Salisbury v The Queen

[2011] VSCA 366

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0477

DOMINIC JAY SALISBURY
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2011
DATE OF JUDGMENT:	17 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 366
JUDGMENT APPEALED FROM	DPP v Salisbury (Unreported, County Court of Victoria, Judge Hannan, 10 December 2010)

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CRIMINAL LAW – Sentence – Aggravated burglary, armed robbery and possessing a drug of dependence (cannabis) – Plea of guilty – Use of a weapon and disguise – Sentenced to imprisonment for a total effective period of 7 years with a non-parole period of 4 years and 10 months – Whether the sentencing judge erred by failing to have any, or any proper, regard to current sentencing practices – Whether the individual sentences, the orders for cumulation and the total effective sentence are manifestly excessive – Double punishment – Appeal allowed in part – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Galbally & O’Bryan
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Harper JA.

HARPER JA:

1. On the evening of 13 June 2010, Robert Wilson was expecting the visit of a friend.  There was a knock on his door.  He opened it.  But the sight which greeted him was not expected.  He saw three men.  At least two – or all three, according to him – were wearing balaclavas.  One carried a sawn-off shotgun, which was pointed at his face.  Another held a baseball bat.  The man with the gun swung Wilson around by the shoulders, so that each faced in the same direction.  Then the gunman’s arm came around Wilson’s neck, and the gunman’s fingers were thrust in his mouth and throat.  Any sound from him, other than a gurgle, became impossible.

1. One of the three intruders, but not the gunman, was the appellant.  None of them asked to be invited in.  They simply invited themselves.  On the orders of the gunman, they proceeded to secure the victim’s continued silence by winding duct tape tightly around his mouth.  He was then told to make a choice.  The two alternatives were stark.  The first was death.  The second was his assistance in the opening of a safe which he kept within the house.  He opted for the second.  As a further incentive for his co-operation, he was kicked and punched.  He could not see his assailant or assailants because he was attacked from behind. 

1. The safe was opened.  It did not contain much – only a jar of $2 coins, and some prescription medication.  But $1,500 was found in Wilson’s pockets, together with his driver’s licence and his credit cards.  In the meantime, the appellant was searching the house.  He succeeded in locating, in a bedroom, a computer and a further $8,500.

1. Once the victim had opened the safe, neither his capacity to see nor his capacity to move…