Comensoli v The Queen [2020] VSCA 2

Ms A Hogan, Acting Solicitor for Public Prosecutions

1 The applicant pleaded guilty to five charges of theft, one charge of intentionally damage property, one charge of aggravated burglary, one charge of dishonestly handling stolen goods and related summary offences. He was sentenced to a total effective sentence of 3 years and 3 months' imprisonment, with a non-parole period of 1 year and 8 months' imprisonment.

2 The base sentence was the sentence of 3 years' imprisonment imposed on the charge of aggravated burglary. It is that sentence to which the application for leave to appeal is directed. The principal complaint is that the judge erred in his assessment of the seriousness of the offence.

3 For reasons which follow, leave to appeal must be refused. The sentencing judge was right to treat this as a serious instance of aggravated burglary. The applicant entered the premises by force, at night, aware that someone was likely to be at home. The householder lived there with her two young children. She was in bed when she saw a shadow near the door. She then saw the applicant with her purse in his mouth and screamed. As his Honour said, the applicant's actions 'resulted in what would have been a very frightening experience for the victim'.[1]

4 This was, in many respects, the archetypal aggravated burglary. The offender makes a forced entry to premises at night, intending to steal, well aware that there are likely to be persons present. It is the kind of offending which strikes terror into the hearts of members of the community.

5 The sentence of 3 years' imprisonment must be regarded as lenient, in our view, given what was said in Hogarth v The Queen[2] and Director of Public Prosecutions v Meyers[3] about the need for increased sentences for aggravated burglary. Furthermore, specific deterrence and community protection were very important considerations in this case, as the applicant was on bail at the time and - as part of an extensive history of drug-related offending - had a prior conviction for aggravated burglary.

6 On 19 June 2018, a woman ('J') was in the poker machine area of a hotel in South Melbourne. She hung her jacket over the back of her chair, and went off to walk around the venue. J's car keys were in the pocket of this jacket.

7 The applicant was also at the hotel and approached J's jacket, feeling the pockets and then stealing the jacket (charge 1 - theft). The applicant then made his way in to the carpark and used the car keys to unlock J's Toyota Yaris, stealing the vehicle (charge 2 - theft).

8 Later in the evening, the applicant drove to an address in Kings Park, where he stole registration plates from another Toyota Yaris and a wallet from within the vehicle (charge 3 - theft). The applicant then drove to the end of the street, switching over the registration plates of J's car and discarding her registration plates, as well as other items from within the car.

9 The applicant then gained entry to a Ford Sedan, by smashing a window to the car, and stole various tools from a Toyota Hilux. Both vehicles were parked outside a house (charge 4 - theft and charge 5 - criminal damage).

10 The applicant then entered the house by jemmying open the front door. The occupant ('K') was inside with her 4-month old baby and 8-year-old daughter. K was lying in bed in the front bedroom and observed a shadow near the door. She saw the applicant with her purse in his mouth and screamed (charge 6 - aggravated burglary and charge 7 - theft).

11 The applicant fled the house, with K chasing after him. The applicant entered the Toyota Yaris and K attempted to grab the steering wheel whilst calling out for help. The applicant got out of the vehicle and chased K up the driveway on foot before returning to the Toyota Yaris, where K believed she saw the applicant with an item that possibly resembled a bat. The applicant then drove the Yaris towards K, causing her to flee back towards the house. K told police that she did not believe the applicant intended to hurt her, but just to scare her.

12 Police responded to a '000' call placed by K. While travelling to K's residence, they noticed the applicant driving the stolen Yaris in an erratic manner. Police followed the applicant for a time before he pulled into a drive way. They pulled up behind him, activating the lights and sirens in an attempt to intercept him. The applicant then reversed the vehicle towards the police vehicle, causing police to take evasive action. He then left the area (summary charge 9 - fail to stop when directed by police).

13 Two days later, the applicant was driving the Yaris and was observed by police driving erratically. Police followed him and checked the registration plates, establishing that they were stolen. After the applicant attempted to flee, the police took up position immediately behind and prevented him from driving away. The applicant ran from the police but was eventually arrested. There was a large amount of mail and documentation in the Yaris, as well as keys previously stolen from another person (charge 8 - handling stolen goods).

14 At the time of the driving, the applicant had a cancelled P2 probationary licence and was disqualified from driving. Further, the applicant was on bail at the time of this offending (summary charge 10 - drive whilst disqualified and summary charge 15 - committing an indictable offence whilst on bail).

4 years with a non-parole period of 2 years and 3 months

Other relevant order: disposal order, cancellation of licence for 12 months

16 The application for leave to appeal advances a single ground, namely, that the sentence on charge 6, and the resulting non-parole period, are manifestly excessive.

17 The defence submission on the plea was that a combination sentence (comprising time served of 476 days and a community corrections order) was appropriate given that the applicant fell to be sentenced for 'a non-confrontational aggravated burglary'. It was further submitted that the offending was 'at the lower end in terms of gravity and seriousness', given that:

• the applicant had acted alone and not in company;
• he had not gone far inside the premises;
• the incident lasted only a matter of minutes; and
• no weapon was used.

18 In this Court, counsel for the applicant (who had also appeared on the plea) submitted that the offence of aggravated burglary was an offence which captured a 'continuum' of criminality and acknowledged that the 'species' of aggravated burglary involving intent to steal was not inherently less serious than that involving intent to assault or cause damage. He accepted that, depending on the circumstances, entry with intent to steal could be just as serious. These concessions were properly made.

19 In Hogarth, the Court set out what had been said by the Attorney-General about the seriousness of aggravated burglary, at the time the maximum penalty was increased to 25 years' imprisonment:

The prevalence of burglary and home-invasion-style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The Government wishes to send a message to offenders that these crimes will not be tolerated. Under the Bill, where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of a person on the premises, the offender will be guilty of aggravated burglary. Aggravated burglary will carry a new maximum term of 25 years' imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.[4]

20 Against that background, there is no justification for viewing the type of aggravated burglary committed by the applicant as inherently less serious than the 'home invasion' or 'confrontational' type discussed in Hogarth and Meyers. On the contrary, offending of this kind is - subject always to the particular circumstances - capable of being every bit as serious, because it destroys the sense of security that people are entitled to feel in their homes and because of the psychological trauma which a forced entry of this kind inevitably causes.[5]

21 Counsel accepted that the assessment of offence seriousness depended on the presence or absence of the various features identified in Meyers, as follows:

Determining the sentence to be imposed for any particular offence of aggravated burglary will in large part depend on a careful assessment of the (relative) seriousness of the offence. There was argument on the appeal about how the gravity of this particular instance of aggravated burglary should be assessed.

In our view, the following considerations will ordinarily be relevant to such an assessment:

• the offender's intent at the point of entry (whether to steal or commit assault or cause damage);
• the mode of entry (eg, by forcing a door or breaking a window);
• whether the offender was carrying a weapon;
• whether the offender was alone or in company;
• the time of day at which the burglary took place;
• what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
• whether the offender was someone of whom the victim was particularly frightened.

The particular purpose which the offender has in mind at the point of entry is a significant feature going to the gravity of the offence. Of course, the intent on entry is conceptually distinct from what occurs after entry, but the offender's conduct once inside the premises will usually enable inferences to be drawn about the intent on entry.[6]

22 In our view, the sentencing judge was right to reject defence counsel's 'lower end' characterisation. His Honour said:

True it is that some of the aggravating features relevant to an assessment of the objective gravity of an aggravated burglary are not present here, such as possession of a weapon or being in company or where a physical assault has occurred. However other factors that are present in this instance add in my view to the seriousness of the offence. For example, the fact that you [jemmied] the front door, the fact that you entered at night, and the fact that in the course of stealing the items there was the confrontation with [K], in my view elevates your offending above what your counsel submitted is an offence 'at the lower end in terms of gravity'.

Further, while the offence of aggravated burglary was complete when you left and attempted to drive off, while attempting to stop you (presumably in an attempt to prevent you stealing her bag) you again confronted the victim first, by getting out of the car, and secondly by driving the car towards her in order to make your escape. These acts are of course uncharged but as noted by the victim in her statement, it was her view that they were designed to scare her.[7]

23 The applicant was 26 when he committed the offences, and 27 at the time of sentence. His counsel rightly disavowed any reliance on youth as a sentencing consideration. As the judge noted, the applicant has an extensive history of offences of dishonesty and violence, almost all attributable to his long-standing methylamphetamine drug addiction.

24 It was submitted on the plea that the applicant had, finally, begun to recognise a nexus between his drug use and his offending behaviour. This awareness was said to have emerged as a result of his having been abstinent during his 16 months on remand, and also because of two personal tragedies - his partner's miscarriage and the death of his grandfather. He was said to be at a 'pivotal time' in his life, such that he should be given 'one last opportunity' to rehabilitate himself.

25 As the judge pointed out, however, the applicant had been repeatedly given opportunities for rehabilitation through community correction orders. On four successive occasions over the period 2014-2016, he had breached community correction orders by committing drug-related offences. Moreover, the present offences were committed while the applicant was on bail for other dishonesty offences, which themselves had been committed only one day after his release from serving a sentence of 8 months' imprisonment for similar offences.

26 Significantly, the applicant had a prior conviction for aggravated burglary in 2015, for which he received a period of imprisonment. By his own admission, the longest time he had remained drug-free after being released from prison was a week.

27 The judge commented during argument on the plea that it could be 'incredibly difficult' for a person to overcome drug addiction. Accepting that this is so, we respectfully agree with his Honour that, in the circumstances of this case, the need for specific deterrence and protection of the community left him no alternative but to impose a substantial term of imprisonment. The inability of the applicant to take advantage of previous CCOs, with their unique capacity to promote rehabilitation and encourage personal responsibility, meant that 'the retributive and deterrent purposes of punishment must take precedence'.[8]

We do not consider that current sentencing for confrontational aggravated burglary reflects the objective seriousness of this form of the offence. The clustering of sentences around a median of two years shows how far current sentencing has departed from the parameters set by the maximum penalty of 25 years.

It cannot have been Parliament's intention that, with a few isolated exceptions, sentencing for the full range of such offences should be bounded by an upper limit of six (or at most seven) years' imprisonment. As the Court said in Director of Public Prosecutions v CPD:

The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.

...

It follows, in our view, that current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practice. The necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases.[9]

29 The Court in Meyers was at pains to emphasise that the decision in Hogarth - that sentencing for aggravated burglary was inadequate and should be increased - was not confined to a particular subset of offending. Rather, the Court said,

the decision in Hogarth should be viewed as having removed the constraint of [current sentencing practices] for aggravated burglary in all of its more serious forms.[10]

30 It was common ground in this Court that what was said in those cases continues to apply with full force, and was applicable to the present sentencing exercise. Given the seriousness of this offence, and the applicant's very serious criminal history, 3 years' imprisonment was a lenient sentence indeed. A substantially higher sentence would have been within range, in our view.

[1] DPP v Comensoli [2019] VCC 1741, [27] ('Reasons').

[2] (2012) 37 VR 658; [2012] VSCA 302 ('Hogarth').

[3] (2014) 44 VR 486; [2014] VSCA 314 ('Meyers').

[4] [2012] VSCA 302; (2012) 37 VR 658, 668 [36]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA), quoting Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873 (Jan Wade, Attorney-General).

[5] See Dirbass v The Queen [2018] VSCA 272, [11], [62]-[65] (Kyrou and Ashley JJA).

[6] Meyers [2014] VSCA 314; (2014) 44 VR 486, 498 [47]-[49]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA) (citations omitted).

[8] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 335 [112]-[114]; [2014] VSCA 342 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (citations omitted).

[9] Hogarth [2012] VSCA 302; (2012) 37 VR 658, 673-4 [58]-[59], [62]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA).

[10] Meyers [2014] VSCA 314; (2014) 44 VR 486, 495 [37]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA).