Anderson v The Queen [2014] VSCA 255

1 The appellant, now aged 27, pleaded guilty in the County Court at Bairnsdale to the following charges and was sentenced, on 15 April 2014, as set out in the table below:

Aggravated burglary [Crimes Act 1958 s 77(1)]

Recklessly causing injury [Crimes Act 1958 s 18]

Intentionally damage property [Crimes Act 1958 s 197(1)]

Fail to store firearm correctly [Firearms Act 1996 s 121(1)]

Fail to store ammunition correctly [Firearms Act 1996 s 121(1A)]

4 years and 2 months' imprisonment with a non-parole period of 2 years and 8 months

• Forensic procedure order under the Crimes Act 1958 s 464ZF(2)
• Compensation orders on charges 3 and 4

2 On 20 August 2014, Whelan JA granted leave to appeal on the following grounds:

1. That the learned sentencing Judge erred in her application of Hogarth v The Queen[1] in passing sentence on the appellant.
2. That the individual sentence on charge 1 and the non-parole period set are manifestly excessive.

3 On the night of 16 August 2013, the appellant was out drinking with friends. Throughout the course of the evening, he sent 21 abusive text messages to his ex-girlfriend, Danielle McNamara, with whom he had had a young child. Their relationship had broken down and they had separated in December 2012.

4 At approximately 4:00am on 17 August 2013, Ms McNamara was in bed, at her home with her new boyfriend, Mitchell Clague. Her 16-month old son was in a cot near the bed. The appellant burst through the unlocked door, dragged Clague out of the bed, and threw several punches at him. Clague landed on the floor. The appellant stomped on his head. The appellant then moved towards McNamara and was about to punch her when Clague overpowered him. The appellant then struggled with Clague, grabbing him by the throat in a choking manner, and inflicting minor injuries upon him. These included red marks, swelling, and soreness to his neck. The appellant was forced outside and the door was locked behind him (charges 1 and 2).

5 The appellant smashed a window of the main premises before McNamara's step-father escorted him off the property (charge 3). He then broke a window in Clague's car which was parked on the street (charge 4).

6 The appellant ran back to a friend's house. Shortly thereafter, he was arrested and escorted back to his home. On arrival, police searched the premises and located an unsecured .223 rifle in his lounge, along with numerous rounds of ammunition both in his house and in his vehicle (summary offences, charges 6 and 7).

7 As the appellant was being taken to the police station, he contacted friends in an attempt to create a false alibi. Subsequently, he participated in a record of interview with police. He denied any involvement in the offences. He complained that his former girlfriend was setting him up.

8 On 2 October 2013, the appellant appeared at a committal mention. He indicated at that time that he would plead guilty to the charges brought against him.

9 The sentencing judge commented, in her reasons for sentence, that aggravated burglary was a very serious offence, as reflected in the maximum penalty of 25 years' imprisonment. She noted that while no one had been seriously injured, the appellant's behaviour was 'very aggressive', and aggravated by the fact that it had been carried out in the presence of his young son.

10 Her Honour observed that '[t]his was confrontational aggravated burglary of the type described in ... Hogarth'.[2] She said:

You went in to the room to confront your ex-partner and any man she was with. The Court of Appeal in that case emphasised the seriousness of this type of offending. What you did must have been extremely frightening and distressing for your ex-partner, her friend, and your child. This was serious offending but I do not regard it as an example of aggravated burglary at the more serious end. I do not consider that following current sentencing practices would result in an inappropriate sentence.[3]

11 In sentencing the appellant, her Honour took into account, in his favour, that he was still a relatively young man, and that he had acted alone and somewhat spontaneously. She also had regard to the various mitigating features put forward on his behalf on the plea. These included his early plea of guilty and his obvious remorse. She noted that prior to this incident, the appellant had been a young man of good character, he had had a stable, and happy childhood, and was supported at the plea hearing by his family. He had a history of steady employment, having been self-employed subcontracting in the earth moving business. He had never had a problem with drugs, and had no mental health issues. Prior to this incident, he had generally consumed alcohol responsibly.

12 Two character witnesses had been called to give evidence on the plea, the appellant's mother, and a long-time family friend. Both testified that his offending had been completely out of character, and that he was deeply remorseful.

13 Finally, her Honour accepted that, as a youthful first offender, the appellant would find any time in custody very difficult.

14 However, the sentencing judge rejected the submission, put forward on the appellant's behalf on the plea, that he be given a Community Correction Order rather than being incarcerated. She determined that imprisonment was the 'only appropriate sentence' in the circumstances. In her Honour's view:

Such a sentence is warranted because of the seriousness of this offending and the need to appropriately reflect the sentencing purposes of just punishment, denunciation and general deterrence.[4]

15 She gave limited weight to specific deterrence, having regard to the appellant's good prospects of rehabilitation. However, she regarded general deterrence as an important sentencing factor. She commented that ' [g]etting drunk and acting aggressively in response to emotional upset causes enormous amounts of harm in the community, particularly within the context of intimate relationships'.[5] She added that '[p]eople must understand that they need to control their behaviour and not respond to these emotional impulses with violent behaviour'.[6] Finally, she said that people need to understand that imprisonment is a possible consequence of such behaviour.

16 Mr Chernok, who appeared on behalf of the appellant, and who presented his submissions in a most capable manner, began by addressing ground 1. He noted that counsel who appeared on the plea had acknowledged that general deterrence would be a central consideration, and had himself made reference to the decision of this Court in Hogarth. Counsel had said in the course of the plea:

Now, obviously Your Honour, in sentencing my client Your Honour has to take into account a number of matters in determining how to exercise the discretion that Your Honour has. And clearly, in the forefront of Your Honour's mind, will be the issue of general deterrence. No issue about that, and I'm aware, obviously as Your Honour would be, that the Full Court has chosen to deal with this offence in the case of Hogarth and other cases and I'm aware that the community likely regards this offence, particularly the offence of aggravated burglary, as one where the courts must take a serious view, obviously, and where general discretion is going to play a big part in how one deals with the sentencing issue.[7]

17 Counsel had himself referred to Hogarth in the course of submitting that notwithstanding what this Court had said in that case, it was not the law that every aggravated burglary must result in an immediate custodial sentence. He argued that there were cases, perhaps exceptional, where other options might be appropriate and submitted that the offending in Hogarth had been much more serious than that perpetrated by the appellant.

18 The sentencing judge had dealt with that submission in the passage from her Honour's sentencing remarks set out at [10] of these reasons. It was submitted, on behalf of the appellant, that her Honour had either misunderstood, or failed correctly to apply Hogarth. That case concerned only what the Sentencing Advisory Council had described as 'confrontational aggravated burglaries'. The appellant's behaviour, by way of contrast, fell into an altogether different, and lesser category, also identified by the Sentencing Advisory Council, but known as 'intimate relationship aggravated burglary'. It was submitted that the sentencing judge failed to appreciate this distinction, and should have discounted the relevance of Hogarth to the sentencing task in this case.

19 Mr Chernok developed that submission as follows. He referred to this Court's analysis of current sentencing practices for 'confrontational aggravated burglaries' in Hogarth. He noted that the Court in Hogarth considered that current sentencing practices did not adequately reflect the objective seriousness of that type of offending, and also indicated that sentencing practice for that form of aggravated burglary could no longer be treated as a reliable guide. He submitted that the Court's comments, in that regard, were clearly confined to confrontational aggravated burglaries in the strict and narrow sense. Had the Court intended those comments to have a broader application, it would undoubtedly have said so.

20 Mr Chernok further submitted that as the appellant's behaviour fell more clearly within the 'intimate relationship aggravated burglary' category, her Honour should have tempered her application of the principles enunciated in Hogarth.

21 In relation to ground 2, Mr Chernok very sensibly conceded that the sentences imposed on charges 2, 3 and 4 could all be regarded as benevolent. He confined his attack to the sentence of three years' imprisonment imposed on charge 1, which he submitted was outside the range available for this particular offending.

22 Mr Kidd SC, who appeared on behalf of the Crown, submitted that, as had been argued by the prosecutor below, this case called for a sentence of immediate imprisonment, and nothing less. The offending involved a home invasion, in the dead of night, in the presence of a young child. The appellant had been drinking prior to the incident, and had become aggressive towards his former partner. This was evidenced by the spate of earlier abusive text messages. In other words, this was a serious example of aggravated burglary for precisely the reasons enunciated in Hogarth.

23 Mr Kidd referred to what counsel for the appellant had said regarding Hogarth on the plea (as set out at [16] of these reasons) which, he submitted, amounted to a 'concession' that the principles laid down therein were applicable to the present case. He noted that Mr Chernok had not sought to resile from what was said on the plea, but had sought to distinguish Hogarth on the basis that the moral culpability associated with 'confrontational aggravated burglary' was generally far greater than that associated with 'intimate relationship aggravated burglary'.

24 Mr Kidd challenged that submission, and the related submission that her Honour misunderstood Hogarth. He referred first to the following remarks made by the sentencing judge during the course of the plea:

It seemed to me ... that this is a situation to which Hogarth applies. Hogarth in my view does not apply to every aggravated burglary, but rather to confrontational burglaries...

Where someone's home is entered because someone has got some kind of a - to use a colloquial expression beef with somebody about something which was the situation here, and the court in that case makes very strong statements about the seriousness of this type of offending.[8]

25 Mr Kidd submitted that her Honour had fully recognised that Hogarth was a more serious case than that involving the appellant. That was reflected in the fact that the appellant in Hogarth received a term of four years and six months' imprisonment for his involvement in the aggravated burglary in that case, whereas the appellant was sentenced to just three years for his offending.

26 Mr Kidd went on to say that when the sentencing remarks were read as a whole, it was clear that her Honour merely drew from Hogarth some general principles applicable to all aggravated burglaries that involved a home invasion where there was animosity towards the occupant/s, and where confrontation was intended.

27 Mr Kidd agreed that a literal interpretation of Hogarth might limit its application to 'confrontational aggravated burglary' in the strict and narrow sense. On that interpretation, the case might have little to say as regards cases of 'intimate relationship aggravated burglary'. However, he noted that this Court, in later cases, had treated Hogarth as having broader application than to merely those cases falling within the strict definition identified by the Sentencing Advisory Council. In particular, Hogarth had been applied to comparable home invasion aggravated burglaries of the intimate relationship variety.

28 As regards ground 2, Mr Kidd submitted that the sentence of three years was within range.

29 It seems to us that this case falls to be decided in large measure upon whether, as the appellant claims, the sentencing judge incorrectly applied the principles in Hogarth. In our opinion, the following passages in Hogarth make it clear that her Honour did not do so:

The defining characteristic of the 'confrontational' category was entry 'in the context of a dispute with or grievance against someone in the premises'. This was by far the most common type of aggravated burglary, accounting for over half of the cases reviewed by the [Sentencing Advisory] council. This category included:

... cases such as 'drug run-throughs' (where there is a pre-existing dispute arising from illegal drug dealing and the offender breaks into premises to confront the other party and to take or damage property) and vigilante actions (for example, where the offenders seeks to punish the victim because of a belief that the victim has done something wrong).

The council's conclusion with respect to sentencing for confrontational aggravated burglary was as follows:

Confrontational aggravated burglaries tended to be less likely to result in an immediate custodial sentence than other categories of aggravated burglary. Taking other factors into account, the Council found this difference to be statistically significant, suggesting that there is something intrinsic to this type of aggravated burglary that influences sentencing outcomes. One possibility is that there may often be a degree of provocation involved in this type of offence, which may have the effect of reducing the likelihood of imprisonment.

Wholly suspended sentences were substantially more common for these aggravated burglaries than all other aggravated burglary categories (38.2% versus 19.7%). This is most likely explained by the relatively low proportion of confrontational aggravated burglary offenders with prior imprisonment or prior offences or who were on an existing order at the time of the offence.

And further:

Sentences for confrontational aggravated burglary tended to be skewed towards lower-end sentences compared with all other categories of aggravated burglary.

Immediate custodial sentences made up a lower proportion of confrontational aggravated burglaries than all other categories of aggravated burglary (48.0% versus 72.4%). When the effects of other factors were controlled for using a regression model, confrontational aggravated burglary had a significant effect on sentence outcome, decreasing the chances of an immediate custodial sentence ...

Just under one-quarter of confrontational aggravated burglaries (23.5%) received an imprisonment term of two years or more, compared with over half (52.6%) of all other categories of aggravated burglary.

The median imprisonment term for charges of confrontational aggravated burglary was the same as for all other categories of aggravated burglary (two years). The mean imprisonment term for confrontational aggravated burglaries was shorter than the mean for all other categories (25.3 months versus 31.4 months), the difference being statistically significant ...[9]

30 After referring to the Sentencing Advisory Council's findings, the Court continued:

Given the intrinsic seriousness of this type of offending, these are surprising findings. Confrontational aggravated burglary is not necessarily any more serious than (say) the same offence when committed in relation to an intimate partner or with intent to commit a sexual offence. Offences of the latter kind are likely to be particularly terrifying for victims. But it seems improbable that sentences in the 'confrontational' category should be 'skewed towards lower-end sentences compared with all other categories'. It must be recalled that the stated intention of the increase in the maximum penalty was to 'send a message' that 'home invasion-style offences ... will not be tolerated'. Sentencing practice as described by the council would seem not to have met that objective.[10]

31 In light of the Court's comments in Hogarth, and in particular the portion italicised above, we do not think that it can be said that the principles articulated in that case apply only to confrontational aggravated burglaries, in the narrow sense. Nor do we accept that Hogarth in any way establishes that those cases necessarily warrant heavier sentences than the sentences to be imposed for 'intimate relationship aggravated burglary'. The Court in Hogarth focussed on the former category in an attempt to address a clear systemic issue, as identified by the Sentencing Advisory Council, namely that sentencing statistics for 'confrontational aggravated burglaries' showed that these cases were receiving lower sentences than cases falling into other categories of aggravated burglary.

32 Indeed, as Mr Kidd submitted in oral argument, subsequent decisions of this Court involving 'intimate relationship aggravated burglaries' have applied the principles in Hogarth.

33 The case of Filiz v The Queen[11] is particularly relevant. There, the Court said:

[W]e reject the contention that the sentence of two years and six months' imprisonment for the aggravated burglary charge was 'very severe'. The plea of guilty in this matter was entered after this Court's decision in Hogarth v The Queen had been published. In Hogarth, it was noted that current sentencing practice for aggravated burglary offences - which involved a median sentence of two years, with the upper limit generally being six or seven years - failed to adequately reflect the 25 year maximum which Parliament prescribed for the offence. It was anticipated that sentencing practice for aggravated burglaries, in particular those committed with the aim of confrontation, would increase in the coming years. A significantly higher sentence than that imposed in this instance would therefore have been within range.[12]

34 In Gale v The Queen,[13] another 'intimate relationship aggravated burglary' case, the Court observed:

The applicant has not satisfied this Court that a departure from the principles laid down in Hogarth is warranted. This was a serious example of what might be described as 'intimate-partner' aggravated burglary. It could easily have had catastrophic consequences. The applicant broke into his ex-partner's home armed with a cattle prod, intending to confront its sleeping occupants, in breach of an undertaking given nine days earlier. These types of incidents all too often conclude with a tragic outcome. General deterrence is paramount. Specific deterrence also needs to be accorded considerable weight, particularly in light of the applicant's breach of the undertaking. Society demands that behaviour such as this be punished severely.[14]

35 The decision in Gale is particularly telling. There the accused was sentenced to a term a three years and six months' imprisonment on a charge of 'intimate relationship aggravated burglary'. The Crown formally conceded that that sentence was manifestly excessive. This Court, unusually, rejected that concession.

36 It is clear from Filiz and Gale that the principles laid down in Hogarth were applicable, as the sentencing judge correctly held, in the circumstances of this case. We do not think that her Honour erred in any way in her application of those principles.

37 Nor do we consider that the sentence of three years' imprisonment imposed on charge 1 was 'wholly outside the range of sentencing options available' in the circumstances.[15]

[1] (2012) 37 VR 658 ('Hogarth').

[2] Director of Public Prosecutions v Anderson (Unreported, County Court of Victoria, Judge Patrick, 15 April 2014) [17]

[7] Transcript of Proceedings, Director of Public Prosecutions v Anderson (Unreported, County Court of Victoria, Judge Patrick, 15 April 2014) 27.

[9] (2012) 37 VR 658, 672-3 [54], [55] (citations omitted).

[11] [2014] VSCA 212 ('Filiz').

[13] [2014] VSCA 168 ('Gale').

[15] Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 663 [127].