Bava v The Queen [2021] VSCA 34

CRIMINAL LAW - Appeal - Sentence - One charge of aggravated burglary, two charges of theft - Total effective sentence 6 years' imprisonment - Non-parole period 4 years - Whether judge took into account post-entry criminal conduct in sentencing applicant for aggravated burglary - Whether cumulation order for first theft charge offended principles of totality or double punishment - Whether judge failed to take into account principles in Bugmy v The Queen (2013) 249 CLR 571 and R v Verdins [2007] VSCA 102; (2007) 16 VR 269 - Leave to appeal refused.

1 On 27 March 2019, the applicant pleaded guilty to one charge of aggravated burglary and two charges of theft. On 31 May 2019, he was sentenced by a County Court judge as set out in the table below:[1]

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

Theft [Crimes Act s 74(1)]

Total effective sentence: 6 years' imprisonment

Section 6AAA statement: 7 years and 6 months' imprisonment with a non-parole period of 5 years

2 The applicant has sought leave to appeal from his sentence on the following grounds:

1 The learned sentencing judge erred by:

(a) impermissibly assessing the objective gravity of charge 1 by reference to events that occurred after entry and thereby considered irrelevant matters and/or sentenced the applicant for acts for which he was not charged; and

(b) failing to raise this issue with the applicant during the plea.

2 The order for cumulation in relation to charge 2 infringed:

(a) the principle of totality; and/or

(b) the principle of double punishment.

1. The learned sentencing judge failed to take into account relevant matters put in mitigation on the applicant's behalf, namely the principles in Bugmy v The Queen and The Queen v Verdins.

3 For the reasons that follow, the application for leave to appeal will be refused.

4 On the evening of 3 June 2015, Stanley Barlow was at his home in Kingloch Parade, Wantirna. He was 71 years old and had a glass eye in his left eye socket. His friend, Julian Brown, had been staying with him for a few days.

5 At about 5 am on 4 June 2015, Mr Brown was lying on the couch in the lounge room when he heard a 'huge bang' and the back door being kicked in. He saw three men come inside calling, 'Police! Police! Get on the ground!' (charge 1 - aggravated burglary with intent to steal).

6 One of the men told Mr Brown to get on the ground. The man taped Mr Brown's hands and legs together with duct tape and tied his hands to his belt. Mr Brown's eyes were also covered with tape. One of the men said, 'I will stab you if you don't tell me the truth.' Mr Brown lay on the ground as the offenders ransacked the house.

7 Mr Barlow was asleep in his bedroom when he awoke to hear noise coming from the kitchen or the back door. He got out of bed to investigate. When he opened his bedroom door, a man ran at him. Confused, he asked, 'What's going on?' He was told to '[s]hut up!' before being struck to the right side of his head with a metal pole by an unknown offender. His head hurt a little bit. He tried to defend himself, but the offender yelled at him to lie down. Another man came into the room, so Mr Barlow complied. He heard one of the men say, 'Tape him up,' then his ankles were taped together and his wrists were taped behind him.

8 One of the men asked Mr Barlow, 'Where's the money? Where's the guns? Where's the jewellery?' Mr Barlow replied that he had no money and said that the guns were in the shed. The men put Mr Barlow on the floor in the passage, with his head down. He could hear the men ransacking the house.

9 Mr Barlow was 'bloody scared' and thought he was going to die. The men continued to make 'a heap of noise', but he could not see them. He told them that he had $100 of silver coins in a white bag in his bedroom and a biscuit tin with seven $100 notes and 14 $50 notes in the shed.

10 Mr Brown could only see flashes of the men because they were always moving around. He could hear the men talking to Mr Barlow and also heard one of the men say, 'this gun's brand new'.

11 At first light, Mr Brown saw at least two of the men step over him as they escaped via the front door. After the men left, he was able to get up and go to the assistance of Mr Barlow, who was still tied up.

12 Both Mr Barlow and Mr Brown estimated that the ordeal lasted about two hours.

13 The offenders stole from Mr Barlow a shotgun, a rifle, an ammunition belt, a number of shotgun shells, a gun carrier, a television and approximately $1,500 cash (charge 2 - theft). They stole from Mr Brown an electric guitar, an amplifier and $30 cash (charge 3 - theft).

14 The applicant was one of the three offenders. His fingerprints were found at the scene. Although charge 1 states that the applicant was armed with a metal pole when he entered Mr Barlow's home, the Crown could not establish whether he was the offender who assaulted Mr Barlow with it. Investigations revealed that the offending was instigated by Shelley Cole, who was known to Mr Barlow. She died before making a statement.

15 On 11 July 2015, the applicant was arrested. During his interview, he told the police the following:

(c) He has never been to Kingloch Parade, Wantirna.

17 One of the stolen firearms was recovered on 18 July 2015 following a series of armed robberies and attempted armed robberies committed by Terrence Green. Mr Green pleaded guilty to handling the stolen firearm, using it in an attempted armed robbery and being a prohibited person in possession of it. The other stolen property has not been recovered.

18 The applicant was 56 years old at the time of offending and 60 at the time of sentencing.

19 The applicant was raised in Carlton with two older sisters and a younger brother. His father, brother and eldest sister are deceased. His mother is aged 91 and lives in the palliative care section of an aged care facility. In recent years, the applicant and his surviving sister have spent much of their time attending upon their mother. He also regularly assisted his sister due to a hand condition requiring surgery.

20 During childhood, the applicant suffered brutal physical abuse from his father. The applicant reported that, throughout this time, his father 'smashed every bone in his body'. On most days for many years, his father would strip him naked, put olive oil on him and attack him with a barber's strop until he bled. He grew up without friends or toys to play with. His father would destroy anything he did find to play with.

21 When he was three years old, his father broke his neck and he was admitted to the Royal Children's Hospital for 16 weeks. His father once smashed a wooden box over his head and a wooden shard went through his eye. The shard was only removed in recent years. On one occasion, when he went mushrooming with his father, his father told him to 'run, because I'm going to shoot you' and proceeded to shoot him in the head with pellets as he fled.

22 At the age of nine, the applicant's father locked him in a box in the back yard and his mother had to bring him food surreptitiously. After five days, his father released him and killed his pet dog in front of him. Shortly after that incident, his father threw him in a river and his babysitter, who was his father's friend, had to rescue him.

23 Between the ages of about seven to 14, the applicant lived at Turana Boys Home, going home on weekends. At around 13 years of age, he stopped going home on weekends and shortly after left home. He avoided seeing his father until his death in 2015, but would visit his mother.

24 From the ages of five to seven, the applicant was sexually abused by his babysitter. He was later sexually abused by a priest at the school he attended, then in the Turana Boys Home and in Pentridge. He has not reported these allegations to the police, but did disclose the abuse by the priest to his mother. His father found out and beat him for making the accusation.

25 At the age of 16, the applicant met his former wife. They were in a relationship for 25 years and had three children. He still sees his former wife occasionally at family events, but has not re-partnered. In recent years, he was living with his eldest son, who is unable to work due to a workplace injury. He regularly spent time with his middle son, who has a four year old daughter and is expecting another child. He often provided care for his grandchild.

26 The applicant has limited formal education. He attended St Bridget's Primary School in Carlton, but was expelled because of his behaviour. He then attended a nearby Catholic Brothers' school. From the age of nine, he rarely went to school. He learnt to read and write in his thirties.

27 The applicant has held various employment positions. At the time of sentencing, he was receiving a Disability Support Pension from Centrelink.

28 The applicant has a history of abusing illicit substances from an early age. He commenced smoking cannabis when he was about eight years old and eventually graduated to regularly abusing amphetamines, cocaine and methamphetamine. In recent years, he has largely ceased taking illicit drugs.

29 The applicant suffers from cellulitis and ischaemic heart disease. He was diagnosed in 2014 with prostate cancer and had a prostatectomy in the same year. He had a heart attack in 2016. He underwent hernia surgery in 2018.

30 The applicant suffers from post-traumatic stress disorder ('PTSD'). He has experienced suicidal thoughts and last attempted suicide in 2017. He continues to re-experience symptoms of PTSD, including anxiety, intrusive thoughts, distressing images of the past and nightmares.

31 In a psychological report dated 23 May 2019, Alison Mynard stated that the applicant's PTSD symptoms have been key to influencing his impulsivity, lack of clear thinking and clear judgment, risk-taking behaviours and ongoing illicit substance abuse. She said that, at the time of the offending, he was particularly affected by these symptoms. She opined as follows:

Whilst [the applicant] would likely manage a period of custody, it is the writer's opinion that time in custody would not serve to decrease his chances of reoffending. He likely would deteriorate in his anxiety and depressive symptoms, given that he has much to lose in the community at present.

32 The applicant has an extensive criminal history. In 1976, he was fined a total of $120 for discharging a missile to cause injury or danger and for possessing an air rifle under 18 years. In 1994, he was sentenced to 3 years and 6 months' imprisonment for aggravated armed robbery, which involved tying up the victims (a mother and her two young children) with duct tape and the use of a firearm. In 2001, he was convicted and fined an aggregate amount of $500 for being a prohibited person in possession of a firearm and for storing a firearm in an insecure manner. In 2002, he was convicted and fined $200 for theft.

33 In 2004, the applicant was sentenced to 10 years' imprisonment with a non-parole period of 8 years for drug importing and trafficking offences. In 2005, he was sentenced to 3 years and 6 months' imprisonment for further drug trafficking offences and being a prohibited person in possession of a firearm.

34 The applicant was on parole between 3 February 2012 and 2 August 2014. His parole ended 10 months before he committed the current offending.

35 At the plea hearing, defence counsel conceded that the applicant's offending was 'serious'.[2]

36 After summarising the applicant's brutal childhood, defence counsel submitted as follows:

It's submitted that the court ought to have regard to the impact [the applicant's] background has had on him and the continued impact that that trauma still has on him to the present day. To that end, I call into aid [the] principles of disadvantage[d] upbringing in a Bugmy or [Marrah] sense.[3]

37 When defence counsel asked the judge if he required reference to specific paragraphs in Bugmy v The Queen[4] or Marrah v The Queen,[5] the judge replied that he did not.[6]

38 By reference to Ms Mynard's opinion that imprisonment would exacerbate the applicant's depressive and anxious symptoms, defence counsel argued that the applicant presents with a psychological condition that would make it more onerous psychologically for him to undergo a sentence of imprisonment. He submitted that limb five of R v Verdins[7] was therefore enlivened on the evidence.[8] The judge responded: 'Yes. Only to do with his current mental state and how that may make it more difficult for him in prison.'[9]

39 The prosecutor conceded that, in the light of the applicant's mental condition and his traumatic personal history, limb five of Verdins and the principles in Bugmy were applicable.[10]

40 For convenience, we set out the passages in Bugmy, Marrah and Verdins which are relevant for present purposes.

41 In Bugmy, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ summarised the sentencing principles relating to an offender's disadvantaged upbringing as follows:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest ... that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[11]

Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender's conduct that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending.

It will ordinarily be desirable that a sentencing judge make clear in the reasons for sentence the extent to which the offender's deprived circumstances have moderated the weight given to personal and general deterrence in favour of other purposes of punishment, including rehabilitation.[12]

43 In Verdins, this Court described limb five as follows:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following ... ways:

...

1. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.[13]

44 The judge found that '[t]his is a serious example of aggravated burglary'.[14] In para 60 of his sentencing remarks, he held that the objective seriousness of the offence was indicated by the following considerations:

(a) The mode of entry to the premises was breaking in through the back door of the house;

(b) The offence happened in the early hours of the morning and continued for some time;

(c) You committed this offence in the company of two co-offenders;

(d) From the evidence of the demands, from 'Where are the guns? Where is the money?', the only reasonable inference is that your intent was to steal prior to the entry of the premises;

(e) The victims were tied up and subjected to threats. All of this occurred in your presence, and;

(f) I accept there is no direct evidence you assaulted either Mr Barlow or Mr Brown by striking them.

45 The judge found that the offences of theft were also serious. In relation to charge 2, he stated that '[t]he theft of guns has the risk that they will be used in other criminal activity. In this case, that risk turned into a reality for which another person has been sentenced.'[15] He described the offending for charge 3 as 'opportunistic'.[16] He held that '[e]ach of these theft charges have distinct criminality which calls for some cumulation of the sentences in respect of each of those charges'.[17]

46 The judge described the applicant's guilty plea as 'late', but said that it had utilitarian value and demonstrated acceptance of responsibility and some remorse.[18] He assessed the applicant's prospects of rehabilitation as 'guarded'.[19]

47 The judge described the applicant's 'brutal and physically abusive' upbringing,[20] but did not specify whether this had the effect of moderating the sentence to be imposed.

48 The judge noted the opinion of Ms Mynard that time in custody would not serve to decrease the applicant's chances of reoffending.[21] He did not refer to her opinion that a period of custody would likely cause his anxiety and depressive symptoms to deteriorate.[22]

1. I have moderated the individual sentences and the cumulation of those sentences so that the principle of totality is not offended, and that your total sentence is not a crushing sentence. I have fixed a non-parole period which will give you the opportunity to move back into the community with the assistance and supervision of the Adult Parole Board, should you be granted parole.
2. Your offending is serious and the only proper disposition is a term of imprisonment with a non-parole period. The principles of general and specific deterrence, combined with just punishment, dictate a term of imprisonment is the only appropriate sentence.[23]

Ground 1: Assessment of gravity of aggravated burglary

50 The applicant submitted that the judge erred in assessing the gravity of charge 1 by reference to the following factor in para 60(e) of the sentencing remarks: 'The victims were tied up and subjected to threats. All of this occurred in [the applicant's] presence'. He contended that taking into account this factor bespoke fundamental error because:

(a) The offence of aggravated burglary was complete once the offenders entered Mr Barlow's house as trespassers armed with an offensive weapon and with the intent to steal. Accordingly, the mistreatment of the victims, which occurred after that time, could not be an aggravating factor.

(b) This factor did not involve actions subsequent to entry that could have permissibly informed the overall seriousness of the aggravated burglary charge. They were not merely contextual, nor did they inform the question of intent.

(c) The acts of tying up and threatening the victims constitute discrete and serious offences, which were beyond the scope of aggravated burglary with intent to steal.

51 In support of proposition (a), the applicant relied on the following passage from Director of Public Prosecutions v Barnes:

Aggravated burglary is complete when the offender enters the premises as a trespasser while having the requisite intention (whether it be to steal, assault or damage property) and accompanied by the particular form or forms of aggravation.[24]

52 The applicant also relied on the following passage from Salapura v The Queen:

However, this simply means that all the elements of the offence are satisfied for the purpose of proving the offence; it does not mean that everything that happens while the offender is in the building is irrelevant to the objective gravity of that offence. On the contrary, as an element of the offence is entering a building as a trespasser, that element continues for the entire time that the offender remains in the building as a trespasser. As this Court said in Barnes, the offence of aggravated burglary 'can be regarded as persisting while the offender is inside the premises'. Accordingly, what occurs after entry into the building forms part of the context in which the offending takes place and may provide evidence of the intent with which the entry was made. It may also inform the overall seriousness of the offence.[25]

53 In support of proposition (c), the applicant relied on the following passage from the judgment of Winneke P in R v Newman and Turnbull:

The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted ...[26]

54 According to the applicant, the judge considered the seriousness of the offending to be elevated by the victims being tied up and threatened. He argued that this factor contributed to the judge's conclusion that '[t]his is a serious example of aggravated burglary'. He contended that, by elevating the seriousness of the offending in this way, the judge impermissibly sentenced him for offending for which he was not charged. He submitted that these matters were not ventilated with defence counsel on the plea.

55 The Crown submitted that there was no fundamental error in the way that the judge considered the tying up and threatening of the victims. It contended that such conduct was relevant because it informed the seriousness of the aggravated burglary. It was also said to inform the intent with which the offenders entered the house and the degree of planning that was involved, that is, the offenders entered the house armed with duct tape and intended to use it to tie up any occupants they encountered should this become necessary to effect the intended thefts.

56 According to the Crown, unlike Newman, where the assault subsequent to entry was used impermissibly by the sentencing judge as an aggravating factor of the offence of aggravated burglary, in the present case, the conduct of tying up and threatening the victims was relied upon by the judge for legitimate sentencing purposes.

57 The Crown emphasised that the conduct of tying up and threatening the victims was listed towards the end of the considerations set out in para 60 of the sentencing remarks.[27]

58 According to the Crown, the seriousness of the offence was referred to on the plea by defence counsel and discussed in detail by the prosecutor. It argued that there was no need for the judge to raise these considerations in any greater detail.

59 In the alternative, the Crown argued that, if the error is made out, there is no reasonable prospect that this Court would impose a less severe sentence than that imposed by the judge. It was said that the judge properly found that this was a serious example of aggravated burglary. Accordingly, the Crown submitted that the sentence imposed on charge 1 was 'very modest' and well within the appropriate sentencing range.

60 In our opinion, the judge erred in referring to the offenders' conduct of tying up and threatening the victims as a factor that informed the objective seriousness of the offence of aggravated burglary.

61 The judge's error is evident from the principles in Newman, Barnes and Salapura to which reference was made above. Although the offence of aggravated burglary continues for the entire period in which an offender remains on the relevant premises as a trespasser, there are limits on the purposes for which events occurring after entry may be taken into account. Those events may provide context for the offending and may be used to draw relevant inferences, such as the purpose for which the offender entered the premises. However, insofar as the events constitute separate serious criminality for which the offender has not been charged, that criminality cannot be taken into account adversely to the offender for sentencing purposes. In particular, that criminality cannot be treated as an aggravating factor in assessing the gravity of the aggravated burglary offence. That is so in order to ensure that the offender is sentenced only for the offending for which he or she has been convicted.

62 In the present case, the judge treated the conduct of tying up and threatening the victims as one of the factors which he found indicated the objective seriousness of the offending. This conduct constituted the separate offences of false imprisonment and assault, for which the applicant was not charged. Accordingly, it was impermissible for the judge to take this conduct into account as an aggravating factor in assessing the seriousness of the aggravated burglary.

63 For the above reasons, we reject the Crown's submission that the judge did not fall into the same error as the sentencing judge in Newman. We also reject the Crown's contention that there was any significance in the fact that the conduct of tying up and threatening the victims was listed towards the end of the factors which the judge took into account.

64 However, notwithstanding the judge's error, ground 1 is not made out. That is because that error was not material to the judge's assessment that the offending was 'a serious example of aggravated burglary'.[28]

65 Even if one ignores the conduct of tying up and threatening the victims, the following features of the offending the subject of charge 1 clearly demonstrate that it was a serious example of aggravated burglary:

(a) The applicant committed the offence in the company of two co-offenders.

(b) The offenders entered Mr Barlow's home violently by kicking in the back door.

(c) The offenders pretended to be police officers undertaking a police raid.

(d) The offence occurred at 5 am when Mr Barlow was asleep in his bed.

(e) The offence involved some planning. The offenders not only demanded money and jewellery but specifically mentioned guns. At the very least, it can be inferred that the offenders had received information - possibly from Ms Cole - that there may be guns on the premises and that they intended to steal any guns that were located there.

(f) The trespass lasted for about two hours.

66 Defence counsel was aware that the gravity of the offending was relevant to the exercise of the sentencing discretion and he addressed it. In the light of the above factors, it is not surprising that he conceded that the offending was serious.[29]

67 For completeness, we note that, even if the judge's error were material to his assessment of the gravity of the offending, we would not have granted leave to appeal in respect of ground 1. That is because we are satisfied that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[30]

68 The sentence of 5 years' imprisonment for the aggravated burglary was moderate having regard to the factors referred to at [65] above and the need to specifically deter him and protect the community in the light of his relevant prior criminal history and the judge's assessment that his prospects of rehabilitation were 'guarded'. Had it not been for the mitigating factors upon which the applicant relied, including his plea of guilty, disadvantaged upbringing and psychological condition, a much greater sentence would have been warranted.

Ground 2: Cumulation for charge 2 - Totality and double punishment

69 The applicant submitted that, notwithstanding para 67 of the sentencing remarks,[31] the judge infringed the principles of totality and/or double punishment:

(b) relative to the cumulation ordered on charge 2 (being 50 per cent of the 18 month sentence); and

70 The applicant contended that the judge's order for cumulation in relation to charge 2 was impermissibly high because:

(a) The theft occurred during the trespass the subject of charge 1.

(b) The theft was the result of the intention to steal the subject of charge 1.

(c) The theft occurred essentially simultaneously with the theft the subject of charge 3.

71 The applicant argued that, to the extent that the judge attributed any criminality relating to the tying up of, and threats to, the victims as part of the charges of theft, the judge impermissibly sentenced him for offending for which he was not charged.

72 The applicant accepted that the theft of firearms can elevate the seriousness of the offence of theft. However, he submitted that the judge could not take into account the subsequent use of one of the firearms by a third party as a basis for elevating the applicant's sentence.

73 According to the applicant, the overlap in offending between the three charges required the judge to be astute to avoid punishing him twice for the aggravated burglary and the two theft charges. The applicant accepted that there was separate criminality in the respective charges that had to be reflected in orders for cumulation. However, he contended that the order for cumulation on charge 2 was not a proportionate or just measure of the overall criminality of the offending.

74 The applicant submitted that the judge treated the fact that firearms were stolen as an aggravating factor in relation to both charges 1 and 2. That was said to be the case in relation to charge 1 because the judge referred to the fact that the offenders demanded 'Where are the guns?' when they entered the house. That was said to be the case in relation to charge 2 because the judge stated that '[t]he theft of guns has the risk that they will be used in other criminal activity'. The applicant contended that, by treating the fact that firearms were stolen as an aggravating factor for both charges 1 and 2, the judge doubly punished him. The double punishment was said to be reflected in the high sentence for charge 1 and the high level of cumulation ordered for charge 2.

75 The Crown submitted that para 67 of the sentencing remarks shows that the judge was alert to the principle of totality and was careful in its application.[32] It contended that the separate criminality in the theft charges had to be reflected in orders for cumulation in relation to each of charges 2 and 3. It argued that the theft of firearms elevated the seriousness of charge 2 and that the cumulation order was proportionate and appropriately reflected that seriousness.

76 The Crown submitted that the principle against double punishment was not infringed. According to the Crown, whilst entry to the house was effected with the intention to steal, it was necessary that the thefts of the firearms and other items attract their own separate punishment.

77 In our opinion, there is no substance to ground 2.

78 Charges 2 and 3 involved separate offences against two elderly and frightened victims. The thefts warranted separate sentences and a meaningful degree of cumulation to reflect the distinct criminality.[33] The sentence of 18 months' imprisonment for charge 2 was moderate having regard to the items that were stolen and the circumstances in which the thefts took place, and the cumulation of 9 months was entirely appropriate. Paragraph 67 of the judge's sentencing remarks demonstrates that he took into account the principle of totality.

79 We reject the applicant's contention that the judge doubly punished him by treating the fact that firearms were stolen as an aggravating factor in relation to both charges 1 and 2. The judge's reference to the offenders' demand of 'Where are the guns?' was expressly used by him in para 60(d) of his sentencing remarks to draw the inference that the offenders' purpose of entering the house was to steal.

80 Despite the opening words of para 60 of the judge's sentencing remarks, not all of the six factors that are listed in that paragraph were treated by the judge as aggravating circumstances. The precise wording of paras (d) and (f) indicate that they were not treated as such.

81 Insofar as the applicant contends that the judge took into account the subsequent use of one of the stolen firearms by a third party, we reject that contention. The judge referred to the conviction of a third party for using the firearm in a criminal activity for the purpose of demonstrating that the risk of use of the stolen firearm for subsequent criminal conduct was not merely hypothetical but very real.

82 In our opinion, there is no basis for the applicant's suggestion that the judge relied upon uncharged acts in sentencing him for charges 2 and 3.

83 The applicant submitted that his deprived background entitled him to have the weight placed on specific and general deterrence moderated, in accordance with the principles in Bugmy. Similarly, he contended that his psychological condition at the date of sentencing would mean that a sentence of imprisonment would weigh more heavily on him than it would on a person in normal health, thereby enlivening limb five of Verdins.

84 According to the applicant, the judge did not take issue at the plea hearing with his submissions that the principles in Bugmy and Verdins applied. He emphasised that the judge did not refer in his sentencing remarks to how those principles applied and whether they affected any sentencing purposes. He argued that these considerations were of such significance to the sentencing task that they required the judge to address them in his sentencing remarks, consistent with the approach recommended in Marrah.[34] He contended that the judge's failure to address these considerations indicates that he failed to take them into account.

85 The Crown submitted that, whilst the judge did not make specific reference to Bugmy or Marrah, he recognised that the applicant's 'upbringing was brutal and physically abusive'[35] and therefore he gave the applicant's disadvantaged upbringing due weight in the intuitive sentencing synthesis. According to the Crown, the sentence the judge imposed was 'very modest' and it could be inferred from this that the judge must have taken into account the principles in Bugmy.

86 Similarly, the Crown contended that the sentence imposed reflected that due weight was given to limb five of Verdins, notwithstanding that the judge did not make specific reference to Verdins in his sentencing remarks.

87 The Crown argued that specific reference to Bugmy or Verdins in the sentencing remarks would not have resulted in a markedly different sentence. The Crown therefore submitted that ground 3 ought to fail.

89 As the principles in Bugmy and Verdins were important sentencing considerations which were expressly canvassed on the plea, the judge should have referred to them in his sentencing remarks and explained how they informed the exercise of his sentencing discretion.[36]

90 In the present case, two factors support an inference that, although the judge did not refer to the principles in Bugmy and Verdins in his sentencing remarks, he took them into account in sentencing the applicant.

91 First, those principles were referred to on the plea and the judge accepted that they applied to the applicant. As the plea occurred only three days prior to the sentence, it is likely that the discussion on the plea was fresh in the judge's mind.

92 Secondly, as we have already discussed, the sentence of 5 years' imprisonment that the judge imposed for the aggravated burglary and the cumulation of 9 and 3 months' imprisonment, respectively, that he ordered for the two theft charges, were moderate. This indicates that the Bugmy and Verdins principles were taken into account in the exercise of the sentencing discretion. If those principles had been inapplicable, one would have expected that the sentences and cumulation would have been significantly higher.

93 Ultimately, it is not necessary for us to decide whether it can be inferred that the judge took into account the principles in Bugmy and Verdins. That is because, even if it is assumed that the judge erred by not taking them into account, we would refuse leave to appeal on the basis that we are satisfied that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[37] That is so for the reasons set out at [68] above.

94 It follows that the application for leave to appeal will be refused.

[1] DPP v Bava [2019] VCC 798 ('Sentencing remarks').

[2] Outline of Submissions on behalf of the Offender [11].

[3] Transcript of Proceedings (28 May 2019) 16.24-16.29.

[4] (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy').

[5] [2014] VSCA 119 ('Marrah').

[6] Transcript of Proceedings (28 May 2019) 16.29-17.1.

[7] (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[8] Transcript of Proceedings (28 May 2019) 21.27-22.2.

[9] Transcript of Proceedings (28 May 2019) 22.6-22.7.

[10] Transcript of Proceedings (28 May 2019) 34.30-35.2.

[11] (2013) 249 CLR 571, 594-5 [43]-[44]; [2013] HCA 37 (citations omitted).

[12] [2014] VSCA 119, [16]-[17] (emphasis in original) (citations omitted).

[13] [2007] VSCA 102; (2007) 16 VR 269, 276 [32]; [2007] VSCA 102.

[18] Sentencing remarks [29], [53]-[56].

[21] Sentencing remarks [66]. See [31] above.

[22] See [31] above.

[24] [2015] VSCA 293, [45] ('Barnes').

[25] [2018] VSCA 255, [57] (citations omitted) ('Salapura'). See also R v Ashdown [2003] VSCA 216, [12] ('Ashdown').

[26] [1997] 1 VR 146, 150 ('Newman'). See also Ashdown [2003] VSCA 216, [11].

[27] See [44] above.

[29] See [35] above.

[30] Criminal Procedure Act 2009 s 280(1)(a).

[31] See [49] above.

[32] See [49] above.

[33] See, eg, R v Henderson [1998] VSCA 83; [1999] 1 VR 830, 835-6 [21]; [1998] VSCA 83.

[34] [2014] VSCA 119, [17]. See [42] above.

[36] See Marrah [2014] VSCA 119, [17]; Tannous v The Queen [2017] VSCA 91, [35]; R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 439-40 [62]-[64]; [2008] VSCA 84.

[37] Criminal Procedure Act 2009 s 280(1)(a).