Sovolos v The Queen
[2018] VSCA 149
•7 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0127
| DIMI SOVOLOS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL ACJ, PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 May 2018 |
| DATE OF JUDGMENT: | 7 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 149 First Revision: 13 June 2018, [21] |
| JUDGMENT APPEALED FROM: | DPP v Sovolos (Unreported, County Court of Victoria, Judge Stuart, 3 March 2017 (Conviction), 18 May 2017 (Sentence)) |
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CRIMINAL LAW — Appeal — Conviction — Aggravated burglary — Circumstantial case — Whether verdict unsafe and unsatisfactory — Whether acquittals of co-accused inconsistent with applicant’s conviction — Rational explanation for acquittals of co-accused — Leave refused — Criminal Procedure Act 2009 s 276(1)(a) — R v Baden-Clay (2016) 258 CLR 308 applied.
CRIMINAL LAW — Appeal — Sentence — Aggravated burglary, reckless conduct endangering life, intentionally causing injury and breach of community correction order — Applicant sentenced to 11 years’ imprisonment with non-parole period of 7 years 6 months — Totality — Whether orders for cumulation disproportionate — Grave example of home invasion aggravated burglary — Firing of rifle in vicinity of occupants — Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M FitzGerald | Dr Martine Marich & Associates |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL ACJ:
I agree with Priest JA.
PRIEST JA:
Overview
Paul and Mary Sawan lived in a house in a south eastern Melbourne suburb.
At about 4.30 am on 19 March 2015, three disguised and armed offenders forced their way into the Sawans’ home. In the course of this terrifying home invasion, one of the offenders — alleged to be the applicant — fired a number of bullets from a .22 calibre firearm. Another offender attacked Paul Sawan with a machete.
Police arrested and charged the applicant on 21 April 2015.
After a trial in the County Court, on 3 March 2017 the jury convicted the applicant of aggravated burglary[1] (charge 1), reckless conduct endangering life[2] (charge 2) and intentionally causing injury[3] (charge 3). At the same time, the jury acquitted the applicant’s co-accused, Milad Khaia and Richard De Luca. On 18 May 2017, the applicant was sentenced to be imprisoned in the manner I will later set out.
[1]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
The applicant sought leave to appeal against his conviction, claiming in essence that the verdicts are unsafe and unsatisfactory. He also sought leave to appeal against sentence.
In my view, both applications must be refused. My reasons follow.
The application for leave to appeal against conviction
So far as conviction is concerned, the applicant sought to rely on a single ground, formulated as follows:
1. The verdicts of guilty are unreasonable and unsupported by the evidence.
PARTICULARS:
(a)On the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
(b)On the whole of the evidence, it was not open to the jury to entertain a doubt in relation to the two co-accused, but not entertain such a doubt in relation to the applicant.
(c)The verdicts are unsafe, by reason of the Learned Trial Judge having given a forensic disadvantage direction favourable to the two co-accused.
It is necessary to say more about the alleged offending.
Paul and Mary Sawan lived in their two-storey home with their adult sons Michael and Marcus. On the morning of 19 March 2015, Michael Sawan was sleeping downstairs on the couch.
Paul Sawan ran a business which required him to rise early. He was awake at 4.30 am, and let the dogs out the rear French doors, which he left ajar. He gave evidence that a little later he heard a loud bang outside, and through the dining room window saw two people. Realising that something was amiss, he went back to the rear door to close it.
At the rear door, he was confronted by three men standing in the doorway. They were wearing dark clothing and had their faces covered. One man was holding a machete, and another a long screwdriver. The third man held a rifle, and was pointing it at him.
Mr Sawan yelled at the men to get out and leave his family alone. His evidence was that the man with the machete ‘came charging at’ him and he ‘fell back over the couch’. He was wrestling with the man armed with the machete when the second man, who was carrying ‘a little handgun, pistol’, joined the struggle. Mr Sawan then heard ‘shots being fired … from the rifle’ held by the third intruder. When he ‘got up off the couch’ and went to the rear dining room, Mr Sawan said the man with the rifle ‘was still in the doorway’, ‘still pointing the gun, and still firing shots’ in the direction of where he and his wife were standing. Mr Sawan saw Mrs Sawan ‘pull off’ a ‘mask’ worn by the man with the handgun. The man with the handgun then ‘looked like he went into a bit of shock’ that Mrs Sawan had uncovered his face, ‘and at this stage he was trying to grab his stuff off … the ground’. He was trying to pick up a backpack, a ‘mask’ and his top that ‘came off during the scuffle’.
In her evidence, Mary Sawan, who had been drying her hair upstairs at the time that her husband was first confronted by the intruders, said that she heard a ‘loud bang’ and ran downstairs. When she got downstairs, her son Michael was in the hallway towards the front of the house, facing towards the back. She heard noises, and turned to go to the back of the house, where the lights were on. The French doors were open, and there was a man standing in the doorway armed with a rifle. Two other men had her husband over the couch, hitting him. She ran towards her husband and pulled a black balaclava off one of the men, who had his back to her. That man, whom she stood right next to, was no taller than five feet five inches in height, Mrs Sawan being about five feet and three inches tall. The man had pale skin, was clean-shaven, and had brown hair, shorter on the sides with a ‘bit of length on the top’. He looked to be Arabic or Albanian, and was wearing a grey singlet with black writing, a grey jumper and black pants. The man backed away from her husband and she pursued him, dropping the balaclava she had snatched off his head onto the ground. She ripped off his singlet, scratching his neck as she did so.
At one point, the second man seemed to be ‘lunging’ at her over the table, and she grabbed his balaclava and also pulled it off. The second man was taller than the first — about five feet ten or five feet eleven inches tall — was stocky, looked like he worked out, and had curly hair, flat black in colour. He had an olive complexion, and looked Middle Eastern or Albanian in appearance. The second man was wearing all black and had a small gun.
Mrs Sawan gave evidence that, as she was coming into the room, the third man with the rifle ‘fired’ at her. It was happening quickly, ‘but there were shots getting fired in the house’. The third man was wearing a balaclava, so she could not see his face. He was, however, the tallest of the three men, and was wearing all black, including ‘a black balaclava with white around the eyes’. In cross-examination she said that he was ‘very skinny’.
In the course of the attack, Paul Sawan suffered a cut to his head, and bruising to his head and body.
Police arrived shortly after, and in response to, a call to emergency made at 4.37 am. Later that day, police took photographs of the crime scene. At about 9.35 am, Leading Senior Constable Tony Ruiz and Leading Senior Constable Alan Pringle, attached to the Ballistics Unit at the Victorian Police Forensic Services Centre (‘VPFSC’), attended the scene together with officers from the Major Crime Scene Unit. An examination of the scene revealed five bullet holes through the glass of the rear door (that is, in the vicinity of where, according to other evidence, the third man with the rifle had been standing).
Significantly, Mr Ruiz located a white clown mask outside in the vicinity of the rear doors. Alexandra Salerno, a forensic scientist at VPFSC, detected a small blood stain on the inside chin region of the clown mask from which she took a sample. Ms Salerno also took a second sample from the inside mouth region of the mask. Upon testing of the two samples, ‘a single source DNA profile was obtained from both these sources’. The samples were compared, and they were both from the same source. A statistical weighting of the DNA profile obtained, suggested that it is 100 billion times more likely that the applicant was the source of the blood than another individual selected at random.
Mr Pringle, a ballistics expert, gave evidence that eight shots had been fired, but only seven .22 cartridge cases were discovered, four being outside and three inside. Scientific examination of the four cartridge cases found outside, and one located inside, demonstrated that they had been fired from the same firearm. Importantly, scientific examination of a .22 cartridge case found on 21 April 2015, at premises in Donvale which the applicant frequented, demonstrated that it too had been fired from the same firearm as the five other cartridge cases which had been examined. Mr Pringle also gave evidence that a typical bolt-action .22 rifle will eject cartridge cases to the right of the shooter, as will a semi-automatic pistol. Overall, the evidence suggested that seven shots were fired from the rifle, and an eighth shot was fired from the handgun.
A backpack (also described as a ‘shoulder bag’) had been left behind at the Sawan residence by the intruders. Mr Ruiz examined the bag, and inside it found a glass pipe and a box of .22 ‘long rifle’ ammunition. Ms Salerno, the forensic scientist, later examined the bag. She took a sample for DNA testing from a blood stain on the bag, and another from the inside strap area. DNA with three contributors was found in the sample taken from the area of blood staining. One contributor was Paul Sawan; and it was ‘1.8 million times more likely’ that the applicant was also a contributor than a person selected at random. The third contributor was not identified, but Mary Sawan and the applicant’s co-accused were excluded as contributors. So far as the strap sample was concerned, there was a mixed sample with four contributors, but it was too complex for further analysis. DNA testing of the glass pipe produced a mixed profile of three contributors, which gave extremely strong support for the proposition that De Luca was a contributor, and very strong support for the proposition that Khaia was a contributor. The applicant was excluded as being a contributor.
Anthony Prassinos lived at the Donvale property where the cartridge case matching those located at the crime scene was found. His statement was read into evidence by agreement. He said that, from about March 2015 until the police searched his house on 21 April 2015, the applicant stayed at the house ‘roughly two to three times a week’. The applicant ‘would come over and chill and then crash on the couch in the lounge room’. He had backpacks and bags and other belongings and would usually keep his stuff in the living room and in the garage. Mr Prassinos said that when the police came with a search warrant, he showed them to the lounge room and garage where the applicant ‘had been keeping his clothes and one or two tools’. He said that police seized shotgun shells and .22 rounds from the lounge room, but he did not ‘know where these items had come from or who owned or brought them, because there were plenty of people coming in and out of [his] house’. With respect to the cartridge case matching those found at the crime scene, which itself was located under a coffee table in the lounge room, Mr Prassinos said that he did not know it was there: ‘it was there, because it was a bit of a mess’.
The prosecution’s circumstantial case against the applicant consisted of four major strands:
· first, his DNA — single source — on the white clown mask found in proximity to where the third intruder had fired the rifle;
· secondly, the finding of the cartridge case — fired from the same firearm as that from which the third man had fired a number of shots — in premises where the applicant habitually stayed, and where he kept his belongings;
· thirdly, the finding of the applicant’s DNA — albeit in a sample with three contributors — on the backpack left behind at the Sawan residence; and
· fourthly, the applicant’s height, he having admitted that he is 193 centimetres tall (or just short of six feet and four inches in imperial measurement).
Recently, in Gant, the Court observed:[4]
[4]Gant v The Queen [2017] VSCA 104, [101]–[103] (Weinberg, Priest and McLeish JJA) (citations and emphasis in original).
Section 276(1)(a) of the Criminal Procedure Act 2009 requires this Court to allow an appeal against conviction if the appellant satisfies the Court that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. The principles governing an appeal on this basis were recently addressed by the High Court in R v Baden-Clay:[5]
[5][(2016) 258 CLR 308, 329–30] [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’.[6] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect,[7] the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[8] ...
[6]Hocking v Bell (1945) 71 CLR 430, 440 (Latham CJ). See also Brennan v The King (1936) 55 CLR 253, 266 (Dixon and Evatt JJ); Sparre v The King (1942) 66 CLR 149, 154 (Starke J); Keeley v Mr Justice Brooking (1979) 143 CLR 162, 188 (Murphy J); Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 601 (Brennan J); MacKenzie v The Queen (1996) 190 CLR 348, 365 (Gaudron, Gummow and Kirby JJ); MFA v The Queen (2002) 213 CLR 606, 621 [48] (McHugh, Gummow and Kirby JJ).
[7]Kingswell v The Queen (1985) 159 CLR 264, 301 (Deane J); Brown v The Queen (1986) 160 CLR 171, 201 (Deane J); Katsuno v The Queen (1999) 199 CLR 40, 63–4 [49] (Gaudron, Gummow and Callinan JJ); Cheng v The Queen (2000) 203 CLR 248, 277–8 [80] (Gaudron J); Alqudsi v The Queen [(2016) 258 CLR 203, 208 [2], 213 [16] (French CJ), 273–4 [195] (Nettle and Gordon JJ)].
[8]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); MFA v The Queen (2002) 213 CLR 606, 621–2 [49]–[51], 623 [56] (McHugh, Gummow and Kirby JJ).
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[9]
[9]M v The Queen (1994) 181 CLR 487, 494–5. See also R v Hillier (2007) 228 CLR 618, 630–1 [20] (Gummow, Hayne and Crennan JJ) and the authorities cited.
This means that the question is whether the jury ‘must’, as distinct from ‘might’, have entertained a doubt about the guilt of the accused based on the whole of the evidence before it.[10]
In a circumstantial case such as the present, this test must be applied bearing in mind also the reasoning process appropriate to such cases. Again, the High Court summarised the relevant principles in R v Baden-Clay:[11]
The principles concerning cases that turn upon circumstantial evidence are well settled.[12] In Barca v The Queen,[13] Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King.[14] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen;[15] see also Thomas v The Queen.[16]
For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’.[17] Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’.[18] The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[19]
Further, a criminal trial is accusatorial but also adversarial. Subject to well‑defined exceptions, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’.[20]
[10]M v The Queen (1994) 181 CLR 487, 492–3; Libke v The Queen (2007) 230 CLR 559, 596–7 (Heydon J).
[11][(2016) 258 CLR 308, 323–4] [46]–[48] (emphasis in original).
[12]Barca v The Queen (1975) 133 CLR 82, 104.
[13]Ibid.
[14](1911) 13 CLR 619, 634 (Griffith CJ).
[15](1963) 110 CLR 234, 252 (Menzies J).
[16](1960) 102 CLR 584, 605–6 (Windeyer J).
[17]Peacock v The King (1911) 13 CLR 619, 661 (O’Connor J), quoted in Barca v The Queen (1975) 133 CLR 82, 104.
[18]R v Hillier (2007) 228 CLR 618, 637 [46] (citations omitted) (Gummow, Hayne and Crennan JJ).
[19]Ibid 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J).
[20]Nudd v The Queen (2006) 80 ALJR 614, 618 [9] (Gleeson CJ). See also Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ); Doggett v The Queen (2001) 208 CLR 343, 346 [1] (Gleeson CJ).
Individually, the four strands in the prosecution case could not have established the applicant’s guilt. But in my view, when they are combined, the case for the applicant’s guilt is compelling. For that reason, it cannot be realistically contended that the jury must have had a reasonable doubt about the applicant’s guilt.
The clown mask with the applicant’s DNA on it is capable of founding the inference that he was the third man firing shots from the rifle at the rear doors of the Sawan residence. That inference is strengthened by the evidence of the finding of the cartridge case — fired from one of the very firearms used during the aggravated burglary — in premises frequented by the applicant, near to where he habitually kept his belongings. Further support is added to the inference by the applicant’s DNA being on a backpack left behind at the scene of the crime by the intruders (albeit the sample had a mixed profile from several sources). Finally — and although this is a relatively modest piece of evidence — there is the evidence that the applicant is 193 centimetres tall, in circumstances where the third man was the tallest of the trio of intruders. (It will be remembered that Mrs Sawan said that the third man was taller than the second, who was five feet ten or five feet eleven inches tall.)
As I have said, Khaia and De Luca were acquitted by the jury. It was submitted as part of the applicant’s case in this Court that those acquittals are inconsistent with the applicant’s conviction.[21] In my view, however, there is no relevant inconsistency between the applicant’s conviction and the acquittals of his co-accused.
[21]MacKenzie v The Queen (1996) 190 CLR 348 was relied upon.
Thus, there was evidence which tended to exculpate the co-accused. It will be recalled that Mary Sawan said that she scratched the neck of one of the intruders. DNA profiling of a sample of material taken from her fingers excluded Khaia, De Luca and the applicant as contributors. This was of little moment with respect to the applicant, since only the two offenders who went inside the house were touched by Mrs Sawan in any way. The evidence was of considerable exculpatory significance in respect to the other accused, however, since it clearly raised the inference that some person other than Khaia or De Luca was scratched or touched by Mrs Sawan.
Secondly, the descriptions of the two offenders inside the house given by Mrs Sawan to the police, and the ‘photofit’ images produced by police relying on Mrs Sawan’s description, objectively were very different in each case to Khaia’s and De Luca’s actual appearance. Added to this, the judge gave the jury a forensic disadvantage direction in favour of Khaia and De Luca, based on the inadequacy of the police investigation relevant to the issue of identification so far as they were concerned.[22]
[22]The forensic disadvantage direction — given both in the running and in the Charge — could not have been the foundation of a contention that there was a miscarriage of justice in the applicant’s case. And, in any event, I note that counsel for the applicant at trial did not seek a separate trial for the applicant based on any suggestion of prejudice flowing to his case from the giving of the direction in favour of the co-accused.
Thirdly, DNA evidence derived from the balaclavas snatched from the heads of the two intruders inside the Sawan residence was, to some extent, equivocal. Each of those balaclavas had mixed DNA profiles on it. A black balaclava was tested in two areas. There was a bloodstain above the eye area which was single source, matching De Luca’s DNA with a 100 billion likelihood ratio; but the testing of the area around the mouth of the balaclava produced a mixed profile of two contributors, of which De Luca was one. The other contributor was unknown. The other balaclava, which was black with white and yellow stripes, was swabbed for DNA around the mouth. The testing produced a mixed profile of three contributors, one of which matched Khaia with a likelihood ratio of 100 billion. These results can, of course, be contrasted with the DNA on the clown mask, which emanated from a single source, strongly suggesting the applicant had worn the mask at a place close to where it was found, and was thus the third offender who stood at the rear door.
Before finally leaving this ground, it is I think fair to observe that the highpoint of the applicant’s case was the submission that there was no evidence that any of the intruders wore the clown mask. Mrs Sawan, it will be recalled, gave evidence that the third man was wearing ‘a black balaclava with white around the eyes’. The applicant’s counsel attempted to seize on this evidence, as demonstrating that the third male wore a balaclava, not a clown mask. But once more it will be recalled that only two balaclavas were found at the scene, both inside the house, and both having been pulled off the heads of two of the offenders. It seems to me that a reasonable explanation for the mask being found outside is that it had been worn under the balaclava of the third man. Given that it is white in colour, it seems to be consistent with Mrs Sawan’s description of seeing white around the eyes, when due allowance is made for the fact that her capacity to make calm and dispassionate observation was no doubt affected adversely by the emergency which had befallen her and her family.
It was well-open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. The application for leave to appeal against conviction cannot be upheld.
The application for leave to appeal against sentence
Initially, the applicant sought leave to appeal against sentence on two grounds. In the course of the hearing in this Court, however, the first — which claimed that the sentence was manifestly excessive — was abandoned. Given the objective seriousness of the applicant’s offending — which was extremely grave — that was a realistic course to adopt.
With respect to the remaining ground — that the sentencing judge ‘misapplied the totality principle, in that the orders for cumulation and the total period which the applicant is required to spend in custody are disproportionate’ — counsel simply relied on the written case. The ground is, however, bereft of merit.
On 18 May 2017, the judge imposed individual sentences of imprisonment of seven years, five years and one year respectively on the charges of aggravated burglary (charge 1), reckless conduct endangering life (charge 2) and intentionally causing injury (charge 3). The sentence on charge 1 was the ‘base’, with two years of the sentence on charge 2, and three months of the sentence on charge 3, being ordered to be served cumulatively. Thus, the total effective sentence was nine years and three months’ imprisonment, which the judge ordered to be served cumulatively upon a sentence imposed the previous day, 17 May 2017. That order for cumulation resulted in a head sentence of 11 years, upon which the judge imposed a non-parole period of seven years and six months.
The sentence imposed on 17 May 2017 was for breach of a community correction order (‘CCO’), and further offences for which the applicant had been originally sentenced in the Magistrates’ Court, and then dealt with by the County Court on appeal. Thus, on 8 September 2015, the applicant had been sentenced to a period of imprisonment in combination with a CCO for trafficking in a drug of dependence, possession of an unregistered firearm, handling stolen goods and theft. That CCO had not included a requirement to perform unpaid community work. The breach of the CCO was constituted by non-compliance with conditions as well as by further offending.
The further offending related to the theft of eight motor vehicles, criminal damage, obtaining property by deception, burglary and other offences. This offending was committed during the period of the CCO imposed on 8 September 2015.
In sentencing the applicant for the offences on appeal, the judge noted that the sentences imposed by the magistrate were, in his view, wholly appropriate. Nonetheless, the judge was moved to impose a lesser sentence due to ‘totality considerations’. Thus, he sentenced the applicant to 20 months’ imprisonment on the matters under appeal, and a further one month’s imprisonment for the breach offence.
In his sentencing reasons, the judge said: ‘I must and will ensure that there is no double punishment and ensure that in total the sentences that I impose on those three charges are appropriate’. His Honour also said: ‘I wish to make it plain that I have taken into account the need to ensure not only that the sentences that I impose today are in total appropriate but the sentences that I have imposed yesterday and today as being in total appropriate’. Clearly, therefore, the judge had the principle of totality in mind when he imposed sentence.
Indeed, in my opinion, attempted adherence to the principle of totality is the only explanation for the sentence imposed, which I regard in all the circumstances as being very lenient.
The applicant is aged 29 years, having been born on 16 March 1989. He has a lamentable criminal history, commencing in 2007, including convictions for burglary and theft, reckless conduct endangering serious injury, and for drug, driving and weapons offences.
A forensic psychologist, Dr Aaron Cunningham, discussed the applicant’s substance abuse history, including his attempts at rehabilitation and lack of insight into the causes of his drug relapses. The psychologist expressed the opinion that the applicant did not present with a significant mental illness, but experienced ‘adjustment difficulties in the community’ and would likely require psychological support or monitoring on release from custody. Further, Dr Evrim March, a clinical neuropsychologist, detailed a history of head injury, in addition to long-term substance abuse. The applicant was found to be at the lower end of the average range of intelligence, with a significant deficit in processing speed. Dr March’s report concluded that the applicant had a brain injury of mild severity that was multifactorial in origin, but this was not likely to explain his offending behaviour.
It cannot be gainsaid that the applicant’s offending was extremely grave. I recall having encountered no other case of aggravated burglary where an offender has fired seven rounds from a firearm, at or near the innocent occupants of a residence. As far as ‘home invasion’ cases of aggravated burglary are concerned, this is, to say the least, a very serious example. In my view, more severe individual sentences were warranted on each of the charges of aggravated burglary, reckless conduct endangering life and intentionally causing injury, and greater levels of cumulation between the sentences would have been well-justified. Furthermore, complete cumulation between the sentences imposed on 17 May and 18 May 2017 was appropriate. Hence it is plain that, in a broad and practical manner, the judge applied the principle of totality.
There is nothing of any substance in the application with respect to sentence.
KYROU JA:
I agree with Priest JA.
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