Tyson Folino v The Queen
[2017] VSCA 295
•19 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0169
| TYSON FOLINO | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 October 2017 |
| DATE OF JUDGMENT: | 19 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 295 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1019 (Judge Davis) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary – Prohibited person in possession of firearm – Possession of unregistered handgun – Assault of police officer in execution of duty – Related summary charges – Two indictments – Sentence of 7 years and 6 months’ imprisonment with non-parole period of 5 – Whether base sentence for aggravated burglary on one indictment manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Furstenberg Law |
| For the Respondent | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA:
The applicant, now aged 29, pleaded guilty in the County Court to five charges and five related summary charges arising from two indictments. On the first indictment, he was sentenced on one charge of aggravated burglary. On the second indictment, he was sentenced on one charge of aggravated burglary, one charge of possessing a firearm as a prohibited person, one charge of possessing an unregistered handgun and one charge of assaulting a police officer in the execution of duty. He was also sentenced on four related summary charges of trespass and one related summary charge of committing an indictable offence whilst on bail.
The applicant was sentenced on each indictment as follows:
Charge Offence Maximum penalty Sentence Cumulation Indictment no. C1610576 2 Aggravated burglary [Crimes Act 1958
s 77(1)]25 years’ imprisonment 4 years’ imprisonment 1 year and 6 months’ imprisonment Indictment no. G12034353 1 Aggravated burglary [Crimes Act 1958
s 77(1)]25 years’ imprisonment 5 years’ imprisonment Base 2 Prohibited person possess firearm [Firearms Act 1996 s 5(1)] 1200 penalty units or 10 years; imprisonment Aggregate sentence of three months’ imprisonment - 3 Possess unregistered handgun [Firearms Act 1996 s 7B(1)] 1200 penalty units or 10 years; imprisonment 4 Assault police officer in execution of duty [Crimes Act 1958
s 31(1)(b)]5 years’ imprisonment 2 years’ imprisonment 1 year imprisonment Related summary charges 8 Trespass 25 penalty units or 6 months’ imprisonment Aggregate sentence of two months’ imprisonment - 9 Trespass 6 months’ imprisonment or 25 penalty units 10 Trespass 6 months’ imprisonment or 25 penalty units 11 Trespass 6 months’ imprisonment or 25 penalty units 12 Commit indictable offence whilst on bail 30 penalty units or 3 months’ imprisonment 1 month imprisonment N/A Total effective sentence: 7 years and 6 months’ imprisonment Non-parole period: 5 years’ imprisonment Pre-sentence detention declaration 358 days Section 6AAA Statement 10 years’ imprisonment Other relevant orders Disposal order and forfeiture order
The applicant now seeks leave to appeal his sentences.
Circumstances of the offending
The applicant was sentenced together with two co-accused, Zdravko Rajic and Stephen Spiteri.[1] The offending the subject of indictment no. C1610576 (‘the first indictment’) took place in Truganina and involved the applicant and his two co-accused. The offending the subject of indictment no. G12034353 (‘the second indictment’) took place in Wyndham Vale and involved the applicant only.
[1]Both co-accused also pleaded guilty to the offences of which they were accused. In particular, Rajic pleaded guilty to one charge of aggravated burglary and one charge of contravening a community corrections order, while Spiteri pleaded guilty to one charge of aggravated burglary, one charge of assaulting a police officer in the execution of duty and several related summary charges. Rajic was sentenced to four years’ imprisonment with a non-parole period of two years. Spiteri was sentenced to six years’ imprisonment with a non-parole period of four years. In these reasons, I will refer to the applicant and his co-accused collectively as ‘the offenders’.
The first indictment
On 12 February 2016 at about 1:00 pm, the offenders arrived at a residential premises in Truganina, having travelled in a car which had false registration plates. Inside the premises, a hydroponic cannabis crop was being cultivated in two rooms.
The offenders cut the wire to a CCTV camera which had been installed at the premises. A neighbour, who saw the wire being cut, reported this activity to police.
Minh Hua was the occupant of the premises. He was asleep on the couch in the lounge and awoke to the sound of his dog barking at the entrance to the garage. As Hua approached the garage, he saw Spiteri enter the hallway of the house. At the time of entering the house, Spiteri had with him a loaded nine-millimetre semi-automatic handgun.
Hua picked up his dog and walked back towards the couch. The dog continued to bark and Spiteri told Hua to shut it up. The dog jumped out of Hua’s arms and ran towards Spiteri, who hit it with a metal object, knocking the dog backwards. Hua picked up the dog and sat down on a chair next to the couch. Spiteri continued to move towards him.
Shortly thereafter, the applicant and Rajic entered the premises through the garage.[2] Rajic asked Hua for the keys to his motorbike. Hua told him that the keys were in a van on the premises. Rajic left the house and returned a short time later saying that the keys were not in the van. He threatened to kill Hua’s dog if Hua did not reveal the location of the keys. Hua assured Rajic that the keys were in the van, and Rajic left again.
[2]These circumstances gave rise to the single charge of aggravated burglary on the first indictment.
Spiteri then took two phones from the lounge and looked around the rest of the room for other things to take. He was later found in possession of Hua’s wallet.
Two police officers, Sergeant Stanton and Acting Sergeant Fox, arrived at the premises a few minutes after the neighbour had telephoned police. They saw the offenders’ car parked directly outside the premises and went to the rear yard to gain entry to the property; however, the doors and windows were all locked. Spiteri noticed the police officers in the backyard and alerted Rajic and the applicant. Spiteri ran from the lounge, while Hua heard Rajic and the applicant leaving the house. Spiteri ran to the front door and opened it. He saw Stanton outside, slammed the door shut and retreated into the house. Stanton remained near the front door. The applicant appeared at the front door and attempted to force the security door open with his shoulder, but he could not open it.
Meanwhile, Fox ran through a side gate to the rear of the property and observed one of the offenders unsuccessfully attempting to open a sliding door. He then saw the offenders leave the property via the rear garage door. Spiteri left the property first, holding the gun in his hand.
Spiteri and Fox approached each other. When Fox got within metres of Spiteri, Spiteri raised the gun and pointed it towards Fox’s torso for a short period of time before discarding it. The gun landed near the fence. As Spiteri threw the gun, Fox tackled him to the ground and placed handcuffs on him.
The applicant and Rajic had escaped the property by scaling the fence. They ran through backyards and across the rooves of neighbouring properties, before running down a nearby street through to a major road. They hid in a storm water drain that ran beneath the road.
When police approached, they observed the applicant and Rajic walking from the drain. They directed the applicant and Rajic not to move. The applicant stopped and was arrested. Rajic kept walking and was arrested a short distance away. After initially resisting, he was eventually handcuffed. The key to the car in which the offenders had travelled was found on Rajic.
A subsequent search of Hua’s property revealed two rooms dedicated to the hydroponic cultivation of cannabis. Hua told police that he had been growing cannabis since July 2015 to repay a gambling debt. He described the offending as being very traumatic and said that he was fearful for what might have happened but for the early intervention of police.
During their police interviews, Rajic and Spiteri declined to comment on what had happened. The applicant had denied the offending.
On 17 February 2016, the applicant was released on bail.
The second indictment
On 25 July 2016 at about 7:15 am, whilst on bail, the applicant arrived at a residential premises at 45 Brougham Avenue, Wyndham Vale, in a stolen car that was driven by his co-offender, Stacey Fernandez. The premises was being used as a cannabis crop house, with a sophisticated hydroponic set-up in almost every room in the house.
Fernandez parked outside the property. The applicant left the vehicle and put on a dark-coloured top, black beanie and latex gloves. He was carrying with him a handgun. He gained entry to the property with the intention of stealing the crop.[3]
[3]These circumstances gave rise to the charge of aggravated burglary and the related summary charge of committing an indictable offence whilst on bail on the second indictment.
Fernandez, still in the car, began sounding the horn and revving the engine. A neighbour reported this activity to police.
At about 8:00 am, two police officers, First Constable Gennie and Constable West, arrived at the premises. Gennie approached the car in which Fernandez was seated and asked Fernandez for identification. She refused and drove away.
The officers went to the rear of the house, where they heard noise coming from inside. After a short time, they heard noise coming from near the front door. The applicant opened an internal door but was unable to open the security door. When he saw Gennie, he ran back inside the house. Less than one minute later, the officers heard the sound of glass breaking at the front of the house. They followed the noise and yelled at the applicant to not move and to stay inside the house.
The applicant moved to the back of the house. The officers returned to that area. The applicant kicked the back door a number of times. As he was doing so, he was yelling at the officers to back off.
As the door opened, the applicant left the house waving a small silver handgun at both officers, while continuing to yell at them to ‘back off’ and ‘get back’. He had been approximately 3–5 metres from the officers, pointing the gun at shoulder height and waving it in an arc between the two of them.[4] Both officers moved around the corner of the house and called for further assistance, before running to the front of the house to warn bystanders that the applicant had a gun.
[4]These circumstances gave rise to the charge of assaulting a police officer in the execution of duty on the second indictment.
The applicant then jumped the side fence into 47 Brougham Avenue.[5] He jumped a further fence into 49 Brougham Avenue and entered a house, hiding in the shower in the ensuite.[6] The occupants of the house were alerted to his presence by their dogs barking. When discovered, the applicant stepped out of the shower and said, ‘I have a family too. They just want to cut me down’, pointing outside. By that time, several more police units had arrived and a police helicopter was circling overhead. The female occupant ran from the house and into the front yard, where she alerted police to what was happening inside. The applicant then ran from the house and jumped the fence to the neighbouring property, 51 Brougham Avenue.[7]
[5]This act gave rise to the first related summary charge of trespass on the indictment.
[6]This act gave rise to the second related summary charge of trespass on the indictment.
[7]This act gave rise to the third related summary charge of trespass on the indictment.
The applicant again jumped another fence into an adjacent property and entered a house through an unlocked back door.[8] One of the residents of the house, Dale Conn, was standing near the kitchen bench. The applicant said, ‘Bro, bro, you’ve gotta help me. I’ll give you $2000, hide me in the shower. It’s just drugs’. Conn refused and told the applicant to get out. The applicant said that he was going to leave. Conn walked out of the back door of the house and went across the road.
[8]This act gave rise to the fourth related summary charge of trespass on the indictment.
Police were alerted, and, eventually, Special Operations Group units entered the house. They concluded that the applicant may be hiding in the roof space. Having attempted to negotiate with the applicant, they received no response. Police deployed OC gas into the roof and searched the roof cavity. At about 11:00 am, police found the applicant hiding in the roof.
The applicant was arrested and transported to the Werribee police station, where he declined to comment on what had happened.
At the time of the offending, the applicant was a prohibited person within the meaning of the Firearms Act 1996 because, in the preceding five years, he had served a term of imprisonment for an indictable offence and had been subject to a community corrections order with a supervision condition attached. The firearm was not registered.[9]
[9]These circumstances gave rise to the charge of possessing a firearm as a prohibited person and the charge of possessing an unregistered handgun.
Personal circumstances of the applicant
The applicant was 24 at the time of the offending. He has been married for about 10 years and has two young children. He has a brother aged 23 and a number of half-siblings. The applicant’s parents divorced, and each of them found new partners. The applicant got on well with his step-father, an engineer, who taught him how to shoot on the family farm. During the plea, counsel for the applicant indicated that the applicant has family support from his wife, father and step-mother.
The applicant completed Year 12 in 2005. The sentencing judge described him as an average student.[10] After school, the applicant left home, completed a rendering apprenticeship and worked in rendering, tiling and stonemasonry. The judge said that the applicant had some solid work skills and years of employment between the ages of 19 and 24.[11] His main pursuit was competitive kickboxing in which he had represented Victoria. In 2010, he was injured at an international tournament in Thailand. He suffered a serious concussion and, shortly thereafter, when competing in Sydney, he suffered a type of brain haemorrhage. He retired from the sport on medical advice.
[10]DPP v Rajic [2017] VCC 1019 [26] (‘Sentencing remarks’).
[11]Ibid [27].
After retiring from kickboxing, the applicant started working at a casino, replacing stonework. He had worked long hours and was introduced to methamphetamine. He developed what the sentencing judge described as a severe physical addiction to the drug.[12] When not working, the applicant spent a lot of time gambling. His wife returned to live with her parents when he was charged with the present offences.
[12]Ibid [28].
Sentencing remarks
During the plea, the sentencing judge received a report dated 23 June 2017 prepared by Mr Patrick Newton, clinical and forensic psychologist, a report dated 16 March 2016 prepared by Dr Linda Borg, senior clinical neuropsychologist, and a report dated 14 October 2014 prepared by Ms Pamela Matthews, forensic psychologist.[13]
[13]During the plea, counsel for the applicant indicated that the psychological reports served to add context to the offending and were not relied upon to establish any factors from R v Verdins (2007) 16 VR 269.
Ms Matthews assessed the applicant as being of low borderline intelligence and as presenting with the lowest level of cognitive functioning, which suggested both a developmental learning component and an additional overlay of deficits associated with an acquired brain injury.[14] She considered that the applicant had suffered from a persistent depressive disorder since the end of his kickboxing career and that this condition allowed him to spiral downwards into substance abuse and unsavoury friendships and lifestyle.[15]
[14]Sentencing remarks [29].
[15]Ibid.
Dr Borg found that the applicant had adequate literary skills and generally average intelligence.[16] She also found that he had slow cognitive processing, which was likely to have resulted from concussive episodes and a closed head injury suffered as a result of kickboxing in 2010.[17] She considered that the applicant was also suffering from a depressed mood, which further compromised his cognitive abilities.[18]
[16]Ibid [30].
[17]Ibid.
[18]Ibid.
The sentencing judge noted that, during the plea, counsel for the applicant relied primarily upon Mr Newton’s report, which set out the following findings:
(a) within months of becoming addicted to methamphetamine, the applicant had been consuming 3.5 grams per day, which was classified as an extreme level of consumption;[19]
[19]Ibid [31].
(b) the applicant continued his drug use, even while on bail and until the time of the present offending;[20]
[20]Ibid.
(c) the applicant told Mr Newton that he had been abstinent since being in remand and that he had completed a drug education program;[21]
[21]Ibid.
(d) the applicant had expressed remorse to Mr Newton for his offending, although the applicant had distinguished between harm inflicted on ‘civilians’ and harm inflicted on those in crop houses, whom he described as being ‘in the game’;[22]
[22]Ibid.
(e) the applicant said that he went along with others to the first aggravated burglary and, later, got selfish and committed the second one on his own;[23]
[23]Ibid.
(f) the applicant’s cognitive defects were not considered to be extreme, and there was little to suggest that those defects would have materially affected his ability to reason about his offending conduct or to exercise appropriate restraint or judgment in relation to his actions;[24]
[24]Ibid [32].
(g) the applicant was considered to be immature and impulsive, with poor self-esteem and insecurity, and the effects of his brain injury are that he learns poorly and slowly from negative consequences and has a low tolerance for frustration or delay;[25]
(h) the applicant is in a period of enforced remission from a severe methamphetamine use disorder, and, while he told Mr Newton that he wanted to stop drug use permanently, he had only participated in very limited treatment to address his drug addiction;[26] and
(i) the applicant expressed scepticism about the benefits of drug treatment and was not interested in discussing options for further treatment and support following his release, which placed the applicant at risk of relapse to drug use upon release, with drug use being the biggest risk factor for further offending.[27]
[25]Ibid.
[26]Ibid [33].
[27]Ibid.
Mr Newton recommended that the applicant participate in intensive, supervised education and drug counselling in the community and in a specialist programme for violent offenders prior to release.[28] Mr Newton was also guarded about the applicant’s prognosis and felt that the applicant’s period of enforced abstinence while on remand has given him the chance to gain insight into the need for personal change and that his rehabilitative needs might best be met by a relatively lengthy period of supervision and community support.[29]
[28]Ibid.
[29]Ibid [34].
The sentencing judge turned to the applicant’s prior convictions. The applicant had been convicted in 2013, 2014, and 2015 for possessing prohibited weapons without approval, in 2011 and 2015 for burglary, and in 2015 for assaulting a police officer. He has other prior convictions for dishonesty and driving offences. The judge said that, in October 2014, the applicant was sentenced to a two-year community corrections order by Coghlan JA for attempting to pervert the course of justice and possession of a firearm.[30] The judge referred to the remarks of Coghlan JA,[31] who said that the applicant had previously breached a number of community corrections orders and had been assessed as unfavourable for a further community corrections order.[32]
[30]R v Munt [2014] VSC 675.
[31]Ibid [63]–[85].
[32]Ibid [85]. In the event, Coghlan JA imposed a further community corrections order for a period of two years.
The sentencing judge referred to a number of concessions made by counsel for the applicant on the plea, namely that:
(j) the applicant’s offending was serious, but committed the aggravated burglaries without necessarily expecting that anyone would be present;[33]
[33]Sentencing remarks [36].
(k) the trespassing offences would have been frightening for the neighbours, but they did not involve any threat from the applicant;[34]
[34]Ibid.
(l) the height of any aggression displayed by the applicant was the momentary brandishing of an unloaded weapon when trying to avoid capture during the Wyndham Vale incident;[35]
[35]Ibid.
(m) the second aggravated burglary was committed while the applicant was on bail, and it warranted some cumulation;[36]
(n) a sentence of a term of imprisonment was inevitable, but there should also be a long period of supervision;[37] and
(o) the applicant’s prospects of rehabilitation must be viewed as guarded.[38]
[36]Ibid [38].
[37]Ibid.
[38]Ibid.
The sentencing judge also referred to victim impact statements from police officers West and Fox.[39] In particular, West recalled that he was very emotionally shaken and that he had feared for his life when the applicant waved a gun at him during the Wyndham Vale incident. West was affected for a number of days by emotional strain caused by the incident and had some psychological counselling to help him deal with its impact.[40]
[39]Ibid [17].
[40]Ibid [18].
The sentencing judge said that, in sentencing the applicant and Spiteri, she had taken care to avoid any risk of double punishment in respect of the aggravated burglary and assault charges.[41] In relation to the aggravated burglary, the judge took into account that each offender committed the offence with the intention of stealing cannabis crops. The offenders were disguised and, in relation to the Truganina incident, the owner and occupant of the house that had been burgled was present at the time of the offence.[42] The judge said that, but for the offenders drawing the attention of neighbours to their activities, the crime may have gone unreported.[43] She also highlighted that the Wyndham Vale aggravated burglary was committed by the applicant alone: he arrived at the house, disguised, in a stolen car driven by an associate, and carried an unloaded handgun.[44]
[41]Ibid [47].
[42]Ibid [48].
[43]Ibid.
[44]Ibid [50].
The sentencing judge considered the gravity of the aggravated burglary. She said:
In the hierarchy of seriousness of offences of this type, where the most serious cases involve confrontational aggravated burglaries and the least serious involve spontaneous encounters, the Truganina offending lies squarely within the mid-range in terms of seriousness. Whilst it might be said that the Wyndham Vale offending lies slightly below this because there was nobody present in the house, the offence was committed by you alone, Mr Folino, and the gun was not loaded. You, Mr Rajic, and you, Mr Folino, have relevant prior convictions for burglary. … and you, Mr Folino, have a relevant prior conviction for possessing a prohibited weapon without approval. In addition, you, Mr Folino, have a prior conviction in 2015 for assaulting a police officer.[45]
[45]Ibid [51].
Next, the sentencing judge considered the gravity of the assault of a police officer in the execution of duty. She said:
You, Mr Folino, waved a small silver, unloaded handgun at two officers who were trying to apprehend you. One of those officers, Mr West, feared for his life at the time and was very emotionally shaken for a number of days after the incident and required psychological counselling. I consider the offending of each of you, Mr Spiteri and Mr Folino, to be serious examples of this type of offence.[46]
[46]Ibid [53].
The sentencing judge said that, while the applicant had expressed to Mr Newton some remorse for his offending, he appeared to be minimising the gravity of his offending in relation to crop houses on the basis that the people involved, or those present, in crop houses are not ‘civilians’, but rather are ‘in the game’.[47] The judge continued:
You, Mr Folino, are 29 years old. You have prior convictions for possession of prohibited weapons, burglary and assault police officer. Whilst on bail, six months after participating in the Truganina aggravated burglary in company where a person was present and where one of your co-offenders produced a loaded firearm when trying to flee the scene, you planned and executed an aggravated burglary, having an unloaded gun with you. This represents an escalation in your offending. I acknowledge that whilst in custody, you have completed a number of courses designed to help you deal with your addiction. I acknowledge that you are a relatively young man, have young children and a supportive family. Again, however, it is difficult on the material before me to be anything but guarded about your prospects of rehabilitation.[48]
[47]Ibid [54].
[48]Ibid [56].
In sentencing each of the offenders, the sentencing judge said that she had regard to the seriousness with which Parliament views the offence of aggravated burglary, as well as the importance of the sentencing principles of denunciation, just punishment, general and specific deterrence and protection of the community and rehabilitation.[49] The judge considered that the applicant’s offending in raising a gun towards police as they sought to apprehend him in the aftermath of the aggravated burglaries was a serious example of the offence of assaulting a police officer in the execution of duty.[50] The judge said that she also had regard to the principles of proportionality, parsimony, totality and parity and took into account all of the matters put by counsel for the applicant, particularly the applicant’s personal circumstances, remorse and plea of guilty.[51]
[49]Ibid [58].
[50]Ibid.
[51]Ibid.
Proposed ground of appeal
The applicant has proposed the following ground of appeal:
The sentence imposed on charge 1 (aggravated burglary) on Indictment No. G12034353 (5 years imprisonment) – being the base sentence – is manifestly excessive.
Particulars
(a) The sentence imposed is manifestly too long.
(b)The sentencing judge gave manifestly insufficient weight to the applicant’s early plea, to the applicant’s remorse, to the fact that the offending lacked certain otherwise aggravating features, and to current sentencing practices.
(c)The sentencing judge gave manifestly too much weight to the fact that the applicant was on bail when he committed that offence.
The applicant’s submissions
In his written submissions, the applicant contended that the sentence imposed in relation to the aggravated burglary committed at Wyndham Vale was ‘unreasonable or plainly unjust’. The applicant said that the contrast between his sentence and that imposed on Spiteri in relation to the aggravated burglary committed at Truganina is ‘illuminating’: Spiteri was armed with a loaded nine-millimetre semi-automatic handgun and he knew that (or was reckless as to whether) a person was present in the house in Truganina. The applicant said that the objective gravity of the aggravated burglary committed by Spiteri at Truganina was materially higher than the gravity of the aggravated burglary committed by the applicant at Wyndham Vale. The applicant accepted that the aggravating factor in relation to the aggravated burglary committed at Wyndham Vale is that the applicant committed that offence after being released on bail for the aggravated burglary committed at Truganina. However, the applicant argued that this ‘fell to be tempered’ by the fact that he was charged with the summary offence of committing an indictable offence on bail, for which he was punished, and that the presumption of concurrency was displaced because the offence was committed while the applicant was on bail.
In relation to the second indictment, the applicant contended that the sentence imposed on the charge of aggravated burglary is manifestly excessive in view of: (a) the applicant’s early plea of guilty and his remorse; (b) the absence of certain otherwise aggravating features and the objective gravity of the offending; (c) current sentencing practices and the principle of consistency;[52] and (d) comparable cases which suggest that the applicant’s sentence was inconsistent with current sentencing practices.[53]
[52]In support of this proposition, the applicant cited Sentencing Advisory Council, ‘Sentencing Trends for Aggravated Burglary in the Higher Courts of Victoria 2010–11 to 2014–15’ (Sentencing Snapshot No 184, June 2016). The applicant said that, in the relevant period, 422 individual sentences of imprisonment were imposed for aggravated burglaries and only 32 (7.6 per cent) of those sentences involved terms of imprisonment of five years or more. The applicant contended that that fact alone assumes some significance in light of where his offending fell on the spectrum of seriousness.
[53]In this respect, the applicant cited DPP v Salih [2016] VSCA 107; Perri v The Queen [2016] VSCA 89; and Bowyer v The Queen [2013] VSCA 358.
During oral argument, the applicant referred, in particular, to Salih, Perri and Bowyer as illustrative of current sentencing practices in relation to aggravated burglary. He also referred to Director of Public Prosecutions v Dalgleish (a pseudonym).
He pointed out that, in Perri, the objective gravity of the offending was much greater. He also contended that the penalty of four years and six months’ imprisonment that was imposed on Spiteri in relation to the Truganina indictment illuminated the fact that sentence imposed on the applicant was wholly outside the range.
Analysis
In my opinion, it is not reasonably arguable that the sentence imposed on the applicant in respect of the Wyndham Value aggravated burglary is wholly outside the permissible range of reasonable sentences.[54] Manifest excess is a stringent ground which is difficult to make good.[55] In order to succeed, the applicant must be able to demonstrate that something has gone obviously, plainly or badly wrong.[56] In Director of Public Prosecutionsv Karazisis,[57] Ashley, Redlich and Weinberg JJA said:
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[58]
[54]R v Boaza [1999] VSCA 126 [42].
[55]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].
[56]Binse v The Queen [2016] VSCA 145 [57].
[57](2010) 31 VR 634.
[58]Ibid 662–3 [127] (citation omitted).
In his oral submissions, the applicant paid particular attention to the fact that Spiteri was armed with a loaded weapon when engaged in aggravated burglary but received four years and six months’ imprisonment.
The sentencing judge explained why she treated the circumstances of Spiteri in relation to the Truganina aggravated burglary as distinct from those of the applicant in relation to the Wyndham Vale aggravated burglary. Spiteri had no prior convictions for offences involving violence whereas the applicant had prior convictions for possession of prohibited weapons, burglary and for having assaulted a police officer.
Further, it was only a short period after the Truganina offending that the applicant embarked on similar offending whilst on bail in respect of the earlier offending. The offending had been planned; it was not spontaneous. The applicant was separately punished for having committed an indictable offence whilst on bail, and the sentencing judge was careful not to have the applicant punished doubly in respect of that offending. But, the fact that this offending took place so soon after the earlier offending justified her scepticism in relation to his rehabilitation and made specific deterrence and protection of the community as clearly relevant factors in her sentencing.
Clearly, issues of specific deterrence and protection of the community were highly relevant in the case of the applicant and, in my opinion, justified a higher sentence.
Conclusion
I would refuse the application for leave to appeal against sentence.
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