Hope v The Queen
[2021] VSCA 177
•22 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0260
| LAIN SANDFORD HOPE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 June 2021 |
| DATE OF JUDGMENT: | 22 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 177 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1738 (Judge C Ryan) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to four charges and three summary charges including aggravated burglary, attempted aggravated burglary, recklessly cause injury, intentionally damage property and unlawful assault – Applicant committed offences against his neighbours in violent episode whilst intoxicated – No history of violent offending or violence when intoxicated – Sentencing judge accepted voluntary ingestion of alcohol as a mitigating circumstance – Whether individual sentences and total effective sentence manifestly excessive – Appeal dismissed – Hasan v The Queen (2010) 31 VR 28, Morrison v The Queen [2012] VSCA 222, 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 Applicant | Mr O P Holdenson QC | Stary Norton Halphen |
| For the Respondent | Ms E Ruddle SC | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
OSBORN JA:
The applicant pleaded guilty, before a judge of the County Court, to one charge of recklessly causing injury, one charge of aggravated burglary, one charge of intentionally damaging property and one charge of attempted aggravated burglary. He also pleaded guilty to two related summary charges of unlawful assault and one related charge of causing the wheels of a vehicle driven by him to lose traction. After a plea presented on his behalf, the applicant was sentenced to a total effective sentence of three years and 11 months’ imprisonment with a non-parole period of two years.
That sentence is constituted as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Recklessly causing injury[1] | 5 years’ imprisonment | 6 months’ imprisonment | 2 months |
| 2 | Aggravated burglary[2] | 25 years’ imprisonment | 3 years’ imprisonment | Base |
| 3 | Intentionally damaging property[3] | 10 years’ imprisonment | 3 months’ imprisonment | 1 month |
| 4 | Attempted aggravated burglary[4] | 20 years’ imprisonment | 2 years’ imprisonment | 8 months |
| Related Summary Offences | ||||
| 6 | Unlawful assault[5] | 3 months’ imprisonment | 1 month’s imprisonment | 1 month |
| 8 | Unlawful assault | 3 months’ imprisonment | 1 month’s imprisonment | 1 month |
| 10 | Drive vehicle causing loss of traction[6] | 5 penalty units | $500 fine | – |
| Total Effective Sentence: | 3 years and 11 months’ imprisonment, $500 fine | |||
| Non-parole period: | 2 years | |||
| Pre-Sentence Detention Declaration: | 16 days | |||
| Section 6AAA Statement: | 7 years’ imprisonment, with a non-parole period of 4 years and 6 months | |||
| Other Relevant Orders: | Nil | |||
[1]Contrary to Crimes Act 1958, s 18.
[2]Contrary to Crimes Act 1958, s 77.
[3]Contrary to Crimes Act 1958, s 197(1).
[4]Contrary to Crimes Act 1958, ss 77 and 321M.
[5]Contrary to Summary Offences Act 1966, s 23.
[6]Contrary to Road Safety Act 1986, s 65A.
The applicant seeks leave to appeal on three grounds, namely:
Ground 1:The individual sentence of imprisonment imposed on Charge 2, namely, 3 years’ imprisonment, is, in all the circumstances of the case, manifestly excessive.
Ground 2:The individual sentence of imprisonment imposed on Charge 4, namely, 2 years’ imprisonment, is, in all the circumstances of the case, manifestly excessive.
Ground 3:The total effective sentence of 3 years and 11 months’ imprisonment is, in all the circumstances of the case, manifestly excessive.
Circumstances of offending
At the time of the offending, the applicant was living, with his then partner Bronte, in rental accommodation in Lemongrass Street, Botanic Ridge. On Sunday 19 January 2020, the applicant was at home with Bronte and several friends. Together they were consuming alcohol and watching Ultimate Fighting Championship on television.
At approximately 7:00 pm on that date, the applicant got into his Holden utility vehicle, drove out of the laneway near his residence, and commenced to do burnouts causing the tyres of his vehicle to lose traction, screech and emit smoke. That conduct by the applicant was the subject of summary charge 10 (drive vehicle causing loss of traction).
Thomas Drysdale and his neighbour Jamie Wickham heard the noise and came outside their houses. There they observed the applicant inside his vehicle conducting the burnouts. Mr Drysdale took out his mobile telephone and used it to video record the applicant’s conduct. The applicant noticed that Mr Drysdale and Mr Wickham were each standing in the laneway with their telephones out. He stopped his vehicle and ran straight at Mr Wickham, who stepped out of the way. The applicant turned to Mr Drysdale and punched him in the head. A struggle then ensued between the applicant and Mr Drysdale, during which the applicant pushed Mr Drysdale to the ground and then punched him numerous times. As a result, Mr Drysdale suffered pain to his face, neck, right leg and little finger. That conduct by the applicant was the subject of charge 1 (recklessly causing injury).
At that point, Mr Wickham walked back to his house in Bottletree Road, Botanic Ridge, and called the emergency number triple zero. His daughter, who was also at home, heard the fighting noises coming from outside and began recording the incident on her mobile telephone from her bedroom window.
While the applicant was on top of Mr Drysdale, some of the applicant’s friends grabbed him, dragged him off Mr Drysdale and pulled him back towards the laneway. They also moved his vehicle back into the garage. The applicant continued to fight and struggle with his friends in an attempt to get back to Mr Drysdale. At that point a number of neighbours who had heard the fighting came outside to assist. Mr Drysdale got up off the road and walked back to his home that was located in Lemongrass Street a few doors from the home in which the applicant was then residing. At the time, Mr Drysdale’s wife and four children, aged six, five and three years, and two days, were each home. Mrs Drysdale had just returned home that day after giving birth to the baby. Mr Drysdale walked upstairs to awaken his wife, who was sleeping with their infant son.
As Mr Drysdale and Mrs Drysdale were walking downstairs, the applicant forced the front door to their house open with his hip and shoulder, causing damage to the plaster wall behind it. He walked into the house and immediately started punching Mr Drysdale who was standing at the foot of the staircase. The entry by the applicant into the house was the subject of charge 2 (aggravated burglary).
The applicant and Mr Drysdale then started fighting each other and they ended up on the ground at the base of the stairs. Mrs Drysdale tried to break up the fight, but she was pushed over by the applicant, that conduct constituting summary charge 6 (unlawful assault). At the time, the three elder children of Mr and Mrs Drysdale were in the lounge room and they witnessed what was occurring.
For the second time, the applicant’s friends came, took hold of him, and removed him from the Drysdale home. As they did so, he continued to struggle and resist them. The applicant was taken to his home. At that time, a friend and neighbour, Mr William Barker, had returned to his home that was located next door to the applicant’s home. He tried to calm the applicant down. In response, the applicant pushed Mr Barker into a brick pillar at the front of his house. That conduct constituted summary charge 8 (unlawful assault).
Mr Barker ignored the applicant’s conduct and went inside his house in order to have dinner. While he was doing so, he heard a commotion. He looked up to observe the applicant jumping the rear fence that divided their addresses. After jumping the fence, the applicant approached the rear sliding glass door of Mr Barker’s home. He picked up a glass outdoor table, threw it and kicked it, smashing the glass plate top. The applicant then grabbed the rear fly screen door of the house and ripped it from its hinges, throwing it into the yard (charge 3 — intentionally damage property).
Mr Barker then stood up and held the glass sliding door shut, preventing the applicant from entering his home. His wife grabbed their two young children and took them upstairs for their protection. The applicant began to punch the glass sliding door which Mr Barker was holding shut. He punched it many times. That conduct by the applicant constituted charge 4 (attempted aggravated burglary). Once Mrs Barker had got upstairs, Mr Barker opened the door and the applicant began wrestling him in the back yard. As a result of a number of triple zero telephone calls, police then arrived at the premises. On arrival, they heard shouting coming from the Barker residence. They entered the back yard of the Barker home and found the applicant being restrained by Mr Barker.
The applicant was then transported by police to the Alfred Hospital for treatment and later discharged to the Dandenong Police Station. In an interview then conducted with him that evening, the applicant said to the police that:
·He remembered getting into a fight with his neighbour Bill Barker.
·He and his friends had been watching Ultimate Fighting Championship at his house during the day.
·He had consumed about ten alcoholic drinks consisting of Corona beer and whiskey.
·After viewing the Ultimate Fighting Championship the applicant and his friends were all hanging out the back alley- way.
·He did not remember getting into his vehicle or doing a burnout.
·He only remembered having a fight with Mr Barker and nothing else.
The applicant was charged on 20 January and released on bail. He subsequently pleaded guilty at a further committal case conference in the Magistrates’ Court on 22 June 2020.
Victim Impact Statements
Victim impact statements were prepared by Mr Drysdale, Mrs Drysdale and Mr Barker. Both Mr Drysdale and Mrs Drysdale, in their statements, described how, since the incident, they have experienced feelings of anxiety and paranoia, and they have each often relived the incident. They have both become overly vigilant, continually checking that the windows and doors of their home are secure.
At the time of the incident, Mr Barker was having difficulties in his relationship with his ex-wife, who is the mother of his children. The relationship deteriorated as a result of the incident. Mr Barker’s former wife ceased to permit the children to stay at Mr Barker’s address overnight as she no longer felt that it was safe for them to do so. As a result of the injuries Mr Barker sustained in the incident, he spent two weeks off work, and he lost his job as a consequence. He was able to find other work shortly thereafter. However, during the period in which he was unable to work, he experienced considerable stress. He incurred significant financial expense replacing the flywire door lock and sliding back door and the outdoor setting. In addition, an amount was deducted from his rental bond to pay for repairs to damage caused by the applicant to the outdoor air-conditioning unit.
Applicant’s previous convictions
The applicant, who was 29 years of age at the time of the offending, had two previous convictions, which the judge considered to be of limited consequence in the sentencing for the present matters. In April 2011, he was fined an aggregate sum of $1,200, without conviction, by the Dandenong Magistrates’ Court on charges of burglary and theft. In October 2014, he was fined an aggregate sum of $1,000 by the Frankston Magistrates’ Court on charges of driving whilst his authorisation to do so was suspended, and failing to answer bail.
The applicant’s personal circumstances
The applicant was born in Clayton and raised in Caulfield by his parents. He is the only child of that marriage. When he was seven years of age, his parents separated, and he lived with his mother. His father would visit him every few months during his childhood. The applicant’s mother re-partnered when he was 11 years of age. That relationship ended about ten years ago.
The applicant attended St John’s Regional College between Years 7 and 11, but he left school halfway through Year 11 in order to gain a trade. He completed a Certificate 4 in Construction and completed his indenture when he was 21 years of age. Following that, he worked for a number of companies before he established his own construction company when he was 23 years of age. At the time of his arrest, the business employed two workers.
The applicant left home at the age of 19 years and lived in Carrum Downs with his first girlfriend. After that relationship terminated, he returned to live with his mother, but subsequently he entered into another relationship with another young woman, with whom he lived in Langwarrin for two years.
Subsequently, the applicant met another young woman, Brooke, with whom he lived for five years in Langwarrin. There was a daughter born of that relationship in August 2018. However, before she was born the applicant’s relationship with Brooke broke down and they separated. Following their separation, there were protracted family law proceedings for a period of some two years, and the applicant did not see his daughter for a period of eight months during that time. Eventually final orders were agreed on in February 2020.
Following the end of his relationship with Brooke, the applicant commenced his relationship with Bronte. After the offending in this case, the applicant and Bronte moved to Baxter and lived with her family. However, that relationship ultimately ended in May 2020. Thereafter, the applicant resided with his mother on French Island, and he then went to live in Tootgarook where he rented a house to share with a housemate.
The applicant was a casual user of cocaine in the years 2018 and 2019. As a part of the family law proceedings between himself and Brooke, he was required to undergo hair analysis for drug testing. As at 3 February 2020, testing demonstrated that he was then drug free.
The plea
The applicant was assessed by Ms Gina Cidoni, a consultant psychologist, on 25 September 2020, and her report was tendered on the plea. On testing, he was found not to have any major psychological or personality disturbance, and there were no signs of depression or personality disorder. Ms Cidoni considered that he suffered an adjustment disorder at the time of the offending constituted by a maladaptive reaction to the breakdown of his relationship with Brooke, and the consequences of the Family Court proceedings.
A report by Beach Street Family Medicine, which was tendered on the plea, recorded that the applicant had reduced his alcohol consumption since January 2020, so that he was now only drinking two or three times each week. Immediately before the offending the applicant had consulted South Eastern Counselling and Psychology for counselling concerning ongoing access to his daughter. The psychologist who assessed the applicant, Mr John Jakupi, concluded that the applicant did not meet the criteria for any psychological disorder, and he considered that the applicant’s ability to parent his daughter was not compromised in any way.
On the plea, a number of character references were tendered, including testimonials from the applicant’s stepfather, his sister, and two clients who had engaged the applicant to perform construction work for them. The applicant’s sister and stepfather gave evidence on the plea. His sister, Jenna Hope, said that at the time of the offending the applicant was dealing with the breakup of his relationship with Brooke and her refusal to permit him to have access to his daughter. The applicant was depressed and upset about that matter and he had resorted to excessive drinking to cope with it. She said that she had never seen the applicant angry or aggressive when intoxicated. Instead, when he had been in such a condition, he would fall asleep. Ms Hope also stated that her brother was remorseful and regretful for what he had done, and that he had recognised that his excessive consumption of alcohol had precipitated his conduct.
Counsel for the applicant, on the plea, submitted that the offending by the applicant was unplanned. In particular, it was fuelled by excessive consumption of alcohol. Counsel contended that, in the unusual circumstances of the case, the fact that the applicant was intoxicated should be regarded as a mitigating circumstance.
In addition, counsel relied on the limited previous convictions of the applicant, and on the character references tendered on his behalf. Counsel noted that the applicant had a good work record, and that his business, and the future of the two employees engaged by him, were dependent on the applicant continuing to be able to conduct it. It was further submitted that the applicant had demonstrated remorse, and that he had good prospects of rehabilitation. In that regard, counsel noted that since the offending the applicant had been permitted to have access to his daughter twice per week, and that as a result of those visits, he had repaired his relationship with his former partner.
In those circumstances, it was submitted that the judge should not impose a custodial sentence, but should release the applicant on a community corrections order.
In response, the prosecutor submitted that in view of the seriousness of the offending, the sentence imposed on the applicant should have a custodial element, but that a combined sentence of imprisonment with a community corrections order would be within range.
Sentencing reasons
In his reasons for sentence,[7] the judge noted that there was no suggestion that the applicant had previously become violent as a consequence of the consumption of alcohol. Accordingly, his Honour regarded the applicant’s case as one of the few cases in which the voluntary ingestion of alcohol should be regarded as a mitigating circumstance, so that the need for denunciation was moderated. The judge also accepted that the applicant had demonstrated remorse and that his prospects for rehabilitation were good.[8]
[7]DPP v Hope [2020] VCC 1738.
[8]Ibid [43].
The judge accepted that the applicant had entered his plea of guilty at the earliest possible opportunity, that it was evidence of his remorse, and that it had utilitarian value. The judge considered that the applicant’s limited previous convictions were of little relevance to the sentencing in the present case. Accordingly, specific deterrence had ‘little role to play’ in sentencing. However, the judge considered that the applicant was an appropriate vehicle for the application of the principle of general deterrence.[9]
[9]Ibid [44].
The judge noted the submission made on behalf of the applicant that a community corrections order should be made, and the concession made on behalf of the prosecution that a combined sentence would be within range. His Honour disagreed with both of those submissions, stating:
Giving full effect to all of the mitigating circumstances in your case, you assaulted an innocent bystander and when removed from the scene of that crime, you proceeded to that victim’s home and committed an aggravated burglary. You are not to be punished for your conduct in respect to Mr Drysdale whilst in his home. However, you assaulted his wife during the course of your conduct within the Drysdale home. Once again, you were dragged away from the scene of that crime to your own home where you assaulted your friend and neighbour, Mr Barker, and then some minutes later immediately prior to attempting to commit the crime of aggravated burglary, damaged property involving a fly screen door in preparation for your attempted aggravated burglary. To my mind, each of the submissions made by counsel are well outside the range of sentences appropriate for your offending.[10]
[10]Ibid [46].
Submissions
In the written case filed in support of the application for leave to appeal, and in oral submissions, counsel for the applicant, helpfully, addressed each of the three proposed grounds of appeal together.
In those submissions, counsel placed particular emphasis on the circumstance that, at the time of the offending, the applicant was heavily intoxicated, to the extent that he engaged in conduct in which he would not have become involved if he had not been so affected. Counsel noted that the offending by the applicant was unplanned, senseless, spontaneous and quite out of character. In that respect, counsel relied on the finding by the judge that, in the exceptional circumstances of this case, the principles stated by this Court in Hasan v The Queen[11] and Morrison v The Queen[12] apply, so that the applicant’s ingestion of alcohol constituted a mitigating circumstance, by reason of which the need for denunciation by the court of the applicant’s conduct was moderated.
[11](2010) 31 VR 28, 37 [33]–[34]; [2010] VSCA 352 (Maxwell P, Redlich and Harper JJA).
[12][2012] VSCA 222, [15]–[21] (Buchanan JA), [25] (Redlich JA).
Counsel further submitted that, in the circumstances of the case, the applicant was able to rely on a number of compelling mitigating circumstances. The applicant had pleaded guilty at the first reasonable opportunity available to him, and he was genuinely remorseful for his conduct. His previous convictions had little relevance to his sentence. He had never previously become violent as a result of excessive ingestion of alcohol. He was otherwise of good character. Further, as a consequence of the applicant being imprisoned, he would lose his business, and his two employees would be out of work.
Counsel further noted that the applicant’s offending did not have associated with it any of the serious characteristics that are common in the kind of offending in cases of aggravated burglaries discussed by this Court in Hogarth v The Queen[13] and DPP v Meyers.[14] In particular, the offending in this case was impulsive and not planned. It did not involve the use of a weapon, and the applicant acted alone and not in the presence of other offenders. The offence was not committed under the cover of darkness, the applicant was not a stranger to his victims, and there was no pre-existing hostility between the applicant and his victims. Further, it was submitted, the offending by the applicant was not protracted.
[13](2012) 37 VR 658; [2012] VSCA 302 (‘Hogarth’).
[14](2014) 44 VR 486; [2014] VSCA 314 (‘Meyers’).
In those circumstances, it was submitted that the sentences imposed on the applicant on charges 2 and 4 (three years’ imprisonment and two years’ imprisonment respectively), and the order for cumulation of the sentence imposed on charge 4 (of eight months) were manifestly excessive.
In response, counsel for the respondent commenced by noting that the offences, that were the subject of charge 2 and charge 4, are, by their nature, serious, as demonstrated by the applicable maximum sentence in relation to each such offence (25 and 20 years’ imprisonment respectively). In the present case, there were a number of serious features attached to each of those two offences. In the case of each charge, the applicant’s offending was persistent. His incursion into the Drysdale property, and his attempted incursion into Mr Barker’s property, were forceful, and his offending only ended when he was overcome, in the case of charge 2, by friends and a neighbour, and in the case of charge 4, by Mr Barker himself. The offending in charge 2 was committed in the presence of, and with apparent disregard for, Mr Drysdale’s four young children, the eldest three of whom were present and witnessed the event. The applicant’s clear intent, in each case, was to cause injury to Mr Drysdale and to Mr Barker. His impact on the victims was quite profound, as set out in their victim impact statements.
Counsel for the respondent further submitted that the offending by the applicant, in each case, was not entirely unplanned. In each case, the applicant attended the homes of Mr Drysdale and Mr Barker respectively with the specific intent to physically attack them. Further, it was submitted, the applicant did not merely intend to inflict some ‘low level’ assault on his victims. Rather, he was out of control and intent on engaging in as much violence as he could.
Counsel for the respondent noted that the judge took into account each of the mitigating circumstances appropriately. However, it was submitted, in view of the gravity of the offending, the sentences imposed on charges 2 and 4, and the total effective sentence, while stern, were within the range of sentencing options available to the judge.
Analysis and conclusion
In order to succeed, on the ground that the sentences imposed on the applicant were manifestly excessive, it must be demonstrated that the sentences were wholly outside the range of sentencing options available to the judge. That is, it must be shown that the sentences were not reasonably open to the sentencing judge, if proper weight had been given to all the relevant circumstances of the offending and of the offender.[15]
[15]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
The starting point, in considering that question, is that each of the offences that were the subject of charge 2 and charge 4, aggravated burglary and attempted aggravated burglary, are, by their nature, serious criminal offences, as indicated by the maximum sentences prescribed for those two offences.
In the present case, there were a number of factors that rendered the commission by the applicant of those offences particularly serious. The applicant engaged in forceful and violent conduct in gaining entry into the premises of Mr Drysdale (charge 2) and in attempting to do so in respect of the premises of Mr Barker (charge 4). His clear intention was to assault the person or persons who occupied those premises. His conduct, after he entered Mr Drysdale’s home, plainly bespoke an intention, at the time at which he made that entry, to inflict serious physical injury on Mr Drysdale. The level of aggression and violence engaged in by the applicant while he was inside that house, and his enraged disposition, were demonstrative of his state of mind when he entered the premises. In particular, the manner in which he attacked and overcame Mr Drysdale, and his assault on Mrs Drysdale, were eloquent of that intention. So too was the fact that he was prepared to engage in that conduct in the presence of the three young children who observed his behaviour.
In a similar way, in attempting to gain entry into Mr Barker’s house, it is clear that the applicant intended to overcome and inflict serious injury on Mr Barker. The degree of violence with which the applicant attempted to gain such entry, his level of uncontrolled rage, and his immediate resort to violence when Mr Barker opened the door, plainly evidenced the nature of his intentions.
Further, it is quite clear that in the case of each of those two offences the applicant had no intention to desist from the assaults that he set out to commit until he had accomplished his ends. He was only prevented from causing further injury to Mr Drysdale when he was forcibly restrained by neighbours and a friend. Similarly, his enraged attack on the Barker home was only brought to an end when Mr Barker was able to overcome him and enable him to be arrested by the police.
As we have noted, the impact of the offending on the victims involved in each of those two offences was quite profound and serious. That is not surprising. The effect of the applicant’s offending on each of them was a direct consequence of the type of offence that he intentionally committed in each case. The victim impact statements give a clear insight into the frightening and harmful nature of the conduct that the applicant engaged in in the course of the offences for which he was sentenced.
While we accept, and the judge accepted, that the offences in each case were not the subject of any elaborate pre-planning, equally, as counsel for the respondent pointed out, they were not entirely spontaneous. After the applicant was restrained having assaulted Mr Drysdale in the street (charge 1), he was dragged by his friends back towards the laneway. He then had every opportunity to calm himself down, take control of his anger, and desist from his violent behaviour. Instead, when his friends let go of him, he made his way to Mr Drysdale’s home, forced his way into it, and commenced assaulting Mr Drysdale again.
Similarly, after the applicant had been again restrained and removed from the Drysdale home, he was taken to his own home. He again had the opportunity to reflect on his conduct and calm down. Instead, he jumped the rear fence of his house in order to assault Mr Barker, a friend and neighbour, who shortly earlier had tried to calm him down in his own interests. It may well be that the applicant’s judgment at that time was well obscured by his level of intoxication and his enraged temper, but the fact remains that on each of those two occasions, he set out from in or near his own home with the intention of breaking into the homes of Mr Drysdale and Mr Barker respectively.
As we have noted, the judge accepted that the applicant’s intoxication was a mitigating circumstance. Nevertheless, by his plea of guilty to each of the charges, he admitted and accepted that he had the requisite intent that was a prescribed element of each of the offences. In particular, he intended, in the case of charges 2 and 4, to enter each house as a trespasser, and he intended to assault the occupant or occupants of each house. Notwithstanding his level of intoxication, he remained physically sufficiently capable to be able to break his way into the Drysdale home, overcome Mr Drysdale, climb the fence to Mr Barker’s house, and endeavour to break into it.
As counsel for the applicant pointed out, in the present case, there were absent from the applicant’s offending a number of the characteristics of the species of aggravated burglaries that were considered by this Court in Hogarth and Meyers. The applicant acted alone, he did not arm himself with a weapon, he did not endeavour to conceal his entry under the cover of darkness, and there was no evidence that he was endeavouring to vindicate some feeling of pre-existing hostility held by himself towards the victims. Nor did he attempt to conceal his identity.
All those matters may be properly acknowledged. However, the sentences imposed by the judge on charges 2 and 4 (three years’ imprisonment and two years’ imprisonment respectively) were significantly less than the range of sentences which the Court, in Hogarth and Meyers, indicated would be appropriate in the circumstances of the offending in each of those cases.[16]
[16]Hogarth (2012) 37 VR 658, 674 [63]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA); Meyers (2014) 44 VR 486, 504 [75]–[78]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA).
Certainly, there were a number of important mitigating circumstances on which the applicant was entitled to rely. The judge was satisfied that the applicant’s moral culpability for the offending should be reduced by reason of his intoxication. His conduct was out of character, and the judge was satisfied, on the balance of probabilities, that he had never previously acted in such a violent or erratic manner when affected by alcohol. It was also evident that, if not for his level of intoxication, the applicant would not have committed the offences in question. The applicant pleaded guilty at the earliest opportunity. In the circumstances of the case, the plea was of significant utilitarian value, sparing the victims the ordeal of giving evidence concerning the frightening circumstances to which they had been subjected. The judge accepted that the applicant was truly remorseful for his offending, and that his guilty plea was accompanied by remorse. The applicant was of good character, and he had demonstrated genuine enterprise in his life, establishing and conducting his own small business. As a consequence of his incarceration, his business ceased to operate, and the two persons employed by it would be out of work. As the judge concluded, the applicant had good prospects of rehabilitation, and it was unlikely that he would re-offend again in the same manner.
In sentencing the applicant, the judge accepted that, by reason of the applicant’s level of intoxication, the sentencing purpose of denunciation was moderated. Nevertheless, it remained a relevant consideration. It was important that the sentences be sufficient to express the condemnation by the court, and the community, of the outrageous and entirely unacceptable conduct engaged in by the applicant. The sentencing purpose of general deterrence was equally of importance. It was necessary that the sentences imposed be sufficient to make clear to other like-minded persons that, if they felt moved to vent their anger or vindicate some perceived grievance by engaging in the type of violent conduct engaged in by the applicant, they would lose their freedom to remain in society for a substantial period of time.
Taking into account the mitigating circumstances on which the applicant was entitled to rely, the sentences imposed on him, and the total effective sentence, may be fairly characterised as being quite stern. Nevertheless, the sentences on charges 2 and 4 were each but a fraction of the maximum sentences prescribed for those offences. As we have discussed, there were a number of serious factors involved in the commission of each offence. Notwithstanding the requirements of the principle of totality, they were each serious separate offences. It was appropriate, and indeed necessary, that there be sufficient cumulation of the sentence, imposed on charge 4, on the sentence imposed on charge 2, to properly reflect the additional criminality comprised in charge 4. In view of the serious nature of the applicant’s offending, and giving full weight to the mitigating circumstances, we are not persuaded that the sentences imposed on charges 2 and 4, and the total effective sentence, were wholly outside the range of sentencing options available to the judge.
We should observe that it is most unfortunate that a person of the applicant’s character and sense of enterprise should be in his present situation. In considering this application, we have been deeply conscious of the fact that the applicant is a person of otherwise good character, that his conduct in the present case was not protracted over a period of hours (albeit that fifteen minutes at that time must have seemed like a lifetime to the victims), and that he is truly contrite in respect of his behaviour. During the course of oral argument, we received documents which have demonstrated that while he has been in custody, the applicant has attended appropriate courses, that his conduct has been exemplary, and that he has been assessed as a low level risk of re-offending. The contents of those documents are not surprising, and the applicant is to be commended for the manner in which he has approached his period of incarceration.
Nevertheless, for the reasons that we have set out, we are not persuaded that the sentences imposed on the applicant were manifestly excessive. Accordingly, while we would grant the applicant leave to appeal on each of the three grounds, it is our conclusion that his appeal should be dismissed.
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