriate case for the exercise of the Court’s residual discretion to dismiss the appeal.[22]
[22]See DPP v Karazisis (2010) 31 VR 634, 658–60 [103]–[115]; Green v The Queen (2011) 244 CLR 462, 477–80 [36]–[44]; DPP v Arthur [2018] VSCA 37 [69].
The appeal will be allowed and the respondent will be resentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Prohibited person possessing firearm 10 years 12 months 4 months 2 Aggravated home invasion 25 years 6 years, 6 months Base 3 Common assault 5 years 18 months 6 months 4 Conspiracy to steal 10 years 4 months 2 months Total effective sentence: 7 years, 6 months’ imprisonment Non parole period: 5 years, 3 months
In our opinion, the significantly higher sentences and non-parole period in the above table are necessary to fully reflect the gravity of the respondent’s offending, his high moral culpability and the need to protect the community and deter the respondent, his co-offenders and others in the community who may be minded to commit this type of abhorrent offending. This is particularly so in relation to the offence of aggravated home invasion which strikes fear into law abiding citizens who are entitled to feel safe in their own homes. As the sentence of 6 years and 6 months’ imprisonment we have imposed on the respondent demonstrates, those who contemplate committing the offence of aggravated home invasion will forfeit their right to live freely in the community for a very long time if they are caught.
Pursuant to s 6AAA of the Sentencing Act 1991 a declaration will be made that, but for the respondent’s plea of guilty, we would have sentenced him to a total effective sentence of 10 years and 6 months’ imprisonment with a non-parole period of 7 years and 6 months.
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