Jackson v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0050

SAMUEL JACKSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2020
DATE OF JUDGMENT:	24 April 2020
DATE OF ORDERS:	27 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 95
JUDGMENT APPEALED FROM:	DPP v Jackson & Hole (Unreported, County Court of Victoria, Judge Riddell, 14 February 2019)

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CRIMINAL LAW — Application for leave to appeal against sentence — Pleas of guilty to attempted theft, attempted aggravated burglary and home invasion — Applicant, aged 22 at time of offending, sentenced to total effective sentence of six years and three months’ imprisonment with non-parole period of four years — Co-offender, aged 18, sentenced to three years’ detention in youth justice centre for substantially overlapping offending — Whether, in sentencing on home invasion, judge impermissibly took into account uncharged threats to inflict serious injury, threats to rape and criminal damage committed after entry to premises — Whether applicant’s sentence manifestly too disparate from co-offender’s sentence — Leave granted — Appeal allowed — Applicant resentenced to total effective sentence of five years’ imprisonment with non-parole period of two-and-a-half years — Crimes Act 1958 (Vic), s 77A; R v Newman & Turnbull [1997] 1 VR 146; Elsayed v The Queen [2019] VSCA 113.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D McGlone	C Marshall & Associates
For the Respondent	Miss M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON JA:

I have had the advantage of reading in draft form the judgment of Croucher AJA. I agree that the parity ground (Ground 1) is made out for the reasons that his Honour gives and that the applicant stands to be re-sentenced. Having regard to all relevant considerations, and notwithstanding the applicant’s greater role in the home invasion, the age difference between the two co-offenders and the different sentencing regime available to younger the co-offender, I am satisfied that the disparity in sentences is manifestly too great. The difference in age and the more prominent role taken by the applicant in the home invasion do not justify the total effective sentence imposed on the applicant (six years and three months’ imprisonment) being more than twice the length of the total effective sentence imposed on his co-offender (three years’ youth detention). The applicant is a youthful offender and has good prospects of rehabilitation, given his remorse and the strong family support that he enjoys.

I agree with the re-sentencing proposed by Croucher AJA, although I do so on the basis that the parity ground alone is made out, not the parity ground combined with Ground 3, which is the basis upon which Croucher AJA proposes to re-sentence the applicant. As a consequence, when considering the home invasion, I have not excluded from my assessment of the gravity of that offence and the applicant’s culpability the features of the offending treated by the trial judge as aggravating factors but characterised by Croucher AJA as uncharged acts for which no punishment may be imposed. Nonetheless, I am satisfied that the individual sentences, the amount of cumulation, the total effective sentence and the non-parole period proposed by Croucher AJA are appropriate.

Ground 3 asserts that the judge erred in punishing the applicant for offences for which he was not convicted, based on the principles elucidated in R v Newman and Turnbull.[1] It may be that there was criminal conduct inside the house that could or should have been the subject of discrete charges. However, the plea was not conducted on that basis. It was conducted on the basis of a concession by the applicant that ‘this was a particularly egregious instance of home invasion’.[2] The prosecution in opening described the home invasion in terms that included the threats and violence towards the occupants of the home. The applicant and his co-offender entered the home brandishing an axe and a set of bicycle forks respectively, with the intent to threaten the occupants with them, if necessary, in furtherance of their plan to steal. The intention underlying the carrying of the axe, in particular, was not simply that it be used to gain entry to the house. It was not submitted by any of the parties that the threats, or the destruction of property, did not form part of or were not substantially connected to the offence of home invasion as pleaded, nor was it asserted that, taken together, they were more serious than the conduct constituting the home invasion itself. To the contrary, it was common ground on the plea that the threats and violence formed part of the home invasion.
[1][1997] 1 VR 146 (‘Newman’).
[2]Samuel Jackson, ‘Plea Submissions’, Submission in DPP v Samuel Jackson, CR-18-01189, 26 September 2018, 1 [2].

It is to be inferred from the conduct of the plea by competent counsel that, rightly or wrongly, the plea agreement was predicated on the threats and violence inside the home being treated as aggravating features of the home invasion. In my view, the only inference sensibly open is that the applicant pleaded guilty to the charge of home invasion on the basis that the circumstances surrounding the commission of this offence included the subsequent continuous misconduct. This inference is supported by the fact that the Newman argument underpinning Ground 3 was not advanced in the applicant’s written case in the appeal or in oral argument and did not emerge until late on the day that the appeal was heard, when it was raised as a potential issue by the bench. The parties were invited to file written submissions on the question after the conclusion of the hearing.

Having regard to the fact that the applicant has succeeded on the parity ground and will be re-sentenced by reference to the sentence imposed on his co-accused, it is unnecessary to decide Ground 3. Furthermore, given the circumstances in which the question arose and the uncertainty attending the application of Newman, it is undesirable to do so.

CROUCHER AJA:

Overview

On 27 September 2018, Samuel Jackson pleaded guilty in the County Court to charges of attempted theft[3] of a Mazda van, attempted aggravated burglary[4] of a residence and home invasion[5] of another residence. His co-offender Lachlan Hole also pleaded guilty to the charges of attempted theft and home invasion, as a well as a separate charge of arson[6] of the same van (but not to attempted aggravated burglary).
[3]Crimes Act 1958 (Vic), ss 74 and 321M (maximum penalty: five years’ imprisonment).
[4]Crimes Act 1958 (Vic), ss 77 and 321M (maximum penalty: 20 years’ imprisonment).
[5]Crimes Act 1958 (Vic), s 77A (maximum penalty: 25 years’ imprisonment).
[6]Crimes Act 1958 (Vic), ss 197(1) and (6) (maximum penalty: 15 years’ imprisonment).

The offences were committed in quick succession in Hallam after midnight on 12 March 2018. The home invasion was the most serious offence. It involved both young men entering a home in Cobungra Court with an intention to steal therein while carrying an axe (in the case of Mr Jackson) and the front fork of a pushbike (in Mr Hole’s case).

As it turned out, Jean Boncoeur, his wife Marie Jaune and their housemate Lukshmi Auchoybur were home at the time. Once inside, Mr Jackson and Mr Hole terrorised the occupants in several ways. They ransacked the house, taking numerous valuables. Using the axe, Mr Jackson smashed Ms Jaune’s mobile phone and repeatedly struck a laptop computer. He broke another laptop over his knee. He and Mr Hole threatened Mr Boncoeur with the axe and threw him against a wall. In a terrifying act, Mr Jackson extended Mr Boncoeur’s foot and then swung the axe at it, stopping only just before striking him. He threatened Mr Boncoeur that he would rape his wife in front of him if he did not comply with their demands. Later, he called Ms Jaune a prostitute and, in another especially vile act, threatened to have friends of his waiting outside to come in and rape her. As if that were not enough, he also told all three occupants that, if they told police what he looked like, his father, said to be in ‘the KKK’, would look for them, kidnap Ms Jaune and Mr Boncoeur, and chop off the latter’s fingers while making his wife watch.

Towards the end of this ordeal, Mr Boncoeur and Ms Jaune managed to flee the house and alert police. The intruders were arrested either leaving the premises or nearby. Both were in possession of items that had been stolen from Cobungra Court. Both were remanded in custody, where Mr Jackson has remained ever since.

On 14 February 2019, Mr Jackson was sentenced to a total effective sentence of six years and three months’ imprisonment with a non-parole period of four years. Mr Hole was sentenced to an aggregate sentence of three years’ detention in a youth justice centre.

Mr Jackson applies for leave to appeal against his sentence. Perhaps not surprisingly, Mr Hole has not sought to appeal his sentence.

There are two grounds of appeal.[7] First, Mr Jackson complains that the judge erred in punishing him for offences of which he was not convicted — namely, the numerous threats to inflict serious injury and rape and instances of criminal damage, all committed once inside the house. While it was a serious crime to enter the house uninvited in the dead of night in company intending to steal and bearing fearsome weapons, the behaviour once inside, which went on for over an hour, was even more outrageous and chilling. But the difficulty is that none of that offending was charged. In my view, it is clear that the judge, impermissibly, did take that offending into account in aggravation when sentencing. Accordingly, I think this ground is made good.
[7]A third ground (Ground 2) was abandoned at the hearing.

Secondly, Mr Jackson complains that the difference between his sentence and the sentence imposed on Mr Hole is manifestly disparate. Apart from the respective sentences, numerous other comparative factors concerning the offending and the offenders come into an assessment of such a ground of appeal. For reasons I shall give later, I am satisfied that this ground must succeed as well.

In view of these errors, I think a different sentence should be passed. I would grant leave to appeal, allow the appeal, set aside the sentences imposed below and resentence Mr Jackson in a way that results in a total effective sentence of five years’ imprisonment with a non-parole period of two-and-a-half years.

My more detailed reasons for those conclusions and proposed orders follow.

Summary of offending and proceedings

Introduction

Mr Jackson is a young man of indigenous heritage on his father’s side. He was born on 21 May 1995, was aged 22[8] at the time of the offending and is now 24. Mr Hole was born on 2 February 2000, had turned 18 only the month before the offending and is now 20. The two had known each other for only a couple of days prior to their arrest, after meeting through mutual friends.
[8]The judge said Mr Jackson was aged 23 at the time of the offending (DPP v Jackson & Hole (Unreported, County Court of Victoria, Judge Riddell, 14 February 2019) (‘Reasons’) at [1]). Her Honour may have meant that he was nearly 23.

At the plea hearing, the offending was summarised in the following way by the prosecutor.

Charge 1: Attempted theft of van (Mr Jackson and Mr Hole)

Shortly after midnight on 12 March 2018, Mr Jackson and Mr Hole went to the rear carpark of Stay Cool Heating and Air Conditioning in Hallam. While there, they attempted to steal a Mazda van belonging to that business. They tried, initially without success, to get into the van, but ultimately succeeded, at which point they rummaged through it. This was all caught on CCTV. Mr Jackson then left the carpark.

Charge 2: Arson of van (Mr Hole only)

Mr Hole, however, stayed back. He then set the van on fire, which destroyed it. The van was valued at about $2,000. The fire also caused damage to a fence, the concrete below and a nearby trailer. While no accelerant was used, police concluded that the fire was started in the passenger side of the van, probably with matches or a lighter. Mr Hole left the scene through a fence.

Charge 3: Attempted aggravated burglary at Glencairn Avenue (Mr Jackson only)

Not long afterwards, at about 2:15 a.m., Jarrod Anderson was asleep in his home at Glencairn Avenue in Hallam (which is close to Stay Cool Heating and Air Conditioning). His wife, their infant child and his wife’s parents were in the house too. Mr Anderson was woken by a bang and the sound of glass breaking. He went to the front door and again heard glass breaking. A person (Mr Jackson) was attempting to get through the glass side-panel of the door. Mr Anderson yelled at the person, who then moved away, smashed the front window, and then tried to get through the side-panel of the door again. Having failed at that, he ran off.

Mr Anderson called the police. He noticed that the roller door to his garage was open and that a total of three windows were broken.

Charge 4: Home invasion at Cobungra Court (Mr Jackson and Mr Hole)

A short while later, Mr Boncoeur was at his home in bed with his wife Ms Jaune in nearby Cobungra Court. Also present was their housemate Mr Auchoybur, who was in a bathroom.

Mr Jackson and Mr Hole walked into the bathroom. Mr Jackson was holding an axe and wearing a hoodie with a handkerchief over his face. Mr Hole was carrying the front fork of a pushbike and wearing a red hoodie.

At this point in his opening, the prosecutor said that ‘[t]hat is Charge 4 in respect of each of the accused’. Without expressly indicating whether or not the following events should be regarded as part of the home invasion — or, if so, how — he went on to describe, in considerable detail, the events that occurred inside the house. I shall give a summary of those events.

Summary of events inside the house

When in the bathroom, Mr Jackson asked Mr Auchoybur how many people were in the house. He told him that there were two others. The three men then left the bathroom, at which time Mr Auchoybur noticed that his bedroom had been ransacked.

Next, the intruders went to the bedroom of the other two occupants, whereupon Mr Jackson demanded, ‘Give us your valuables.’ Mr Jackson and Mr Hole were carrying bags. In an attempt to keep them out of his room, Mr Boncoeur closed the door, which Mr Jackson then hit with the axe. Ms Jaune tried to call police, but was unable to do so. Mr Boncoeur then opened the door, and Mr Auchoybur was forced inside the room. Mr Hole said, ‘No one is going to get hurt if you give us everything you have. All your money.’ Mr Jackson threatened, ‘I’m going to rape your wife if you don’t comply.’ The two intruders spent up to 30 minutes ransacking the room, taking cash, jewels and wallets. Mr Jackson also smashed Ms Jaune’s mobile phone with the axe.

Mr Jackson then took Mr Auchoybur back to his room and started going through it again. He took a watch, a gym bag and a wallet.

The intruders then went back to the main bedroom. Mr Hole asked for the password to a laptop, which was valued at $2,000. When the password was not given, Mr Jackson struck the laptop with the axe several times. When another laptop was found but Ms Jaune said she could not reset it, Mr Jackson broke it in half over his knee. He then told Mr Boncoeur to put his foot out as he was going to chop it off. He swung the axe halfway to Mr Boncoeur’s foot and then stopped suddenly. When a safe was located but could not be opened, Mr Jackson and Mr Hole threw Mr Boncoeur against the wall and threatened him with the axe. At one point, threats were made to all three occupants with the axe.

At another stage, Mr Jackson took Ms Jaune to a wardrobe room and asked her for her handbags and rings. He called her a prostitute. He permitted her to keep one ring. He said his father was in ‘the KKK’ and that he (Mr Jackson) was taking identification so that, if he were arrested, his father would know where to come. He also told her that he had friends outside and threatened that they were all going to rape her. He then said to all three occupants:

You know what, if you tell the police how my face is or how I look, then my father is going to look for you. He will come back. He will kidnap you and your wife and he will chop off all your fingers and make your wife watch.

Mr Auchoybur assisted in moving the safe towards the front door. He had his watch returned after asking for it. The intruders and Mr Auchoybur had a cigarette in the lounge room.

Mr Jackson then went into the room of an absent housemate and took a laptop. Mr Boncoeur and Ms Jaune assisted in removing a television from the wall and carrying it to the front door.

Arrests, charges and remand orders

After an hour or so of being terrorised, but noticing that Mr Jackson and Mr Hole were distracted, Mr Boncoeur and Ms Jaune took their chance and fled out of the house and down the street. Fortunately, they came across police who had been called to the earlier incident at Glencairn Avenue.

Police then went to Cobungra Court and yelled, ‘Police. Come out with your hands up.’ Mr Auchoybur came out of the house first.

Then came Mr Hole, who tried to flee but was caught and subdued. He was in possession of $1,350 in cash and a set of car keys belonging to Mr Boncoeur.

Mr Jackson was located by the canine squad and arrested at a nearby house. He had with him a satchel containing items with the name ‘Jaune’ on them.

Mr Hole was interviewed by police. He made no admissions. He claimed that he could barely remember anything and denied knowing a Samuel Jackson. He also denied stealing anything, drinking alcohol or using drugs.

In his police interview, Mr Jackson said, ‘I’d like to apologise to these people.’ Shortly thereafter, it was decided that he was unfit to be interviewed as a result of his drug-affected state.

Both men were charged with numerous offences, including those to which they later pleaded guilty. Police also laid three charges of false imprisonment of the occupants of the home at Cobungra Court and a charge of threatening to commit a sexual offence against Ms Jaune.

Both men were remanded in custody, where, as indicated earlier, at least Mr Jackson has remained ever since.

Resolution, committal and pleas of guilty

The matters resolved to pleas of guilty to the four charges on the indictment at a committal case conference on 5 June 2018. The other charges were withdrawn. Mr Jackson and Mr Hole were then committed, via the straight hand-up brief procedure, to the County Court for plea.

Both men honoured those settlements by pleading guilty upon arraignment in the County Court on 23 July 2018 and again at the commencement of the plea hearing on 27 September 2018.

The judge’s reasons for sentence

The judge began her reasons for sentence by identifying the offences to which each man had pleaded guilty and then summarised the facts as alleged in the summary of prosecution opening.[9]
[9]Reasons at [1]-[22].

Her Honour said it was trite to say that these were serious offences, particularly the home invasion.[10] She noted that home invasion was a relatively new offence that carried a maximum penalty of 25 years’ imprisonment, and then said the following:[11]

[23] … This in my view is a serious example of the offence. It was an offence of some significant duration. It involved ransacking of the house. [Both offenders] carried menacing weapons as a way of demonstrating [their] capacity for violence and [they] used them repeatedly to enforce [their] threats and demands. Fortunately, they were not used on the victims.

[24] As far as role was concerned in that offence, [the offenders] acted together and are both responsible. However, it is apparent from the statements of the victims and it was accepted by [his counsel] that [Mr Jackson was] the more active participant and the leader in the escapade. [He was] the one carrying the more threatening weapon, namely the axe. That is a weapon capable of inflicting very serious injury on a person. It was used, as I have described, to threaten the victims in the house to carry out acts of violence by way of smashing mobile phones and was used in a most terrifying way to enact a mock threat to cut off Mr Boncoeur’s foot.
[25] [He was] the one making threats to victims, in particular to Ms Jaune and Mr Boncoeur. The threats made to rape Ms Jaune in front of her husband, to have others return to do so and to have others return to cut off Mr Boncoeur’s fingers and make her watch are particularly vile. In my view, they increase [Mr Jackson’s] moral culpability as they [were] intended to and no doubt did increase the level of terror in the victims. A threat to obtain Ms Jaune’s identity and have others return is likely to have created in her an ongoing fear and anxiety, perhaps over and above the usual hypervigilance experienced by victims of such offences.
[26] Denunciation, deterrence and just punishment must be at the forefront of my sentencing considerations.

[10]Reasons at [23].

[11]Reasons at [23]-[26] (emphasis added).

The judge then referred in some detail to the victim impact statements of Mr Anderson, his wife Ms Nguyen, Ms Jaune and Mr Boncoeur.[12] In respect of the latter two, her Honour observed that these victims said that they were afraid for their lives; that they felt helpless because the intruders had weapons; and that the intruders ‘were smashing things from beginning to end’.[13]
[12]Reasons at [27]-[29].
[13]Reasons at [28]-[29].

The judge turned to Mr Jackson’s background and early years growing up in Tasmania, which were blighted to a large extent by the violence and alcoholism of his natural father. Mr Jackson developed behavioural problems, began drinking alcohol at the age of 14 and took illicit drugs at 15. He left home at that age and couch-surfed with friends while still attending school. He was bullied at school but also engaged in fights.[14]
[14]Reasons at [31]-[41].

Mr Jackson has a brother who has had no trouble with the law. Their mother is a civil engineer. She separated from their natural father and moved to Victoria with the children when they were still young. She was very much involved in Mr Jackson’s schools and in exploring his mental health and behavioural issues. Such progress that was made, however, was interrupted early in her son’s life when his natural father instituted proceedings in the Family Court and had his mother served with process while visiting Tasmania with the children, which meant that they could not leave the State until the matter was resolved.[15]
[15]Reasons at [34].

Mr Jackson’s mother ultimately married another man, with whom Mr Jackson has a good relationship. However, in 2012, the new couple went to live in Western Australia. This left Mr Jackson living alone in Victoria from the age of about 17.[16]
[16]Reasons at [39] & [45]-[46].

Mr Jackson’s three prior court appearances occurred in the years that followed. In 2014, he was fined for threatening to inflict serious injury and possessing a controlled weapon. In 2015, he was fined for possessing a dangerous article in a public place. In 2016, he was fined for using threatening words in a public place and assault in company.[17]
[17]Reasons at [43].

In April 2017, Mr Jackson was seriously injured in a car accident, requiring hospitalisation. His best friend, who was driving, was killed. This has caused Mr Jackson a great deal of grief.[18]
[18]Reasons at [49].

While recovering in hospital, however, he met a young woman, Ms Bowham, to whom he has become quite close. He obtained employment and became drug-free during his period with her following the accident. Ms Bowham has no criminal history and visits Mr Jackson in custody. The judge accepted that Ms Bowham is a ‘real positive’ in Mr Jackson’s life.[19]
[19]Reasons at [50]-[51].

Those gains, however, were gradually undone, and Mr Jackson began using drugs again, and offending. In fact, he was also on bail on charges relating to family violence, burglary and dishonesty at the time of the present offending.[20]
[20]Reasons at [52].

Mr Jackson’s mother and his stepfather are very supportive of him. They even left their fly-in/fly-out jobs in Western Australia and moved to Tasmania so that they could be closer to him. They now spend a week in Tasmania working and every second week in Victoria for that purpose.[21]
[21]Reasons at [45]-[46].

The judge noted that it was Mr Jackson’s first time in custody, where he had been for almost a year by the time of sentence. He was engaging in various programmes directed towards rehabilitation. While a psychologist described him as a ‘low-functioning individual’ with ‘crushingly low self-esteem’ and ‘impaired capacity to exercise generally good judgment’, he had a positive mindset towards his future and did not have current symptoms of depression or anxiety.[22]
[22]Reasons at [54]-[58].

As well as observing that the seriousness of his behaviour must be met by a significant term of imprisonment, the judge accepted that Mr Jackson had pleaded guilty at a very early stage, had expressed horror at his own behaviour, was genuinely remorseful and had good prospects of rehabilitation. Her Honour considered the ongoing support provided by his mother and stepfather to be important and that that support would be ‘a real positive for [him]’.[23]
[23]Reasons at [59]-[62].

I shall return to the judge’s reasons and findings concerning Mr Hole when considering the ground claiming manifest disparity.

The sentences imposed

For the moment, I shall set out the sentences imposed by her Honour.

Mr Jackson

On 14 February 2019,[24] the judge imposed the following sentences on Mr Jackson:
[24]The judge had intended to sentence much earlier, but an injury to her scuppered that plan.

(a) on the offence in Charge 1 (attempted theft of the van), six months’ imprisonment;

(b) on the offence in Charge 3 (attempted aggravated burglary), two years’ imprisonment;

(c) on the offence in Charge 4 (home invasion), four-and-a-half years’ imprisonment.

Her Honour directed that 18 months of the sentence for the offence in Charge 3, and three months of the sentence for the offence in Charge 1, be served cumulatively upon the sentence for the offence in Charge 4, making a total effective sentence of six years and three months’ imprisonment, upon which she fixed a non-parole period of four years.

The judge declared, pursuant to s 6AAA of the Sentencing Act,[25] that, but for Mr Jackson’s pleas of guilty, she would have imposed a total effective sentence of eight-and-a-half years’ imprisonment with a non-parole period of six years.
[25]Sentencing Act 1991 (Vic) (‘the Sentencing Act’).

Mr Hole

In the case of Mr Hole, for the offences in his Charges 1, 2 and 4, the judge imposed an aggregate sentence[26] of three years’ detention in a youth justice centre.[27]
[26]See Sentencing Act 1991 (Vic), s 32A(2).
[27]See Sentencing Act 1991 (Vic), s 32(1).

Her Honour declared, pursuant to s 6AAA, that, but for Mr Hole’s pleas of guilty, she would have imposed a total effective sentence of four years’ imprisonment with a non-parole period of two-and-a-half years.

Ground 3: Sentencing for offending of which not convicted

Ground added by leave at hearing

I turn first to Ground 3, which was added by leave granted at the hearing. Counsel were also given leave to file further written submissions on the point.

The ground reads in this way:

Ground 3: The sentencing judge erred in punishing the applicant for offences for which he was not convicted.

Mr Jackson’s submissions

Counsel for Mr Jackson in this Court (who also appeared at the plea) referred to the emphasised passages in the extract of the judge’s reasons set out earlier.[28] In his submission, given the principles discussed in R v Newman & Turnbull,[29] those remarks reveal that the judge impermissibly had regard, in aggravation of the offence of home invasion, to facts that constituted offences of which Mr Jackson was not convicted. Those other offences included threats to inflict serious injury,[30] threats to commit a sexual offence,[31] threatening injury to prevent arrest[32] and destroying or damaging property.[33]
[28]See above at [43]; Reasons at [23]-[25].
[29]R v Newman & Turnbull [1997] 1 VR 146 (‘Newman’).
[30]Crimes Act 1958 (Vic), s 21 (maximum penalty: five years’ imprisonment).
[31]Crimes Act 1958 (Vic), s 43 (maximum penalty: five years’ imprisonment).
[32]Crimes Act 1958 (Vic), s 30 (maximum penalty: five years’ imprisonment).
[33]Crimes Act 1958 (Vic), s 197(1) (maximum penalty: ten years’ imprisonment).

As I understood his submission, counsel for Mr Jackson also argued that, given that the form of home invasion alleged involved entry as a trespasser with intent to steal (as opposed to an intent to commit an offence involving an assault or property damage), and notwithstanding the possession of fearsome weapons, the threats to cause serious injury and rape and the property damage could not legitimately inform the intent upon entry but must be seen to violate the principles set out in Newman and like cases.

The Director’s submissions

Counsel for the Director in this Court (who did not appear at the plea) referred to the summary of principles set out by Kaye and Weinberg JJA in Elsayed v The Queen[34] arising from decisions such as Newman and The Queen v De Simoni.[35] As I understood her, counsel further submitted that, in view of that summary of principles, the judge correctly took into account the various threats and destruction of property, being offences of lesser seriousness than that of home invasion, in the following ways:
[34]Elsayed v The Queen [2019] VSCA 113 (‘Elsayed’) at [56]-[63].
[35]The Queen v De Simoni (1981) 147 CLR 383 (‘De Simoni’).

(a) The judge found that those (uncharged) offences were substantially, if not inextricably, connected to the (charged) offending and were serious features of the offence of home invasion.

(b) Her Honour found that the home invasion was a serious example of the offence in that it was of significant duration, it involved ransacking and it also involved the carrying of menacing weapons that were used in a way of demonstrating the offenders’ capacity for violence in that they were used repeatedly to enforce various threats and demands.

(c) The judge also found that a consequence of the threats and criminal damage was the impact on the victims, whose level of terror was increased, as evidenced in the victim impact statements. This, submitted counsel, was a factor that the judge was required to take into account pursuant to s 5(2)(daa) of the Sentencing Act.

In conclusion, counsel submitted that, ‘given that the threats and criminal damage were of less gravity than the charge of home invasion and were substantially and inextricably connected to the offending, her Honour did not offend the principles as stated by De Simoni and Newman in regarding them as aggravating features of the offence of home invasion’.

Analysis

R v Newman & Turnbull

In order to deal with this ground, it is necessary to return to this Court’s decision in Newman.

The two applicants each pleaded guilty in the County Court to aggravated burglary of a residential premises, and criminal damage. The aggravated burglary pleaded entry with intent to commit an offence involving an assault and the carrying of an offensive weapon, namely an axe handle. The judge sentenced each applicant to terms of imprisonment on each offence, resulting in a total effective sentence of 18 months’ imprisonment with ten months suspended for two years.

The offending may be summarised in this way. When the applicants arrived at the premises in question, they had with them an axe handle. One of them threw a brick through the plate glass front door. The other yelled to Mr Bult, an occupant on an upstairs bedroom balcony, that he was ‘coming in to fix [him] up’. He climbed up onto the balcony and forced his way inside through the bedroom doors. Once inside, he struck Mr Bult with the axe handle. The other applicant also entered the home and joined in the assault. Mr Bult’s wife came into the room wielding a cricket bat, which caused the applicants to flee. As they left, one threw another brick, which struck Mr Bult in the face. More windows were smashed in the front of the house as well. Mr Bult suffered a broken nose and bruising.

The applicants originally had been charged additionally with assault-based offences, but no such counts made their way onto the presentment. In this Court, it was contended that the judge erred by including within each sentence a component referable to the assault. Given the language used by the judge, it is clear enough that he had done just that. The Court held that the judge had erred in doing so.

While it is a long passage, the reasons given for that conclusion by Winneke P (with whom Hayne JA and Crockett AJA agreed) repay reading in full:[36]
[36]R v Newman & Turnbull [1997] 1 VR 146 (‘Newman’) at 150-152 (my emphasis in bold italics and also underlining in both the text of Winneke P’s reasons and in the extracts from other cases). (Also, for convenience, I have added paragraph numbers to this part of Winneke P’s judgment.)

[1] Whilst I have every sympathy for the learned sentencing judge having regard to the difficult circumstances with which he was confronted in his sentencing task, I am none the less persuaded that he has fallen into error by including within his sentence a component for the aggravated assault on the inhabitant of the house who was the target of the relevant intention which the applicants harboured when they effectuated their unlawful entry.
[2] The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted:
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

See [The Queen] v De Simoni (1981) 147 CLR 383 at 389, per Gibbs CJ.
[3] This statement of principle, which flows from the common law, has been the subject of frequent application in superior courts of Australia. Mr Just, for the Crown, referred to the final paragraph in the cited passage from the judgment of Gibbs CJ in support of the proposition that the principle would only have application if the sentencing judge was taking account of circumstances which would have warranted a conviction for a more serious offence, that being one for which a higher maximum penalty was imposed by law. This argument, I think, takes too narrow a view of the principle. As the Court of Criminal Appeal of this State said in Medcraft [(1992) 60 A Crim R 181] at 185, Gibbs CJ (in De Simoni) was referring to ‘a more serious offence than that for which the prisoner was being sentenced’. Indeed this, I think, had been made clear in a later passage in the judgment of the Chief Justice in De Simoni at 392, when he said:
[W]here the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.

[4] In a sense the application of the principle may require the sentencing judge to take an artificially restricted view of the facts of the case, but, as was pointed out in De Simoni … at 392, this will also be so in cases where the jury’s verdict is inconsistent with the view of the facts that the judge himself has formed; because the judge, in passing sentence, is not permitted to act on a view of the facts which conflicts with the jury’s verdict. In Hill … [1979] VR 311 the accused had been charged on presentment with burglary involving an intention to commit indecent assault as well as two substantive counts of indecent assault. The accused pleaded guilty to the burglary count and ‘directed verdicts’ of not guilty were entered in respect of the charges of indecent assault. The contention on the appeal was that the sentencing judge had, in imposing sentence, taken the facts relating to the indecent assault counts into consideration when imposing a penalty for the burglary. In allowing the appeal the court said at 313:
On the count of burglary, the evidence which we have outlined as to the applicant’s entering N’s bed would clearly have been admissible as relevant to the question whether the applicant had the necessary intent. If that had been the only count on the presentment a trial judge faced with the task of sentencing the applicant whether upon a plea of guilty or upon a verdict of guilty after a trial would have formed his own view upon the question whether the indecent assaults had been carried out, but even if satisfied that they had been carried out, would have been required to take care that he sentenced the applicant only for the burglary and that he did not sentence him for the indecent assaults … How then is the judge to form a view as to the seriousness of the burglary for the purpose of passing sentence? He must form an opinion as to the intention of the applicant and he must form that opinion on the evidence before him keeping in mind all the time that he must not act upon the basis that the applicant committed the indecent assaults.

[5] For my part, I do not see that the application of the principle depends upon the circumstance (as suggested here by the Crown) that the accused man had been charged and acquitted (whether by direction or otherwise) of the offence for which punishment has been wrongly inflicted. On the contrary, at the heart of the principle lies the fundamental rule of fairness that a person should not be punished for an offence of which he has not been convicted. … .
[6] Although it has been said that the application of the principle sometimes requires a sentencing judge to adopt an artificial and, at times, quite unrealistic view of the facts (cf R v Wyllie [1989] VR 21 at 32), it seems to me that, in a case like the present, the matter is very much in the hands of the Crown. If it desires the judge to have the flexibility, in imposing sentence, of dealing with the offender for aggravating circumstances which in themselves amount to a discrete and serious offence, then it is within the Crown’s capacity to shape its presentment accordingly. In this case it chose not to do so. Whether or not it was relying upon the ‘Crown practice’ (referred to by Mr Just) in framing its presentment I do not know, but this court cannot be restrained from applying basic principle by such a practice, which, in any event, appears not to be universal in its application.

[7] It has frequently been said that, for the purposes of sentencing, it is not always easy to determine where the permissible consideration of circumstances surrounding the commission of an offence ends and punishment for an offence not charged begins. Indeed counsel before us agreed that it was a ‘matter of degree’ which depended upon the facts of the particular case. Such a view was expressed by Cox J (of the South Australian Court of Criminal Appeal) in the recent case of R v Teremoana (1990) 54 SASR 30. Having referred to a passage in the reasons of King CJ in the case of R v Austin (1985) 121 LSJS 181 at 183, his Honour said that:
Applying these principles to the facts of a particular case has sometimes caused difficulty. Plainly if the defendant has already been acquitted by the jury on one particular count the judge may not have regard to allegations distinctive to that count when sentencing the defendant on other counts on which he has been found guilty. The situation will be essentially the same where he pleads guilty to one count and the Crown decides not to press a related charge of a serious offence on the same information, or indeed where a related charge could have been laid but in fact was not … However, it is certainly not a universal rule that the judge, when sentencing for the offence specifically charged in the information, may never have regard to relevant actions of the defendant that, strictly speaking, constituted separate offences. If they were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly be taken into account as a part of the circumstances surrounding the offence charged.

This passage was endorsed by the Court of Criminal Appeal in this State in Medcraft at 187-8.
[8] If one is to apply those remarks to the facts of the case before us, then in my view the sentencing judge has gone beyond permissible limits in taking into account, when sentencing the applicants, the serious assault in which his Honour said that each applicant had participated. If I may be permitted to borrow from the example provided by Cox J in the case of Teremoana at 38, it illustrates the point at issue:
If a burglar is disturbed in the course of ransacking a house, and seriously assaults the victim, the assault should be separately charged and not regarded as a mere matter of aggravation of the burglary.

The same applies, in my view, whether or not the intent involved in the burglary is an intent to injure. It is, in my view, clearly demonstrated from his Honour’s sentencing remarks to which I referred earlier in this judgment, that he had very much in the front of his mind when sentencing the applicants the consequences which accompanied the burglary — namely, the serious assault which they perpetrated upon Bult (and which his Honour described as ‘thuggery’); an assault which could have been (and had earlier been) charged as a discrete offence. For my part I cannot see how the assault can ‘belong to’ or ‘give content and meaning to’ the relevant intention which is an ingredient in the crime of burglary (as was contended before us by the Crown). The gravamen of burglary is the unlawful entry into premises with the relevant intent. The ingredients of the crime in this case were established by the guilty plea entered by each applicant. As the court said in Hill … at 313, the plea of guilty to burglary required the sentencing judge to have regard to the entry, the manner in which it was effectuated and the intention with which it was effectuated. But, whether one calls it a matter of degree and/or fairness, his Honour was not, in my view, entitled to go beyond the crime of burglary and sentence the applicants for a serious assault.

Post-Newman thinking

In the quarter of a century that has passed since Newman was decided, on occasions, there have been finely balanced cases in which this Court has agonised over whether the sentencing judge has fallen into error of the type identified in Newman itself or whether he or she has done no more than apply, correctly, the general principle that a judge is bound to take into account all of the circumstances relevant to the commission of the offence of which the offender has been convicted.

Most recently, in Elsayed, Kaye and Weinberg JJA helpfully addressed this tension. After referring[37] in some detail to passages from the judgments of Winneke P in Newman, Gibbs CJ in De Simoni and Cox J in R v Teremoana,[38] their Honours said the following:[39]

[63] The foregoing review of the authorities indicates that the principle, that a sentencing judge should take into account all the relevant circumstances concerning the commission of the offence for which the offender has been charged, does not permit the judge to take into account, by way of aggravation, circumstances which would have warranted the conviction of the offender for a more serious offence. As Winneke P observed in Newman, it is not, generally, easy to delineate where the permissible consideration of circumstances surrounding the commission of an offence ends, and punishment for an uncharged offence commences.[40] Ultimately, the question is one of fact, degree, and fairness.[41]However, it is clear that the principle does not proscribe a judge taking into account, as an aggravating circumstance, conduct which may constitute some uncharged offence, but which, properly considered, formed part of or was connected with the offending, and which constituted offending that was of lesser seriousness than the offence that has been charged.[42]

[37]Elsayed v The Queen [2019] VSCA 113 at [56]-[62].

[38]R v Teremoana (1990) 54 SASR 30 (‘Teremoana’) at 37-38.

[39]Elsayed v The Queen [2019] VSCA 113 at [63] (emphasis added).

[40]R v Newman & Turnbull [1997] 1 VR 146 at 150.

[41]R v Newman & Turnbull [1997] 1 VR 146 at 150; see also Semaan v The Queen [2017] VSCA 261 at [91].

[42]See also Rodriguez v DPP (2013) 40 VR 444[27]-[29]; R v Heblos (2000) 117 A Crim R 49 at 55[33] (Eames AJA); DPP v McMaster (2008) 19 VR 191 at 200[41] (Ashley JA); Pollard v The Queen [2010] VSCA 156 at [23].

After describing this Court’s decision in R v Birnie[43] as ‘a clear illustration of the application of those principles’,[44] Kaye and Weinberg JJA then turned to apply those principles to the case before them.
[43]R v Birnie (2002) 5 VR 426 (the complaint of ‘Newman’ error failed in that case).
[44]Elsayed v The Queen [2019] VSCA 113 at [64]-[65].

The factual background was as follows. The applicant had pleaded guilty to recklessly causing serious injury and robbery. In the course of arguments over drug debts between the applicant and Mr Hanns, the applicant’s co-offender ‘Mus’[45] assaulted Mr Hanns, breaking his nose, a tooth and causing bruising and swelling to his face. (These events gave rise to the offence of recklessly causing serious injury.) Later, while Mus had Mr Hanns in a headlock, the applicant demanded $10,000 from him. Mr Hanns was also threatened that, if he did not repay that sum, he was ’fucked’, and that, if he went to the police, his mother was ‘to go first and then his kids’. As the applicant and Mus left the scene, they took cash and other items belonging to Mr Hanns. (These events gave rise to the offence of robbery.)
[45]Apparently short for ‘Muscle’.

One of the grounds of appeal concerned whether the threat to harm Mr Hanns’ mother and his children was taken into account in violation of the principles in Newman and like cases. Kaye and Weinberg JJA held that the judge had not erred. Their Honours resolved the matter in the following way:[46]
[46]Elsayed v The Queen [2019] VSCA 113 at [66]-[67] (emphasis added).

[66] Applying those principles to the present case, if the judge did in fact take into account the threats made to Hanns, as an aggravating circumstance, we do not consider that his Honour thereby fell into error. For the reasons already discussed, the two principal offences, to which the applicant pleaded guilty, namely the robbery and causing injury recklessly, were serious. As the judge correctly concluded, the applicant committed the robbery in the company of the co-offender whose role was to provide ‘muscle’ to intimidate Hanns. The level of intimidation and force that was ultimately employed (including placing Hanns in a headlock) were serious aspects of the offence of robbery. The degree of violence inflicted on Hanns, and the injuries sustained by him, were important features of gravity attaching to the charge of causing injury recklessly.
[67] It must be accepted that the threats by the applicant to Hanns were reprehensible, particularly the threat that was directed to causing harm to Hanns’ children and mother. However, considered in context, those threats were of less gravity than the circumstances in which the two offences were otherwise committed. Further, the threats accompanied the offending, particularly the robbery, and were, substantially, if not inextricably, connected with the offending. They illustrated the degree and nature of the intimidation that was a central factor in the offence of robbery for which the applicant was sentenced. For those reasons, if the judge did take into account the making of those threats to Hanns, he did not thereby offend the principles to which we have referred, as stated by the High Court in De Simoni and this Court in Newman.

Elsayed is distinguishable; Newman applies squarely

Introduction

Counsel for the Director sought to apply similar reasoning to that which was employed by their Honours in Elsayed in answer to Mr Jackson’s complaint. In my view, however, Elsayed is distinguishable from the present case on the facts. Moreover, nothing said as a matter of principle in Elsayed defeats Mr Jackson’s complaint in this case. Instead, as I see it, this case falls well within the principles explained in both Newman and Elsayed. I shall develop each of those points in turn.

Elsayed distinguished and Newman applied

First, it is clear that the threats in Elsayed preceded the theft (which itself is an element of robbery) and formed part of the violence or threat of violence for the purposes of effecting that theft (which is another element of robbery).[47] Secondly, considered in context, said their Honours, those threats were of less gravity than the circumstances in which the two charged offences were otherwise committed.
[47]See Crimes Act 1958 (Vic), s 75(1); R v Butcher [1986] VR 43.

By way of contrast, although the uncharged offences in this case must have followed relatively soon after the offence of home invasion was complete (albeit the intruders must have been in the house a good while before confronting Mr Auchoybur, because they had already ransacked his room, unnoticed, by that stage), and although it might be said that the uncharged offences occurred concurrently with the offence of home invasion as the trespass continued, the numerous violent threats and instances of property damage (and other offences) committed by Mr Jackson were quite distinct from the particular offence of home invasion. Secondly, in my view, the threats and instances of property damage were substantially more serious than the offence of home invasion itself. Let me explain each point.

While it may be regarded as persisting while the offender is inside the premises, the offence of aggravated burglary is complete upon entry as a trespasser with the requisite intent pleaded accompanied by the requisite form of aggravation pleaded.[48] Given that two of the three key elements of home invasion and aggravated burglary, as pleaded in this case, are almost identical, the same analysis (with one possible qualification to be discussed below) must apply to home invasion.[49] In the present case, the key elements of the home invasion, as pleaded, were entry as a trespasser with intent to steal[50] (as opposed to an intent to assault or damage property[51]), in company[52] (which is not a requirement of aggravated burglary) and while carrying an offensive weapon,[53] namely an axe and a bike fork (as opposed to a person being present in the home[54]).
[48]See, for example, DPP v Barnes & Barnes [2015] VSCA 293 at [45] (per Croucher AJA, with whom Redlich JA and Kyrou JA agreed).
[49]See Crimes Act 1958 (Vic), ss 77 (aggravated burglary) and 77A (home invasion). One difference is that aggravated burglary (and burglary — see s 76) concern entry as a trespasser to ‘a building’ (or part thereof), whereas home invasion (and aggravated home invasion — see s 77B) concern entry as a trespasser to ‘a home’, which is defined in s 77A(5).
[50]Crimes Act 1958 (Vic), s 77A(1)(a)(i) (home invasion); cf ss 76(1)(b)(i) and (ii) and 77(1) (burglary and aggravated burglary).
[51]Crimes Act 1958 (Vic), s 77A(1)(a)(ii)(A) and (B) (home invasion); cf ss 76(1)(a) and 77(1) (burglary and aggravated burglary).
[52]Crimes Act 1958 (Vic), s 77A(1)(b) (home invasion).
[53]Crimes Act 1958 (Vic), s 77A(1)(c)(i) (home invasion); cf s 77(1)(a) (aggravated burglary).
[54]Crimes Act 1958 (Vic), s 77A(1)(a)(ii) (home invasion); cf s 77(1)(b) (aggravated burglary). But note the difference between s 77A(2) (which, in home invasion, relieves the prosecution of proof of mens rea with respect to presence of an occupant in s 77A(c)(1)(ii)) and s 77(1)(b) (which, in aggravated burglary, requires proof of knowledge of recklessness as to the presence of an occupant). See below.

Unlike in Elsayed, where the threats preceded the completion of, and were capable of forming part of the violence inherent in, the robbery, the uncharged threats and instances of criminal damage perpetrated by Mr Jackson came after the home invasion was complete and were not capable of forming any part of the elements of the home invasion as pleaded.

Differences between aggravated burglary and home invasion immaterial

At this point, I should pause to note a particular feature of home invasion that differs from aggravated burglary. In short, burglary involves entry to a building (or part thereof) as a trespasser with intent to steal anything therein or to commit an offence involving an assault to a person therein or involving damage to the building or to property therein.[55] One form of aggravated burglary is where the offender commits a burglary and ‘at the time has with him or her any firearm or imitation firearm, offensive weapon [etc]’.[56] The other (alternative) form of aggravation that converts a burglary to an aggravated burglary is that, at the time of the offender’s entry to the building (or part thereof), ‘a person was then present in the building [or part thereof] and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present’.[57]
[55]Crimes Act 1958 (Vic), s 76.
[56]Crimes Act 1958 (Vic), s 77(1)(a).
[57]Crimes Act 1958 (Vic), s 77(1)(b).

Home invasion, which is found in s 77A of the Crimes Act, is, in effect, a form of burglary committed in company and directed at residences. The offence (along with aggravated home invasion) was introduced into the Crimes Act by s 3 of the Crimes Amendment (Carjacking and Home Invasion) Act 2016 (Vic). While one possible element of home invasion is that, ‘at the time the [accused] enters the home, [the accused] has with them a firearm or imitation firearm, any offensive weapon [etc]’,[58] another (alternative) element, contained in s 77A(1)(c)(ii), is that ‘at any time while the [accused] is present in the home, another person (other than [the co-accused]) is present in the home’.[59] Further, for the purposes of the latter element, ‘it is immaterial whether or not the [accused] knew that there was, or would be, another person present in the home’.[60] Thus, a form of strict liability applies to this (alternative) element.
[58]Crimes Act 1958 (Vic), s 77A(1)(c)(i).
[59]Crimes Act 1958 (Vic), s 77A(1)(c)(ii).
[60]Crimes Act 1958 (Vic), s 77A(2).

In his ‘Statement of Compatibility’ concerning the Bill that became the Act that inserted into the Crimes Act the offence of home invasion,[61] the Attorney-General explained why that choice was made:[62]

The element of strict liability is justified due to the serious nature of the offence, and the exceptional traumatic effect on a person who is present during such an offence. This reflects the extra culpability of targeting a home for a burglary, and the fact that there is always a risk that a person is or will be present. It will not be necessary for the prosecution to show whether the accused was aware that someone was present, or would be present during the burglary, as the indifference shown when entering the building to commit a burglary, is sufficient to justify the strict liability element. It is an appropriate response to the impact of violent crime on victims.

[61]See Crimes Amendment (Carjacking and Home Invasion) Act 2016 (Vic), s 3.

[62]Hansard (Legislative Assembly, 1 September 2016), p 3327.

In his second reading speech in support of the same Bill, the Attorney also said this:[63]

The [B]ill specifically introduces an element of strict liability into the offence of home invasion, so that an offender’s knowledge of the presence of another person is irrelevant. This is deliberate and is a response that properly recognises the traumatic effect on victims. If two or more individuals decide to enter a residence as a trespasser to commit a burglary and there is someone present, they should face a serious charge. Whether they knew someone was present or whether they turned their minds to that possibility is irrelevant. Anyone who targets a residence for burglary takes the risk that a person will be inside and should face the consequences of that risk.
It is unacceptable for someone to feel unsafe in their own home. It would be even worse to actually be confronted by strangers in what should be a person’s sanctuary. If a person wants to engage in these acts of criminality, they should get no credit for arguing that they did not think other people would be present. Whether or not it is intentional, the effect on the victims is the same and is rightly condemned by the introduction of this offence.

[63]Hansard (Legislative Assembly, 1 September 2016), pp 3329-3330.

The offence of aggravated home invasion, which was created by the same Act and carries the same maximum penalty as the simpliciter offence (namely, 25 years’ imprisonment), requires proof that the accused entered the home with two or more others,[64] instead of one or more, and, like the alternative version of the simpliciter offence, that ‘at any time while the [accused] is present in the home, another person (other than [the co-accused]) is present in the home’.[65] In view of the foregoing remarks by the Attorney, however, it is curious that aggravated home invasion also requires proof that the accused ‘knows or is reckless as to whether there is or will be another person (other than [a co-accused]) present in the home while the [accused] is present in the home’.[66]
[64]Crimes Act 1958 (Vic), s 77B(1)(b).
[65]Crimes Act 1958 (Vic), s 77B(1)(c)(ii).
[66]Crimes Act 1958 (Vic), s 77B(1)(d).

On the face of it, it seems arguable that the offence of home invasion, at least when pleaded as relying on the presence of an occupant (pursuant to s 77A(1)(c)(ii)), and also the offence of aggravated home invasion, might be complete, not upon entry as a trespasser with the necessary intent, but when, say, an occupant returns to the home while the offender is still there. If that is correct, it might be said that it is also arguable that a home invasion is more in the nature of a continuing offence than is burglary or aggravated burglary. If so, it might be argued that it is therefore more appropriate in a case of home invasion, than it is in a case of burglary or aggravated burglary, to treat uncharged behaviour occurring inside the premises as merely an aggravating feature of the home invasion, and therefore as falling outside the principles in Newman and like cases. I hasten to add that none of these points were raised in submissions by the parties.

In my opinion, however, the point either should not be accepted or, in any event, cannot deny the application of the Newman principles to this particular case. There are at least three reasons, any one of which will do. First, as I indicated earlier, it is accepted that burglary and aggravated burglary, while complete upon entry, can be in the nature of continuing offences.[67] Thus, even if a home invasion of the type discussed might not be complete until some point after entry, it cannot be said that that offence is any more or less apt to be a continuing offence than burglary or aggravated burglary.
[67]See, for example, DPP v Barnes & Barnes [2015] VSCA 293 at [45] (per Croucher AJA, with whom Redlich JA and Kyrou JA agreed).

Secondly, even if this feature of the type of home invasion under consideration does render it more in the nature of a continuing offence than otherwise, I do not accept that that fact would oust the operation of the principles in Newman. The mere fact that a charged offence can be regarded as continuing while uncharged offences are being committed cannot deny the conclusion that the Newman principles apply where those uncharged offences are so distinct and grave that they must be the subject of separate charges before their criminality could be brought into account. And that is so in the present case, a matter about which I shall say more shortly.

Finally, and in any event, the Director did not plead in the indictment the allegation that other persons were present in the home at any time while the offenders were present. Instead, only the fact that the offenders had offensive weapons with them at the time of entry was alleged. Yet, the Director could have pleaded both factors, but chose not to do so.

Accordingly, any differences between the elements of home invasion and aggravated burglary are immaterial in the resolution of this ground of appeal.

Present case more compelling than Newman itself

In fact, this is an even stronger case for the application of the general principle for which Newman stands than Newman itself, for at least two reasons. First, in Newman, the form of aggravated burglary pleaded was entry as a trespasser with intent to injure (or, strictly speaking, I assume, an intent to commit an offence involving an assault) and while carrying an offensive weapon (an axe handle). Winneke P acknowledged the prosecution submission that the assault could ‘belong to’ or ‘give relevant content and meaning to’ the intention to assault, which was an element of the aggravated burglary. But his Honour rejected that submission, holding instead that, ‘whether one calls it a matter of degree and/or fairness, [the judge] was not … entitled to go beyond the crime of [aggravated] burglary and sentence the applicants for a serious assault’.[68] By way of contrast, in the present case, no such argument is available to the Director because the pleaded offence on the indictment included neither an intent to assault nor an intent to damage property but only an intent to steal.
[68]R v Newman & Turnbull [1997] 1 VR 146 at 152 (or see paragraph [8] of the long passage from Winneke P’s judgment extracted above).

The second respect in which this is an even better case for the application of the principles in Newman in favour of the offender than Newman itself concerns the gravity of the separate uncharged offending relative to the gravity of the charged offence of home invasion. In Newman, the separate offending was described as an ‘assault’, a ‘serious assault’ or an ‘aggravated assault’.[69] The facts surrounding the assault were described earlier. No doubt, it was a serious (uncharged) offence. But, in my view, the many violent threats made by Mr Jackson, either alone or together with Mr Hole, which continued for over an hour, whether or not combined with the instances of damage to property (not to mention the thefts), were far more serious than the home invasion itself. This contrast may be tested in several ways.
[69]R v Newman & Turnbull [1997] 1 VR 146 at 150 & 152 (or see paragraphs [1] and [8] of the long passage from Winneke P’s judgment extracted above).

First, it cannot be that relative offence gravity is tested by, or only by, the relative maximum penalties. So much was made clear by Winneke P in Newman, where his Honour rejected the argument, made by the Crown, that ‘the principle [in De Simoni] would only have application if the sentencing judge was taking account of circumstances which would have warranted a conviction for a more serious offence, that being one for which a higher maximum penalty was imposed by law’. That argument, said his Honour, ‘takes too narrow a view of the principle’.[70]
[70]R v Newman & Turnbull [1997] 1 VR 146 at 150 (or see paragraph [3] of the long passage from Winneke P’s judgment extracted above).

Even if, for the purposes of this principle, the relative maximum penalties were thought to be of relevance to relative offence gravity, then the following considerations point towards the applicability of the principle in this case. The assault in Newman sounded very much like it was an offence that, if the subject of a count on a presentment, would have been charged as intentionally causing injury or, at a stretch, recklessly causing serious injury. At the relevant time, those offences carried maximum penalties of seven and ten years’ imprisonment respectively, whereas aggravated burglary carried a maximum penalty of 20 years’ imprisonment.[71]
[71]Crimes Act 1958 (Vic), ss 17, 18, 77 and 320 (as in force on 3 July 1994, the date of the offending).

In the present case, however, home invasion carries a maximum penalty of 25 years’ imprisonment,[72] whereas the uncharged offences collectively would carry a much greater penalty. Even if only the more obvious and striking uncharged offences are considered, the combined maximum penalty for those offences was much more than twice the length of the maximum penalty for home invasion. There were at least three separate and grave threats to inflict serious injury (namely, the swinging of the axe towards Mr Boncoeur’s foot; the threat to chop off his fingers; and the threat with the axe more generally). There were two separate vile threats to rape (Ms Jaune). There was an assault designed to intimidate (by throwing Mr Boncoeur against the wall). Each of those six separate offences carries a maximum penalty of five years’ imprisonment. Then there were at least three separate instances of criminal damage (Mr Jackson’s smashing of the phone with the axe; his doing the same to the first laptop; and then breaking a second laptop over his knee). Those three offences each carry a maximum penalty of ten years’ imprisonment. That makes a grand total of 60 years’ imprisonment.[73]
[72]Crimes Act 1958 (Vic), s 77A(3).
[73]The summary of facts also implies that each occupant was falsely imprisoned for the duration of the ordeal. As indicated earlier, police originally charged three instances of that offence. Since that offence carries a maximum penalty of ten years’ imprisonment (Crimes Act 1958 (Vic), s 320), that extra 30 years’ imprisonment, when added to the 60 already mentioned, would bring the grand total to 90 years’ imprisonment.

Perhaps instead of the threats to the person (both sexual and to cause serious injury) and the damage to property being classified as separate offences, they might have been regarded as threats, intimidation or displays of violence that sufficed as the threats of violence required for multiple instances of armed robbery (or attempts), or part and parcel of at least three ‘ongoing’ armed robberies committed against the three occupants of the home. That, of course, is to employ reasoning similar to that which was employed in Elsayed, because it shows how threats can be part and parcel of more serious offences of violence. But the important difference is that the ‘more serious offences’ in this example are at least three armed robberies, which each carry a maximum penalty of 25 years’ imprisonment,[74] and collectively are obviously more serious than the home invasion itself, such that the principles in Newman apply.
[74]See Crimes Act 1958 (Vic), s 75A.

The second consideration is the relative objective gravity of the circumstances of the home invasion and the uncharged offending. While it is accepted that the home invasion was a serious offence in itself, it is plain that it was the uncharged offending behaviour inside the premises that was the more serious and was intended to have — and did have — the greater impact upon the occupants of the home. In my view, the egregious nature of the threats to rape Ms Jaune and the chilling nature of the specific threats to strike Mr Boncoeur’s foot with the axe and to chop off his fingers, collectively, involved greater moral culpability and more serious criminality than the home invasion. Further, while the assault in Newman involved battery and injury, that offence was short-lived, the injury was relatively minor and the whole venture involved a feud between parties known to one another. That offence also pales into insignificance when compared with the hour-long terrorisation of three residents by unknown intruders employing multiple grave threats and displays of violence and property destruction.

Potential link between home invasion and uncharged acts too remote

In my view, the most that can be said of a potential link between the elements of the home invasion and the performance of (some of) the uncharged acts is that the possession of the axe and the bike fork were particulars of the home invasion and that the axe, in particular, was used in some of the uncharged offences — namely, the threats to inflict serious injury, and the destruction of the phone and one of the laptops. But the weapons were not used as part of the threats to rape, the assault, the breaking of the laptop over the knee or the thefts. Further, and in any event, for the purposes of the application of the principle at issue here, the possession of a weapon as an element of one offence which is later used for some of a number of other — quite separate — offences is not the same as, say, the verbal threats made in Elsayed which accompanied and formed part of the robbery.

No allegation of awareness of occupants or intent to assault/damage property

Another distinction between Newman and the present case is that, in Newman, there was a specific finding that the applicants went to the premises to inflict violence on Mr Bult, whereas there was no such finding in Mr Jackson’s case. Nor was there any attempt, in respect of Mr Jackson, to plead, as part of the home invasion, the presence inside the home of the three occupants. This is perhaps not surprising given the evidence that the intruders ransacked Mr Auchoybur’s bedroom (for goodness knows how long) before coming across him in the bathroom, at which point they asked him how many people were in the house, all of which suggested they might not have been aware that anyone was home at the time of entry.

While the Attorney made it clear that proof of the offence of home invasion based upon the presence of an occupant does not require proof of an awareness of or recklessness as to such presence, that does not alter the fact that the Director did not plead any such presence and did not allege any prior knowledge of the presence of occupants. That the Director refrained from doing so makes all the more separate, on the one hand, the home invasion, as alleged, and, on the other, the uncharged offending committed once inside the home. The same is true of the absence of any attempt to plead or allege entry with any intention to assault or damage property.

An alternative argument

Alternatively, the uncharged offending committed inside the premises was so grave and, in the circumstances of this case, so separate and distinct from the elements of the charged offence that it was unfair, and in violation of the principles laid down in the cases, to allow that behaviour simply to be taken into account as an aggravating factor in sentencing on the home invasion and thereby render Mr Jackson liable to a more serious penalty. So much is plain, I think, from Winneke P’s reasons in Newman, where his Honour said this:[75]

… Mr Just, for the Crown, referred to the final paragraph in the cited passage from the judgment of Gibbs CJ in support of the proposition that the principle would only have application if the sentencing judge was taking account of circumstances which would have warranted a conviction for a more serious offence, that being one for which a higher maximum penalty was imposed by law. This argument, I think, takes too narrow a view of the principle. As the Court of Criminal Appeal of this State said in Medcraft [(1992) 60 A Crim R 181] at 185, Gibbs CJ (in De Simoni) was referring to ‘a more serious offence than that for which the prisoner was being sentenced’. Indeed this, I think, had been made clear in a later passage in the judgment of the Chief Justice in De Simoni at 392, when he said:
[W]here the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.

[75]See R v Newman & Turnbull [1997] 1 VR 146 at 150-151 (emphasis added) (or paragraph [3] of the long passage from Winneke P’s judgment extracted above).

While the foregoing point might be thought to be nothing more than a slightly different way of expressing the effect of the principles laid down in De Simoni and Newman, another view is that it is somewhat different from the way in which those principles have been understood and applied in some other cases since Newman. Some of those cases, while acknowledging that whether the principle applies can be a matter of degree and fairness, nevertheless also seem to suggest that the uncharged offending itself must be more serious than the charged offence before the principle can apply. For example, earlier in these reasons, I extracted a passage from the judgment of Kaye and Weinberg JJA in Elsayed, part of which I shall reproduce here again for convenience:[76]

[63] … However, it is clear that the principle does not proscribe a judge taking into account, as an aggravating circumstance, conduct which may constitute some uncharged offence, but which, properly considered, formed part of or was connected with the offending, and which constituted offending that was of lesser seriousness than the offence that has been charged.[77]

[76]See above at [74]; Elsayed v The Queen [2019] VSCA 113 at [63] (emphasis added).

[77]See also Rodriguez v DPP (2013) 40 VR 444[27]-[29]; R v Heblos (2000) 117 A Crim R 49 at 55[33] (per Eames AJA); DPP v McMaster (2008) 19 VR 191 at 200[41] (per Ashley JA); Pollard v The Queen [2010] VSCA 156 at [23].

In my view, however, correctly understood, Gibbs CJ’s reasons in De Simoni and Winneke P’s reasons in Newman allow the principle to operate where, when the facts of the charged offence and the uncharged offending are combined, they would (or do) render the offender liable to a more serious — i.e. heavier — penalty. Here, to adapt the passage from Gibbs CJ’s judgment in De Simoni, the Director ‘charged the offender with, or … accepted a plea of guilty to, an offence less serious than the facts warrant[ed], [and therefore could not] rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty’.

While I think it is clear that Mr Jackson was rendered liable to ‘a more serious penalty’ on the offence of home invasion in this case because the judge took into account, in sentencing for that offence, the facts constituting the grave aspects of the uncharged separate offending, I also think it is unnecessary to determine, in the present application, whether there is in fact a difference between, on the one hand, the approach of Gibbs CJ in De Simoni and Winneke P in Newman and, on the other, the approach taken in some other cases. This is because, as I said earlier, this case falls squarely within the principles as explained both in those cases and in Elsayed and other authorities in any event.

Section 5(2)(daa) of the Sentencing Act

Counsel for the Director also relied on s 5(2)(daa) of the Sentencing Act as compelling the judge to take into account the increased terror of the victims in consequence of the threats and criminal damage, as evidenced in their victim impact statements.

There can be no doubt that the victim impact statements from those inside the house at Cobungra Court evidence their overwhelming terror and distress at the threats and violence directed at them and their personal property.

However, given that s 5(2)(daa) speaks of the Court having regard to ‘the impact of the offence on any victim of the offence’, ‘the offence’ should be construed as meaning ‘the offence of which the offender has been found guilty or convicted’, not an uncharged offence or uncharged offences. As a result, it is not permissible, pursuant to s 5(2)(daa), to take into account the impact on victims of increased terror arising from the uncharged offences, as the judge did here.[78]
[78]See, for example, on a related question SD v The Queen (2013) 39 VR 487 at 491[17]-492[18]. But contrast, in different circumstances again, Harington v The Queen [2017] VSCA 307 at [24]-[28] (per Maxwell P and Redlich JA) and [65]-[75] (per Croucher AJA in dissent).

None of this means that it is impermissible for a judge to take into account the impact upon the victim of a burglary, a home invasion or an attempt at either offence (whether aggravated or not) who was either aware that his or her home was the subject of an attempt or an actual trespass, and whether or not the victim was confronted by the intruder. But it is another thing altogether to take into account victim impact which results not from any of those offences but from separate (uncharged) offences committed while inside the premises.

The manner in which the judge had regard to the uncharged acts

It is also one thing to hold that the principle in Newman was applicable and another to find that it has been breached.

In my view, however, it is plain that the judge did in fact take the uncharged acts into account in the impermissible way alleged. As counsel for Mr Jackson pointed out, as well as recounting in detail each of the uncharged acts, which detail took up more space in her reasons than the summary of the four charged offences, the judge’s reasons reveal that, when assessing the gravity of, and Mr Jackson’s particular role in, the home invasion, her Honour took into account:[79]
[79]Reasons at [23]-[25].

· that the intruders ‘used [the weapons] repeatedly to enforce [their] threats and demands’;

· that Mr Jackson was ‘the more active participant and the leader in that escapade’;

· that Mr Jackson ‘carried the axe’ and used it ‘to threaten the victims in the house to carry out acts of violence by way of smashing mobile phones and … in a most terrifying way to enact a mock threat to cut off Mr Boncoeur’s foot’;

· that the ‘threats made to rape Ms Jaune in front of her husband, to have others return to do so and to have others return to cut off Mr Boncoeur’s fingers and make her watch are particularly vile’; and

· that those acts ‘increase [Mr Jackson’s] moral culpability as they [were] intended to and no doubt did increase the level of terror in the victims’.

These remarks are also consistent with the judge’s observation, made during the course of the plea, that Mr Jackson’s threats ‘raise his … moral culpability enormously’.

In my view, it is clear from her sentencing remarks, and from the vast differences between the sentences imposed on Mr Jackson and Mr Hole, that the judge, impermissibly, treated as a gravely aggravating factor, and thereby also a factor substantially increasing his moral culpability and the sentence to be imposed, that Mr Jackson engaged in the numerous uncharged threats to inflict serious injury and rape and instances of criminal damage, and that he was ‘the more active participant and the leader in that escapade’. This, in my opinion, was to reason contrary to the principle in De Simoni and Newman.

Accordingly, I am satisfied that the judge erred and that this ground must be upheld. I am also satisfied that a different sentence should be passed.[80]

How the error came about, and how it could have been avoided

[80]See s 281(1) of the Criminal Procedure Act 2009 (Vic).

The propositions upon which I have based my conclusion were not ventilated on the plea. Had that occurred, it is unlikely that the judge would have fallen into error. Her reasons for sentence were otherwise clear, detailed and comprehensive.

In my view, it was in the hands of the Director to shape the indictment to account for the additional criminality engaged in by the offenders once inside the house. The same point was made, powerfully, by Winneke P in Newman.[81] Of course, it is difficult to know where to draw the line in borderline cases.[82] But this, in my view, was a clear case in which separate charges were necessary to permit the sentencing judge to capture the full criminality of the offending conduct in her sentence. A few carefully drawn charges, in addition to the home invasion, could have been included on the indictment to achieve the desired outcome.
[81]R v Newman & Turnbull [1997] 1 VR 146 at 151 (or paragraph [6] of the long passage from Winneke P’s judgment extracted above).
[82]See, for example, R v Newman & Turnbull [1997] 1 VR 146 at 150 & 152 (or paragraphs [1] and [7] of the long passage from Winneke P’s judgment extracted above); R v Teremoana (1990) 54 SASR 30 at 37-38 (per Cox J); Pun v The Queen [2017] VSCA 219 at [2]-[22] (per Redlich and McLeish JJA) and [85]-[87] (per Croucher AJA); and Elsayed v The Queen [2019] 113 VSCA at [63] (per Kaye and Weinberg JJA).

While it is not uncommon to see too many charges laid or persisted with at an early stage of a prosecution, in this particular, case, the police were alive to the need to lay charges of false imprisonment and of threatening to commit a sexual offence in addition to those to which both offenders pleaded guilty. But those charges fell away somewhere in the resolution process. The same thing happened in Newman with respect to the assault-based charge.

If the course taken by the Director in this case is to be explained by a practice of attempting to avoid an overloaded indictment and/or of promoting simplification of the judge’s sentencing task, then, of course, that is an admirable thing. But such an approach must not come at the price of ignoring principle by undercharging and leading the judge into error, whether by silence or a misunderstanding of the scope of the principle, by allowing her to attempt to squeeze the criminality of several offences in to one ill-fitting and inadequate charge.

I should add that, in my opinion, it makes no difference that defence counsel may be regarded as having acquiesced in the approach taken by the Director and the judge. It is not a concession regarding a matter of fact, but one of law. If that approach is wrong in law, then it is in error, irrespective of defence counsel’s stance. Counsel cannot effectively concede that his client is to be sentenced for serious separate offending with which he has not been charged or of which he has not been convicted.

A suggestion for reform

Another way of eliminating, or perhaps of reducing the incidence of, the difficulties identified in the authorities concerning on which side of the ‘Newman line’ a case might fall, at least in respect of the offences of burglary, aggravated burglary, home invasion or aggravated home invasion where an additional and separate offence or offences is or are committed inside the premises after entry by the intruder, and where the preference is to lay one charge instead of multiple charges, is for the legislature to enact provisions creating an offence of the burglarious type that has as an extra element requiring proof of the commission of an offence or offences by the intruder inside the premises after entry.

Creating such a provision would also overcome complaints about duplicity (or multiplicity) that otherwise would apply if, under current law, say, aggravated burglary and assault (or multiple assaults) were alleged in the one charge.

I dare say that the enactment of such a provision would simplify matters for all concerned, ensure that justice is more likely to be done in individual cases and reduce the incidence of appeals based on Newman principles.

A sensible safeguard would be to ensure (whether by legislative provision or common sense practice) the adequate identification of the alleged offence or offences committed inside the premises by thorough and careful particularisation.

Permissible use of uncharged acts

While nice distinctions are sometimes drawn between the presence of aggravating factors and the absence of mitigating factors, none of the foregoing should be taken as meaning that (undisputed) uncharged acts can never have any part to play in sentencing. There are, of course, still grey areas concerning the use of such evidence. But evidence of uncharged acts now features in many cases, and especially in those concerning historical and/or long-term sexual offending.

One simple example of how the (undisputed) uncharged offences might have been employed, permissibly, in the present case is this. Not that this was urged in his case, but such behaviour disentitles Mr Jackson from submitting, in mitigation, that he desisted from carrying through with the intention to steal or commit other offences once he entered and realised there were people inside the house. Another example is that such a factor might also cause a judge to feel less sanguine about Mr Jackson’s prospects of rehabilitation. In my view, it is legitimate for these findings in turn to have an indirect effect on sentence. But that is not because the criminality of, or the moral culpability of the offender in committing, the charged offence is increased by including as an aggravating factor of that offence separate serious offending that should have been the subject of a separate charge or charges, which is impermissible. Instead, it is simply to recognise the limited permissible impact that uncharged offending may have in sentencing.

Ground 1: Manifest disparity

Ground of appeal

In view of Mr Jackson’s success on Ground 3, it is unnecessary to deal with Ground 1. I am satisfied that, by reason of the error in Ground 3, a different sentence should be passed. Thus, the factors that inform Ground 1 simply could be taken into account in resentencing to the extent that they are applicable.

That said, in case I am wrong about Ground 3, it is appropriate that I go on to consider Ground 1, which reads as follows:

Ground 1: The learned judge erred in imposing sentence by failing to observe parity between co-accused.

Mr Jackson’s submissions

While this complaint was pressed by counsel with vigour at the hearing, it is not put as stridently as the terms of the ground might suggest. It is not submitted that the judge ‘failed to observe parity’, or that the sentences imposed on the two offenders should have been identical. Instead, the submission is that, when all relevant considerations are weighed, the disparity between the two sentences imposed is manifestly too great, such that Mr Jackson’s sentence should be reduced.

In support of that submission, counsel for Mr Jackson emphasised the following points:

(a) The total effective sentence imposed upon Mr Jackson (six years and three months’ imprisonment) is more than twice the length of the total effective sentence imposed upon Mr Hole (three years’ youth detention).

(b) The non-parole period imposed upon Mr Jackson (four years) is one year longer than the total effective sentence imposed upon Mr Hole.

(c) While Mr Jackson (at 22) was older than Mr Hole (aged 18) at the time of the offending, he had a more modest criminal history. Mr Hole, on the other hand, had an appalling criminal history for one so young.

(d) Both offenders pleaded guilty at an early stage, were remorseful and had good prospects of rehabilitation.

(e) While only Mr Jackson was prosecuted for the attempted aggravated burglary, Mr Hole alone destroyed the van by fire, which more or less offset the former offence in the overall gravity of the offending.

(f) While Mr Jackson was conceded to have had a greater role in the home invasion, the two were jointly responsible for that offence and the attempted theft of the van.

The Director’s submissions

In her submissions resisting this ground, counsel for the Director emphasised the following points:

(a) Mr Jackson’s greater role in the home invasion, as found by the judge, justified a significant disparity between the sentences.

(b) So too did the respective ages of the offenders. In particular, as a ‘young offender’, who was also found to be impressionable to undesirable influences in the adult prison system, Mr Hole had open to him a sentencing regime that was different from that which was available to Mr Jackson, as an adult offender (albeit a relatively young one). Such a regime has a greater emphasis on rehabilitation.

(c) Mr Jackson also had a troubled background, including difficulties with drug and alcohol abuse, limited schooling and very little employment. A psychologist found him to be ‘immature’ and suffering from ‘low self-esteem’. On the other hand, he had a limited criminal history and good prospects of rehabilitation.

(d) Mr Hole, however, had a very different background. That said, he began to use cannabis and alcohol at an early age and he had a ‘short but appalling’ criminal history for one so young. He also gave evidence on his plea, which helped persuade the judge that he had ‘demonstrated a capacity for rehabilitation and for a positive future’.

(e) Mr Hole had also suffered post-traumatic stress disorder (‘PTSD’) as a result of being an eyewitness to the offences committed by Mr Gargasoulas in Bourke Street in 2017.

In counsel’s submission, when those factors are weighed in the balance, it can be seen that the disparity in Mr Jackson’s sentence vis-à-vis Mr Hole’s sentence could not give rise to a justifiable sense of grievance.

Analysis

A broad discretion is reposed in a judge who has heard the pleas of co-offenders in weighing the various considerations concerning their offending and personal circumstances in arriving at sentences which fairly reflect those competing and complementary factors. And rightly so. The judge is usually in the best position to give appropriate weight to the various considerations and structure a relativity between the sentences that complies with the dictates of parity principles.

Despite the breadth of, and the respect paid to the primacy of, that discretion, this Court will intervene and reduce a sentence when satisfied, upon a proper comparison of all relevant considerations, that there is a justifiable sense of grievance afflicting the sentence under challenge.

I accept the submission on behalf of the Director that Mr Hole’s relative youth and (accepting for the moment) his lesser role in the home invasion offence (and perhaps also his PTSD as a result of the Bourke Street tragedy) were the main factors justifying substantial differences in the type and duration of sentence to be imposed upon him vis-à-vis Mr Jackson.

Other than those differences, however, the two offenders have much in common. Each had the same role in the attempted theft of the van; each pleaded guilty at a very early stage; each was found to be remorseful; and each was found to have good prospects of rehabilitation.

Further, Mr Jackson’s criminal history was a good deal less troubling than Mr Hole’s. Indeed, by the age of 18, Mr Hole had amassed five prior appearances (in the Children’s Court) for three instances of aggravated burglary (where he knew or was reckless as to the presence of persons in the home entered), four burglaries, two assaults, one affray, one recklessly causing injury, one robbery, one criminal damage, twelve thefts and several other dishonesty offences. Mr Jackson’s criminal history, which I set out earlier, is minor by comparison.

On the other hand, I also accept that this case is complicated by the fact that each offender has a third offence that was not committed in common with the other. It is difficult to weigh that factor. But while an attempted aggravated burglary sounds a good deal more serious on the face of it than arson of a van, on closer analysis, the difference in gravity between the two offences is not as great as it might seem. For example, that it was an attempt by Mr Jackson (as frightening as that was for Mr Anderson), as opposed to a complete offence, brings it closer to Mr Hole’s complete destruction of another’s work van by fire for no reason better than he was frustrated at not being able to steal it, it seems. In the result, the two offences do not, in my view, involve such differing levels of gravity as to place the overall gravity of Mr Jackson’s three offences at a vastly higher level than the overall gravity of Mr Hole’s three offences.

While it is apparent, from the judge’s reasons, that she paid careful regard to the principles concerning parity among co-offenders, in my view, however, either she erroneously weighed the similarities and differences between the roles of the offenders and their personal circumstances, or the error that I have found under cover of Ground 3 caused her wrongly to elevate Mr Jackson’s role in the home invasion substantially above Mr Hole’s role in the same offence, or both occurred.

For, in my opinion, weighing all relevant matters, and even putting aside the consequences of Mr Jackson’s success on Ground 3, he does have a justifiable sense of grievance about aspects of his sentence when compared with the sentence imposed upon Mr Hole. In fact, while I think that the total effective sentence and non-parole period imposed by the judge would have been broadly sufficient if it had been permissible to take account of the uncharged offences in the way her Honour did (or, for that matter, if they were properly charged on the indictment), I still would have considered that sentence to be manifestly disparate from Mr Hole’s sentence, albeit by a lesser order. In particular, the differences between, on the one hand, the four-and-a-half-year sentence on the home invasion alone and the total effective sentence of six years and three months’ imprisonment with a non-parole period of four years, and, on the other, the total effective sentence of three years’ youth detention, are, in my view, just manifestly too great in all the circumstances.

While it must be assumed that each offender may have to spend every day of his total effective sentence in prison or detention, even in the unlikely event that Mr Hole was not paroled at, say, about the halfway mark of his sentence, and instead he had to spend the whole three years in detention, he would have completed the entirety of his sentence 12 months before Mr Jackson was even eligible to apply for parole. And if Mr Jackson were required to spend every day of his total sentence in prison, he would still have another three years and three months to serve after Mr Hole’s total sentence expired.

In my view, even making full allowance for Mr Hole’s younger age (by nearly five years), the different sentencing regime applicable in his case and (on this hypothesis) his significantly lesser role in the home invasion, these differences in sentence are still so great as to give rise to a justifiable sense of grievance in Mr Jackson.

When allowance is made for what I regard as an error under cover of Ground 3, which error impacted profoundly on the way in which the judge assessed the offenders’ respective roles in the common charged offence of home invasion, the difference between the roles of the two offenders falls away considerably. This, then, only increases the justifiable sense of grievance with respect to those matters. Further, this not only makes firmer my view that a different sentence should be passed,[83] but it also compels a noticeably lower sentence than otherwise upon a resentencing.
[83]See s 281(1) of the Criminal Procedure Act 2009 (Vic).

Accordingly, I would uphold this ground too.

Proposed resentencing

In those circumstances, I turn to the question of resentencing.

In my view, the nature of the two errors established means that all aspects of the sentencing discretion must be exercised afresh — i.e. the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period.

When considering the home invasion, I exclude from my assessment of the gravity of that offence, and Mr Jackson’s moral culpability for it, the fact that he committed several serious uncharged offences once inside the premises, including threats to inflict serious injury or rape, assault, false imprisonment, criminal damage and theft. That said, it as an offence carrying a high maximum penalty, and was still the most serious of the three crimes charged. As I said at the outset, to enter the house uninvited in company in the dead of night intending to steal and bearing fearsome weapons is a serious crime. To the extent that it is possible to sever from the victim impact statements the impact upon the occupants of the uncharged offending on the one hand and the impact upon them legitimately resulting from the home invasion itself on the other, I have had regard to the latter only.

As I pointed out earlier, however, the uncharged behaviour disentitles Mr Jackson from saying, in mitigation, that he desisted from acting on his intention to steal or from other offending once he entered and realised there were people inside the house. Such a factor in turn causes me to feel less sanguine about his prospects of rehabilitation than I would otherwise.

Nevertheless, I still accept that those prospects are good, as the judge did. Mr Jackson’s relatively young age, his very early pleas of guilty, his remorse and his limited criminal history must be brought into account as mitigating factors in their own right, but they also add to his prospects of rehabilitation. I would reflect that finding as to rehabilitative promise not only in all other aspects of the sentence, but particularly in the non-parole period, to which I shall come shortly.

I think it is also appropriate to act on the judge’s findings as to the importance of the steps taken by Mr Jackson’s mother and his stepfather to his prospects of reform. It seems to me that, because of his progress in custody and his positive attitude towards reform and given the support of his mother and stepfather, who have moved from Western Australia to assist him, as well as the support of Ms Bowham, Mr Jackson is in the best position he has been for many years to put his head down and make a serious attempt at rehabilitation and self-improvement. It is in Mr Jackson’s interests, and in the interests of the community in the longer term, that he be encouraged in those endeavours.

The attempted aggravated burglary, which carries a high maximum penalty,[84] was also still a serious offence, with its own significant impact, as evidenced by the victim impact statements of Mr Anderson and his wife.
[84]Twenty years’ imprisonment (Crimes Act 1958 (Vic), ss 77 and 321P).

The attempt to steal, however, which carries a relatively low maximum penalty,[85] given its facts and for a young man in Mr Jackson’s circumstances, is an offence that ordinarily would be dealt with in the Magistrates’ Court by way of a short prison sentence or perhaps a community correction order. The impact upon the owners of the van as a result of its criminal destruction by Mr Hole, I expect, would supersede any victim impact that might flow from what seems to have been a rather desultory attempt to steal it.
[85]Five years’ imprisonment (Crimes Act 1958 (Vic), ss 74 and 321P).

I think the judge was right to say that all of these offences require weight to be given to the sentencing purposes of general deterrence, denunciation and just punishment.[86] Those who might be minded to commit such offences, particularly the more serious offences of attempted aggravated burglary and home invasion, must understand that, even if the residential premises concerned are not entered or, if they are, no further offending therein occurs (or, if it does, it is not charged), imprisonment usually will be imposed for such offences, and for substantial periods — even in the case of relatively young offenders with modest criminal histories. This is because the Court, and the community, considers that such offending is so serious that it demands that level of punishment and because it is imperative that all must grasp that message.
[86]See Sentencing Act 1991 (Vic), s 5(1)(a), (b) and (d).

While specific deterrence[87] is also of some relevance, in view of Mr Jackson’s early pleas of guilty, remorse, modest criminal history and good prospects of rehabilitation, I think that that sentencing purpose is of less importance than it would otherwise be. That said, I think it is also relevant to specific deterrence and the weight to be given to rehabilitation that Mr Jackson committed these offences while on bail on other charges.
[87]See Sentencing Act 1991 (Vic), s 5(1)(b).

While protection of the community[88] is, in a sense, a primary aim of any sentence for offences of this nature, I think it is unnecessary in this case to add a separate component to account for that sentencing purpose. This is because protection of the community will be achieved by the length of the sentences already brought about as a result of the other purposes of sentencing.
[88]See Sentencing Act 1991 (Vic), s 5(1)(e).

Rehabilitation,[89] which leads to the protection of the community in the longer run, remains an important purpose, given in particular Mr Jackson’s relatively young age, remorse, modest criminal history and good prospects of rehabilitation, including his family support.
[89]See Sentencing Act 1991 (Vic), s 5(1)(c).

Taking into account these and all other matters,[90] including the fundamental principle of parsimony[91] and the sentence imposed upon Mr Hole, I would convict Mr Jackson and impose the following sentences upon the individual offences:
[90]See Sentencing Act 1991 (Vic), s 5(2)(a) (maximum penalties), (b) (current sentencing practices), (c) (the nature and gravity of the offences), (d) (Mr Jackson’s culpability and degree of responsibility for the offences), (daa), (da), (db) (the impact of the offences on victims, their personal circumstances and any injury, loss or damage resulting directly from the offences), (e) (pleas of guilty and their timing), (f) (Mr Jackson’s previous character) and (g) (any of other aggravating or mitigating factors).
[91]The common law principle of parsimony is reflected in s 5(3) of the Sentencing Act 1991 (Vic), which provides that ‘a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed’.

(a) on the offence in Charge 1 (attempted theft of the van), three months’ imprisonment;

(b) on the offence in Charge 3 (attempted aggravated burglary), two years’ imprisonment;

(c) on the offence in Charge 4 (home invasion), four years’ imprisonment.

In order to reflect the separate nature of the offences but also that all were committed within a relatively short space of time, and having regard to the principles of totality and of parity among co-offenders, I would direct that 12 months of the sentence for the offence in Charge 3 be served cumulatively upon the sentence for the offence in Charge 4, but would make no order for cumulation in respect of the sentence for the offence in Charge 1. That makes a total effective sentence of five years’ imprisonment.

For the reasons I gave earlier, which concern the importance of maximising Mr Jackson’s good prospects of rehabilitation, and therefore also with a view to protecting the community in the longer run, I would fix a non-parole period of two-and-a-half years. In particular, I trust that imposing a non-parole period of this order will encourage Mr Jackson to continue to work towards his earliest possible release on parole. If he is released at an early time, the availability of supervision on parole for a substantial period should assist his reintegration into the community and maximise his chances of rehabilitation. If that occurs, it will redound to the benefit of the community too.

Pursuant to s 18 of the Sentencing Act, I would make a declaration as to pre-sentence detention served under this sentence from the date of arrest (12 March 2018) up until and including the date of these proposed orders (27 April 2020), which amounts to 778 days.[92]
[92]While these reasons are being published today (24 April 2020), orders will not be made until Monday (27 April 2020), to allow the parties time to make any submissions on the form and detail of the orders.

I also declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Jackson’s pleas of guilty, I would have proposed a total effective sentence in the order of seven-and-a-half years’ imprisonment with a non-parole period of five years.

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[2020] VSCA 95

24 April 2020