R v Bain

[2000] VSCA 199

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 26 of 2000

THE QUEEN

v.

DAVID KAMAHL BAIN

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2000
DATE OF JUDGMENT:	12 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 199

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Criminal law – Sentence – Aggravated burglary, threat to kill and possession of firearm – Total effective sentence of two-and-a-half years with minimum term of 18 months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. I.D. McIvor	Victoria Legal Aid

WINNEKE, P.: 

1. In the evening of 5 September 1999, the appellant entered a boarding house in Dandenong in search of a man called Taylor, who he believed was, or had been, molesting and harassing a girl (whom I shall call "Joanne"), who was a long-time friend of the appellant.  Joanne and Taylor had in fact lived in a de facto relationship, a union which had produced a child.  It would seem that Taylor had a concern over access to that child.  When the appellant entered the premises he carried with him an imitation firearm.  Although it had no fire power, it looked real enough and was clearly intended to so appear.  It had a chamber to accommodate dummy bullets, which also matched the appearance of real ammunition.  The appellant confronted Taylor in a state of anger.  He grabbed him around the neck with his left arm and thrust the pistol into Taylor's ribs with his right hand.  He threatened to kill Taylor if he continued to annoy Joanne.  Taylor was in fact put in fear that he would be shot or killed, as the appellant had intended.

1. In the early hours of the following morning, 6 September, the appellant, in the company of Joanne, re-entered the house where Taylor lived.  Once again, the appellant was angry.  He entered the premises with the intention of assaulting Taylor, and again he had with him a gun.  Either by good luck or good management, Taylor was not there.  Notwithstanding, the appellant and Joanne confronted three other residents in a room of the house and demanded the production of Taylor.  It seems that the appellant would not take "no" for an answer, and, when he was about to be escorted out of the house following an argument, produced the gun from beneath his coat and brandished it at the residents.  One of them apparently overpowered him and ultimately he and Joanne left, carrying with them the gun.  The police had been summoned and they apprehended the appellant in a car outside the house.  The appellant was later conveyed to the police station, where he gave a false name initially but later gave his true name and made partial admissions.

1. Arising out of these events the appellant was charged on presentment with three offences. Count 1 alleged the threat to kill Taylor made on 5 September 1999. Count 2 was a count of aggravated burglary, namely, the entering of Taylor's premises as a trespasser, carrying with him a gun with the intention of assaulting Taylor. Count 3 alleged possessing a firearm whilst the appellant was a prohibited person, contrary to s.5(1) of the Firearms Act 1996.

1. On 17 February of this year the appellant pleaded guilty to the three counts and did so in the County Court at Melbourne.  He admitted some 40 previous convictions from ten separate court appearances.  Many of these were offences of drinking and driving, but there were several of dishonesty and one of reckless conduct endangering persons.  All were offences which were dealt with summarily, either in Melbourne or Queensland, and most of them occurred several years ago.

1. The sentencing judge took a dim view of the appellant's conduct in the course of committing the offences, and also for his lack of remorse for them.  Although there was before him material which attested to the hard-working capacity of the appellant and what was said to be a "heart of gold under a rough exterior", his Honour nevertheless took the view that the appellant was taking the law into his own hands, in circumstances which had a potential for serious trouble and which did in fact upset a number of people who were residents of the house.  He was not prepared to accept counsel's submission that the 165 days spent in custody before plea was sufficient punishment.  He regarded, in particular, the nature of the offences alleged in counts 1 and 2 as warranting further imprisonment.  He thus imposed 12 months' imprisonment on count 1, two-and-a-half years' imprisonment for the aggravated burglary and six months' imprisonment for carrying the firearm whilst prohibited.  That made a total effective sentence of two-and-a-half years, because his Honour made all the sentences concurrent.  He ordered the appellant to serve 18 months before becoming eligible for parole.

1. By leave, the appellant has appealed to this Court, primarily on the ground that the sentence is manifestly excessive.  Stripped, I think, to its bare essentials, the argument addressed to this Court by Mr McIvor on  behalf of the appellant is that the sentence imposed by his Honour for the aggravated burglary seriously overestimates the gravity of that offence.  His contention to us, as it was to the judge below, is that the episode was nothing more than a well-intentioned mission to frighten Taylor into staying away from Joanne;  there was no infliction of serious harm upon any person, and the weapon was incapable of inflicting such harm.  It is submitted that little or no weight was given to a number of mitigating factors which were put before the court.

1. After serious consideration, I am for my own part not persuaded that the sentences imposed by the judge, including the sentence for the aggravated burglary, were beyond the range legitimately available to his Honour.  It may well be that through the eyes of the appellant the offences which he committed had the appearance of the well-intended mission of which he speaks, but he was, as his Honour said, in fact taking the law into his own hands in a manner which the law does not, and cannot, countenance.

1. The offence of aggravated burglary is not to be necessarily measured in its gravity by the harm which ensues.  It is aimed, inter alia, at those who enter other people's premises whilst armed with intent to cause injury to others.  When such entry is made late at night, it has the potential to inspire fear into innocent people, to whom the presence of the burglar is most unwelcome.  Whilst the appellant may have construed his crime as a well-intentioned and minor one, it is obvious that his victims did not share that view.  The crime of aggravated burglary is always a serious one, and indeed that is why Parliament has fixed a maximum of 25 years for it.  Its punishment would usually have general deterrence as one of its primary purposes.  Whilst the circumstances of this offence might not have induced me to impose the penalty which the judge imposed, that is not the test, as I am sure Mr McIvor has explained to his client.

1. In the long run, I am not persuaded that the sentence which the judge imposed was beyond the range available to him, and accordingly I would dismiss the appeal.

CALLAWAY, J.A.: 

1. I agree.  There is only one topic on which I wish to add something on my own account.  Counts 1 and 2 charged two separate offences committed against different victims.  Although they were separated by only a few hours, it would have been well within his Honour's discretion to impose a shorter sentence on count 2 and to direct that an appropriate proportion of the sentence imposed on count 1 be served cumulatively.  Had he done so, it would not have been reasonably arguable that the sentence, or any part of it, was manifestly excessive and leave to appeal would have been refused.  The observations of Charles, J.A. in R. v. Mai[1] repay study.  That was a clearer case, but, as in that case, failure to moderate and cumulate made the sentence imposed on count 2 vulnerable in a way in which it need not have been.

BUCHANAN, J.A.: 

[1][2000] VSCA 184 at [12]-[14].

1. While I consider that the sentence imposed upon the appellant was severe, the circumstances of the crime of aggravated burglary, the effect of it upon its victims and the need for general deterrence render the sentence one that in my opinion was within the range that was available to the sentencing judge.  The fact that I would not have passed the same sentence is not to the point.

1. I agree that the appeal should be dismissed.

WINNEKE, P.: 

1. The formal order of the Court will be that the appeal is dismissed.