Jafari v The Queen
[2015] VSCA 295
•13 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0096
| HASSAN JAFARI |
| v |
| THE QUEEN |
---
| JUDGES: | WHELAN JA and CAVANOUGH AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 October 2015 |
| DATE OF JUDGMENT: | 13 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 295 |
| JUDGMENT APPEALED FROM: | DPP v Jafari (Unreported, County Court of Victoria, Judge Hannan, 24 April 2015) |
---
CRIMINAL LAW – Sentence – Multiple offences of aggravated burglary as well as offences against the person once inside premises – Whether principle of totality and rule against double punishment were properly applied – Pearce v The Queen (1998) 194 CLR 610 applied – Dowe v The Queen [2012] VSCA 39 distinguished – Whether sentences imposed manifestly excessive – Sentences imposed for aggravated burglaries modest – 10 year sentence imposed for intentionally causing serious injury ‘high’ but not outside the range – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S A Moglia | Matthew White and Associates |
| For the Crown | Mr R Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA:
CAVANOUGH AJA:
On 20 April 2015, the appellant pleaded guilty in the County Court to two charges of aggravated burglary, one charge of intentionally causing serious injury, one charge of intentionally causing injury, and one charge of assault. After a plea hearing conducted on that day and continued on 24 April 2015, the appellant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1 Aggravated burglary
[s 77 of the Crimes Act 1958]
25 years [s 77(2) of the Crimes Act 1958] 3 years 6 months 14 months 2 Intentionally causing serious injury
[s 16 of the Crimes Act 1958]
20 years [s 16 of the
Crimes Act 1958]
10 years Base 3 Aggravated burglary
[s 77 of the Crimes Act 1958]25 years [s 77(2) of the Crimes Act 1958] 3 years 12 months 4 Intentionally causing injury [s 18 of the Crimes Act 1958] 10 years [s 18 of the
Crimes Act 1958]2 years 8 months 5 Assault [Common law] 5 years [s 320 of the
Crimes Act 1958]6 months 2 months Total Effective State Sentence: 13 years’ imprisonment Non-parole period: 9 years Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 274 days 6AAA Statement: 17 years’ imprisonment with a non-parole period of 13 years Other relevant orders:
Disposal Order
The appellant sought leave to appeal from those sentences on two grounds. The first ground was that in imposing the sentences the sentencing judge erred in failing to properly apply the principle of totality and in failing to properly apply the principle against double punishment. The second ground was that the sentence imposed on the charge of intentionally causing serious injury, the orders for cumulation and the non-parole period were manifestly excessive.
On 12 August 2015 Redlich JA granted leave to appeal on both grounds.
Circumstances of the offending
The victim of the offence of intentionally causing serious injury is the appellant’s wife. We will call her the first complainant. The victim of the assault offence is the niece of the first complainant. We will call her the third complainant. The second complainant, the victim of the offence of intentionally causing injury, is the husband of the third complainant.
In March 2014 an incident occurred between the appellant and the first complainant. The circumstances of that incident do not clearly emerge from the material before the Court.[1] For present purposes it suffices to say that the first complainant was assaulted by the appellant and obtained an intervention order against him which, amongst other things, prohibited him from entering the matrimonial home.
[1]Cf. [5] of the Summary of Prosecution Opening (Exh 1) with [24] and [27] of the report of Dr Nina Zimmerman dated 20 March 2015 (Exh E), and with footnote 9 of the Applicant’s Written Case on the application for leave to appeal against sentence.
On the night of 24 July 2014 the first complainant was asleep in her bedroom. Her and the appellant’s five children were asleep in the same house. One of the children was asleep in the bedroom with the first complainant.
At approximately 2:30 am the first complainant awoke because the appellant was sitting on her stomach. The appellant had entered the former matrimonial home intending to commit an assault upon the first complainant and knowing that persons were present in the house (charge 1 — aggravated burglary). The appellant was armed with, at least, a knife. He pulled the first complainant off the bed and on to the ground. He stabbed her in the left cheek. As she was struggling to get away, she felt two blows to the back of her head from something heavy and hard. She began to lose consciousness. She pleaded with the appellant. She screamed for her children to help her. She was on her stomach on the floor when she felt two stab wounds to her spine. As she tried to escape she was stabbed in the right side of her mouth and suffered defensive wounds to her right hand (charge 2 — intentionally causing serious injury).[2]
[2]Photos of the first complainant’s injuries were tendered on the plea and were filed with this Court.
The first complainant was screaming for help. Her children heard her. One of them asked, from outside the door, whether she was alright. They rang 000. Otherwise, they were unable to help her. All of the children saw their mother in a bloodied and seriously injured condition. One of them found a bloodied knife and hammer on the kitchen floor. The blade of the knife was bent. The hammer did not belong to the first complainant. However, the Crown accepts that it could not be proved beyond reasonable doubt that the hammer was used in the attack.
The appellant left the former matrimonial home and proceeded to the home of the second and third complainants. At approximately 4:00 am he entered their home intending to commit an assault and knowing that persons were present (charge 3 — aggravated burglary). The appellant had blood on his hands. He showed it to the second and third complainants and told them that it was the first complainant’s blood and that he had killed her. He was armed with a hockey stick. He commenced raining blows on the head of the second complainant with the hockey stick, striking him seven or eight times on the head and then hitting him on the arms, shoulders and back. A total of approximately 25 blows were struck (charge 4 — intentionally causing injury). The appellant struck the third complainant once, hard on the right knee with the hockey stick (charge 5 — assault).[3] The second and third complainants’ child was present in the bedroom during the assault. The third complainant took the child and ran and hid in a closet.
[3]Photos of the second and third complainants’ injuries were also tendered on the plea and filed with this Court.
Emergency services attended the home of the first complainant and she was taken to hospital. She was an in-patient from 24 to 29 July 2014 when she was transferred for rehabilitation to Austin Health where she remained until 11 August 2014. She was then transferred to the Royal Talbot Rehabilitation Centre. She sustained multiple injuries to her face, mouth, back and right hand. She suffered fractures to a rib and to her spine. She suffered incomplete low paraplegia. She was left with scarring on her face and her hand and loss of sensation in her left leg. One of the stab wounds to her spine had penetrated the spinal canal and dural sac causing injury to the spinal cord. She continued to suffer significant disability at the time of plea and sentence.
The second complainant was bloodied and weak after the attack but attempted to give pursuit when the appellant ran away. He was covered in blood. He managed to make his way to the Springvale Police Station. An ambulance was called and he was taken to the Dandenong Hospital. He sustained cuts to the left side of his head and to his left hand and suffered from pain in his shoulders and back. The third complainant suffered bruising to her leg.
The appellant surrendered himself to the Springvale Police Station on 24 July 2014. He refused to participate in a record of interview.
Material before the sentencing judge on the plea
Amongst the material before the sentencing judge on the plea were victim impact statements prepared by the first complainant, her children and the second and third complainants. As the sentencing judge observed, some of those statements contained inadmissible material. The sentencing judge detailed to counsel the material upon which she proposed to rely and counsel accepted that that was an appropriate way in which to proceed.
The impact of the offending, particularly on the first complainant and on the her children, has been devastating. The sentencing judge set out the matters in the first complainant’s victim impact statement to which she would have regard in the following terms:
[T]he victim describes stabbing to the face and the causing of pain. She says that when and I’m converting this, the accused stabbed her in her back, her leg immediately stopped functioning and the blows to her head caused her pain.
As regards the emotional sequela, she says that she has trouble sleeping and cannot find peace in her own home anymore which is understandable given all that’s occurred. The victim describes intrusive thoughts about that night which caused her to weep and shake in fear. She says she is scared to be alone and continues to suffer nightmares. She also describes ongoing problems and the effect that that has [on] her ability and willingness to socialise.
She says she feels unattractive as a result of her scarring and her disability. She says her leg is now disabled and immediately following the attack, she was completely paralysed in that area for a period of time. She says she can no longer lift anything that is heavy and cannot walk or drive for any significant period. She now uses crutches to assist her walking, but still finds it difficult to go out much.
She also describes the wound to her face as having affected her teeth and causing immense pain and ongoing sensitivity. She has ongoing issues in relation to bowel control and says she is simply not in a position where she can go and work.
The sentencing judge referred to the victim impact statements from the children and to the shock and fear which they experienced, and continue to experience. She referred to the ongoing psychological trauma suffered, particularly by the older children.
The appellant was referred to Forensicare but they were unable to assess him because for a considerable period whilst in custody on remand he remained mute. Letters to that effect were tendered before the sentencing judge. The sentencing judge was told on the plea that he remained mute until he spoke with his solicitor on 29 October 2014.
The appellant’s solicitors arranged for him to be seen by a forensic psychiatrist, Dr Nina Zimmerman, who saw him in the Melbourne Assessment Prison on 20 March 2015 and prepared a report of the same date which was tendered on the plea.
Dr Zimmerman’s report set out Mr Jafari’s personal history. It referred to the incident in March 2014 which led to the intervention order. Mr Jafari attributed the problem between himself and his wife to an extramarital affair which he claims to have had with the third complainant. Dr Zimmerman set out an account of the offences given to her by the appellant in which he maintained that he had become increasingly distressed and agitated due to his inability to see his children and persuade his wife to let him come home.
Dr Zimmerman expressed the following opinion:
Following his forced removal from his family home by the law, Mr Jafari developed features of Major Depression in the context of heavy marijuana abuse. Biological features of depression including loss of appetite, poor sleep and low energy accompanied behavioural manifestation such as social withdrawal and ruminations. These ruminations centred on his separation from his children, which he experienced as intolerable.
…
It was in this agitated and distressed state of mind that Mr Jafari carried out the offences. I think it is more likely than not that Mr Jafari’s depression impaired his ability to exercise appropriate judgement at the time of his offending. Reflecting on the offences now, he is aware that they are wrong and is tormented by shame, particularly in relation to what his children — for whom he has a very evident overwhelming love — will think of him.
Dr Zimmerman’s report had earlier recorded the appellant as displaying great love for his children and distress for the effect of his offending upon them. The report does not include the expression of any similar sentiments, or indeed any sentiments indicating remorse, towards any of the other victims.
Submissions put on the plea
It was submitted on the plea that the appellant’s guilty pleas had resulted in a saving of court time, public expense and further trauma for the victims. Counsel on behalf of the appellant apologised for his behaviour to his wife, family members, extended family, the other victims, and the community at large.
Counsel described the appellant’s personal history. He was aged 41 at the time of sentence and had no prior criminal convictions. He had been raised in war-torn Afghanistan. His father was strict and his relationship with him was characterised by both terror and love. He grew up in a lawless environment and was himself kidnapped by the Taliban. His father recovered him after paying a ransom. His brother was also kidnapped and never returned. The appellant came to Australia as a refugee by boat in 2000 or 2001. He became a citizen in 2004. He brought his wife and children to Australia in 2006. He had always been employed prior to the commission of the offences.
It was submitted, relying upon Dr Zimmerman’s report, that the principles in R v Verdins[4] applied, because, it was said, the appellant’s judgment was significantly affected by his mental condition. It was submitted that his moral culpability ought to be reduced and that the significance of both general and specific deterrence ought to be reduced.
[4](2007) 16 VR 269 (‘Verdins’).
Reasons for sentence
The sentencing judge set out the fact of the guilty pleas and the maximum penalties and then set out the circumstances of the offending.[5] The sentencing judge said:
This is on any view serious offending, especially as it relates to the first victim. In my view Charge 2, intentionally causing serious injury, is at the upper end of the range of offences of this type. Your offending appears to have been premeditated, at least to the extent of you arming yourself. The injuries caused to the victim were very serious and the effects for her are enduring. She was a woman in her own home with her five children, a place she was entitled to feel safe. She had obtained an intervention order to try and ensure that safety. You entered the house in the middle of the night and seriously assaulted her causing her serious injury with a knife. You showed no regard for her welfare or indeed that of your children who were all present in the house, the youngest in the room where this occurred.[6]
[5]DPP v Jafari (Unreported, County Court of Victoria, Judge Hannan, 24 April 2015) (‘Reasons for Sentence’).
[6]Ibid [11].
The sentencing judge then referred to the victim impact statements, the fact that the appellant has no prior convictions, and to the appellant’s personal history.
The sentencing judge set out at length both the history given to Dr Zimmerman and Dr Zimmerman’s opinions. She then said:
I accept for the purpose of sentencing you that [your] judgment was impaired by your depression at the time of your offending. I note in this regard the prosecution had of course the right to cross-examine Dr Zimmerman, the matter was specifically discussed, the prosecutor indicated that he did not wish to do so. I accept that there was some impairment to your ability to exercise appropriate judgment to make calm and rational choices and think clearly, as detailed in Dr Zimmerman’s report.
I have acted on the basis that there should be some reduction in your moral culpability and that the usual weight afforded to both general and specific deterrence should be sensibly moderated, albeit in your case in my view that should not be to a significant degree.[7]
[7]Ibid [35]–[36].
The sentencing judge concluded that the appellant’s prospects of rehabilitation remained ‘positive’, given that these were his first offences and his first time in custody, the guilty pleas, and the expression of ‘some remorse’.[8]
[8]Ibid [37].
The sentencing judge accepted submissions made on behalf of the appellant as to the guilty pleas and accepted that he was entitled to the benefit of those pleas on the basis that they had been made early.
The sentencing judge accepted that the appellant’s depression would increase the burden of imprisonment ‘to some degree’.[9]
[9]Ibid [38].
The sentencing judge again referred to matters personal to the appellant which she said she took into account but then said:
General and specific deterrence must still be given weight in the sentence I will impose this day.
…
Despite the moderation as regards the usual weight to be afforded to general and specific deterrence, to which I have already referred, in my view they remain important sentencing principles to be satisfied in the sentence I will impose this day. Your sentence must manifest the community’s denunciation of [your] conduct and impose just punishment.[10]
[10]Ibid [40]–[41].
Grounds of appeal and submissions made
The first ground of appeal is as follows:
Having regard to the fact that the [appellant] fell to be sentenced for aggravated burglaries and offences against the person, the learned sentencing judge erred in:
(1) failing to properly apply the principle of totality; and
(2) failing to properly apply the rule against double punishment.
It was submitted on behalf of the appellant that it is essential when an offender is to be sentenced for an aggravated burglary as well as for offences against a person once inside the premises that the circumstances of the aggravated burglary not be regarded as circumstances of the aggravation of the offending inside or vice versa. Reference was made to Pearce v The Queen[11] and DPP v Meyers.[12] It was submitted that the sentencing remarks contain no reference to this issue, which ought to have been relevant to totality, to concurrency or cumulation, and to the need to avoid double punishment. Leave was sought to rely upon the decision of this Court in Dowe v The Queen[13] which, although specified in the catchwords to contain no point of principle, included the following passage in the judgment of Weinberg JA, which was quoted in the appellant’s written case:
Although there is no obligation upon a sentencing judge to set out specifically every matter that he or she regards as relevant to the sentencing task, the principle of totality was of fundamental importance in the particular circumstances of this case, and would ordinarily have been expected to have been discussed.[14]
[11](1998) 194 CLR 610 (‘Pearce’).
[12][2014] VSCA 314 (‘Meyers’).
[13][2012] VSCA 39 (‘Dowe’).
[14]Ibid [32].
It was submitted that the judge had assessed the seriousness of the offending on count 2 by reference to factors also referrable to count 1 and that the judge had made no attempt to ‘disentangle’ those factors.
On behalf of the respondent it was submitted that there was no indication in the sentencing reasons or in the sentences imposed that the sentencing judge had engaged in any double punishment. Indeed, it was submitted that the sentences imposed revealed there had been no double punishment. It was submitted that the sentencing judge had made no reference to the circumstances of the aggravated burglaries and that the sentences imposed on the aggravated burglary counts were lenient. Reliance was placed on this Court’s decision in Hogarth v The Queen.[15] Reliance was also placed on the numerous authorities to the effect that a sentencing judge is not required to refer specifically to every sentencing consideration in his or her sentence.
[15](2012) 37 VR 658 (‘Hogarth’).
The second ground of appeal is as follows:
The learned sentencing judge erred in imposing a sentence on charge 2 (intentionally causing serious injury), orders for cumulation and a nonparole period that are manifestly excessive.
Particulars
The learned sentencing judge failed to give sufficient weight to:
(i) The [appellant’s] plea of guilty and remorse;
(ii) The [appellant’s] absence of previous convictions;
(iii) The [appellant’s] impaired mental functioning;
(iv)The principle of totality and the need to avoid double punishment; and
(v) Current sentencing practices.
On behalf of the appellant it was conceded that the offending which constituted charge 2 was very serious. It was submitted, however, that the sentence imposed on charge 2, the orders for cumulation and the non-parole period were outside the range that was reasonably open to the sentencing judge. Reference was made to the Judicial College of Victoria’s Victorian Sentencing Manual which, it was submitted, revealed that, as at 13 May 2015, of the 109 cases from 2006 where intentionally causing serious injury was the principal offence there were only three cases where the sentences imposed were greater than this one. The three cases are Ali v The Queen,[16] DPP v Terrick,[17] and Robbins v The Queen.[18] The circumstances of those three cases were referred to. On behalf of the appellant reference was also made to the Sentencing Advisory Council’s Sentencing Snapshot No 156 of June 2014 which indicated that the median total effective term of imprisonment for offences where intentionally causing serious injury was the principal offence was five years, and that the median term of imprisonment for the offence itself was four years. Reference was made to the circumstances of mitigation relied upon in the plea and to the principles in Verdins.
[16][2010] VSCA 182 (‘Ali’).
[17](2009) 24 VR 457 (‘Terrick’).
[18][2012] VSCA 34 (‘Robbins’). There is a further case in which a sentence was imposed greater than that which was imposed here being Hudson v The Queen [2013] VSCA 218. The circumstances were relevantly similar to those in Terrick.
On behalf of the respondent it was submitted that the offence in charge 2 was a serious example of the offence of intentionally causing serious injury. The circumstances of the offending were relied upon. It was submitted that Ali and Terrick concerned very different circumstances, but that in this case assistance could be drawn from the sentence imposed in Robbins. It was submitted that the sentencing judge gave appropriate weight to all of the relevant mitigating factors and that the sentence imposed, the orders for cumulation, and the non-parole period were appropriate.
Analysis: ground 1
Analysis of the issue of double punishment must begin with a consideration of the High Court judgment in Pearce.
The first important matter to be noted is that the overlap between the offences in issue in Pearce was more extensive than the overlap here. The offender in that case was convicted of an offence under s 33 of the Crimes Act 1900 (NSW) of maliciously inflicting grievous bodily harm upon a person. He was also convicted of an offence under s 110 of that Act of breaking and entering a dwelling house and while therein inflicting grievous bodily harm upon a person. As can be seen, in Pearce each offence contained the element of the infliction of grievous bodily harm. That is not the case here.
The offender in Pearce had been sentenced to 12 years’ imprisonment on each count. Those two sentences had then been ordered to be served concurrently with each other. There were other offences for which he was sentenced as well. In addition to the issue of double punishment, the High Court in Pearce had to deal with issues concerning double jeopardy and with a stay.
McHugh, Hayne and Callinan JJ held that there had been double punishment in Pearce. The sentences imposed were held to be flawed because they ‘doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm’.[19] Their Honours reached this conclusion having earlier emphasised the need to avoid the imposition of ‘excessive subtleties and refinements’ in sentencing, saying that the issue was to be treated as a ‘matter of common sense’.[20] In the particular case, the fact that the same sentence had been imposed for the two offences meant it had to be concluded that each sentence contained a portion which was to punish the appellant for inflicting grievous bodily harm.[21] Concurrency did not remedy that sentencing flaw.[22]
[19]Pearce (1998) 194 CLR 610, 624 [49].
[20]Ibid 622–3 [39] and [42].
[21]Ibid 623 [43].
[22]Ibid 623–4 [44]–[45].
Relevantly, Gummow J agreed with McHugh, Hayne and Callinan JJ on this issue.[23] Kirby J came to a different conclusion as to the outcome of the appeal, although his analysis of the principles of double punishment was consistent, it seems to us, with that of the others. Kirby J did emphasise that in his view great care had been needed to avoid double punishment in that particular case and that the exercise of that care should have been ‘manifest’ in the reasons of the sentencing judge.[24] A little later he repeated that judges in cases such as Pearce should make it ‘abundantly clear’ that they have recognised and avoided the danger of double punishment.[25]
[23]Ibid 629–30 [69].
[24]Ibid 650 [121].
[25]Ibid 654 [130].
The other case principally relied upon by the appellant in this context was Dowe. Dowe did not concern the issue of double punishment. It concerned issues of totality arising as a result of a number of sentences on different indictments combined with time to be served as a result of a cancellation of parole. It was in that context that Weinberg JA made the observation which he did which was relied upon by the appellant. It is necessary, however, to also quote the sentence immediately after the passage quoted in the appellant’s written case, in which Weinberg JA embodied his conclusion. He said:
With respect, it seems to me, from the length of the non-parole period fixed, and from the failure to mention totality in the sentencing remarks, that his Honour did not give that principle due weight.[26]
[26]Dowe [2012] VSCA 39 [32].
The risk of double punishment was not as stark in this case as it was in Pearce. But the risk was there. The characteristics of the offence of intentionally causing serious injury to which the sentencing judge specifically referred when describing the seriousness of count 2 were also characteristics of the count 1 aggravated burglary offence. These characteristics were the premeditation, the fact that he arrived armed, the fact that he was acting in contravention of an intervention order, and the fact that the offence occurred in the middle of the night at the first complainant’s home where she was entitled to feel safe.
In the circumstances, the sentencing judge ought to have referred to the risk of double punishment. But, as the respondent submitted, it is not necessarily a vitiating error to omit to refer expressly to a relevant matter. The conclusion in Dowe was based upon both the absence of express reference to a relevant matter and the length of the sentence imposed in that case.
It seems to us that the sentences imposed for the aggravated burglaries here were modest.
This Court in Hogarth found that sentences which had generally been imposed for ‘confrontational aggravated burglary’ in this State had been too low. More recently, in Meyers, in the specific context of aggravated burglaries where the offender is a former domestic partner, this Court said:
For the fourth time in six months, the Court is here concerned with sentencing for an offence of aggravated burglary, committed by a male offender against his former domestic partner. In each case, the offender entered the former partner’s premises intending to do violence, and in each case violence was meted out. In three of the four instances, the victim’s new partner was also attacked.
In Hogarth v The Queen, this Court concluded that the sentences generally imposed for ‘confrontational aggravated burglary’ were too low, and that sentencing practices needed to change to reflect the objective gravity of this kind of offending. That terminology was taken from a 2011 Report of the Sentencing Advisory Council (‘SAC’) on sentencing for aggravated burglary. The offending in Hogarth did not involve a former domestic partner. The confrontation was prompted by a grievance of a different kind.
The four cases before the Court this year (including this one) concern offending classified in the SAC Report as ‘intimate relationship aggravated burglary’. On this appeal, as in each of the previous appeals, the offender submitted that what was said by the Court in Hogarth — about the need to increase sentences — had little or no application to aggravated burglary where the victim was a former domestic partner. That submission failed on each previous occasion, and we likewise reject it.
As these reasons demonstrate, the task of applying Hogarth does not require the classification of offences into categories. Put simply, Hogarth established that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.[27]
[27][2014] VSCA 314 [3]–[6] (citations omitted).
The Court in Meyers found that a sentence which had been imposed of three years’ imprisonment was manifestly inadequate. The Court increased that sentence to four years indicating that but for the approach which had been taken by the prosecutor in the plea hearing below the sentence would have been ‘substantially higher’.[28] The Court in Meyers undertook a detailed review of sentencing in relation to what might be described as ‘intimate relationship’ aggravated burglaries. The gravity of such a burglary is significantly aggravated when it is committed in contravention of an intervention order, as this Court said in Marrah v The Queen[29] and (very recently) in Uzun v The Queen.[30]
[28]Ibid [75].
[29][2014] VSCA 119 (‘Marrah’), [25].
[30][2015] VSCA 292 (‘Uzun’), [40], [44], [51].
Of relevance to the issue of ‘overlap’, the Court in Meyers said:
The particular purpose which the offender has in mind at the point of entry is a significant feature going to the gravity of the offence. Of course, the intent on entry is conceptually distinct from what occurs after entry, but the offender’s conduct once inside the premises will usually enable inferences to be drawn about the intent on entry.[31]
[31][2014] VSCA 314 [49].
In relation to double punishment, the Court said:
It is often difficult to separate the bases of punishment in a case like this, where a number of offences are committed within the ambit of a single incident or enterprise. The position is further complicated where one of the offences is aggravated burglary. This particular type of incident or enterprise has given rise to a recurring complaint in sentencing appeals, to the effect that the offender has been doubly punished by the sentence for aggravated burglary and the sentences for the offences committed inside the premises.
In accordance with the principles stated in Pearce v The Queen, care must be taken in fixing the sentence for aggravated burglary to ensure that the offender is not doubly punished for offences committed after entry into the house. Apart from supporting an inference as to what it was that he intended to do, the seriousness of what took place after the entry cannot affect the sentence on the aggravated burglary charge. The offence of aggravated burglary is complete upon entry. The sentence on that charge cannot involve any element of punishment for what happens after entry.[32]
[32]Ibid [70]–[71].
Thus, Meyers confirms the need for care to avoid double punishment. But it also indicates that the aggravated burglary sentences here (counts 1 and 3 — three years six months and three years respectively) in themselves are not suggestive of error on this ground. If anything, these sentences are lenient. In themselves, they do not indicate any impermissible importation of the seriousness of what then happened inside.
Turning to the sentences for the offences that were committed once inside, no complaint is made as to the sentences imposed for the assaults on the second and third complainant — counts 4 and 5.
As to the sentence imposed on the most serious count, count 2 — the assault upon the first complainant — in our opinion the submission of the respondent that Ali and Terrick are of limited assistance but that Robbins is of assistance is correct.
In Robbins, a husband hit his wife on the head three times with a claw hammer after she made an observation to which he took exception while she was speaking on the telephone to another person. She suffered terrible injuries as a consequence. The attack took place in the matrimonial home in front of the victim’s 14 year old daughter. In that case the offender was profoundly remorseful and had demonstrated horror for his actions and empathy for his victim. He had never previously been violent towards his wife. The attack had lasted a matter of seconds. A sentence was imposed upon the offender in the County Court of 11 years’ imprisonment with a non-parole period of eight years six months. A majority of this Court (Mandie and Harper JJA) found that sentence not to be manifestly excessive. The third judge, Neave JA, found that the sentence of 11 years fell outside the range of sentences which could be imposed in the reasonable exercise of the sentencing discretion, although she expressed herself as reaching that conclusion ‘with some hesitation’.[33]
[33][2012] VSCA 34 [34].
In our view the sentence imposed on count 2 was not outside the range of sentencing options open to the sentencing judge, ignoring the circumstances of the aggravated burglary. It is true that the sentence is high, given the absence of prior convictions and the guilty plea, but this was a very serious offence. The appellant repeatedly stabbed and hit his defenceless wife, in the immediate presence of their five year old child. He ignored her pleas for him to stop. The other children heard their mother’s screams. They were unable to help her except by ringing 000. Her injuries were very serious. The appellant expressed to the second and third complainants that same night the belief that he had killed her. He could very easily have done so given the ferocity of his attack and the weapon he used. Ten years is a high sentence, but it was not outside the range open to the sentencing judge given the appellant’s conduct. The decision in Robbins fortifies that conclusion.
Whilst the sentencing judge ought to have referred to the risk of double punishment, we are not satisfied that she did not consider it. In any event, no vitiating error has been demonstrated. The sentences on the aggravated burglary counts are modest, even lenient, in the light of this Court’s decisions in Hogarth, Meyers, Marrah and Uzun. The sentences on the assault offences, considered in isolation from the circumstances of the aggravated burglaries, are within the range of sentencing options open to the sentencing judge.
Nor are we satisfied that her Honour overlooked the need to consider totality. The total effective sentence, including the non-parole period, was neither crushing nor disproportionate.
Ground 1 fails.
Ground 2
For reasons we have already given, in our view the sentence on charge 2 was within the range of sentencing options open to the judge. The cumulation ordered is unexceptional and, once the head sentence is accepted as being within the range, the non-parole period is also unexceptional.
Ground 2 fails.
Conclusion
The appeal is dismissed.
- - -
4
9
0