Matthew John Hull v The Queen
[2019] VSCA 243
•29 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0002
| MATTHEW JOHN HULL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 October 2019 |
| DATE OF JUDGMENT: | 29 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 243 |
| JUDGMENT APPEALED FROM: | DPP v Hull [2018] VCC 1303 (Judge Lawson) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, recklessly causing injury, theft and committing an indictable offence on bail – Total effective sentence four years’ imprisonment with non-parole period two years and six months – Co-offender sentenced 72 days’ imprisonment with community correction order of three years’ duration – Whether sentencing judge erred by finding applicant’s role in offending equal to co-offender – Whether sentences so disparate to give justifiable sense of grievance – Leave to appeal refused – Applicant demonstrated to be a full participant in offending – Age and extensive criminal history sound reason for imposing more severe sentence than upon youthful co-offender without prior convictions – Collins v The Queen [2015] VSCA 106 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood and Mr N Jane | Stary Norton Halphen |
| For the Respondent | Mr P L Bourke | John Cain, Solicitor for Public Prosecutions |
WHELAN JA:
I agree with Priest JA.
PRIEST JA:
On 27 June 2018, the applicant pleaded guilty in the County Court[1] to aggravated burglary[2] (charge 1), recklessly causing injury[3] (charge 2) and theft[4] (charge 3), and to a related summary offence of committing an indictable offence whilst on bail.[5]
[1]He had earlier been arraigned in ‘short form’ and pleaded guilty on 6 October 2017.
[2]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is five years’ imprisonment.
[4]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[5]Bail Act 1977, s 30B. The maximum penalty is 30 penalty units or three months’ imprisonment.
Following a plea, on 29 August 2018 the judge sentenced the applicant to three years and six months’ imprisonment on charge 1; to two years’ imprisonment on charge 2; to one year’s imprisonment on charge 3; and to one month’s imprisonment on the summary charge. The judge ordered that six months of the sentence on charge 2 (recklessly causing injury) be served cumulatively with the sentence on charge 1 (aggravated burglary), resulting in a total effective sentence of four years’ imprisonment. The judge fixed a non-parole period of two years and six months.[6]
[6]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have imposed a sentence of six years’ imprisonment, with a non-parole period of four years.
The judge had earlier sentenced the applicant’s co-offender, Benjamin Nagy (‘Nagy’), who pleaded guilty to the same charges as the applicant, to 72 days’ imprisonment, in combination with a community correction order (‘CCO’) of three years’ duration.[7]
[7]DPP v Nagy [2017] VCC 2049 (26 October 2017). Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced Nagy to three years’ imprisonment, with a non-parole period of two years.
By a notice dated 8 January 2019, the applicant seeks leave to appeal against his sentence on two related grounds:
1. The sentencing judge erred by finding that the applicant’s role in the offending was equal to Nagy’s role.
2. The disparity between the sentence imposed on Nagy and the sentence imposed on the applicant was so great as to give rise to a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done.
In my opinion, the grounds are without substance. For the reasons that follow, I would refuse leave to appeal.
It is necessary to say something of the applicant’s and Nagy’s offending.
On 27 September 2015, at about 5.45 am Corey Newman (‘Newman’) was woken by his house-mate Shaun Dekeizer (‘Dekeizer’). Loud smashing sounds could be heard coming from the area of a bungalow located in the backyard of the house. It seems that these noises were the result of an attempt being made to break into the bungalow through the locked security door and another door. The bungalow was usually occupied by Daniel Charles (‘Charles’), but he was not then at home.
Dekeizer stayed inside the house whilst Newman went out to the backyard to investigate. Newman was confronted by two men — the applicant and Nagy — wearing dark balaclavas and gloves. Nagy, the taller of the two, was carrying a silver double-barrelled handgun and a tomahawk, and the applicant was carrying a steel bar. Both walked towards Newman. Nagy put the gun to Newman’s head between his eyes and held the tomahawk to his throat, asking, ‘where the fuck is Aaron?’. Newman replied that there was no Aaron living there, prompting Nagy to say, ‘stop being smart, get the keys [to the bungalow]’. Newman said that he did not have the keys and that he did not know Aaron. Nagy again pointed the gun at Newman’s head, and then told the applicant to watch him and not let him move. At that point, Nagy then smashed a side window of the bungalow and gained entry (charge 1 — aggravated burglary).
Nagy then opened the bungalow’s front door, and the applicant pushed Newman inside. Still carrying the gun, Nagy kept asking Newman, ‘where is he?’. Nagy also had a grey pillow case with something solid inside. He twice struck Newman with it to the side of the head, causing pain, bleeding, bruising and swelling, and causing him to fall to one knee (charge 2 — recklessly causing injury). Nagy then dragged Newman to the side of the bed.
Both Nagy and the applicant then ransacked the bungalow, pulling drawers from furniture and shouting ‘where’s the cash?’. Nagy shouted to the applicant to ‘grab everything’ and they took various items and put them into a pillow case. Whilst this was occurring Nagy was pointing the gun at Newman’s face, saying to Newman ‘stop being a smart arse’. Newman feared that he may be shot, and repeated that he did not know why they were there. Nagy then said to Newman, ‘where is the Oxy[contin], I know you’ve got a fucked back, I know a lot more about you than you realise’. (Newman had previously been on Oxycontin because of back surgery.) Nagy then began hacking at the curtains, allowing Newman to see Charles entering the property through the back gate.
Charles, who was returning home, saw some broken glass and observed movement within the bungalow. He realised something was amiss, so he picked up a small mallet and approached the broken window and looked inside the bungalow. Charles observed Newman injured and distressed, and saw the two men ransacking the bungalow. He yelled, ‘you fucking rats are gone and you are fucking dead now cunts’. Nagy pointed the gun at Charles, saying, ‘back off or I will shoot you’. Charles then walked around to the front door of the bungalow and observed that the screen door had been damaged.
Nagy approached Charles at the front door of the bungalow and said, ‘I’m going to shoot you’. Charles then went inside the house, where Dekeizer was on the telephone to the police. (Dekeizer had witnessed some of the events, but had remained inside the house and called ‘000’.) Nagy and the applicant, who were still inside the bungalow at the time, said, ‘let’s go, let’s go’, and put items into the pillow case (charge 3 – theft). The property stolen belonged to Charles, and included two money tins containing about $1500. Nagy and the applicant then ran out of the bungalow and through the back gate towards a white Mercedes van which was parked nearby. At the time of this offending, the applicant was on bail (related summary offence — committing an indictable offence whilst on bail).
Charles and Dekeizer followed, Charles picking up a sledgehammer from the backyard. Nagy then walked back towards Charles and raised his arm at him — Charles could not see whether he was holding anything — before lowering his arm and running away. Charles then chased the two men along nearby streets. In the meantime, Newman got into his car with the intention of chasing the two.
Nagy and the applicant made their way to the front yard of another house. Dekeizer, who had joined the chase, and Charles then caught up to them. In the fight that ensued, Nagy swung the tomahawk at Dekeizer and hit his shoulder. Charles then assisted Dekeizer by hitting Nagy in the back with the sledgehammer. The applicant then managed to get control of the sledgehammer and hit Charles.
At this stage, Newman drove his car at the applicant and struck him. Nagy and the applicant then ran away up the street towards a roundabout. During the pursuit one of the men threw the tomahawk at Charles but missed him.
Jamie Johnson (‘Johnson’), who was on his way to work in a white SUV, was approaching the roundabout when the applicant was hit by Newman’s car. The applicant ran up to Johnson’s vehicle and pleaded for help. Johnson told the two to get in and drove off. When Johnson saw police vehicles approach, he pulled over and flashed his headlights to gain their attention. The two said that they did not want police involved. Johnson saw that the applicant was carrying a sledgehammer and told him to get rid of it. The applicant threw the sledgehammer out of the vehicle.
Newman then drove past and did a ‘U’ turn. Johnson, who had become concerned when the two men said they did not want police involved, told the men to get out of his car. They did so and ran off. Johnson then drove away.
Nagy and the applicant jumped a house fence. The resident, Anthony Osborne, discovered them in the backyard, and told his wife to call police. Police arrived soon after and Nagy and the applicant were arrested. Although police found them with a black balaclava and black gloves, they did not have the gun or the tomahawk. Police conducted a wide-ranging search of the area and found other items in various locations, including the sledgehammer; the tomahawk; and a pillow case containing the two money tins.
Newman located the handgun the following day in nearby bushes and notified police. Police collected the handgun. It was an unloaded, home-made silver .22 calibre double-barrelled handgun with a two cartridge capacity.
Nagy’s DNA was subsequently located on the handgun; the inside of a right-hand glove; the inside surface of a balaclava; and on the tomahawk. The applicant’s DNA was found on the inside of a glove recovered from the scene.
At the time of the offending the applicant was 25 years of age.[8] He has significant prior convictions, including for breaching an intervention order (2007); criminal damage (2007 and 2011); intentionally causing injury (2007); common law assault (2007); assaulting police and resisting police (2012); and using insulting words in a public place (2012). The applicant also has subsequent convictions, including on 22 February 2016 for breaching a CCO imposed on 18 September 2012 in relation to assaulting and resisting police. That same day, he was placed on a conditioned 12 month CCO for possessing methylamphetamine; criminal damage; unlawful assault; committing an indictable offence whilst on bail; unlicensed driving; persistent contravention of a family violence order; and assault with a weapon.
[8]His date of birth is 3 July 1987.
Most significantly, on 17 July 2007 the applicant was sentenced to a wholly suspended sentence of five months’ imprisonment, together with a two year community based order (with special conditions), for an aggravated burglary which displayed a number of features similar to the instant offending. The circumstances of that aggravated burglary were that the applicant, then aged 18, together with three men whom he had recruited, forced entry into occupied residential premises in the early hours of the morning. The group was armed with a cricket bat, curtain rail and car tyre lever. Front windows, front security door and front door, were all forced open and damaged. A neighbour who came to the aid of the occupants was struck a hard blow to his head, causing him injuries. The apparent motivation for the offending was that the applicant had had an ongoing dispute, and bore a grudge, against another man associated with the occupants of the home.
Of course, the applicant is not again to be punished for his prior offences, but they are far from irrelevant. As Charles JA (with whom Winneke P and Southwell AJA agreed) observed in O’Brien and Gloster:[9]
It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence. …
[9]R v O’Brien and Gloster [1997] 2 VR 714, 718. See also O’Toole v The Queen [2019] VSCA 185, [37] (Priest JA and Kidd AJA).
In this Court, in support of the first ground the applicant’s counsel contended that the judge erred in finding that ‘overall’ the applicant’s role in the offending was ‘equal’ to Nagy’s.[10] Objectively, so counsel submitted, Nagy’s role was more grave, since it was Nagy who pointed the gun at Newman and Charles on several occasions; held the tomahawk to Newman’s throat; struck Newman to the head; and smashed the window. Although Nagy was younger than the applicant, so counsel submitted, he had a more active role in the offending and ‘clearly drove’ it.
[10]See DPP v Hull [2018] VCC 1303, [36] (‘Reasons’). See also [28].
In support of the second ground, counsel for the applicant argued that although Nagy was a youthful offender without prior convictions, he played a greater role in the offending. Further, both Nagy and the applicant had pleaded guilty and were remorseful. Moreover, the applicant suffered a moderate acquired brain injury as a result of injuries incurred in the course of the offending. In her reasons for sentence, the judge remarked that this ‘extra-curial punishment is permanent and will continue to affect [the applicant] into the future’, placing ‘a greater burden upon [the applicant than] for other prisoners’.
With respect to the first ground, counsel for the respondent submitted that, whilst the applicant’s specific role was different to Nagy’s, he played an active role that was no less important. Although their roles were different, counsel submitted, that does not mean their respective roles when objectively assessed cannot be seen to be equal. As counsel put it in oral argument, the circumstances of the offending reflect ‘a division of labour by agreement between them’.
As to the second ground, counsel for the respondent argued that the disparity in the applicant’s and Nagy’s sentences was justified by (among other things) their different ages and prior histories. Importantly, the judge believed that Nagy’s ‘was an exceptional case whereby the punitive aspects of the sentencing could be dealt with through the imposition of a CCO’.
There is no merit in the contention that the judge erred in characterising the roles of the applicant and Nagy ‘overall’ as ‘equal’. True it is that Nagy pointed the gun and used the tomahawk — he was the offender who had possession of those items — but the applicant made no endeavour to disassociate himself from anything that Nagy did. Indeed, the evidence demonstrates the applicant to be a full (although sometimes, perhaps, more passive) participant in what was clearly the planned and premeditated joint commission of the aggravated burglary and associated offences. Both were disguised with dark balaclavas and wearing gloves. Both entered the property and endeavoured to break into a bungalow. Both confronted Newman. Both ransacked the bungalow and stole money. And both acted together to make their escape. Thus, the finding that the applicant’s and Nagy’s roles overall were equal is entirely apt.
Turning to ground 2, insofar as it is necessary to once more recapitulate them, the principles that guide the Court when considering a ‘parity’ complaint were usefully summarised in Collins:[11]
The principles governing parity are well-established.[12] Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.[13] However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.[14] When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[15]
[11]Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations as in original).
[12]See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; and Roujnikov v The Queen [2015] VSCA 97, [24]–[25] (Weinberg and Kyrou JJA).
[13]Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462.
[14]Roujnikov v The Queen [2015] VSCA 97 quoting McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA).
[15]Hilder v The Queen [2011] VSCA 192, [38]–[39] (Maxwell P).
In my view, there were sound — if not compelling — reasons for imposing a more severe sentence on the applicant than upon Nagy. Thus, Nagy was aged 19 at the time of the offending, and attracted the sentencing principles relevant to youthful offenders.[16] Moreover, unlike the applicant, Nagy had no prior convictions.[17] Certainly, Nagy had not previously been convicted of an aggravated burglary which, like the present case, was perpetrated by offenders armed with weapons, who forced their way into premises (causing damage to doors) and caused injury to a neighbour who came to the aid of the occupiers of the burgled premises. Quite apart from the other matters that the judge took into account,[18] those two features alone — Nagy’s age and lack of prior convictions — meant that it was well open to the judge to differentiate between the applicant’s and Nagy’s sentences in the way that she did. Indeed, I consider that the lenient sentence imposed on the applicant can only be explained by her Honour paying due regard to the principles of parity (Nagy’s sentence having a moderating influence on that imposed on the applicant), coupled with the mitigating effect of the applicant’s acquired brain injury.[19]
[16]R v Mills [1998] 4 VR 235, 241.
[17]Prior to the offending, in May 2015 Nagy had been charged with a number of offences, including armed robbery. In March 2016, for armed robbery and committing an indictable offence on bail, he was sentenced to a two year CCO (with a condition that he undergo assessment and treatment with respect to drugs); and in April 2016 he was fined an aggregate of $1200 for weapons, drugs and other offending.
[18]Reasons, [25]–[33]. In particular, the judge observed (at [33]) that she was satisfied that Nagy’s was ‘an exceptional case whereby the punitive aspects of sentencing could be dealt with through the imposition of a community correction order of some duration’.
[19]Ibid [73]–[74].
Ground 2 cannot succeed.
The application for leave to appeal against sentence must be refused.
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