Rosie Alexander (a pseudonym) v The Queen
[2021] VSCA 217
•10 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0263
| ROSIE ALEXANDER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]This judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 10 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 217 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1884 (Judge C J Ryan) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Damaging property – Intentionally causing injury – Applicant attended home of former intimate partner – Broke window and fired nail gun into home, striking victim with nail – Applicant suffering from methamphetamine–induced psychosis – Applicant badly cut in offending – Victim suffered minor dental injury – Whether individual sentences or total effective sentence of 3 years’ imprisonment manifestly excessive – Whether sentence insufficiently accounted for mitigating factors and R v Verdins (2007) 16 VR 269 principles – Whether drug-induced mental impairment lessened moral culpability – Moral culpability lessened to extent offender lacks foreknowledge of consequences of drug use – Martin v The Queen (2007) 20 VR 14, applied – Applicant unaware that drug use contributed to psychotic state – Moral culpability lessened – Significant mitigatory factors – Sentence manifestly excessive in unusual circumstances of case – Appeal allowed – Applicant resentenced to total effective sentence of 2 years’ imprisonment.
CRIMINAL LAW – Appeal – Sentence – Proposed grounds asserting error in identifying seriousness of offending and weight attached to R v Verdins (2007) 16 VR 269 principles – Grounds not constituting allegations of specific error – Relevant only as particulars of manifest excess ground – DPP v Terrick (2009) 24 VR 457, Smith v The Queen [2020] VSCA 159, applied.
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| WRITTEN SUBMISSIONS: | Counsel | Solicitors |
| For the Applicant | Ms N Karapanagiotidis | James Dowsley & Associates |
| For the Respondent | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
McLEISH JA:
On 23 September 2020, the applicant pleaded guilty before a judge of the County Court to one charge of damaging property;[2] one charge of aggravated burglary;[3] and one charge of intentionally causing injury.[4]
[2]Contrary to Crimes Act 1958 s 197(1).
[3]Contrary to Crimes Act s 77(1).
[4]Contrary to Crimes Act s 18.
The maximum penalty for each of the charges of damaging property and intentionally causing injury is 10 years’ imprisonment. The maximum penalty for aggravated burglary is 25 years’ imprisonment.
On 30 November 2020, the judge sentenced the applicant to a total effective sentence of 3 years’ imprisonment, with a non-parole period of 18 months, as follows:[5]
[5]DPP v Rosie Alexander (a pseudonym) [2020] VCC 1884 (‘Sentencing Remarks’).
Charge on Indictment Offence Maximum Sentence Cumulation 1. Damaging property 10 years’ imprisonment 3 months’ imprisonment None 2. Aggravated burglary 25 years’ imprisonment 2 years and
6 months’ imprisonmentBase 3. Intentionally causing injury 10 years’ imprisonment 12 months’ imprisonment 6 months Total Effective Sentence: 3 years’ imprisonment Non-Parole Period: 18 months Pre-sentence Detention Declared: 19 days Section 6AAA Statement: 5 years’ imprisonment with a non-parole period of 3 years Other Relevant Orders: Forfeiture order (nail gun); compensation order in the amount of $300
The applicant seeks leave to appeal against sentence on three proposed grounds: first, that the various sentences, and the order for cumulation, are manifestly excessive; secondly, that the judge erred in characterising the applicant’s offending as ‘serious’; and thirdly, that the judge erred by inadequately accounting for R v Verdins[6] factors reducing the applicant’s moral culpability and insufficiently moderating considerations of general deterrence and denunciation.
[6](2007) 16 VR 269 (‘Verdins’).
On 21 May 2021, a judge of this Court refused the applicant leave to appeal against sentence.[7] By notice dated 7 June 2021, the applicant elected to renew her application for leave to appeal against sentence to be determined by this Court.
[7]Alexander (a pseudonym) v The Queen [2021] VSCA 140.
For the reasons that follow, leave to appeal will be granted and the appeal allowed.
Circumstances of offending
On the evening of 21 February 2020, the applicant, who was then 27 years old, drove to the home of her former partner, BR. Her 18-month relationship with BR had ended some months earlier.
She arrived at BR’s home at around 9pm. Carrying an orange nail gun, she approached the front door and yelled ‘Come out’. BR opened the front door. The applicant fired some nails in BR’s direction.
One of the nails hit and shattered a frosted glass window beside the front door. BR closed the front door and retreated into the house. The applicant then used the nail gun to hammer the shattered window, further damaging that window and also breaking the window below it (charge 1 — damaging property).
The applicant then reached into the house through the window and continued firing the nail gun into the house, discharging more than a dozen nails. Some of the nails hit doors and furniture. One nail lodged in an internal wall (charge 2 — aggravated burglary).
One nail hit BR, who was standing a few steps back from the door. It struck and bounced off his top lip and gums. This caused mild injuries to the lip and gums, and some looseness in one tooth (charge 3 — intentionally causing injury).
BR grabbed at the nail gun the applicant was holding through the broken glass window. They each pulled the nail gun in opposite directions. In the struggle, the applicant cut her arm on the broken glass and eventually withdrew from the house and drove away.
Plea hearing
Counsel for the applicant described the applicant’s upbringing. There was considerable dysfunction in the family home arising from the challenging behaviour and psychiatric issues of her older brothers, one of whom had been sexually abusive towards her. She left home as a result, aged 14, and lived with a school friend and started an apprenticeship, but further abuse occurred in that setting. When she was 19 years old she was diagnosed with Hodgkin’s lymphoma and underwent chemotherapy for nine months, from which she struggled to regain confidence and normal functioning.
The treatment was successful and the applicant resumed work as a carpenter, working mainly on home renovations. She has a close and supportive relationship with her parents.
The applicant began using alcohol, marijuana and methamphetamine in her early teens. She has consistently used marijuana, with the exception of a period of a few months, since then. She used methamphetamine on a few occasions during her relationship with BR, but when that relationship ended in November 2019, her methamphetamine use escalated. She began using methamphetamine daily, and drinking heavily.
At the plea, counsel for the applicant tendered a report of a forensic psychiatrist, Dr Gunvant Patel. In that report, Dr Patel stated that he considered that between November 2019 and the offending, the applicant suffered from a severe methamphetamine-induced psychotic disorder in the context of daily methamphetamine use. This disorder later resolved without treatment when the applicant ceased using methamphetamine. Dr Patel stated that, at the time of the offending:
[The applicant] was in the grip of a severe state of psychosis that had a serious impact on her ability to interpret and respond to environmental cues. Most notably she was distressed and fearful as indicated by her sense that she was running from something and driving the car into the ocean. [She] was experiencing great difficulty in exercising control over her actions and they were at times subject to the direction of her psychosis eg feeling provoked by messages about her relationship with the ex-boyfriend.
On the day of the offending, the applicant had used crystal methamphetamine, or ‘ice’. She had also been drinking. Before offending, she listened to music that provoked her in some way, although she could neither recall the specifics of the provocation nor the offending itself.
In oral evidence, Dr Patel stated that, at the time of the offending, the applicant was in a ‘floridly disorganised psychotic state’ induced by the use of methamphetamine. He explained that this impacted the applicant’s insight in two ways. First, it deprived her of any appreciation that the use of methamphetamine was contributing to her psychotic state. Secondly, because of the sheer disorganisation of her psychotic state, it deprived her of any appreciation that what she was experiencing was abnormal. Dr Patel described the applicant as having been ‘lost inside her psychosis’.
Dr Patel also considered that, by the time he saw the applicant in October 2020, she was experiencing an episode of mental disturbance that met the criteria for a moderately severe cannabis-induced psychotic disorder. In his report, he stated that the applicant was in the ‘early recovery phase’ from this episode. It was premature to determine whether it was solely induced by cannabis use or involved the onset of a longer-term illness. He said that the applicant was ‘at a crucial stage in terms of mental health management’ and that disruption to her care could have a serious impact on her progress.
Counsel also tendered a letter written by the applicant’s parents referring to mental health issues within the family, and the applicant’s work and personal history. They described various events that occurred around the time of the methamphetamine-induced psychosis diagnosed by Dr Patel. They said that, after separating from BR, the applicant would hide in overgrown trees in the garden and once leant planks of wood against the windows of the house to keep people said to be in the garden from entering. She drove her car into the ocean because she thought someone had bugged it. At other times she would spin on a chair for hours at a time while talking about dancing for God and becoming famous. Not long after this, the offending took place. By then, the applicant was in regular contact with a crisis assessment team and taking prescribed medication.
Reliance was also placed on letters of support from representatives of two building companies and a letter written by the applicant expressing her shame at what she had done and her confidence that her condition would improve with the help of the crisis assessment team so that she could resume her career.
Reasons for sentence
Relying on Dr Patel’s evidence, the judge considered that the principles described in Verdins were enlivened. Those principles reduced the applicant’s moral culpability and required that general deterrence be ‘sensibly moderated’. The judge was also satisfied that a sentence of imprisonment would weigh more heavily on the applicant than it would on a person in normal health.[8]
[8]Sentencing Remarks [21].
The judge characterised the offending, notwithstanding the relatively minor injuries sustained by BR, as a ‘serious example of offending of this kind’.[9] He stated:
You attended the home of a former intimate partner at night, armed with a nail gun. Your intention was to assault your victim using that weapon. You discharged the nail gun multiple times into your victim’s home. Your victim was struck in the face and this caused him injury. [The prosecutor] submitted that in all the circumstances the application of the principles of general deterrence, public denunciation and just punishment warranted a term of immediate imprisonment that necessitated the fixing of a head sentence and non-parole period.[10]
[9]Ibid [23].
[10]Ibid.
The judge identified mitigating factors, in particular, that the applicant:
(a) lacked any prior convictions and had otherwise good character;
(b) pleaded guilty at the earliest possible opportunity;
(c) demonstrated remorse; and
(d) had good prospects of rehabilitation, assuming continued abstinence from drugs, having obtained two trades (as a carpenter and tiler) in the face of significant personal and medical obstacles.
The judge rejected the applicant’s submission that a community correction order with conditions was the appropriate disposition, ordering the custodial sentence already described above.
Proposed grounds of appeal
As mentioned, there are three proposed grounds of appeal (omitting particulars):
1. The individual sentences imposed on counts (2) and (3), the total effective sentence, non-parole period and/or orders for cumulation are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
2. The learned sentencing judge erred in characterising the offending as a ‘serious example of offending of the kind’.
3. The learned sentencing judge failed to take into account and/or give sufficient weight to the applicant’s reduced moral culpability and any moderation to public denunciation and general deterrence as sentencing considerations.
Proposed ground 1 — manifest excess
The applicant submitted that the sentences imposed failed to take into account, or at least adequately account for, the relevant mitigatory factors identified by the judge. These included, in particular, the applicant’s early plea, remorse, lack of prior convictions, otherwise good character, good prospects of rehabilitation and the benefit of Verdins principles.
The respondent contended that it is readily apparent from his sentencing remarks, and the sentences imposed, that the judge properly accounted for those mitigating factors. The judge also had regard to other matters favourable to the applicant, including her having surmounted personal difficulties, and making recent progress in treatment. However, it was said that these considerations were counterbalanced by the very serious nature of the offending, and the attendant sentencing purposes of general deterrence, punishment and denunciation.
The respondent further submitted that, as the individual sentences for the charges of aggravated burglary and intentionally causing injury (2 years and 6 months’ imprisonment and 12 months’ imprisonment, respectively) represented only 10 per cent of the respective maximum sentences, they were both well within range for offending this serious. The cumulation of 6 months on the intentionally causing injury charge was said to be modest, in particular because it was only that charge which related to the applicant’s firing of the nail gun at BR and captured the injury sustained by him. As a result, it was submitted that neither the individual sentences, the total effective sentence, nor the orders for cumulation, fell outside the available range.
For reasons that will become apparent, it is convenient to defer consideration of this ground.
Proposed ground 2 — seriousness of offending
The applicant submitted that, while the offence of aggravated burglary is a serious offence, her offending was not a ‘serious example’ of the offence but rather fell at the ‘lower end’ of the scale of seriousness. This was said to be because:
(e) the offending was not accompanied by any attempt to conceal herself. She arrived at BR’s house in her own car and presented, undisguised and alone, at the front door;
(f) the offending comprised a single, short incident;
(g) while the applicant reached into the house with her arms, thereby completing the offence, she did not further enter the house;
(h) BR sustained only very minor injuries – essentially, a loose tooth. On the other hand, the applicant was seriously injured in the incident. The cut to her arm sustained on the broken window in the struggle was significant and required surgery under general anaesthetic; and
(i) the offending occurred while the applicant was in a ‘floridly disorganised psychotic state’, and her moral culpability was therefore reduced.
In those circumstances, it was said not to be open for the judge to describe the offending as a ‘serious example’ of the offence simply because the applicant’s intention was to assault BR with the nail gun.
The respondent contended that the absence of further possible aggravating features does not diminish the seriousness of the offending; it merely shows that it may have been even more serious. The offending was rightly characterised as ‘serious’ because it:
(j) occurred at the home of a former intimate partner at night;
(k) involved an intention to enter the home to assault that former partner;
(l) involved the use a weapon, which was repeatedly discharged; and
(m) was persistent and ceased only when the applicant was disarmed.
In those circumstances, characterising the offending as ‘serious’ was said to be well open to the judge, and in line with recent decisions of this Court in cases of home invasions involving a former intimate partner.[11]
[11]See especially Hill v The Queen [2020] VSCA 220.
In our view, this proposed ground is misconceived. The applicant does not allege that the sentence was based on an incorrect finding of fact, which could vitiate the sentencing discretion. She instead takes issue with the characterisation which the judge gave to the facts. Even if we formed a view different to that of the sentencing judge about the level of seriousness of the offending, this would not amount to appellable error. It would reflect instead the judge’s assessment of the weight to be placed on the acts constituting the offending as part of the overall sentencing synthesis.
By itself, the forming by an appellate court of a different view as to the weight to be attached to a matter relevant to the exercise of a discretion is not a ground for setting aside and re-exercising that discretion. A complaint that too much, or too little, weight was given to a particular matter is not a ground of specific error. Such a complaint can only be considered under the manifest excess ground.[12] It is useful to set out the guiding principle in House v The King:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[13]
[12]DPP v Terrick (2009) 24 VR 457, 459–60 [5] (Maxwell P, Redlich JA and Robson AJA); see also Smith v The Queen [2020] VSCA 159 [12] (Maxwell P, Kyrou and Weinberg JJA) (‘Smith’).
[13](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
The final aspect of this formulation encompasses the ground of appeal against sentence usually described in terms of manifest excess, or manifest inadequacy. In that context, it must be shown that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion, without necessarily identifying what that something is.[14] Particulars therefore need not be attached to a ground of appeal alleging manifest excess (or inadequacy) in a sentence, but argument will often descend to the reasons for sentence to seek to highlight matters that might have contributed to the sentence falling outside the range of those reasonably available.
[14]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); Nicholls v The Queen [2016] VSCA 300 [31] (Redlich and McLeish JJA and Beale AJA); Till v The Queen [2018] VSCA 122 [45] (Maxwell P, Tate and Niall JJA); Osman v The Queen [2021] VSCA 176 [97] (Priest, T Forrest and Emerton JJA).
The proposed ground taking issue with the judge’s evaluation of the seriousness of the offending should be viewed in this light.[15] Since it does not constitute an allegation of specific sentencing error, we will treat it as a particular of the manifest excess ground.
[15]Smith [2020] VSCA 159 [13] (Maxwell P, Kyrou and Weinberg JJA).
Proposed ground 3 — Verdins
The applicant submitted that, having recognised the applicability of Verdins principles, the judge failed to adequately moderate general deterrence or denunciation in accordance with those principles. In particular, it was said that the judge failed to adequately reflect the severity of the applicant’s psychotic state, and its impact on her mental capacity at the time of the offending. While the judge accepted during the plea hearing that the applicant’s condition eliminated specific deterrence as a sentencing consideration, and placed no weight on it in his sentencing remarks, it was said that the severity of the condition should also have led him to considerably moderate, if not eliminate, general deterrence and denunciation as sentencing considerations.
The respondent contended that the judge carefully assessed and weighed the evidence as to the applicant’s methamphetamine-induced psychotic state. The judge’s finding that the applicant lacked insight into her psychotic state at the time of offending (which must have led him not to rely on specific deterrence as a sentencing consideration) was said to be ‘generous’ given her past substance abuse and interactions with law enforcement and the crisis assessment team. In the circumstances, it was entirely appropriate that the judge only ‘sensibly moderated’ considerations of general deterrence and denunciation, which must weigh heavily in cases of violent offending against a former domestic partner.
If the judge had failed to take account of the Verdins principles in this case, that would plainly have constituted specific error. However, he explicitly did so.[16] To that extent, the ground must fail. On the other hand, the principal focus of the ground is on the weight which the judge gave to Verdins considerations. That, again, is not a ground of specific error. This proposed ground of appeal must also be treated as a particular of the first ground, alleging manifest excess.
[16]Sentencing Remarks [20]–[21].
We therefore turn to consider whether the sentence was manifestly excessive.
Analysis — manifest excess
Ordinarily, an offender’s culpability is not reduced by reason of the fact that he or she committed the offence while under the influence of a psychosis induced by drug use.[17] However, in some circumstances, the fact that an offender’s psychotic state was drug-induced may lessen his or her culpability. The critical factor in determining how to treat a drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender.[18] It is necessary to identify the probable consequences of the use of the particular drug by the particular offender and whether the offender foresaw those consequences.[19] The answers to these questions (as to which the onus lies on the offender) may point to a finding that the offending resulted from mental impairment attracting the principles in Verdins.[20]
[17]Marks v The Queen (2019) 280 A Crim R 23, 32 [60] (Whelan, Emerton and Osborn JJA); [2019] VSCA 253 [60]; DPP v Arvanitidis (2008) 202 A Crim R 300, 309 [29] (Redlich JA, Buchanan JA and Nettle JA agreeing at [2] and [10]); [2008] VSCA 189.
[18]Martin v The Queen (2007) 20 VR 14, 19–20 [20]–[21] (Maxwell P, Nettle and Redlich JJA).
[19]Ibid 22 [30].
[20]Ibid 18–19 [15]–[20].
The sentencing judge was keenly alive to these principles. He made findings in the following terms:
You have a history of drug and alcohol dependence. However, there is no evidence before me to suggest you had previously experienced psychotic episodes as a result. In his evidence, Dr Patel opined that from November 2019 until the offending you were in a ‘floridly disorganised psychotic state’. Dr Patel further opined that this impacted on your insight in two ways: firstly you would not have been able to appreciate that the use of methamphetamine was in fact contributing to your psychotic state and secondly, the psychotic state itself was so disorganised that you would not have appreciated that what you were experiencing was in fact not normal. The intervention of the police and the [crisis assessment] team gave you no insight into your psychotic state nor that the abuse of methamphetamine could cause you to behave irrationally or would affect your ability to exercise control. The principles enunciated in R vVerdins therefore [have] application to you in that your moral culpability is reduced and that general deterrence should be sensibly moderated. Dr Patel, in his evidence, stated that although you would not receive the same treatment regime in custody as you would in the community, there was no more than a possibility of imprisonment having an adverse effect on your mental health. However, I am satisfied that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health.[21]
[21]Sentencing Remarks [21].
As the judge recognised, the finding that the applicant could not appreciate that her use of methamphetamine contributed to her psychotic state, and that she would not have realised that what she was experiencing was abnormal, attracted several of the principles enunciated in Verdins, as follows:
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. ...
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[22]
[22]It was accepted that, although the judge did not refer to specific deterrence in the above passage, he had treated it as having no role to play.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. ...[23]
[23]Verdins (2007) 16 VR 269, 276–7 [32] (citation omitted).
In summary, by reason of the applicant’s substantially reduced moral culpability, in the unusual circumstances of this case, the sentencing considerations of denunciation, general deterrence and specific deterrence played little, if any role, in the instinctive sentencing synthesis. That is not to detract from the seriousness of the offending, or the applicant’s legal responsibility for it. Rather, it is a recognition that the sentence appropriate to her circumstances was significantly less than it would have been had she not been suffering from a mental impairment, or if she had known of the likely consequences on her mental state of her methamphetamine use.
Undoubtedly it is a very grave matter for a person to go to their former partner’s home at night and break into it for the purpose of carrying out an assault with a nail gun (and to commit that assault). We agree with the sentencing judge that, notwithstanding his findings about mental impairment, an immediate term of imprisonment was warranted. We do not accept the applicant’s submission that the judge was wrong to characterise this offending as a serious example of aggravated burglary, notwithstanding that, inevitably, much more serious examples can readily be identified and imagined.[24]
[24]The judge referred to the case as a serious example during the plea hearing, and cited the prosecutor’s submission to that effect in his sentencing remarks, with apparent approval: Sentencing Remarks [23]; see also [23] above.
However, the Verdins considerations, taken with some other relevant matters, drive us to conclude that the sentence imposed was outside the range of sentencing options reasonably open in this case. Those other matters are that the applicant:
(n) pleaded guilty at the earliest opportunity;[25]
[25]Sentencing Remarks [22], [24].
(o) was remorseful;[26]
[26]Ibid.
(p) had no prior convictions;[27]
[27]Ibid [24].
(q) had shown resilience and strong character in obtaining trade qualifications in the face of a personality disorder, difficulties in her childhood and life-threatening illness;[28]
(r) has good prospects of rehabilitation if she remains free of drugs;[29]
(s) sustained the only significant injury in the attack, her victim having substantially succeeded in resisting the attack upon him.[30]
[28]Ibid.
[29]Ibid.
[30]Ibid [4], [23].
It is trite, but perhaps worthwhile, to observe that the combination of factors in this case results in an unusually low sentence for offending of this kind.
In the circumstances, we will grant leave to appeal, allow the appeal and resentence the applicant as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1. Damaging property 10 years’ imprisonment 3 months’ imprisonment None 2. Aggravated burglary 25 years’ imprisonment 1 year and 9 months’ imprisonment Base 3. Intentionally causing injury 10 years’ imprisonment 9 months’ imprisonment 3 months Total Effective Sentence: 2 years’ imprisonment Non-Parole Period: 14 months Section 6AAA Statement: 3 years’ imprisonment with a non-parole period of 2 years
5
14
0