James Till v The Queen
[2017] VSCA 224
•29 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0114
| JAMES TILL | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined ‘on the papers’ |
| DATE OF JUDGMENT: | 29 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 224 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1976 (Judge Maidment) |
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CRIMINAL LAW – Leave to appeal – Sentence – Aggravated burglary – Armed robbery – Causing serious injury recklessly in circumstances of gross violence – Guilty pleas – Total effective sentence of 12 years imprisonment – Non-parole period of 9 years – Whether sentencing judge proceeded on adverse finding not open beyond reasonable doubt – Applicant in protective custody at time of sentence – Whether sentence manifestly excessive – Appeal grounds arguable – Leave to appeal refused as no reasonable prospect total effective sentence would be reduced – Criminal Procedure Act 2009 s 280(1)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Giorgianni & Liang Lawyers |
| For the Crown | No appearance | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
On 15 December 2016 the applicant, and a co-offender, were sentenced by a judge in the County Court for offences of aggravated burglary, armed robbery, and causing serious injury recklessly in circumstances of gross violence.[1] Both offenders had pleaded guilty.
[1]DPP v Till [2016] VCC 1976 (‘Reasons’).
The applicant was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Aggravated burglary [s 77(1) Crimes Act 1958] | 25 years’ imprisonment [s 77(2) Crimes Act 1958] | 8 years’ imprisonment | Base |
| 2 | Armed robbery [s 75A(1) Crimes Act 1958] | 25 years’ imprisonment [s 75A(2) Crimes Act 1958] | 7 years’ imprisonment | 1 year |
| 3 | Causing serious injury recklessly in circumstances of gross violence [s 15B(1) Crimes Act 1958] | 15 years’ imprisonment [s 15B(1) Crimes Act 1958] | 7 years’ imprisonment | 3 years |
| Total Effective Sentence | 12 years’ imprisonment | |||
| Non-Parole Period: | 9 years’ imprisonment | |||
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 476 days | |||
| 6AAA Statement: 16 years’ imprisonment, non-parole period of 13 years | ||||
| Other relevant orders: Disposal Order | ||||
The co-offender, Charles Hi, was sentenced as follows:[2]
[2]The co-offender Charles Hi has been granted leave to appeal on two grounds, being that the sentence imposed for the offence of aggravated burglary was manifestly excessive and that the total effective sentence and non-parole period do not adequately reflect the differences between him and his co-offender.
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Aggravated burglary [s 77(1) Crimes Act 1958] | 25 years’ imprisonment [s 77(2) Crimes Act 1958] | 7 years’ imprisonment | Base |
| 2 | Armed robbery [s 75A(1) Crimes Act 1958] | 25 years’ imprisonment [s 75A(2) Crimes Act 1958] | 6 years’ imprisonment | 1 year |
| 3 | Causing serious injury recklessly in circumstances of gross violence [s 15B(1) Crimes Act 1958] | 15 years’ imprisonment [s 15B(1) Crimes Act 1958] | 6 years’ imprisonment | 2 years |
| Total Effective Sentence | 10 years’ imprisonment | |||
| Non-Parole Period: | 7 years’ imprisonment | |||
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | Nil | |||
| 6AAA Statement: 13 years’ imprisonment, non-parole period of 10 years | ||||
| Other relevant orders: Disposal Order | ||||
The offences occurred on 26 August 2015. The victim was a 74 year old woman residing in a flat in a block of flats in Richmond. She lived alone. She had a medical condition. Because of that condition she had an alarm system known as ‘Mepacs’ which had to be pressed at 9:00 am each day, and she kept a key in a locked key box outside her front door so that her flat could be accessed in a medical emergency.
A summary of prosecution opening was tendered on the plea. It described the circumstances of the offending as follows:
On Wednesday the 26th August sometime after 5.00am [victim] was woken by banging on her front security door and windows. She could hear an Australian man’s voice yelling ‘Open the door, Open the door!’ On hearing this, [victim] went to the telephone intercom near the front door and called the building’s security guards saying ‘Help please, help please, two junkies, fifth floor, fifty three, fifty three’.
The security guard, [name], told [victim] that he could not come but that he would send someone.
Before [victim] had a chance to hang up the telephone intercom her front door opened and TILL and HI rushed into her flat. They had used the key from the locked key box outside her front door to open the door.
TILL attacked [victim], grabbing her by the arms and swinging her into the living room. TILL then pushed [victim] onto the floor in front of the sofa breaking her hip. They closed the door.
TILL had pulled his hoodie over his head and was wearing a hat and HI had a mask like a balaclava with holes for his nose and eyes obscuring his face.
TILL used his fists to punch [victim] to the face. This fractured her cheek bone. During this time TILL had a metal bar he had brought into the flat in his hands and was hitting [victim] to the body with it causing bruising. He was yelling at [victim] asking her ‘where her money was?’ and ‘where the ice was?’.
TILL pushed [victim] onto the ground and sat on top of her. When on top of her he grabbed her by the throat and was choking her. At the same time he grabbed one of the pillows in the living room and held it over her face so that she could not see or breathe. He was suffocating her. [Victim] saw blood on the pillow and knew that she was bleeding from the assault on her.
During TILL’s assault on [victim] HI was ransacking the flat. [Victim] saw him walk into her bedroom and take two bags that he filled with her valuables.
While this happened, [security guard], having taken the phonecall from [victim], organized two security guards, [names] to attend at flat 53. He then called her flat to advise that guards were on their way. HI answered the phone and when [security guard] asked to speak to [victim] told him ‘It was my mother. She went to sleep. Do not call us again. Everything is ok’.
At approximately 6.30am, while [victim] was lying on the floor, the security guards she had called for earlier came to the door asking if she was ok. TILL was still sitting on top of [victim] and punched her and put the pillow back over her face. [Victim] could not yell for help as he had a hand around her neck choking her. Both TILL and HI remained quiet while the security guards were outside. TILL was telling [victim] ‘Don’t talk, shut up, shut up or I will kill you’ putting his fingers to his mouth and saying ‘shhhh’.
The security guards remained at the door for approximately 2 minutes. During this time they spoke with [victim’s] neighbour, [name], who confirmed that he had seen two men knocking at her door. The security guards then left and did not open [victim’s] door.
While [victim] lay on the floor TILL started looking around her flat ‘like a dog sort of crawling around and looking everywhere’. [Victim] could not move at this time as her hip was broken. TILL would return to [victim] sporadically to swear and threaten her that he would kill her if she didn’t tell him where the ice was. During this time TILL had taken a knife out and was waving it around and pointing it at [victim]. At one stage he threw the knife towards her on the floor saying ‘I’ll kill you, I’ll kill you’.
Approximately half an hour after they had broken in HI told TILL that they should go and TILL said ‘You go, You go’ and HI left taking with him the two handbags that he had filled with [victim’s] valuables.
TILL remained in the flat until after 9.00am. When [victim’s] Mepac’ alarm went off at 9.00am he silenced it by pressing it. During this time he searched the whole flat and destroyed most of it. He was like a ‘bull in a rodeo ring’ smashing everything up and going around everywhere. At one stage TILL found a hammer and used it to bash open the lock on the electrical box in the kitchen and put holes in the plaster in the kitchen. He also used his knife to slash the furniture open. During this time [victim] observed that he was ‘full of anger’ and kept saying ‘Where is the ice, where is the ice?’ [Victim] did not know what he was looking for.
While she lay on the floor [victim] could hear him in the bathroom smashing tiles with the hammer. TILL kept coming back to threaten [victim] by pointing the knife at her and threatening to kill her throughout the ordeal. TILL would return and sit on [victim] again and bash her.
[Victim] could not move due to the pain in her hip and was on the floor for so long that urinated [sic] in her clothes. It was only when TILL smashed her clock off the wall and she saw it was 11.00am that [victim] had any idea of how long he had been in her flat.
[Victim] did not know what time TILL eventually left but when he did he took the metal bar he had arrived with and two suitcases with him that he had filled with her personal possessions obtained whilst he was ransacking her flat. As he left he said ‘See you’.
[Victim] lay on the floor until approximately 11.30am when she heard someone walking past and yelled ‘Help’. A cleaner, [name], from the flats came in and found her lying on the floor. [Name] went to the foyer and organised 000 to be called and then returned to flat 53 where [victim] asked her to get her phone and to ring her daughter. [Victim] then spoke with her daughter telling her what had happened and the police and an ambulance were then called.
The applicant was identified as one of the two offenders from CCTV footage in the block of flats. When arrested the applicant had items belonging to the victim on him. When interviewed he professed to have no memory of where he had been at the time of the offending and then answered questions ‘no comment’.
The victim was treated at the Alfred Hospital. Amongst other injuries her left hip had suffered a closed fracture requiring a half joint replacement. Her left cheek bone was also fractured. Without treatment it was probable that the injuries she sustained would have caused her death. Her victim impact statement indicated that her mobility had been severely restricted as a result of her injuries and that she could no longer live in her own home. She described her emotional pain as worse than her physical pain.
On the plea counsel for the applicant tendered a letter from Odyssey House, a report from a consultant psychiatrist, letters from family members, and a letter from the applicant in which he expressed remorse.
In the judge’s sentencing reasons, which concerned both the applicant and the co-offender, he set out the circumstances of the offending in some detail, as well as the circumstances of the applicant’s apprehension. He referred to the effect of the offending on the victim.
The sentencing judge referred to the material tendered on the plea and indicated that he accepted that the applicant was remorseful and ashamed of his conduct. The sentencing judge summarised the applicant’s personal circumstances as follows:
You are 37 years of age. You clearly had a difficult upbringing. You have a long history of substance abuse. You have a long and bad criminal record, including a conviction for aggravated burglary, although the relatively modest term of imprisonment imposed does suggest that it was a much less serious offence than that in Charge 1 on this indictment. You have a history of moderately severe depression beginning in your early teens. That condition is apparently responding to appropriate treatment. You also have a history of alcohol and drug abuse that has resulted in episodes of drug-induced psychosis. You have attempted rehabilitation through Odyssey House during periods when you have not been serving sentences of imprisonment. There, it seems you met the mother of your six-year-old son, Gordana Stojanovic, (the author of one of the letters of reference tendered on your behalf) and also you met your co-offender, Hi. Ms Stojanovic speaks in her letter of the positive contribution you have made to your son’s life. She suggests this offending is ‘extremely out of character’.
Given your history of relapse into drug abuse following what seem to be genuine attempts at rehabilitation, I cannot assess your long-term prospects of rehabilitation as better than poor.[3]
[3]Reasons [56]–[57].
The sentencing judge described the conduct of the two offenders as ‘utterly despicable, cowardly and brutal’.[4] The sentencing judge said that the offenders’ moral culpability in relation to the assault charge (charge 3) was of ‘a particularly high order’.[5] He then addressed the aggravated burglary and armed robbery offences as follows:
I regard the moral culpability of each of you as very high in relation to Charges 1 and 2. Your planning may not have been careful, sophisticated or of long duration. It was no doubt drug-fuelled, ill-informed and ill-considered. But you each set out deliberately to enter the home of an elderly and vulnerable woman to steal from her in circumstances that were calculated to terrify her.[6]
[4]Ibid [61].
[5]Ibid.
[6]Ibid [62].
The applicant seeks leave to appeal on the following grounds:
Ground 1:
The learned sentencing judge erred:
(a)in finding that the applicant set out to steal from an elderly and vulnerable woman; and/or
(b)in denying the applicant procedural fairness in relation to that matter.
Ground 2:
The learned sentencing judge erred in assessing the applicant’s prospects of rehabilitation as no better than poor. In particular:
(a)such a finding was not open, given the link between the applicant’s criminal history and his drug addiction, his concerted efforts to overcome that addiction, and his genuine remorse, willingness to work, and family support; and/or
(b)his Honour erred in treating the applicant’s relapses into drug abuse following two genuine attempts at rehabilitation as only negatively informing the assessment as to his prospects of rehabilitation, without taking into account the willingness to reform and insight which those attempts demonstrated.
Ground 3:
The learned sentencing judge erred in failing to take into account the fact that the applicant will serve his sentence in protective custody.
Ground 4:
The individual sentences, orders for cumulation and non-parole period are manifestly excessive in light of the applicant’s guilty pleas, genuine remorse, family support and protection status, together with other factors in mitigation.
Proposed ground 1 — adverse finding
The applicant relies upon the passage which I quoted concerning the moral culpability on the aggravated burglary offence in support of a submission that the sentencing judge proceeded on the basis that the offenders had planned to steal from an elderly and vulnerable woman. It was submitted that that was not a conclusion which it was open to the sentencing judge to reach beyond reasonable doubt on the material before him.
In my view the applicant is misreading, or mischaracterising, what it is that the sentencing judge said in the relevant passage. He did not say that the offenders knew that the home they planned to enter was that of an elderly and vulnerable woman. The offenders did each set out to deliberately enter a home, and, as matters transpired, that home was the home of an elderly and vulnerable woman. They did set out to steal from the occupant of that home (whoever that might be) in circumstances that were calculated to terrify that occupant.
I do not consider that the judge reached a conclusion adverse to the applicant to the effect that prior to entry into the home he knew that the occupant was an elderly and vulnerable woman. I accept that a contrary interpretation is arguable.
Proposed ground 2 — rehabilitation
It was submitted that the sentencing judge had wrongly characterised the applicant’s history in an entirely negative way, and that the applicant’s repeated attempts at rehabilitation should have been seen to also have a positive aspect.
This ground is not arguable. The applicant has a very extensive criminal history. He has repeatedly failed in his attempts to address his substance abuse. The conclusion that his prospects of rehabilitation were no better than poor was clearly open to the sentencing judge.
I refuse leave to appeal on this ground.
Proposed ground 3 — protective custody
The fact that the applicant was in protective custody was a matter referred to in a written outline of plea submissions to which the sentencing judge made express reference, but the sentencing judge did not refer to this consideration in his sentencing reasons. He was not, of course, obliged to expressly address every matter advanced on the plea, but express reference to this factor would ordinarily be expected.
Proposed ground 4 — manifest excess
In the context of proposed ground 4 the applicant, in effect, reiterated all the matters put on the plea.
Particular submissions were made in relation to the sentence for the aggravated burglary.
The applicant emphasised that the aggravated burglary offence was complete as soon as the offender entered the premises and that it ought to have been important that the judge be mindful not to punish the applicant on the aggravated burglary offence for what subsequently happened inside, which was the subject of separate charges. The relevant intent alleged in relation to the aggravated burglary was intention to steal, not intention to assault. The applicant submitted that the sentence imposed on the aggravated burglary was a very long one, one of the longest ever imposed for that offence.
In my view it is arguable that the sentence imposed for the offence of aggravated burglary is manifestly excessive. The fact that the sentence on the aggravated burglary offence was greater than the sentences imposed on the armed robbery offence and the offence of causing serious injury recklessly in circumstances of gross violence suggests that the seriousness of the aggravated burglary may have been assessed by reference to what happened once inside, rather than by reference to the relevant intent which was the subject of the charge.
Section 280 of the Criminal Procedure Act 2009 (‘the Act’)
Proposed grounds 1, 3 and 4 are arguable but I nevertheless refuse leave to appeal pursuant to s 280(1)(b) of the Act.
In my view there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence even if all of the arguable proposed grounds of appeal were made out.
The judge’s description of this offending as despicable, cowardly and brutal was fully justified. As the sentencing judge said, these were callous and shocking crimes. The applicant has a long and bad criminal history.
In my view the sentence imposed on charge 3, recklessly causing serious injury in circumstances of gross violence, was at the lower end of what I would consider to be the appropriate range. What was done to a vulnerable older woman, in her own home, over a protracted period of time, by an offender with the applicant’s history, would have amply warranted a longer sentence, in my view.
In my opinion any reduction of the total effective sentence and the non-parole period imposed would be unwarranted.
Leave to appeal will be refused.
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