Schembri v The Queen
[2022] VSCA 40
•30 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0057
| JASON SCHEMBRI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, BEACH and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 February 2022 |
| DATE OF JUDGMENT: | 30 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 40 |
| JUDGMENT APPEALED FROM: | [2021] VCC 464 (Judge Murphy) |
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CRIMINAL LAW – Appeal – Conviction – Aggravated burglary (charge 1) – Whether applicant was a co-tenant and not a trespasser – Whether judge gave erroneous direction about termination of implied co-tenancy agreement – No co-tenancy agreement on evidence – No reversal of onus of proof – No evidence that applicant entered through front door – Leave to appeal refused – Residential Tenancies Act 1997 ss 217, 220.
CRIMINAL LAW – Appeal – Sentence – Whether individual sentence of 4 years 6 months’ imprisonment on charge 1, total effective sentence of same length and non-parole period of 2 years and 3 months manifestly excessive – Serious offending – Applicant carried axe and baseball bat, knew confrontation was likely – No manifest excess – No specific error – Leave to appeal refused – Brown v The Queen [2021] VSCA 204 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A J Bates | Bayside Solicitors |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA
SIFRIS JA:
Introduction
On 29 March 2021, following a six day trial in the County Court before Judge Murphy, the applicant was found guilty by a jury of one charge of aggravated burglary, two charges of criminal damage and one charge of threat to damage property.[1]
[1]The applicant was acquitted of intentionally causing injury and the alternative, recklessly causing injury.
On 22 April 2021, the applicant was sentenced as follows:[2]
[2]DPP v Schembri [2021] VCC 464 (‘Reasons for Sentence’).
Charge Offence Max penalty Sentence Cumulation 1. Aggravated burglary 25 years 4 years 6 months Base 4. Criminal damage 10 years 1 month – 5. Threat to damage property 5 years 6 months – 6. Criminal damage 10 years 1 months – Total Effective Sentence: 4 years and 6 months Non-Parole Period: 2 years and 3 months Pre-Sentence Detention Declared: 243 days
The applicant seeks leave to appeal against his conviction on the charge of aggravated burglary and also seeks leave to appeal against sentence.
For the reasons that follow, leave to appeal against both conviction and sentence is refused.
Background[3]
[3]This summary is primarily taken from the Reasons for Sentence and the parties’ written cases.
The offending occurred at a premises in Carrum Downs (the ‘premises’) on 21 May 2016.
In mid-May 2014, the complainant, KT, signed a Residential Tenancy Agreement (the ‘Original Agreement’) to lease the premises for a period of two years. The rental was $390 per week. KT paid the bond in the sum of $3,380. Around that time, the applicant had commenced a relationship with KT. Sometime in 2014, he commenced living with KT at the premises. He lived there ‘off and on’ until 2016. KT’s now deceased son RT also lived at the premises at the relevant time.
About six weeks before the offending, the relationship between the applicant and KT broke down. The applicant moved out of the premises and moved in with another woman in nearby Skye. He took most of his belongings from the premises but left some children’s clothes. They were packed up by KT and she sent the applicant a text message, inviting him to collect them. KT said that she had changed the locks after the applicant moved out.
The applicant and KT remained in contact, exchanging texts and meeting for sex on or about 13 May 2016. In addition, the pair travelled together to Dandenong to obtain tyres for a vehicle and the applicant thereafter dropped her back at the premises.
Around this time, another man, MP, moved into the premises.
At some stage prior to 21 May, the applicant’s station wagon was stolen from his driveway in Skye. He suspected that KT, RT and MP were involved in the theft of the vehicle, as it appeared to have been stolen using the spare key. The applicant sent a text message to KT on 17 May seeking return of the vehicle. On 19 May, MP sent him a text suggesting that he speak to KT about the spare key. The applicant then sent a text to MP and told him that he had until the following morning to return the vehicle, stating otherwise he would ‘cause havoc on your family, dog. I swear, dog, I will not stop ‘til you are found’.
By 21 May 2016, the vehicle had not been recovered. At around 9:30 am that day, the applicant left his Skye residence with an axe and a baseball bat. Shortly after, he arrived at the premises.
RT heard a noise at the back fence and then the sliding door opening. He emerged from his bedroom and was confronted by the applicant, who was holding an axe and a baseball bat. The applicant accused RT of having the spare car key. RT denied having the key and, by the applicant’s own admission, the applicant then hit RT with the baseball bat on the right thigh. The applicant then plunged the axe into the coffee table. He told RT to get outside and asked him where his mother was. RT fled the room and exited the premises over the back fence.
The applicant then entered KT’s bedroom. She was asleep and awoke to find the applicant at the end of the bed, holding an axe over her dog’s head. He told her that ‘[i]f I found out you’ve had anything to do with my car, I’ll chop your dog’s head off and then I’ll get you’. The applicant then smashed the axe into the bedroom door and left the room and the premises and returned to his own home.
Some hours later, KT reported the matter to police. The applicant was subsequently arrested and denied attending the premises that morning. However, the applicant later admitted that he had attended the premises that morning, and entered the house carrying an axe and a baseball bat. He referred to the premises as his ‘old residence’, and he gave the address of his Skye accommodation as his current residence.
APPEAL AGAINST CONVICTION
The applicant seeks leave to appeal against his conviction on the following proposed grounds:
Ground 1: A substantial miscarriage of justice has occurred due to [his Honour]’s erroneous ruling on the directions to give the jury on the tenancy issues relating to the ‘entry as a trespasser’ element of the aggravated burglary charge.
Ground 2: A substantial miscarriage of justice has occurred as a result of [his Honour] erroneously reversing the onus of proof on the ‘entry with intent to commit an assault’ element of the aggravated burglary charge.
Ground 3: A substantial miscarriage of justice has occurred in circumstances where the jury may have interpreted [his Honour]’s putting forward only the prosecution’s version of how the [applicant] could have entered the premises when explaining indirect (circumstantial) evidence as being [his Honour]’s own view as to how the [applicant] entered the premises.
Proposed ground 1: did the judge’s ruling on the directions to give to the jury relating to the ‘entry as a trespasser’ element of charge 1 constitute a substantial miscarriage of justice?
Pre-trial ruling and first Court of Appeal decision
In pre-trial argument, the applicant contended that by implication he entered into an agreement with the landlord of the premises and KT, by which the Original Agreement was terminated and a new tenancy was created between the landlord and himself and KT as co-tenants (the ‘Implied Co-tenancy Agreement’). It was further contended that when the applicant moved out of the premises approximately six weeks before the offending, the Implied Co-tenancy Agreement did not terminate and so he remained a co-tenant at the date of the alleged offending. As a co-tenant, the applicant contended, he was lawfully entitled to enter the premises and was not a trespasser — an essential element of the offence of aggravated burglary.
Before empanelment of the jury in the trial, a judge (not the trial judge) ruled that as at the day of the alleged offending, the applicant did not, as a matter of law, have a statutory right to enter the premises pursuant to the provisions of the Residential Tenancies Act 1997 (the ‘RTA’). The judge said that the evidence (contained in depositions and the record of interview) indicated that the applicant’s residence at the premises was at all times subject to the permission or licence granted by KT which was dependent upon the existence of an ongoing relationship between them, which was brought to an end when the applicant left the premises. The applicant sought leave to appeal the ruling.
In Jaylon v The Queen (‘Jaylon’),[4] this Court held that whether the Implied Co-tenancy Agreement was created was to be determined by reference to the evidence as to the intentions of the parties, objectively ascertained.[5] Accordingly, the issue was one of mixed fact and law and ultimately the resolution of the issue would depend on the evidence adduced at the trial before the jury.[6] It was therefore premature to seek to resolve the issue before any evidence was adduced at trial.[7] The Court held that the judge could only rule that the applicant had no legal right to enter the premises on the date of the offending if, after conclusion of the evidence in the trial, the judge determined there was no evidence on which the jury could have a reasonable doubt as to the issue.[8]
[4][2019] VSCA 146.
[5]Ibid [38].
[6]Ibid.
[7]Ibid.
[8]Ibid [41].
Ruling and directions given at trial
At trial, an issue arose between the Crown and the defence about the status of the Implied Co-tenancy Agreement (if indeed one had been entered into) after the applicant left the premises about six weeks before the offending.
A proposed jury direction entitled ‘Entry as a trespasser’ was provided to the trial judge. That document put the Crown’s case as follows:
6.The Crown argue that the [applicant] had no right or authority to enter [the premises] on 21 May 2016.
1.The Crown argue that the [applicant] was not a co-tenant of [the premises] on 21 May 2016.
2.The accused lived there with the permission or authority of [KT] as a boarder or lodger. Permission or authority to enter the premises ended 6 weeks before 21 May 2016.
3.If an implied co-tenancy did come into existence when he first moved in, that co-tenancy had ceased when he abandoned the premises and there was a reversion to the original written tenancy agreement where [KT] is the sole named tenant [LEGAL ARGUMENT REQUIRED]
1.Defence argue that this is not the law. If an implied co-tenancy did come into existence, there is no legal way it could have ceased just because [the applicant] left (abandoned) the premises if the other co-tenant ([KT]) remained living there and paying the rent.[9]
[9]Emphasis in original.
In the document, the defence argument was put as follows:
Even though [the applicant] had moved out of [the premises] six weeks before 21 May 2016, there is no evidence before you that any implied tenancy agreement was terminated in this period. Therefore, as a matter of law, if he was a co-tenant, he would have remained a co-tenant on 21 May 2016.
Legal argument on the issue occurred over two days. Defence counsel submitted that if the Implied Co-tenancy Agreement had been entered into with the applicant and KT as co-tenants, then it could only end in accordance with the RTA.[10] He further submitted that under that Act a tenancy could only be ended by abandonment by all co-tenants, not just one co-tenant.[11] Accordingly, the applicant could not unilaterally abandon the tenancy by moving out as KT continued residing in the premises in accordance with the Original Agreement. The Crown maintained that the applicant was a boarder or a lodger and not a tenant nor a co-tenant. The Crown submitted that if the Implied Co-tenancy Agreement came into existence when the applicant moved in, it came to an end when he moved out six weeks prior to 21 May 2016.
[10]Section 216 of the version of the RTA in force at the relevant time provided that ‘Despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8’.
[11]Section 220 of the version of the RTA in force at the relevant time provided that ‘A tenancy agreement terminates if the tenant abandons the rented premises’.
After referring to various provisions of the RTA and certain evidence, the judge delivered a ruling that it was ‘ultimately a matter for the jury as to whether any tenancy held by the applicant in the property had either been terminated by abandonment or renunciation’ (the ‘Ruling’). The judge adopted para 6.3 of the Crown’s proposed direction and did not accept defence counsel’s submission that there was no power for a co-tenancy, if it existed, to cease by conduct of the parties. The judge said it would be open to the parties to argue the issue on the basis of the evidence. The applicant could argue that given the on-off relationship between him and KT, the fact that he may have been on the premises a couple of weeks prior to 21 May and may have had some dealings with KT, meant the Implied Co-tenancy Agreement continued.
In his closing address, the prosecutor submitted to the jury that the applicant was not a co-tenant and there was no Implied Co-tenancy Agreement. In the alternative, the prosecutor submitted that if there was a co-tenancy, it existed from the moment the applicant moved in until the moment he departed six weeks before the date of the offending.
In his closing address, defence counsel told the jury that it was reasonably possible that the applicant became a co-tenant of the premises pursuant to the Implied Co-tenancy Agreement and so had a right to enter on 21 May. He submitted that the Implied Co-tenancy Agreement had not been abandoned after the applicant left the premises. He said that the evidence was that it was an on-off relationship and the applicant had previously moved out and returned, the applicant and KT had continued to meet up and the applicant had left some of his belongings there. Defence counsel invited the jury to consider that it was reasonably possible that when he left the premises he did not abandon the tenancy.
Following defence counsel’s address, the judge informed counsel that in relation to the aggravated burglary charge he was not proposing to describe the difference between a boarder or a lodger or a tenant and was effectively going to adopt what defence counsel said in his closing address. The judge said further that as he had indicated, it was really a matter of whether or not any implied tenancy had been abandoned and so he would put each competing argument on the issue to the jury.
As foreshadowed by the Ruling and the discussion with counsel, the judge’s charge to the jury outlined the orthodox position in relation to creation of an implied tenancy. The charge referred to the competing positions of the parties in relation to abandonment but did not deal with the legal position. His Honour told the jury that the question for them was ‘whether it was reasonably possible that the accused man was a tenant of [the premises] and remained a tenant on 21 May 2016’. If he was, then the judge directed that he must be found not guilty of aggravated burglary because he was not a trespasser.
Applicant’s submissions
The applicant submitted in this Court that the jury should have been directed that, if they found that it was reasonably possible the applicant was a co-tenant of the premises, then they must acquit him of the charge of aggravated burglary. This direction was required, it was said, because as a matter of law, the applicant would have remained a co-tenant on 21 May 2016. There was no basis on which the jury could find that that the Implied Co-tenancy Agreement was terminated after the applicant moved out. If he remained a co-tenant then he had a right to enter the premises and would not have entered as a trespasser.
The applicant contended that by not directing the jury in this way, the judge opened up an impermissible path for the jury to find that the applicant entered the house as a trespasser. The jury could find it was reasonably possible he was a co-tenant of the premises when he lived there, but then find that the tenancy ended when he left the premises such that he entered as a trespasser on 21 May.
According to the applicant, this path was impermissible because ‘there is no legal way the tenancy could have been terminated simply by his leaving and no evidence it was’. The applicant submitted that the tenancy could not have been terminated by abandonment pursuant to s 220 of the RTA because one tenant unilaterally abandoning a rented premises does not terminate the tenancy while the other co-tenant continues to live there and pay the rent.
Respondent’s submissions
The respondent submitted that it was open on the evidence to conclude that, if the applicant had ever been a tenant, his abandonment of the premises constituted a termination of any tenancy agreement between himself and the landlord pursuant to s 220 of the RTA. Alternatively, the respondent argued, it was equally open on the evidence to conclude that, if the applicant had ever been a tenant, his abandonment of the premises constituted a repudiation of the agreement by him. That repudiation was accepted by the landlord, resulting in termination by disclaimer pursuant to s 225 of the RTA. The respondent submitted that whether or not the applicant was ever a tenant and, if he had been, whether he remained a tenant at the relevant time were questions of fact for the jury to resolve.
Analysis
Before dealing specifically with the proposed ground, it is necessary to say something about the suggested Implied Co-tenancy Agreement and what has inaccurately and imprecisely been referred to as the abandonment issue.
First, the evidence falls far short of establishing such agreement, or even the reasonable possibility of such agreement. It follows that the defence based on an asserted co-tenancy was bound to fail. Accordingly, there has been no substantial miscarriage of justice and the proposed ground must fail.
Secondly, even if (contrary to our view) there was an Implied Co-tenancy Agreement, the jury could not have come to any conclusion other than it was terminated by agreement under s 217 of the RTA (‘the Implied Termination Agreement’). Such agreement may be implied. Again, it follows that there has been no substantial miscarriage of justice and accordingly the proposed ground must fail.
We will deal with each of these matters in turn.
The evidence, as set out below, does not support any reasonable possibility that there was an Implied Co-tenancy Agreement.
The Original Agreement was in the sole name of KT. She paid the bond. It was this agreement that was the subject of a Notice to Vacate dated 7 November 2016 and successful application by the landlord to VCAT for possession of the premises.
There are no documents or anything in writing to support the Implied Co-tenancy Agreement.
The mere knowledge of the landlord that the applicant was residing at the premises is not sufficient to create an implied tenancy and is equally consistent with the applicant being a licensee or lodger. By such knowledge alone it cannot be inferred that the landlord intended to create legal relations with the applicant. Besides the knowledge of the landlord, there is nothing else of any substance.
By the same token, there is no evidence, or circumstances from which one could reasonably objectively infer, that the applicant intended to create legal relations with the landlord. Any such inference would be entirely unwarranted and quite frankly ridiculous. The applicant did not pay rent or assume any of the obligations of a tenant. It is safe to infer that he was not even aware of the terms of the Original Agreement. It never came up, whether expressly or impliedly. On what terms was he to be a tenant? The entire idea is fanciful and artificial.
It is difficult to infer even the possibility of a contractual relationship of landlord and tenant when neither give evidence and the objective factors rise no higher than a domestic partner residing in the premises to the knowledge of the landlord, conduct that is equally consistent with a licence. Much more is required to infer an intention to enter a contractual relationship which both confers rights and imposes serious obligations. There is no evidence that the applicant assumed any of these obligations and no evidence that the consent of the landlord was sought.
The evidence of KT does not take the matter any further. There is nothing in her evidence to support the inference of an intention to create a legal relationship between the applicant and the landlord.
The objective theory of contract is, of course, concerned ‘not with the real intentions of the parties, but with the outward manifestations of those intentions’.[12] In the present case, the fact that none of the putative parties to the alleged co-tenancy agreement had the slightest awareness of the possibility of such an agreement, let alone any ‘real intention’ of entering into one, renders the search for ‘outward manifestations’ of their intentions a meaningless exercise.
[12]Taylor v Johnson [1983] 151 CLR 422, 429; [1983] HCA 5.
Even (or perhaps especially) to a lay jury, the defence submission that the landlord and KT had unwittingly entered into a co-tenancy agreement with the applicant must have seemed wildly implausible. It is highly unlikely, therefore, that the jury found it necessary to proceed to the question of whether any such agreement was terminated. If they did, however, it was reasonably open for them to find that the Implied Co-tenancy Agreement had come to an end by 21 May 2016, whether or not they identified the precise legal basis, that is, termination by implied agreement pursuant to s 217 of the RTA. In fact, there is no reasonable possibility that they could have come to any other conclusion.
The applicant effectively abandoned the premises. He did not regard the premises as his house. He no longer enjoyed exclusive possession and asserted no rights in this regard. Whatever the legal position in relation to abandonment under s 220, it is plain that if there was an Implied Co-tenancy Agreement it was terminated by implied agreement under s 217 of the RTA.
That is, the applicant’s unequivocal abandonment of the premises conveyed to KT and the landlord his intention no longer to be bound by any obligations to which he had been subject as a co-tenant. The subsequent dealings between KT and the landlord reflected their acceptance of that position. Viewed objectively, therefore, the conduct of the parties manifested an intention to terminate the Implied Co-tenancy Agreement (assuming it to have existed in the first place).[13]
[13]Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19, [93]–[96]; Jafari v 23 Developments Pty Ltd [2019] VSCA 201, [192].
In relation to the proposed ground of appeal, we reject the submission that the judge should not have given any directions beyond the formation of the Implied Co-tenancy Agreement. Whether the applicant was a trespasser at the relevant time was the critical issue and the conduct of the applicant (and KT and the landlord) after the applicant moved out and ceased to enjoy exclusive possession — an incontestable fact — were matters properly to be considered and characterised as to what, if any, legal consequences ensued. These were clearly matters for consideration by the jury.
Directions in relation to abandonment, or in particular the inability as a matter of law for a co-tenant to unilaterally terminate a co-tenancy agreement by abandonment of the premises, would not have been sufficient even if that had been an accurate statement of the position. Rather, the conduct would need to be assessed in the broader context of whether the Implied Co-tenancy Agreement was terminated and what, if any, new bargain ensued. The jury were given proper directions and a summary of the evidence in relation to factual matters, on the assumption, consistent with the Ruling that termination by abandonment was available.
Accordingly, there is no merit in this proposed ground of appeal and leave to appeal is refused.
Proposed ground 2: did the judge reverse the onus of proof on the ‘entry with intent to commit an assault’ element of charge 1 resulting in a substantial miscarriage of justice?
The defence case was that the applicant brought the baseball bat and axe to the premises not because he intended to assault anyone, but to protect himself from what he might encounter walking into the house. Relevantly, counsel said to the jury:
So in my submission, I submit it’s a rational inference from what you know of the house that he could have taken the baseball bat for his own protection. And remember, we’re looking at the state of mind of [the applicant] when he’s there. And that, you have to kind of infer from the surrounding circumstances, which I’ve spoken about, the house being a drug house. He was well aware of it, having lived there for two years.
KT had given evidence that the house was a halfway house ‘from hell’ with drug users coming and going and that there could be up to ten people staying at the house at a time.
Towards the end of his charge to the jury, while summarising the arguments of counsel, the judge said:
After lunch, [defence counsel] went through that again and asked you to infer given that it was the place from hell that it was reasonable for you to infer the only rational inference available was that he took those two items to protect himself, therefore, the prosecution could not prove that third element, that he intended to go in there with an intention to assault. He sums up that in Charge 1, the defence position is reasonably possible that he did not enter that as a trespasser; reasonably possible he believed he did have a right to enter the property; reasonably possible that he carried the weapons for self-defence. On that basis, you could not be satisfied that the prosecution has proved the case against him of aggravated burglary.
The judge had previously directed the jury in orthodox terms about the manner of drawing inferences in a criminal trial.
Applicant’s submissions
The applicant submitted that the judge’s comment reversed the onus of proof. The applicant argued that the jury would be left thinking that in order to find that the applicant did not enter the premises with an intent to assault, they had to find that the only rational inference open on the evidence was that he took the weapons for self-protection. According to the applicant, the jury would have been left thinking that if they thought both possibilities were reasonably open on the evidence, they had to find the applicant guilty, instead of needing to find him not guilty.
Respondent’s submissions
The respondent accepted that, taken in isolation, the first aspect of the judge’s summary of counsel’s argument misstated the reasoning process in relation to inferential reasoning and the burden of proof. However, the respondent noted that immediately thereafter his Honour stated repeatedly and unequivocally, in relation to all the aspects of inferential reasoning, the applicant’s contention was that an alternate innocent inference was reasonably possible. Further, the respondent said, in directing the jury the judge had instructed that a guilty inference must be the only one reasonably open on the evidence, and if there is a reasonable competing innocent inference the prosecution would not have discharged their burden of proof.
Analysis
The proposed ground of appeal is without substance and leave to appeal is refused.
Reading the charge as a whole, the jury were properly instructed, and the judge’s comments did not have the effect of reversing the onus of proof as contended. The jury were specifically directed that a guilty inference must be the only one reasonably open on the evidence, and if there is a reasonable competing innocent inference the prosecution would not have discharged their burden of proof.
Additionally, we would note that no objection was taken by defence counsel at trial to this part of the judge’s charge — suggesting that defence counsel (imbued with the atmosphere of the trial) did not think that the direction given by the judge had created any unfairness to the applicant.
Proposed ground 3: would the jury have interpreted the judge’s description of the prosecution’s version of how the applicant could have entered the premises as being his Honour’s own view resulting in a substantial miscarriage of justice?
There was no direct evidence as to how the applicant entered the premises and there was no evidence of forced entry. The applicant did not give evidence.
Evidence of the circumstances of the applicant’s entry came, primarily, from RT. As recorded earlier, RT said that he heard a noise in the area of the back fence and the sound of the sliding door opening and went to investigate, whereupon he was confronted by the applicant and assaulted. There was also CCTV footage which showed the applicant’s car parked at the rear of the premises and evidence which suggested the back-fence had been climbed.
The Crown’s position was that the applicant entered through the sliding door at the side of the house after jumping the back fence.
Defence counsel addressed the jury consistently with the proposition that the applicant had entered through the front door.
During his charge to the jury, the judge gave directions about approaching some of the evidence in the case. He said the following:
Some evidence can prove a fact directly ... But other evidence can prove a fact indirectly. That is what we sometimes call circumstantial evidence. The prosecution asks you — invites you to reach the conclusion that the accused man entered the property over the back fence because the car was seen parked in that cul-de-sac at the back of the house, not at the front of the house and so that is a piece of evidence that the prosecution wants to put together, together with the noise from the door that [RT] gave evidence about and also gave some other evidence about hearing something over the back fence. Those are pieces of evidence they want you to lead to a conclusion, that the accused man entered through the back sliding door. That is circumstantial evidence. You put together a whole lot of pieces in order to reach a conclusion: because no one saw him actually climb the back fence.
Applicant’s submissions
The applicant submitted that because the judge only put forward the prosecution version of how the applicant entered the premise and not the defence version, the jury would have understood the judge to have been impliedly expressing the view that the he agreed with the prosecution.
According to the applicant, the judge did not put the defence case fairly to the jury. The applicant said the judge did not further explain that the prosecution’s version had to be not only a reasonable inference but the only reasonable inference open on the evidence. They had to be able to exclude the possibility that the applicant entered through the front door.
Respondent’s submissions
The respondent submitted there was no evidence which would have safely founded an inference that the applicant had entered the property through the front door. Accordingly, the judge was not required to refer to the defence’s version.
Analysis
The proposed ground of appeal is without substance and leave to appeal is refused.
Put simply, there was no defence case to put. As submitted by the respondent, there was no evidence to support any reasonable inference that the applicant entered through the front door.
Again, we would observe that no objection was taken by defence counsel at trial to the part of the charge now sought to be impugned. And again we would infer that trial counsel, imbued with the atmosphere of the trial, saw no issue that required any exception to be taken.
APPEAL AGAINST SENTENCE
The applicant seeks leave to appeal against sentence on the following grounds:
Ground 1: The individual sentence on the aggravated burglary charge, total effective sentence and non-parole period fixed are each manifestly excessive.
Ground 2: The Learned Sentencing Judge erred in the application of the totality principle.
Ground 3: The Learned Sentencing Judge made a specific error in finding that the carrying of an axe and a baseball bat led to the inference that if necessary, the appellant would have broken into the property.
Ground 4: The Learned Sentencing Judge made a specific error in finding the appellant had entered the premises by the sliding door at the back of the property.
Ground 5: The Learned Sentencing Judge made a specific error in characterising the damage to the coffee table as intimidatory rather than caused out of frustration.
Ground 6: The Learned Sentencing Judge made a specific error in finding the 18 month post offence relationship of [KT] and [the applicant] involved episodic contact.
Reasons for sentence
After setting out the circumstances of the offending, the judge assessed the seriousness of the offences. His Honour accepted there was no forced entry, the events took place in daylight and over a short interval and the applicant was not in company.[14] However, the applicant entered armed with an axe and a baseball bat and it could be inferred that if necessary the applicant would have broken into the property.[15] There was a ‘significant degree of premeditation’ to bring two weapons.[16] The judge characterised the two acts of damage as ‘intimidatory’.[17] Given the carrying of the weapons, the judge did not accept the submission of defence counsel that a mitigating feature was that the occupants knew and did not fear the applicant.[18] The judge held that the applicant must bear a high degree of culpability.[19] The judge had regard to the impact of the offending on RT and KT.[20] He said it was clear from KT’s victim impact statement that the offending had a major impact on her.[21]
[14]Reasons for Sentence [27].
[15]Ibid [22].
[16]Ibid [23].
[17]Ibid [24].
[18]Ibid [27].
[19]Ibid [26].
[20]Ibid [29]–[32].
[21]Ibid [33].
The judge then noted that the applicant had relevant prior convictions for making a threat and for criminal damage.[22] The applicant had served a short sentence of imprisonment for dishonesty and drug related offences since the offending.[23] He was on bail and had not reoffended.[24] This supported the conclusion that his prospects of rehabilitation were ‘reasonably good’.[25]
[22]Ibid [35]–[36].
[23]Ibid [34].
[24]Ibid [46].
[25]Ibid.
The judge considered a number of matters relating to the applicant’s personal situation put in mitigation. The applicant’s parents separated when he was young and he was abused by a stepmother at one stage and required counselling.[26] At 15 he ended up living with a paternal aunt.[27] With an unsettled childhood, he achieved year 11 and joined the military for some years.[28] The applicant has a number of occupational licensing certificates and while awaiting trial established a car detailing business.[29]
[26]Ibid [38].
[27]Ibid.
[28]Ibid [41].
[29]Ibid [41]–[42].
The judge noted that the applicant suffered from depression and anxiety and sleep apnoea.[30] The applicant had been a long-time user of drugs, including ice, but was seeking to address his drug problems.[31]
[30]Ibid [43].
[31]Ibid [44].
At the time of the plea, he had a 16 year old daughter and two younger children aged eight and seven, one of whom has special needs.[32] He had no contact with his older daughter but was trying to reconnect with her.[33] He was involved in the lives of the younger children and had care of them on weekends.[34] The judge accepted that separation from his children would be an additional burden to be taken into account.[35]
[32]Ibid [39]–[40].
[33]Ibid [39].
[34]Ibid [40].
[35]Ibid.
The judge noted that delay was a significant matter.[36] Sentencing was five years after the offending. The applicant had been released on bail in July 2016 until he was sentenced in 2018 to imprisonment for the dishonesty and drug offences referred to above. The judge acknowledged that the applicant has lived with the burden of uncertainty and anxiety over the entire period.[37]
[36]Ibid [47].
[37]Ibid [50].
The judge referred to the relevant sentencing principles. He said that considerations of general deterrence and denunciation must ‘weigh heavily’ in the case.[38] The judge said it was unacceptable for the applicant to attend the home of his former partner, uninvited, with two significant weapons, notwithstanding that she might may have been involved in the theft of his vehicle.[39]
[38]Ibid [59].
[39]Ibid.
The judge considered specific deterrence as having ‘less salience’ notwithstanding the denial of his offending and plea of not guilty.[40]
[40]Ibid [61].
His Honour said that it was ‘appropriate to provide a longer than usual period’ during which the applicant would be eligible for parole, in order to reflect the delay, the period in custody and on remand and the strict bail conditions since the offending, as well as the loss of opportunity for any concurrency with the 2018 sentence.[41]
[41]Ibid [62].
Applicant’s submissions
In respect of proposed ground 1, manifest excess, the applicant submitted that the judge:
(a) assessed the gravity and seriousness of the aggravated burglary offence too highly;
(b) gave inadequate weight to the five year delay;
(c) gave inadequate weight to the time in custody the applicant had spent during the five year delay;
(d) gave inadequate weight to the fact that the injury, loss and damage resulting directly from the offending was not substantial;
(e) gave excessive weight to the victim impact statement of KT;
(f) gave inadequate weight to the applicant’s limited criminal history as of 21 May 2016;
(g) gave inadequate weight to the fact that this offending was out of character for the applicant based on his prior and subsequent criminal history;
(h) gave inadequate weight to the increased custodial burden he will face due to separation from his children;
(i) gave inadequate weight to his findings that specific deterrence had less salience and prospects of rehabilitation were reasonably good; and
(j) gave too much weight to the case of Director of Public Prosecutions v Meyers[42] when the offending was significantly more serious in that case.
[42][2014] VSCA 314.
The applicant further submitted that while the non-parole period was half the total effective sentence, it is still manifestly excessive in the specific circumstances of this case due to the manifestly excessive length of the head sentence.
The applicant acknowledged in oral submissions that proposed ground 2, totality, was an aspect of proposed ground 1. The applicant submitted that while the judge found that the applicant had lost the opportunity for any concurrency between the sentence imposed on the other offending and the sentence for this offending, he then proceeded to sentence the applicant to a term of imprisonment that by its very length led to an inference that he did not moderate the sentence to take this into account.
By grounds 3 to 6, the applicant contended that the judge made the following specific errors:
(k) finding that the carrying of an axe and a baseball bat led to the inference that if necessary, the applicant would have broken into the property;
(l) finding the applicant had entered the premises by the sliding door at the back of the property;
(m) characterising the damage to the coffee table as intimidatory rather than caused out of frustration; and
(n) finding the 18 month post offence relationship of KT and the applicant involved only episodic contact.
Respondent’s submissions
In respect of the manifest excess ground, the respondent submitted that none of the applicant’s particulars was of substance. The respondent said that there was nothing in the judge’s assessment of the objective gravity of the offending that demonstrated error. The judge dealt with delay and referred to the applicant’s period of custody while awaiting trial for this matter, and accepted each remaining matter relied on. The respondent contended that this was serious offending and the judge properly synthesised all relevant circumstances.
In respect of the specific errors contended by the applicant, the respondent argued that the findings were open on the evidence.
Analysis
There is no merit in any of the proposed grounds and leave to appeal is refused.
In relation to manifest excess (proposed ground 1), the applicant has failed to establish that the sentence was not reasonably open to the sentencing judge. In our opinion, the sentence was reasonably open and within the range of sentencing options available to the judge.[43] Indeed, in all the circumstances, we consider that the sentences imposed by the judge, following a trial, were lenient.
[43]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157.
Ten matters, as referred to above, were given as particulars of manifest excess. As this Court has often pointed out, it is simply not possible to evaluate a contention on appeal that the sentencing judge gave inadequate weight to some matters, or excessive weight to others. Absent a ground of specific error, questions of weight can only be addressed by posing the Clarkson question: ‘Was the sentence reasonably open to the judge if proper weight was given to all relevant matters?’[44]
[44]Ibid.
Accordingly, it is necessary to consider the sentence imposed and determine whether it is within the range of sound discretionary judgment. In doing so, the Court considers the weight which should properly have been given to the matters relied on by the applicant.
We have read the careful and considered reasons of the sentencing judge and consider that the sentence of 4 years and 6 months was well within range.
This was serious offending notwithstanding the absence of some of the usual aggravating features, such as forced entry, multiple offenders and the entry occurring late at night. As this Court said in Brown v The Queen (‘Brown’),[45] ‘little benefit is to be gained from arguments which draw attention to the absence of aggravating features which might have been but were not present in the offending before the court’.[46] The Court said further that it is necessary to assess the objective gravity of the offence, and the offender’s moral culpability, on the basis of what actually happened.[47] That assessment is based on the features of the offence as committed.[48]
[45][2021] VSCA 204.
[46]Ibid [28] (Maxwell P and Sifris JA).
[47]Ibid.
[48]Ibid.
Here, the applicant was carrying an axe and a baseball bat. As the judge rightly said, it was ‘absolutely unacceptable for [him] to attend at the home of [his] former partner, uninvited, armed with two significant weapons’. He was intimidating and threatening.
The applicant knew or expected that KT and others would be at the premises. He suspected KT, RT and MP were involved in the alleged theft of his vehicle and sought its return. As in Brown, given the nature and purpose of entry into the premises, the applicant knew that there was likely to be confrontation involved. In Brown, that feature of the offence placed it at the more serious end of aggravated burglaries involving intent to steal.
In Brown, the offender was sentenced to a total effective sentence of 6 years and 4 months’ imprisonment with a non-parole period of 4 years and 3 months for serious offending on a guilty plea. The Court noted that sentencing standards for aggravated burglary had been undergoing a steady transition since this Court’s 2012 decision in Director of Public Prosecutions v Hogarth.[49] The Court referred to a number of cases to demonstrate this, including Maslen v The Queen[50] and Till v The Queen[51] in which respective sentences of 6 and 7 years on guilty pleas were upheld. Of course, the applicant pleaded not guilty, which is a significant point of distinction.
[49](2012) 37 VR 658; [2012] VSCA 302.
[50][2018] VSCA 90.
[51][2018] VSCA 122.
In relation to proposed ground 3, it is clear that the judge proceeded on the basis that there was no forced entry into the premises. The reference by the judge to an available inference, that if necessary the applicant would have broken into the premises, was of no impact or relevance to the sentence. In any event, it was entirely open on the evidence.
In relation to proposed ground 4, the finding was well open to the judge on the evidence, particularly the evidence of RT. In any event, whether the applicant entered through the sliding door or the front door had no impact or relevance on sentence, both forms of entry not being forced and involving no damage or violence.
In relation to proposed ground 5, the finding that the conduct was intimidating was reasonably open on the evidence. Indeed, RT fled the house after the incident.
In relation to proposed ground 6, the judge accepted that there was a post offence relationship between KT and the applicant. The finding was reasonably open to the judge and not adverse to the applicant.
The application for leave to appeal against sentence is refused.
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