Elton Corbitt (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0002

ELTON CORBITT (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2025
DATE OF JUDGMENT:	11 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 73
JUDGMENT APPEALED FROM:	[2023] VCC 2416 (Judge Moglia)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to family violence offences – Applicant pleaded guilty on second indictment to home invasion, causing injury intentionally and theft – Sentenced on causing injury intentionally to one year and ten months’ imprisonment – Sentenced on second indictment to total effective sentence of five years and 1 months’ imprisonment – Whether judge erred as to factual basis of offence of causing injury intentionally – Whether judge erred as to assessment of applicant’s moral culpability for same – Whether sentences imposed on second indictment are manifestly excessive – Judge made no error – Sentences not manifestly excessive – Application for leave to appeal refused.

R v Miller [1995] 2 VR 348; Berichon v The Queen (2013) 40 VR 490 referrred to.

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Counsel
Applicants:		Mr C Mylonas
Respondent:		Mr R Gibson KC
Solicitors
Applicants:	RLG Legal & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA:

The applicant pleaded guilty to numerous offences across two indictments. Following a plea hearing on 17 October 2023, he was sentenced on 8 December 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation	Cumulation on global base sentence
Indictment N11430788
1	Contravention of order intending to cause harm or fear for safety[1]	5 years’ imprisonment and/or 600 penalty units	12 months	4 months	10 months
2	Causing injury recklessly[2]	5 years’ imprisonment	12 months	4 months
3	Contravention of order intending to cause harm or fear for safety[3]	5 years’ imprisonment and/or 600 penalty units	18 months	Base
4	Common Assault[4]	3 months’ imprisonment or 15 penalty units
5	Causing injury intentionally[5]	10 years
6	Contravention of order intending to cause harm or fear for safety[6]	5 years’ imprisonment and/or 600 penalty units	10 months	3 months
7	Causing injury recklessly[7]	5 years	10 months	3 months
8	Contravention of order intending to cause harm or fear for safety[8]	5 years’ imprisonment and/or 600 penalty units	2 months	Nil
9	Common Assault[9]		2 months	Nil
10	Make threat to kill[10]	10 years	3 months	Nil
11	Contravention of order intending to cause harm or fear for safety[11]	5 years’ imprisonment and/or 600 penalty units	8 months	Nil
Total Effective Sentence on Indictment		2 years 1 month			–
Indictment C2215510
1	Home invasion[12]	25 years	4 years 3 months	Base	–
2	Causing injury intentionally[13]	10 years	1 year 10 months	7 months	–
5	Theft[14]	10 years	6 months	Nil	–
6	Theft[15]	10 years	8 months	3 months	–
Total Effective Sentence on Indictment		5 years 1 month			Global base sentence
Related summary charge
27	Contravention of order intending to cause harm or fear for safety[16]	5 years’ imprisonment and/or 600 penalty units	2 months	Nil	Nil
Total Effective Sentence:		5 years 11 months
Non-Parole Period:		3 years 5 months
Pre-sentence Detention Declared:		270 days
Section 6AAA Statement:		Total Effective Sentence 7 years 9 months Non Parole-Period 4 years 9 months
Other Relevant Orders: 1. All Victorian licences and/or permits held by the offender be cancelled and the offender be disqualified from obtaining any such licence or permit for a period of 3 month/s from 08/12/2023.

[1]Contrary to s 123A of the Family Violence Protection Act 2008.

[2]Contrary to s 18 of the Crimes Act 1958.

[3]Contrary to s 123A of the Family Violence Protection Act 2008.

[4]Contrary to Common Law.

[5]Contrary to s 18 of the Crimes Act 1958.

[6]Contrary to s 123A of the Family Violence Protection Act 2008.

[7]Contrary to s 18 of the Crimes Act 1958.

[8]Contrary to s 123A of the Family Violence Protection Act 2008.

[9]Contrary to Common Law.

[10]Contrary to s 20 of the Crimes Act 1958.

[11]Contrary to s 123A of the Family Violence Protection Act 2008.

[12]Contrary to s 77A of the Crimes Act 1958.

[13]Contrary to s 18 of the Crimes Act 1958.

[14]Contrary to s 74(1) of the Crimes Act 1958.

[15]Contrary to s 74(1) of the Crimes Act 1958.

[16]Contrary to s 123A of the Family Violence Protection Act 2008.

The applicant now seeks leave to appeal against sentence on the following grounds
(1)The learned judge erred in determining the factual basis upon which to sentence on the second indictment.
(2)The learned judge erred in his assessment of the culpability of the applicants (sic) conduct in the home invasion.
(3)The learned judge erred in imposing a sentence that was manifestly excessive.
For the reasons that follow we would refuse leave to appeal.

The offending

While the proposed grounds of appeal concern the second indictment only, it is convenient to summarise all of the offending for which the applicant fell to be sentenced by the judge.

Indictment N11430788 (‘first indictment’)

The first indictment concerned offending against Paige Minnick.[17] The applicant and Ms Minnick had been in a relationship for some months.
[17]A pseudonym.
On 16 October 2021 the applicant received a custodial sentence for offences relating to the assault and injury of Ms Minnick. He was released from custody in November 2021. By Christmas 2021 the applicant was living with Ms Minnick and her two children.
A Family Violence Intervention Order (‘FVIO’) was issued on 28 February 2022. It was served on the applicant by police on 3 April 2022. Thereafter, in breach of the FVIO, the applicant committed acts of violence against Ms Minnick.
In early May 2022 the applicant and Ms Minnick were walking home together when a heated argument developed. The applicant punched her in the face. Ms Minnick suffered a fractured jaw. Fearful of the applicant and in extreme pain, she avoided medical treatment (charges 1 and 2).
On 5 June 2022 during an argument at home, Ms Minnick ran outside in fear. The applicant followed her, picked up a metal chair and threw it at her. The chair hit Ms Minnick, causing pain to her back and ribs. Ms Minnick retreated but the applicant followed and punched her, causing three broken ribs (charges 3 and 5). The applicant also picked up a wheelie bin and threatened to throw it at Ms Minnick. He further grabbed her by the hair at the back of her head and dragged her inside (charge 4).
On a date between 20 June 2022 and 5 July 2022 the applicant corned Ms Minnick in the kitchen before punching her in the face, causing bruising, swelling and soreness (charges 6 and 7).
On 29 June 2022 the applicant had an argument with visitors out the front of the house. He punched a panel on a vehicle and, on returning to the house, lunged at Ms Minnick while drawing back his fist. Ms Minnick cowered in fear (charges 8 and 9).
Between 1 June 2022 and 5 July 2022 the applicant, while holding a knife, threatened to kill Ms Minnick (charge 10). He also choked her to the point where her eyes rolled back and her vision went dark (charge 11). The applicant further tormented, manipulated and controlled her, making her fearful and isolated (summary charge 27).
On 5 July 2022 Ms Minnick went to police after her sister had contacted them on her behalf. She presented with evident bruising, swelling and soreness. The following day police took Ms Minnick to hospital where she was treated for injuries caused by the applicant, namely a fractured jaw, misaligned teeth and three fractured ribs.

Indictment C2215510.1 (‘second indictment’)

The second indictment offending involved three co-offenders – Todd Mitchell, Adam Taylor and Paul Smith. The victim was Aaron Hunt. Taylor and Smith had known Mr Hunt for some ten to 15 years. The applicant and Mitchell had no association with him.
In early 2020 Smith and Mr Hunt purchased a vehicle and agreed to complete the necessary work to make it roadworthy. Smith gave Mr Hunt $500 to purchase the parts. Mr Hunt did so. Thereafter no work was ever done on the vehicle.
About six months later Smith demanded Mr Hunt return the $500. Mr Hunt said that he could not, as it had been expended on parts. Smith bad-mouthed and threatened Mr Hunt, who then cut all communication with him.
On 4 July 2022 Smith, Taylor and Mitchell attended the address of the applicant’s then partner (not Ms Minnick). They discussed a plan to attend Mr Hunt’s address to collect the debt allegedly owed to Smith that evening. As part of an effort to conceal their identity, Mitchell and the applicant changed their clothes and the applicant gave Taylor a clown mask to wear.
The offenders approached Mr Hunt’s home at about 10.15 pm. Parts of the incident were captured on CCTV footage.
Smith, who was unmasked, kicked open the front door. The applicant and Mitchell, both wearing masks, ran towards Mr Hunt (charge 1). Taylor, wearing the clown mask, entered later.
The applicant, Smith and Mitchell pushed Mr Hunt into a hallway before punching him to the head and face while demanding his keys, money and phone. One of the offenders hit Mr Hunt several times to the head with a baseball bat. Mr Hunt suffered substantial pain and numerous injuries including a bloody nose, cuts and significant bruising to the eyes (charge 2). During the incident Mr Hunt’s phone and wallet were taken from him.
The applicant grabbed a cap gun, Mitchell grabbed a fishing knife and Smith grabbed a claw hammer from inside the house. Together they threatened to kill Mr Hunt and searched the house for items to steal. The applicant filled a suitcase with various household items including electronics and a hunting kit, along with money. Smith loaded the suitcase into a blue Holden owned by Mr Hunt that was parked in the driveway. Other household items were carried away on foot by Taylor. Mitchell held the knife to Mr Hunt and made him help the applicant start other vehicles parked at the property. Smith drove away in the blue Holden (charge 5). The applicant and Mitchell drove away in a black Holden owned by Mr Hunt that was parked in the yard (charge 6).

Sentencing Reasons[18]

[18]DPP v Elton Corbitt (A Pseudonym) [2023] VCC 2416 (‘Reasons’).

The judge commenced his Reasons by summarising the offending, explicitly noting in relation to each indictment that the filed prosecution opening was the agreed basis of the applicant’s plea.[19]
[19]Reasons, [4], [15].
Next, in detailing the procedural history, the judge noted that the applicant was arrested and interviewed about both sets of offences on 9 July 2022. With respect to the first indictment the judge said that in his police interview the applicant ‘gave an accurate account in some answers and a mixture of half-truths and lies in others’.[20] The applicant said that Ms Minnick’s black eye was caused by a fight with another girl and her sore ribs were occasioned by being kicked by a sheep she was shearing. With respect to the second indictment the judge said that the applicant ‘minimised if not denied’[21] any role in the home invasion and assault, telling police that the whole incident was Smith’s doing. The judge noted that the applicant admitted to the theft of the black Holden.
[20]Reasons, [29].
[21]Reasons, [30].
The judge accepted that by his pleas of guilty the applicant had accepted responsibility for his offending, demonstrated a willingness to facilitate the course of justice and, to some extent, expressed remorse.
The following matters personal to the applicant were then detailed by the judge.
The applicant grew up in regional New South Wales. He lived with his parents until he was aged five years. His father abused alcohol. His mother was addicted to drugs. There was violence in the home. From about the age of seven years the applicant resided with his father and stepmother. Again there was violence in the home. At the age of 18 years the applicant returned to live with his mother.
At that age the applicant began to smoke methylamphetamine. This drug use cruelled a potential career playing rugby with a major New South Wales team. By the age of 25 years the applicant was regularly injecting ice. In this context, the applicant has a relevant and ‘moderately serious’[22] criminal history. A report by Bernard Healey, psychologist, described the applicant’s drug use at the time of the offending as at a disordered level and probably causative of psychotic symptoms and acute feelings of worthlessness and apathy. Mr Healy found the applicant to have an intellect in the high average range.
[22]Reasons, [39].
During the period of his remand from July 2022, the applicant completed a number of courses, including with respect to drug rehabilitation. Mr Healey reported that the applicant’s abstinence from drugs in custody had resulted in a significant reduction in his depressive and psychotic symptoms. The judge accepted that the applicant had made concerted efforts towards his rehabilitation.
In April 2023 the applicant was stabbed and admitted to a prison emergency ward for two days. Mr Healey said that this incident had left the applicant with symptoms of Post Traumatic Stress Disorder.
Turning to the sentencing exercise, the judge noted the relevant maximum penalties and that the offence of home invasion was a category 2 offence under the Sentencing Act1991. The judge described the seriousness of the offending on each indictment. With respect to the home invasion the judge said
Home invasion attracts a high maximum penalty, consistent with its seriousness. Violently breaking into a person’s home, in company with others, late at night, knowing he would be there, intending to confront him and intent on taking valuables from him under threat is just terrifying. Doing so breaches a fundamental value in our community, that we are all entitled to be and feel safe in our homes.
As to your role, you have admitted that you took part in the discussion when the plan was hatched to attack and steal from Mr Hunt. During the incident you wielded a cap gun to threaten him. I regard your moral culpability to be moderate to high in all the circumstances.[23]
[23]Reasons, [50]–[51].
The judge emphasised denunciation, just punishment and general deterrence as sentencing principles. Specific deterrence and protection of the community were accorded some weight.
The applicant’s prospects for rehabilitation were said to be ‘somewhat guarded’[24] in light of his significant history of ice use. The judge accepted, however, that the efforts made and insight gained by the applicant towards and about his drug usage, together with certain protective factors identified by Mr Healey and a letter of apology authored by the applicant, meant that, ultimately, the applicant’s prospects for rehabilitation were reasonable.
[24]Reasons, [53].
The judge said he would order a degree of concurrency with respect to each indictment. The offending relevant to the first indictment was noted to have common features. That relevant to the second indictment was noted to be part of a single episode. The judge accepted the prosecution submission that a term of imprisonment attracting a parole period was necessary in all the circumstances. Given the applicant’s culpability, his joint offending with Mitchell and their similar criminal histories, the judge said that the applicant would receive the same sentence as Mitchell. Finally, the judge said that considering the principle of totality, he would adjust the orders for cumulation to reflect that during the period of remand the applicant had served a sentence of nine months’ imprisonment.

Applicant’s contentions

Ground 1 – factual basis of second indictment

The applicant contends in his written case that the factual basis upon which the judge sentenced the applicant for the offending relevant to the second indictment was incorrect. In particular, it is asserted that he did not enter the house when Smith kicked down the door and did not actively participate in the assault on Mr Hunt. These assertions, it is said, were made by the applicant in his record of interview and pressed at the plea hearing, both in writing and orally. Accordingly, it is argued that it was not open to the judge to sentence on the basis of the prosecution opening.
At the hearing of the application this ground was confined to issue of the applicant’s participation in the assault.

Ground 2 – assessment of culpability in the home invasion

In his written case the applicant argues that the judge made four errors, with respect to the applicant’s conduct in the home invasion, relevant to the assessment of his culpability for it.
First, the judge made several errors of fact. These were the failure to find:
(a)That before the meeting at his house immediately prior to the offending, the applicant had refused to be involved on several occasions. His ultimate agreement ‘to attend’ was given whilst he was intoxicated with drugs. It is argued that this discloses that the applicant only reluctantly participated.
(b)The applicant was present at, but did not enter, the house.
(c)The applicant’s use of a mask is equally explicable by his understanding that he should not have attended the premises as it was as an attempt to conceal his identity as a participant in the offending.
(d)The applicant lacked a motive for the offending.
Second, the judge erred in comparing the applicant’s conduct with that of Mitchell. In particular:
(a)Unlike the applicant, Mitchell did enter the premises with Smith.
(b)Mitchell was captured on CCTV footage threatening Hunt with a knife in the backyard.
(c)Unlike the applicant who made ‘clear admissions’ in his interview ‘subject to his memory constraints’, Mitchell denied his involvement and gave a no comment interview.
Third, it follows that the judge erred in determining that the applicant’s offending was as serious as that of Mitchell.
Fourth, the judge erred in his assessment of victim impact. Given that Mr Hunt made no Victim Impact Statement, it is argued that the judge impermissibly speculated as to the impact of the crime upon him. In particular, Mr Hunt was not ‘a general member of society’. Rather, he was known to Smith and Taylor and had been in a business arrangement with Smith. Further, in his interview the applicant said that after the assault Mr Hunt and Smith cried together, embraced and then forgave each other.

Ground 3 – manifest excess

The applicant contends that the individual sentences and the total effective sentence imposed with respect to the second indictment were manifestly excessive. He relies upon the specific errors alleged under grounds 1 and 2 as particulars of this ground.

Respondent’s contentions

Ground 1 – factual basis of second indictment

The respondent submits that the prosecution opening summarised the factual basis of the offending as agreed between the parties. The status of that document as containing the agreed facts was confirmed by the applicant’s counsel in written submissions and twice during the plea hearing.
The prosecution opening stated that the applicant entered Mr Hunt’s home with his co-offenders and ran towards Mr Hunt, and also that ‘three offenders’ assaulted Mr Hunt. The document erroneously identified the three offenders who assaulted Mr Hunt as Smith, Mitchell and Taylor. The agreement between the parties was that it was Smith, Mitchel and the applicant. Notwithstanding this error, the judge sentenced on the correct, agreed factual basis.

The respondent submits that during the course of the plea hearing the applicant’s counsel specifically disavowed submissions that contradicted the agreed factual basis of the plea. Further, the judge was not invited to regard the applicant’s statements during his police interview in which he denied entering the building and assaulting Mr Hunt as truthful in contradistinction to the demonstrably false statements made by him about other issues.
Finally, the respondent submits that even if the judge erred as to the factual matters identified by the applicant, no different sentence should be imposed.

Ground 2 – assessment of culpability in the home invasion

The respondent contends that the judge’s conclusion that the applicant’s culpability was ‘moderate to high in all the circumstances’ was correct.
First, the judge made no error in determining the facts. In addition to the matters advanced under ground 1, the respondent submits that during the plea hearing the applicant’s counsel abandoned submissions that the applicant had resisted previous recruitment attempts and was drug affected at the relevant time. The respondent argues that even if there had been evidence of either of these matters, they would not have mitigated the applicant’s moral culpability. Further, the judge’s view that the applicant used a mask in an attempt to conceal his identity during the offending was orthodox. The respondent submits that this was a matter aggravating the applicant’s culpability. And, it is contended, the applicant’s motive to assist his co-offender in confronting Mr Hunt in his home and forcibly taking property from him was clear. The absence of a personal or commercial motivation does not mitigate his culpability.
Second, the respondent contends that the judge did not err in comparing the applicant’s conduct with that of Mitchell. Both had been involved in planning the home invasion, entered the house with Smith, behaved violently towards Mr Hunt and carried a weapon. In so far as the interviews are relevant to the issue, the respondent notes that while Mitchell gave a no comment interview, the applicant did not offer a full account of his offending. Further, the applicant’s counsel made no submissions as to parity during the plea hearing.
Third, the respondent contends that in the absence of a victim impact statement the judge was entitled to draw reasonable inferences from the evidence as to the injury suffered by Mr Hunt. Further, it is submitted that authority does not support the proposition that a confrontational home invasion committed by a known person with an identified grievance has less impact on a victim than one committed by a stranger.

Ground 3 – manifest excess

The respondent submits that neither the individual sentences nor the total effective sentence imposed on the second indictment were affected by error. Further, given the seriousness of the offending and the limited matters available to the applicant in mitigation of sentence, the sentence imposed was well within the range open to the judge in the sound exercise of his sentencing discretion.

Consideration

Ground 1 – factual basis of second indictment.

Ground 1 is entirely devoid of merit.
It is clear from the transcript of the plea hearing that counsel for the applicant told the judge on the first day of the plea hearing that it was ‘not correct’ that the applicant did not enter the house and did not participate in the assault on Mr Hunt, as had been submitted in written defence submissions before the plea. Counsel told the judge that he should not rely upon those submissions. Having repudiated those assertions and disavowed any reliance upon them counsel contends, in his written case before this Court, that not only were those assertions were made in writing before the judge but both were also made from the Bar table. This, it is argued, in combination with the applicant’s responses in the police interview
at the very least put the court on notice that there was a potential doubt about the account in the prosecution opening.
At the hearing of this application counsel argued that while before the sentencing judge he abandoned the prior submission that the applicant did not enter the house, the judge was in error in his conclusion that he had also abandonded the submission that the applicant did not participate in the assault. Further, counsel submitted that the Summary of Prosecution Opening, which was the agreed factual basis, did not state that the applicant participated in the assault.
It is necessary to detail the following procedural history.
During the interview with police on 9 July 2022 the applicant initially denied any involvement in the second indictment offending. He then admitted to entering Mr Hunt’s house but denied assaulting him.
In his Reasons, the judge noted that the applicant ‘settled the charges’ relevant to the second indictment following a case conference before him on 15 June 2023.
The Summary of Prosecution Opening relevant to the second indictment was filed on 12 October 2023. The relevant part of it is in the following terms:
15. … SMITH, [the applicant] and MITCHELL park near HUNT’s address and proceed to the home on foot, arriving at approximately 10:10 pm. TAYLOR arrives a couple of minutes later. Parts of the incident that follows at HUNT’s address are captured on CCTV.
Offending
16. SMITH kicks open the front door, which is locked at the time, and with [the applicant] and MITCHELL enters the home and runs towards HUNT. (Charge 1: Home Invasion) HUNT has just walked out of the bathroom and is walking back to the loungeroom at the front of the home. SMITH is unmasked; [the applicant] and MITCHELL are wearing face coverings. TAYLOR enters wearing a clown mask.
17. SMITH, MITCHELL and TAYLOR[25] then push HUNT back into the hallway leading into the bedrooms and begin to punch him with their fists to the head and face region (Charge 2: Causing injury intentionally) The three men yell “give me your keys, give me your money, give me your phone” and “where’s your keys, I’m taking your car.”
18. One of the males grabs a baseball bat from near the front door and hits HUNT over the head several times. MITCHELL grabs a fishing knife and [the applicant] grabs a ‘cap gun’, both located inside HUNT’s home. SMITH grabs a claw hammer from within the house and says, “I’ll fucking smash you” and “I will kill you, I will shoot ya,” before opening various cupboards looking for items to steal.[26]
[25]The name of Taylor in this paragraph is the point of contention.
[26]Footnotes omitted. Emphasis added.
On 16 October 2023 the applicant filed an Outline of Submissions on Plea. The relevant part of the document was in the following terms:
Context & Gravity of the Offending
6. The nature and circumstances of the offending is set out in detail in the Prosecution Summary in each presentment. In sentencing your Honour will need to arrive at some assessment of the level of criminality for which the accused must be sentenced In this respect the following submissions are made:
a.       In relation to [the second indictment] the accused instructs:
i.        That a request was made by Smith for [the applicant] to assist him in the retrieval of what the accused was lead to believe were Smiths (sic) cars, on two previous occasions and both times he had declined to assist;
ii.       On the 3^rd occasion the request was made in circumstances of
1.       The accused had just returned from work;
2.       He had not slept for four days at due (sic) to a high level of intake of ice;
3.       He was under the influence of ice due to recent consumption;
it was in this context that he agreed to go with him;
iii.      The home invasion was certainly confrontational however the accused’s role in this was Accessorial and was merely present outside;
iv.      He has pleaded to a recklessly cause injury on an accessorial basis as he did not touch Hunt but admits his presence outside;
v.       Finally although there were two cars taken clearly the accused could only have driven one which He remembers to be the older one furthermore his memory which is a little bit hazy as a result of the drugs was that he was the passenger when they left the house. His participation extended to starting the two vehicles:
vi.      The accused made no personal financial gain from the activity
At the commencement of the plea hearing on 17 October 2023 – being a joint hearing with Mitchell – the judge commenced with the second indictment and invited the prosecutor to read to the court the joint summary after first asking counsel for both the applicant and Mitchell if it was an agreed document. Both counsel said it was. The prosecutor then did so.
When the applicant’s counsel later commenced his submissions, he indicated that he would commence with the context and gravity of the second indictment offending. The judge said that the prosecution opening was an agreed summary. Counsel said it was but he sought to make a number of points, being those identified in paragraph 6. a. i. and ii. of the Outline of Submissions on Plea document extracted in [58] above (considered under ground 2 below). Counsel then referred to Mr Healey’s report and made submissions about the applicant’s prior convictions.
The following exchange then occurred.
COUNSEL:    … Your Honour, there was one other matter that I wanted to correct. Now, in my written submissions in relation to context and gravity I’ve referred to the matters relating to the [second indictment] as being a recklessly cause injury and that is incorrect. It’s not a recklessly cause injury, I ---
HIS HONOUR:        The plea was to intentional.
COUNSEL:    I’ve misread it, yes. And the other aspect is that he was not a mere bystander but it’s admitted that he did assault Hunt. Now in relation to ---
HIS HONOUR:        The Crown opening’s accepted, I understand that, and part of that opening indicated what [the applicant] said in his interview.
COUNSEL:             Yes.
HIS HONOUR:        Including effectively my summary is that he did go inside and he was involved in matters inside and involved in the taking of the cars.
COUNSEL:             Yes.
HIS HONOUR:        And so what you’ve set out there in p 3 of your submissions in terms of merely being present outside ---
COUNSEL:             That’s not correct.
HIS HONOUR:         --- and not participating et cetera is not something I should rely on.
COUNSEL:             No. No, Your Honour.
Counsel argued to this Court that his exchange with the judge was a submission to the effect that the applicant admitted entering the premises but maintained his denial that he participated in the assault on Mr Hunt. That is, the statement that ‘he was not a mere bystander but it’s admitted that he did assault Hunt’ was to be understood as an admission to accessorial liability only vis-à-vis the assault. If that was counsel’s intention, the submission should have been much more explicit.
That the judge understood counsel to withdraw the written submission in its entirety is clear from his statement that ‘he did go inside and he was involved in matters inside and involved in the taking of the cars’. The applicant was ‘involved’ in taking of the cars by starting them and driving one away. The judge was clearly expressing his understanding that the applicant was personally ‘involved’ in the entirety of the offending. In those circumstances, counsel had an obligation to correct the judge and make his argument transparent but, relevantly, he did not do so.
Further, the reference to Taylor in paragraph [17] of the Summary of Prosecution Opening is clearly an error. The sentence should have read ‘SMITH, MITCHELL and [the applicant] …’. This is plain from reading that paragraph in context of those that surround it.
In short, counsel for the applicant could not have misunderstood the basis upon which the prosecution said that the applicant fell to be sentenced on charge 2 of the second indictment and what, therefore, both counsel said was an agreed basis for the plea. Counsel did not make the differential submission with respect to charge 2 as to accessorial liability that, he argues, he maintained. In the face of the clear meaning of counsel’s words and the judge’s articulated understanding of them there is no basis for counsel to now submit to this Court that he ‘trusted the judge to discern the facts appropriately’.
In this regard we note that in this Court (albeit with respect to proposed ground 2) counsel asserts in his written case that the applicant did not enter the house. Not only is that inconsistent with the admission made by the applicant in the record of interview, it is contrary to the concession made before the judge and the position assumed by counsel at the hearing of this application.
To the extent that the applicant’s answers to questions in the record of interview have any relevance to the judge’s understanding as to the agreed facts, the judge was correct to conclude that the applicant had ‘minimised if not denied’ his role. The record of interview is replete with demonstrable lies.
Accordingly, we conclude that the judge did not err in the manner alleged.
For the sake of completeness we note that even if the judge did do so, that error would only affect charge 2. The sentence of one year and 10 months’ imprisonment imposed for that offence together with the order for seven months of that sentence to be served cumulatively on the sentence for charge 1 would, in that event, remain modest such that no different sentence should be imposed.
Ground 1 cannot succeed.

Ground 2 – assessment of culpability in the home invasion

To the extent that ground 2 relies upon any matters considered under ground 1 it cannot succeed.
As to the remaining ‘errors of fact’ contended for by the applicant, we turn first to the argument that the applicant was a reluctant participant. The following exchange at the plea hearing is relevant.
COUNSEL:    … my instructions are that [the applicant] was approached to assist Mr Smith on a number of occasions, on two previous occasions, which he declined. And on the third occasion he was under the influence of ice. He had since come home from work, he hadn’t slept for four days and in a moment of – well, in a moment that he would regret he agreed on the third occasion. Now, that’s not to cut across the plea. The plea is being – now, in my submissions I did make some ----
HIS HONOUR:        I might rather clarify there.
COUNSEL              Yes.
HIS HONOUR:        If it was suggested that the planning of this enterprise was not just on the day that the prosecution alleges but rather spanned a time period that includes two previous days when there was discussion and an attempt to go there, that might rather increase the seriousness of this planning. Now, the prosecution haven’t alleged prior days when there’s discussion, it’s just on this one day; I take it you’re not suggesting that the planning of this incident was longer and more detailed?
COUNSEL:             No, Your Honour
HIS HONOUR:        Alright. So what’s prosecuted is ---
COUNSEL              Certainly not on [the applicant’s] part.
The judge then asked how he could consider the applicant’s ice use in assessing the gravity of the offending. Counsel said that it was self-induced and affected the applicant’s capacity to distinguish right from wrong. The judge asked counsel for authority to support the proposition that such a circumstance was mitigating. None was forthcoming.
Even if the applicant had earlier refused to participate in the offending, it remained the case that he agreed to do so on the occasion alleged by the prosecution. He was not then reluctant. To the contrary, he joined with others and actively participated in the planning and offending against Mr Hunt despite not having any previous connection with him. Furthermore the applicant’s self-induced intoxication did not mitigate the seriousness of the offending nor his moral culpability for it.
Next, we accept the argument of the respondent that the applicant’s use of a mask was for the purposes of concealing his identity during the offending and was a matter aggravating the seriousness of his conduct. For the reasons already explained, the applicant did more than ‘merely attend’.
Finally with respect to factual matters, it was immaterial that the applicant lacked a personal motive for the offending. He agreed to join three others in invading the home of Mr Hunt in pursuit of vengeance on behalf of Smith. He then did so. He participated in a vicious assault on him, assisted in the taking of household goods and left the premises in a stolen car.
Turning to the issue of parity with Mitchell, we note that the judge was not assisted by any submission on the issue. In any event, the judge did not err in finding that the applicant’s offending was as serious as that of Mitchell. For the reasons already stated, the applicant did enter the premises. While Mitchell threatened Mr Hunt with a knife, the applicant armed himself with a cap gun. And again, as already noted, the applicant’s record of interview was riddled with lies. It can only be concluded that his account of the offending was false.
Finally the judge did not err in making an assessment of the impact of the offending upon Mr Hunt in the absence of a Victim Impact Statement made by him. The judge said that
As a result of the incident, Hunt suffered numerous injuries including a bloody nose, cuts to his eyes, significant bruising to both eyes and substantial pain.
He has not provided a victim impact statement. However, it is obvious that on the prosecution case he would have been terrified by what happened and that the impact of this day is likely to stay with him for a long term.[27]
[27]Reasons, [26]–[27].
On the evidence before the judge these were not controversial findings. Mr Hunt’s witness statement spoke of him being ‘absolutely petrified’, ‘terrified’ and thinking that he would be stabbed. It has long been established that
… even in the absence of a victim impact statement, a sentencing judge is entitled to draw reasonable inferences from the evidence before him [or her] of any injury, loss or damage suffered by victims and their immediate families.[28]
[28]R v Miller [1995] 2 VR 348, 354; Berichon v The Queen (2013) 40 VR 490 [118] (Robson AJA); [2013] VSCA 319 .
Further, that the home invasion was committed by a known person with an identified grievance (in company with others) rather than an unknown person for an unknown reason does not in and of itself lessen the impact of it upon its victim. And, the applicant’s statement in his record of interview that Mr Hunt and Mr Smith embraced, cried and forgave each other cannot be accepted as truthful.
In summary, the offending was serious and the judge was correct to conclude that the applicant’s moral culpability for it was ‘moderate to high’.
Proposed ground 2 cannot succeed.

Ground 3 – manifest excess

As noted, proposed ground 3 contends that the individual sentences, the orders for cumulation and the total effective sentence with respect to the second indictment are manifestly excessive. At the hearing of the application, counsel indicated that the ground was limited to the specific errors alleged under cover of proposed grounds 1 and 2.
Given that none of those errors are made out, it follows that proposed ground 3 must fail.
Having said that, we observe that in all the circumstances the sentences imposed were very modest. The applicant is, in any event, far from satisfying the stringent requirement to demonstrate that the sentences were wholly outside the range of sentencing options available to the judge.
In that regard, we note there was no proposed ground of appeal before us concerning the sentences imposed with respect to the first indictment. Nonetheless we observe that given the gravity of that offending, those sentences must be considered, at the least, extremely lenient.

Conclusion

Leave to appeal against sentence is refused.

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[2025] VSCA 73

11 April 2025