Bux v The Queen [2017] VSCA 70

2 Pursuant to leave granted on 31 August 2016,[1] the appellant appeals against a total effective sentence of nine years and one month's imprisonment, with a non-parole period of six years and six months, imposed in the County Court on 23 May 2016.

3 The appellant pleaded guilty to aggravated burglary;[2] recklessly causing injury;[3] false imprisonment;[4] robbery;[5] and damaging property[6] (and to the summary offence of committing an indictable offence whilst on bail[7]). He was sentenced according to the following table:

12 years' imprisonment with a non-parole period of 9 years

4 There is one ground of appeal formulated as follows:[8]

1. The individual sentences, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.

Particulars:

(a) The Learned Sentencing Judge gave insufficient weight to the [appellant's] early pleas of guilty, his genuine remorse and his prospects for rehabilitation.

(b) The sentences imposed are not consistent with current sentencing practices.

5 In my opinion, for the reasons that follow, the appeal should be dismissed.

6 The victim was an extremely vulnerable, 70 year old man. He had an intellectual disability and had difficulty communicating verbally. Moreover, he was legally blind, walked with the aid of a walking frame and received daily carer support. He did not know the appellant.

7 At the time that he committed the present offences, the appellant was aged 49 years. He was on bail at the time.[9]

8 In the morning of Sunday, 9 August 2015, at about 2.30 am, the victim was alone at his home - a one bedroom unit - when he heard a knock at the front door. He opened the door and saw the appellant through the locked security door's screen. The appellant asked him for a cigarette, but the victim said, 'No', and shut the door.

9 Shortly afterwards, at about 3.30 am, using his walker, the victim unlocked the back door to have a cigarette outside. As he opened the door, the appellant - who apparently had been observing him - grabbed the victim and dragged him to his bedroom (charge 1, aggravated burglary).

10 In the bedroom, the appellant struck the victim multiple times to the area of the face, causing extensive bruising to the face, head and neck. Later examination showed signs of blunt trauma to multiple sites on his head, face, ears and upper limbs (charge 2, recklessly causing injury).

11 After striking the victim repeatedly, the appellant tied his legs together, tied his hands to the bed, and blindfolded and gagged him. There were times when the victim could not see at all (charge 3, false imprisonment).

12 Having incapacitated the victim, the appellant took a suitcase and filled it with the victim's belongings, including three World War II medals, a bank book, personal identification cards, two mobile phones, a clock, a watch, items of clothing and food, as well as coins and cash (charge 4, robbery).

13 The appellant then damaged the telephone landline, so as to ensure that the victim could not raise the alarm (charge 5, damaging property), and left the premises.

14 After the appellant left, the hapless victim managed to free his hands, remove the gag and blindfold, and untie himself. He saw that his unit had been ransacked. The victim felt helpless without a telephone and stayed in the lounge room until the morning. He urinated in his pants. When his carer arrived at the house later in the morning and found the victim, the carer called emergency services.

15 When police arrived, they observed that the victim's eyes were extremely swollen and bruised, and that he had dried blood around his mouth. It was evident that the victim had a disability and was quite frail. The victim was treated by paramedics at the scene, and was then taken to hospital, where the full extent of his injuries was noted. Photographs, Exhibit C, which depict the victim's injuries, are distressing.

16 As a result of what he had endured, the victim was moved to alternative accommodation. Two days later, on 11 August 2015, the victim and his sister took part in a Victoria Police media conference.

17 On 14 August 2015, the appellant went to police as a result of police having visited a relative's property looking for him. The appellant told police that he was with Donna Bux at her unit in Preston on the night of the offences; that he was not on the run and could be contacted through Aboriginal Health Service; that he wanted to do the right thing; and that he did not want to go to gaol, since he had not been inside for 17 years and would be suicidal. Subsequently, he said, 'I'll cut you a deal', but when asked further about this, he did not reply. As he was leaving the police station, the appellant shook the hand of a police officer, pulled him close and whispered, 'Tell them to stop looking'.

18 Three days later, on 17 August 2015, the appellant again attended the police station, this time with a support person. He said that he knew the incident that police were referring to and that they could 'stop looking'. The appellant was arrested and cautioned, then took part in a record of interview in which he made a number of admissions. He helped police recover the medals that he had stolen.

19 The appellant is Aboriginal. He grew up mainly in Shepparton. According to his counsel on the plea, both his mother and father had 'struggles with alcohol', and he grew up in a household 'in which violence and abuse of all types was a regular part of his upbringing'. Violence was his 'way of dealing with things'.

20 It seems that the appellant completed year 10 at school, and then did a plumbing apprenticeship for about two years. At the age of 19 years, he entered into a relationship which lasted for some 13 years, and had two daughters.

21 According to his counsel, up until 1998 the appellant 'was not a man who had the power to stop using drugs'. The 'desire for drugs and alcohol and money for same, combined with a background in which violence and the use of violence was an everyday occurrence led him to think relatively little of committing the type of acquisitive offending, punctuated with violence, which characterised his life and caused him to serve numerous custodial sentences up until 1998'. In 1998, however, he went into rehabilitation at the Percy Green Centre and 'found solace in religion'.

22 It is convenient at this point to pause to describe the appellant's prior convictions. A noteworthy feature of his criminal history is that, although the appellant attracted a number of prior convictions between 1985 and 1998, there was an extended period of some 14 years between 1998 and 2012 when he did not offend.

23 The appellant's criminal history commences in October 1985, when he was dealt with for burglary and criminal damage, and was sentenced to a three month attendance order. A few months later, in May 1986, he was dealt with for attempted armed robbery and two charges of assault occasioning actual bodily harm, and was sentenced to a total effective sentence of two years' imprisonment. Not quite two years later, in March 1988, he was sentenced to a total effective sentence of six months' imprisonment for burglary, theft and theft of a motor vehicle; and shortly afterwards, in April 1988, he was sentenced to a total effective sentence of two months' imprisonment for burglary and theft. Three years then passed, before the appellant was fined $300 in May 1991 for assaulting police. Another three years intervened before, in November 1994, the appellant was sentenced to a total effective sentence of 12 months' imprisonment, suspended for two years, for intentionally or recklessly causing injury, child stealing, arson, assaulting police, two charges of theft and one charge of assaulting police on duty. On 5 March 1996, the appellant was sentenced to a total effective sentence of eight months' imprisonment, suspended for 12 months, for two charges of robbery; and on 7 April 1997, he was fined on two charges of resisting police, possessing a regulated weapon and being drunk in a public place.

24 I pause once more to note that in 1998 the appellant went into rehabilitation, where he met his current wife. That year, on 26 February 1998, a judge imposed a 'merciful' sentence[10] of 12 months' imprisonment, suspended for 14 months, for attempted armed robbery, burglary and two charges of theft. And on 6 April 1998, the appellant was sentenced to a total effective sentence of seven days' imprisonment, suspended for 24 months, for resisting police, being drunk in a public place, theft from a shop and driving whilst disqualified. Remarkably, 14 years then elapsed, during which time the appellant became a significant and respected member of the community in Shepparton - ultimately becoming a pastor - until, on 16 April 2012, he was fined for theft. Lastly, on 17 May 2013, the appellant received a conditional undertaking (with conviction) for one year, for assault with a weapon, assaulting police and resisting police.

25 On the plea, the appellant's counsel told the judge that 'about 2010', the appellant 'found himself burnt out by the work he was doing'. He resigned as a pastor and started using cannabis, alcohol and 'ice' (methylamphetamine). Counsel submitted that 'certainly, this is an offence which was committed while under the influence of ice, having been awake for days by virtue of its use'.

26 In October 2013, the appellant and his wife moved to Melbourne, and sought help for his drug issues from the Victorian Aboriginal Health Service Cooperative. According to the appellant's counsel, due to his alcohol and drug use, the appellant's wife left him in August 2015 'for her own safety and for her own mental well-being'.

27 In support of the contention that the sentence was manifestly excessive, the appellant's counsel submitted that the appellant pleaded at an early stage and his pleas were significant. Counsel stressed that the appellant had co-operated with police and had helped them recover the World War II medals, which were of great sentimental value to the victim. In the written case it was said that the pleas of guilty 'spared the elderly and disabled victim the trauma of having to give evidence'. They also 'indicate a willingness to facilitate the course of justice'. Beyond the guilty pleas, there is also evidence of remorse.

28 Counsel submitted that, while it was accepted that the appellant's prospects of rehabilitation are 'guarded', the sentence imposed did not reflect those prospects. Furthermore, it was argued that insufficient weight must have been given to the appellant's relationship with, and support of, his partner; the long period during which he remained offence free; his faith; and his acknowledgment of his offending and its seriousness.

29 It was submitted that, whilst some cumulation between the sentences on individual charges was warranted, the orders for cumulation made are excessive, and have resulted in a manifestly excessive total effective sentence.

30 Counsel submitted that charge 1 (aggravated burglary) was out of step with current sentencing practices. (He also contended that the sentence on charge 5, criminal damage, was outside the available range.) Relying on Meyers,[11] it was submitted in the written case that the aggravated burglary in this case could be 'categorised in the middle to low range of seriousness'. Upon the hearing in this court, however, counsel abandoned that characterisation. I would note in that regard that the facts of none of the cases referred to by counsel were comparable to the facts of the present case, which has the unique features that I have previously adverted to (in particular, the entry into the house of an elderly, frail victim in the dead of night).

31 In my view, each of the individual sentences for aggravated burglary (charge 1), recklessly causing injury (charge 2), false imprisonment (charge 3) and robbery (charge 4), were well within the range of those open in the proper exercise of the sentencing discretion. The only individual sentence that has given me pause is that of two years' imprisonment imposed on charge 5, damaging property. Given, however, that the effect of that offence was to damage the telephone landline, thereby diminishing the capacity for the vulnerable and isolated victim to raise the alarm, although the individual sentence on that charge must be seen as stern, I cannot conclude that it is wholly outside the available range.

32 Having now had the benefit of full oral argument, I do not accept the appellant's contention that the sentence for aggravated burglary is manifestly excessive. The appellant's was very serious offending, warranting substantial punishment. Although the appellant may not have appreciated the full extent of the victim's disabilities, it must have been plain to him that the victim was elderly and extremely frail. Indeed, I would infer from the circumstances that it was the appellant's recognition of the victim's apparent vulnerability that led him to target him. The appellant entered the victim's home, where the victim was entitled to feel safe, and subjected him to gratuitous violence designed to terrorise him. Moreover, as I have indicated, the aggravated burglary was premeditated and calculated, the appellant having kept the victim under observation for a period of time before forcing his way into his home. Insofar as such categories are meaningful,[12] I would not regard the circumstances of this case as placing the aggravated burglary in the 'middle to low range of seriousness'.

33 Overall, the appellant's offending was nasty. As I have said, the violence inflicted on the frail and powerless victim was gratuitous; and, beyond the physical injuries that he suffered, the psychological effects upon the victim have been profound. Having been tied up, gagged and blindfolded in his one bedroom unit - according to his sister, 'his prized possession' - the victim feared that he would be killed. He has been deprived of his hard won and 'cherished independence and freedom', and is now too frightened to live alone.

34 Although the appellant's history between 1998 and 2012 perhaps shows that he is not completely beyond reclamation, his criminal antecedents otherwise are not a source of much optimism. He has several prior convictions for robbery and other violent offending, and in the past has received a number of lenient sentences, in apparent recognition that the appellant had some prospects of rehabilitation. Of course, although the appellant is not again to be punished for his past behaviour, he is not a candidate for the leniency that might be extended to a young or first time offender. The appellant has amply demonstrated by his previous violent and anti-social offending that, when in the grip of alcohol or drugs, he represents a danger to the community. In my view, the need for specific deterrence was very important in arriving at an appropriate sentence for the appellant's offending - particularly given the failure of previous lenient sentences to deter him from relapse into crime - in recognition of the community's need to be protected. Furthermore, general deterrence was also important in any sentence to be imposed, so as to deter like-minded individuals from similar very serious criminality. Moreover, there was a need to punish the appellant for his outrageous offending, and to denounce his behaviour.

35 The appellant's offending against the defenceless victim was appalling. Had it not been for his plea of guilty, a sentence of imprisonment of 'double figures' would have been appropriate. With the benefit of full argument, I am far from persuaded that the sentence imposed is, in any of the ways asserted, manifestly excessive.

[1] Bux v The Queen (Unreported, Supreme Court of Victoria Court of Appeal, Priest JA, 31 August 2016).

[2] Crimes Act 1958, s 77(1). The maximum penalty is 25 years' imprisonment.

[3] Crimes Act 1958, s 18. The maximum penalty is 5 years' imprisonment.

[4] Common law. By virtue of the Crimes Act 1958, s 320, the maximum penalty is 10 years' imprisonment.

[5] Crimes Act 1958, s 75(1). The maximum penalty is 15 years' imprisonment.

[6] Crimes Act 1958, s 197(1). The maximum penalty is 10 years' imprisonment.

[7] Bail Act 1977, s 30B. The maximum penalty is 3 months' imprisonment.

[8] Leave was refused on a second ground, which asserted that the sentencing judge 'erred in failing to apply the rule against double punishment in sentencing the Applicant for Aggravated Burglary'. No election was filed with respect to this ground.

[9] On 3 July 2015, he had been bailed to appear at the Magistrates' Court on 10 November 2015 for theft and possessing a controlled weapon.

[10] So described by the appellant's counsel on the plea.

[11] DPP v Meyers (2014) 44 VR 486.

[12] See R v Kilic [2016] HCA 48; (2016) 339 ALR 229, 235 [19].