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[2018] VSCA 272
General information, not legal advice.
Court of Appeal (Vic)
2018-10-26
Mr J, Priest JA, Kyrou JA, Ashley JA
Original judgment source is linked above.
DPP v Dirbass [2017] VCC 890 (Judge Davis)
CRIMINAL LAW - Sentence - 3 years and 3 months' imprisonment for aggravated burglary charge - 1 year and 3 months' imprisonment, with 6 months cumulation for theft charge - Extensive criminal history including 3 prior aggravated burglary offences - Whether sentencing judge erred in assessing objective gravity of aggravated burglary offence - Leave to appeal refused.
1 On 19 June 2017, the applicant pleaded guilty to the charges set out in the following table. On 30 June 2017, he was sentenced as set out in that table.[1]
Theft [Crimes Act s 74(1)]
Total Effective Sentence: 3 years, 9 months' imprisonment
2 The offending occurred during a single incident, when the applicant broke into a residential property and stole a Mercedes vehicle worth approximately $50,000 and other property worth approximately $30,000.
3 The applicant applied for leave to appeal on the sole ground that the judge 'erred in assessing the objective gravity of the aggravated burglary'. On 23 March 2018, Priest JA refused the application.[2] The applicant has elected to renew his application pursuant to s 315(2) of the Criminal Procedure Act 2009 ('CPA').
4 For the reasons that follow, the application for leave to appeal will be refused.
5 On 16 February 2015, at approximately 3:24 am, the applicant went to a two level house in Barkly Street, St Kilda where the Harwood family resided. At the time the applicant arrived, Rob Harwood was home alone, sleeping in an upstairs bedroom. His Mercedes was parked in the garage.
6 The applicant was equipped with a jemmy bar, which he used to force open a glass sliding door on the side of the house, through which he entered the house (charge 1).
7 Once inside, the applicant searched the house while still carrying the jemmy bar, including upstairs to an area near where Mr Harwood was sleeping. The applicant located two sets of keys to the Mercedes during his search and loaded computer equipment, sunglasses, golf clubs and other household property into the vehicle. He then used the keys to open the garage door and drive the vehicle away (charge 2).
8 Mr Harwood called police when he woke the next morning and discovered the burglary. Police reviewed CCTV footage inside and outside of the house. That footage shows the applicant:
(a) arriving at 3:24 am with a jemmy bar and some shopping bags;
(b) entering the main room downstairs and searching various locations including cupboards and drawers;
(e) holding the jemmy bar while searching the doorways to bedrooms (in one of which Mr Harwood was sleeping);
(f) exiting the house on two separate occasions and walking north in Barkly Street for a few minutes before returning to the house; and
(g) driving the Mercedes out of the garage at about 4:22 am.
9 On 2 March 2015, police found the applicant sleeping in a stairwell of another property in St Kilda and seized from him two sets of keys to the Mercedes. The Mercedes was located by police in Avondale Heights on 27 March 2015.
10 The applicant was arrested on 20 May 2015. His fingerprints matched a fingerprint on a cigarette packet located in the front seat of the Mercedes.
11 In his victim impact statement, Mr Harwood stated that he will never feel comfortable sleeping in his house and that he has had multiple sleepless nights and nightmares as a result of the offending.
12 The applicant was 39 years old at the time of the offending and 42 when he was sentenced. He is an only child and was raised in public housing flats in Flemington, where he was exposed to criminality. His parents are now both in ill-health.
13 The applicant completed Year 11 at school. Between the ages of 11 and 17, while still at school, he worked as a motor trade assistant. He was sexually abused by his employer during that time.
14 The applicant began using heroin when he was 18 or 19 years old. As a result of his drug use, his parents forced him to leave the family home when he was 19 years old. He then worked in a factory between the ages of 19 and 21, before operating a car servicing business for approximately 12 months. He has been unemployed since approximately 1998 and has experienced periods of homelessness.
15 The applicant used heroin from his teenage years until March 2015. During that period of drug use, he had abstained for periods of up to 18 months, and undertaken three periods of residential rehabilitation. In the approximately 18 months after he ceased using heroin, he relapsed four or five times, limited to single episodes of use. He has stated that drug use was not a factor in the current offending.
16 In 2015, the applicant successfully completed a court integrated services program ('CISP'), participation in which was a condition of a bail agreement. As part of that program he was referred to 'First Step', a program directed at helping people to overcome drug addiction and associated mental health and social issues. He was prescribed methadone, completed a mental health care plan and received periods of treatment and counselling for his opiate addiction from specialist medical practitioners, and attended counselling with a mental health nurse. The applicant's case manager stated that he had engaged well with the program and had been resourceful in accessing services able to assist him.
17 Since being in custody for the current offending, the applicant has completed a number of courses, including a 24-hour drug and alcohol treatment program and a legal education program. He has also submitted five urine screens between 7 September 2016 and 30 April 2017, which indicated that he had not taken any illicit substances.
18 The applicant has taken antidepressants since about 2007 and also takes medication to assist him to sleep. He has continued to use methadone while in custody.
19 A Victoria Police Criminal History Report on the applicant is 33 pages in length. The report discloses that from 11 January 1993, when he was 17 years old, until the time of the current offending, the applicant has engaged in relentless criminality. The offences he committed ranged from relatively minor offences, such as possessing or using drugs of dependence and motor vehicle offences, to more serious offences involving violence, damage to property and dishonesty.
(a) the offences involving violence and damage to property committed by the applicant include:
(b) The offences involving dishonesty committed by the applicant include:
(c) Other offences committed by the applicant include 1 offence of escaping from custody of a member of police, 1 offence of attempting to escape from prison or police, 1 offence of carrying a controlled weapon without excuse, 3 offences of possessing a controlled weapon without excuse, 7 offences of failing to answer bail, 1 offence of failing to obey a lawful police direction, 6 offences of resisting police, 6 offences of stating a false address and 7 offences of stating a false name.
(d) All but one of the applicant's offences have been dealt with in the Magistrates' Court. That Court has imposed a variety of custodial and non-custodial sentences on the applicant, including suspended prison sentences, community based orders ('CBO') and a community correction order ('CCO'). The applicant breached the terms of suspended prison sentences on several occasions as well as the conditions of two CBOs and the CCO.
(e) The applicant successfully appealed to the County Court in respect of some sentences imposed by the Magistrates' Court, resulting in more favourable dispositions.
21 As we have stated, the applicant has three previous convictions for aggravated burglary. Two of the offences, for which he was sentenced by the Magistrates' Court on 15 December 2000 and 10 March 2005, respectively, involved as the particular of the offence that at the time the applicant entered the relevant building he knew that a person was present in that building or was reckless as to whether a person was so present.[3] On the first occasion, he was sentenced to an aggregate term of 9 months' imprisonment, 3 months of which was suspended, and on the second occasion, he was sentenced to 3 months' imprisonment. The third offence, for which he was sentenced to 2 years' imprisonment by the County Court on 25 March 2003, involved as the particular of the offence that the applicant had with him an offensive weapon at the time he entered the relevant building.[4]
22 On 5 June 2015, less than a month after he was arrested for the current offending and while on bail, the applicant stole another motor vehicle. On 28 July 2017, another County Court judge sentenced him to 12 months' imprisonment and ordered that 4 months of that sentence be served cumulatively on the sentence for the current offending.[5] The applicant has sought leave to appeal from that sentence. That application has not yet been heard.
23 In order to appreciate the background to the agreed factual basis upon which the applicant pleaded guilty to the aggravated burglary charge, and the submissions that were made in relation to that charge on the plea and before this Court, it is necessary to refer to the elements of the offence of aggravated burglary.
24 That offence is established by s 77 of the Crimes Act, which relevantly provides:
77 Aggravated burglary
(1) A person is guilty of aggravated burglary if he or she commits a burglary and -
(a) at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or
(b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.
(1A) For the purposes of subsection (1) -
...
offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose.
76 Burglary
(1) A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent -
(a) to steal anything in the building or part in question; or
(b) to commit an offence -
(i) involving an assault to a person in the building or part in question; or
(ii) involving any damage to the building or to property in the building or part in question -
which is punishable with imprisonment for a term of five years or more.
(a) the offender enters a building as a trespasser with intent to steal, assault a person in the building or damage either the building or property in the building; and
(i) the offender has with him or her an offensive weapon; or
(ii) a person is present in the building and the offender knew that a person was then so present or was reckless as to whether or not a person was then so present.
27 Charge 1 on the indictment originally alleged that the applicant entered the Barkly Street house as a trespasser with intent to steal and at the time of entering the house, he both had with him an offensive weapon, namely a jemmy bar, and there was a person present in the house and the applicant was reckless as to whether or not a person was then present in the house. The applicant pleaded not guilty to that charge. However, following negotiations with the prosecution, the charge was amended and, on the morning of the first day of the trial, he pleaded guilty to the amended charge. The amended charge alleged that the applicant entered the Barkly Street house as a trespasser with intent to steal and, at the time of entry into the house, a person was then present in the house and the applicant knew that a person was so present or was reckless as to whether or not a person was so present.
28 On the plea, the applicant submitted that the aggravated burglary was 'a relatively minor example of this type of offence' because: it involved an intent to steal rather than to assault or cause damage to property; there was no allegation that the applicant was armed with an offensive weapon at the time of entry; the applicant was the sole intruder; there was no confrontation with an occupant; and the offending involved minimal planning and premeditation. He contended that, if he had been charged originally with the aggravated burglary offence as particularised in the amended indictment, that offence might have been dealt with summarily in the Magistrates' Court, in which case, that Court's jurisdictional limit of 2 years' imprisonment would have applied.[6]
29 The prosecutor submitted that the applicant should be considered as a 'mid-range offender'.[7]
30 The judge sought clarification of the prosecutor's submission. The following exchange took place:
HER HONOUR: [W]hen you say mid-range offending, in the hierarchy of the offences ... the most serious offending would be entering with intention to assault and the confrontational type of aggravated burglaries ... But where the least serious category would be intent to steal ... Obviously if nobody was present, that would be the least serious category. Then we move one up where you're entering with intent to steal and there is someone present ... So how do you get from what looks on the face of it to be perhaps at the lower end of that hierarchy to mid-range?
[PROSECUTOR]: We're going up to mid-range by different means of taking the steps and that's really his criminal history, Your Honour that he's got three more [aggravated burglaries] ... And I don't disagree ... there are clearly many, many more serious ... instances of aggravated burglary but it's very aggravating in one sense in this case that he's done that with the history that he's had and not been deterred.
HER HONOUR: All right, I follow that, yes.[8]
31 The judge determined that, in relation to the aggravated burglary charge, the applicant's offending 'lies in the midrange of seriousness for this kind of offence'.[9] Her reasons were as follows:
The prosecution submitted that in the light of [the applicant's] relevant prior convictions, [his] offending ought to be seen as mid-range in seriousness, that general and specific deterrence, as well as protection of the community, are the major sentencing considerations, and that in the absence of significant mitigatory factors apart from [his] plea of guilty, a substantial custodial sentence is warranted. It was submitted that [the applicant] entered the property during the night, knowing that it was likely to be occupied, spent quite a bit of time there while loading up the car, and stole a $50,000 car as well as $30,000 worth of goods. [He was] carrying a jemmy bar, which created a level of danger.
In the light of [the applicant's] prior convictions, it was submitted that it was highly unlikely that [his] matter would ever have been dealt with summarily.
In terms of the gravity of [the applicant's] offending, I accept that [he] went there alone with the jemmy bar with intent to steal, and that [he] had no contact with the victim. However, [he] invaded a private home in the middle of the night when residents were likely to be at home in bed. [He] spent some time there searching rooms, going in and out of the house, and filling the victim's car with items taken from the house. I am unable to say that this was a spontaneous home invasion but I accept that there was no sophisticated planning.
[The applicant has] three prior convictions for aggravated burglary, one of which involved a lengthy custodial disposition from this court. In the circumstances, I consider that [the applicant's] offending lies in the midrange of seriousness for this kind of offence. The theft of the car and items together, to the value of $80,000, is also serious offending. I am mindful, however, of the need to avoid double punishment in respect of the two offences for which [the applicant is] being sentenced.[10]
32 The judge stated that the applicant was entitled to a discount for his plea of guilty and accepted that he took responsibility for his actions. The judge took into account the applicant's disadvantaged background and his engagement with the CISP program in late-2015. However, she said that, apart from the applicant's plea of guilty, there was no other evidence of remorse. She found that, in the light of the applicant's current offending, his prospects of rehabilitation 'must be viewed as guarded'.[11]
33 The applicant submitted that the sentencing discretion miscarried because the judge erroneously treated his criminal history as an aggravating factor in relation to the aggravated burglary offence. In support of this submission, the applicant relied on a number of authorities including Veen v The Queen [No 2],[12] Baumer v The Queen,[13] Hoare v The Queen[14] and R v McNaughton.[15] These authorities are discussed at [48]-[51] below.
34 The applicant contended that the error referred to above led the judge to further error, namely the mischaracterisation of his offending as in the 'midrange' and the imposition of a sentence which was disproportionate to the objective gravity of that offending. In his oral submissions, the applicant elaborated that, by treating his criminal history as an aggravating feature, the judge also undervalued the submission made on the plea that his offending could have been dealt with summarily in the Magistrates' Court, which was relevant to its objective gravity. He noted that the sentence of 3 years and 3 months' imprisonment was 162 per cent of the 2 year jurisdictional limit of the Magistrates' Court.
35 According to the applicant, if the judge had properly considered the objective gravity of the aggravated burglary offence, she would have concluded that it fell towards the lower end of the spectrum for offences of its type. This was said to be because: the offending involved an intent to steal rather than to assault or cause damage to property; he acted alone; he did not carry a weapon; he had no contact with any occupant of the Barkly Street house; and the offending did not involve any substantial planning or premeditation. The applicant submitted that aggravated burglaries involving an intent to steal are objectively less grave than those which involve an intent to assault or damage property.
36 The applicant argued that if the gravity of his offending is assessed properly and appropriate weight is given to the mitigating circumstances he is able to call in aid, a sentence of 3 years and 3 months' imprisonment for the aggravated burglary offence must be regarded as disproportionate. The mitigating circumstances on which he particularly relied were his plea of guilty, his profoundly disadvantaged background - including the sexual abuse he suffered, his long-term drug addiction and homelessness - and his recent efforts to remain drug-free and his successful engagement with CISP and other rehabilitative programs.
37 The applicant relied on sentencing statistics published by the Sentencing Advisory Council in support of his contention that, when the objective circumstances of the aggravated burglary offence are properly considered, the sentence of 3 years and 3 months' imprisonment is excessive and that a lower sentence is warranted. In particular, the applicant noted that in the 4-year period between 1 July 2010 and 30 June 2015, the median term of imprisonment for an individual sentence of aggravated burglary imposed in the higher courts was 2 years and 6 months.[16]
38 The applicant emphasised that, as the aggravated burglary charge relied on an intent to steal and the value of the items stolen did not exceed $100,000, the charge was capable of being heard and determined summarily in accordance with s 28(1)(a) and cl 4.7 of sch 2 to the CPA. He relied on the fact that the maximum term of imprisonment that the Magistrates' Court can impose for an offence determined summarily is 2 years' imprisonment.[17] He also relied on statistics published by the Sentencing Advisory Council which show that, over the 3-year period from 1 July 2013 until 30 June 2016, 542 offenders were sentenced for aggravated burglary by the Magistrates' Court.[18] He said that this indicated that the vast majority of offences which involved an intent to steal resulted in sentences not exceeding 2 years' imprisonment.
39 The applicant contended that it is relevant to this Court's consideration of whether a less severe sentence ought to be imposed, that he had lost the opportunity to have the matter dealt with in the Magistrates' Court because he was originally charged with the particular that he had with him an offensive weapon. He submitted that two of his previous convictions for aggravated burglary, which had the same particulars as the current offending, had been dealt with in the Magistrates' Court and he had received significantly lesser sentences. Accordingly, he argued, he had been unnecessarily exposed to the greater jurisdictional sentencing limit of the higher courts.
40 The respondent submitted that the judge did not err in taking into account the applicant's criminal history in determining that his offending fell within the 'midrange'. In support of this submission, the respondent relied on the following passage from the High Court decision in R v Kilic:
Where ... an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty ... a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called.[19]
41 According to the respondent, the reference to the facts of the offender in the above passage means that the circumstances of the offender - including his criminal history - as well as the circumstances of the offence are relevant to an assessment of the gravity of the offence.
42 The respondent contended that, even if the judge erred in taking into account the applicant's criminal history in assessing the gravity of the aggravated burglary offence, this Court should refuse leave to appeal under s 280(1)(a) of the CPA because it could not be satisfied that a less severe sentence should be imposed. This was said to be because of the features of the offending on which the judge relied. Those features were that: the applicant invaded a private home in the middle of the night when residents were likely to be home in bed; the applicant spent some time in the home searching rooms, going in and out of the house and filling the Mercedes with items taken from the home; and, although the offending lacked sophisticated planning, it was not a spontaneous home invasion. The respondent submitted that these features justified the judge's assessment of the offending as being 'midrange'.
43 The respondent argued that, having regard to the features of the offending and the applicant's criminal history - including, in particular, his three prior convictions for aggravated burglary - the judge was right to place emphasis on the principles of denunciation, just punishment, general deterrence, specific deterrence and protection of the public. The respondent contended that the judge's assessment of the applicant's prospects of rehabilitation as 'guarded' was generous having regard to his lengthy history of offending, failures to comply with court orders and his long history of drug addiction.
44 The respondent acknowledged the mitigating circumstances upon which the applicant relied. However, it submitted that the gravity of the aggravated burglary offence, the absence of remorse, the poor prospects of rehabilitation and the need to give effect to the principles of just punishment, general deterrence, specific deterrence and protection of the public meant that the sentence of 3 years and 3 months' imprisonment for that offence did not violate the principle of proportionality. This was said to be particularly so in circumstances where the offence of aggravated burglary carries a maximum penalty of 25 years' imprisonment.
45 According to the respondent, in all the circumstances, the sentence of 1 year and 3 months' imprisonment and the order for cumulation of 6 months for the theft offence, and the total effective sentence, can only be regarded as lenient.
46 In deciding whether to grant leave to appeal against sentence, we must determine, first, whether there is an error in the sentence imposed by the judge and, secondly, whether a less severe sentence should be imposed.[20]
47 On the first question, we are of the opinion that error will be shown if it can be established that the judge took into account the applicant's three prior convictions for aggravated burglary in assessing the gravity of the current aggravated burglary offence. This is because, while an offender's criminal history is a relevant sentencing consideration,[21] it cannot inform the objective assessment of the gravity of the instant offence.
48 In Veen, Mason CJ, Brennan, Dawson and Toohey JJ stated that an offender's antecedent criminal history may be taken into account in the sentencing synthesis because it may illuminate the moral culpability of the offender in the instant case and may inform the weight to be given to sentencing considerations such as specific deterrence and protection of the community.[22] However, the criminal history cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence because to do so would be to impose a fresh penalty for past offences.[23]
49 In Baumer, the High Court said it would be wrong for a sentencing court to increase a sentence beyond what it considered to be an appropriate sentence for the instant offence on the basis that the offender's criminal history increased the seriousness of the instant offence.[24]
50 In Hoare, the High Court stated that 'a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances'.[25]
51 In McNaughton, Spigelman CJ, with whom McClellan CJ at CL, Grove, Barr and Bell JJ agreed, stated that he interpreted Veen and Baumer 'as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions'.[26]
52 The principles governing the manner in which an offender's criminal history may or may not be taken into account in the sentencing synthesis were summarised as follows by Charles JA (with whom Winneke P and Southwell AJA agreed) in R v O'Brien:
It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.[27]
53 We reject the respondent's submission that the passage from Kilic upon which it relied[28] represents a departure from the principle applied in the above cases, namely that an offender's criminal history cannot be taken into account in assessing the objective gravity of an instant offence.
54 In Kilic, the High Court dealt with the circumstances in which offending can be classified as falling within the 'worst category' of a particular offence. The Court said that what is meant by that phrase is that the offending in the instant case is 'so grave that it warrants the imposition of the maximum prescribed penalty for that offence'.[29] It was in the context of discussing the 'spectrum' of seriousness that extends from the least serious instances of an offence to the worst category, that the Court stated that the facts of the particular offence and of the offender must be considered in determining where on that spectrum a particular case fell for the purposes of sentencing.[30]
55 In our opinion, the observations of the High Court in Kilic emphasised that all the sentencing considerations that are relevant to the offence and the offender must be taken into account in determining the overall seriousness of the offending for the purposes of exercising the sentencing discretion. The considerations that are relevant to the offence include the nature and gravity of the offence,[31] the impact on any victim,[32] and any injury, loss or damage resulting directly from the offence.[33] The considerations that are relevant to the offender include the offender's culpability and degree of responsibility for the offence,[34] the offender's criminal history[35] and the mitigating circumstances upon which the offender relies.[36] The High Court did not say that an offender's criminal history can inform the gravity of the instant offence.
56 It follows from the above discussion that the judge would have erred in the exercise of her sentencing discretion if she treated the applicant's three previous convictions for aggravated burglary as aggravating circumstances of the instant offence of aggravated burglary, or as informing the gravity of that offence.
57 In her sentencing remarks, the judge did not expressly say that she treated the three previous convictions as aggravating circumstances. However, the sentencing remarks must be considered in the context of the judge's discussion with the prosecutor on the plea. As set out at [30] above, the prosecutor submitted, in effect, that the applicant's three previous convictions for aggravated burglary are 'very aggravating' and had the effect of elevating the seriousness of the current aggravated burglary offence to the 'midrange'. In her sentencing remarks, immediately after referring to the three previous convictions, the judge said 'In the circumstances, I consider that [the applicant's] offending lies in the midrange of seriousness for this kind of off[37]ce'.37
58 In our opinion, the judge erred by directly linking her assessment of the seriousness of the current aggravated burglary offence to the three previous convictions for the same offence. She was led to this error by her implicit acceptance of the prosecutor's submission that those convictions were aggravating circumstances for the current offence.
59 Priest JA reached a similar conclusion. He stated:[38]
Absent a statutory provision to the contrary,[39] the presence of prior convictions generally is not an aggravating feature of an offence.[40] In the present case, however, the prosecutor clearly put - and the judge seems to have accepted - that the applicant's prior convictions for aggravated burglary were an aggravating feature of his offending, taking the instant aggravated burglary into the 'mid-range' category. Error is thus established. The applicant's earlier aggravated burglaries simply were not circumstances of aggravation for the purposes of the instant offence. Insofar as the judge sentenced the applicant on the basis that they were, she fell into error (irrespective of whether to classify the applicant's offending as 'mid-range' was, or was not, otherwise appropriate).
60 It follows that the sentencing discretion miscarried. Before considering whether a less severe sentence should be imposed, we wish to record our agreement with observations made by this Court in recent cases that classifications such as 'mid-range', 'lower end' and 'bottom of the high-range' should be avoided. Sentencing judges should have regard to relevantly comparable, and current, cases as 'yardsticks'.[41] This approach involves considering where a case fits on the spectrum of offending and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis.[42]
61 We reject the applicant's submission that the sentence of 3 years and 3 months' imprisonment imposed by the judge for the aggravated burglary offence is disproportionate to the circumstances of the offending. On the contrary, as submitted by the respondent, the sentence is lenient.[43]
62 We do not agree with the applicant's contention that the fact that he entered the Barkly Street house with the intent to steal necessarily means that his aggravated burglary was less serious than would have been the case if his intent was to assault a person in the house or to cause property damage. The seriousness of an aggravated burglary depends on all the circumstances of the particular offending. We note that the same maximum penalty is imposed by s 77 of the Crimes Act irrespective of the intent with which the offender enters the relevant building.
63 Nevertheless, it may be accepted that, if all other things are equal, an intent to steal may well be less serious than an intent to assault or to damage property. This is recognised by s 28(1)(a) and cl 4.7 of sch 2 of the CPA which provide that the only type of aggravated burglary that may be heard and determined summarily is one that involves an intent to steal property the amount or value of which does not exceed $100,000.
64 Although the aggravated burglary committed by the applicant was of the type set out in the above provisions of the CPA, given the seriousness of the offence as set out at [65] below and the applicant's three prior convictions for aggravated burglary, it is highly unlikely that any application by him to have the aggravated burglary charge heard and determined summarily would hav[44]succeeded.44 Accordingly, the jurisdictional limit of 2 years' imprisonment of the Magistrates' Court is of little, if any, relevance to a consideration of the appropriateness of the sentence imposed by the judge. Further, the median sentence of 2 years and 6 months' imprisonment for aggravated burglary offences to which the applic[45]t referred45 is a bare statistic which is entirely unhelpful.
65 In our opinion, the aggravated burglary committed by the applicant was a serious example of that offence. That is so having regard to the following:
(a) The applicant broke into a private residence in the early hours of the morning knowing that a person was present, or being reckless as to whether or not a person was present. At that time, any person in the house was likely to be asleep.
(b) The applicant stayed in the house for just under an hour, wandering from room to room, and exiting the property on two occasions before returning to it. This is an unusually long period, which exacerbated the invasion of the Harwoods' privacy and the loss of their quiet enjoyment of their property.[46] The applicant brazenly roamed through the house as if it were his own looking for things to steal without any sense of urgency or apparently any concern that the risk of confrontation with an occupant, or his criminality being exposed, increased proportionately with the length of his trespass.
(c) The applicant had opportunities to desist when he twice left the house but, on each occasion, he returned and persevered with the offending.
66 In addition to the seriousness of the offending, the applicant's extraordinary criminal history was an important sentencing consideration.[47] The instant offence was the fourth aggravated burglary that he had committed. Although the previous aggravated burglaries occurred between 2000 and 2005, between 2005 and the time of the current offending, the applicant committed a large number of thefts, burglaries and similar offences. Many of the sentences he previously received were relatively lenient. They included suspended sentences, CBOs and a CCO which sought to facilitate his rehabilitation. Rather than taking advantage of these opportunities for rehabilitation, the applicant breached the terms of the community based orders.
67 The judge was right to adopt a pessimistic view of the applicant's prospects of rehabilitation notwithstanding his recent attempts to become drug-free and his engagement with CISP and other programs. Another relevant sentencing consideration was the applicant's lack of remorse.
68 We agree with the applicant that he was entitled to call in aid various mitigating circumstances. The most significant of these was his plea of guilty. Other important mitigating circumstances were his disadvantaged background, including the sexual offending he experienced, and his periods of homelessness. We do not regard his drug addiction as a mitigating circumstance, but note that there are encouraging signs of his willingness to address this problem which has dogged his adult life.
69 When the mitigating circumstances upon which the applicant relied are weighed in the balance with the gravity of the offending and the other adverse circumstances to which we have referred, it cannot be reasonably argued that a sentence of 3 years and 3 months' imprisonment is not proportionate to the gravity of the offending or does not constitute punishment 'which is just in all of the circumstances'.[48] This is particularly so having regard to the maximum penalty of 25 years for the offence of aggravated burglary.
70 The applicant did not seriously argue that the sentence of 1 year and 3 months' imprisonment and the order of cumulation for 6 months for the separate theft offence are inappropriate. In our opinion, those sentences are entirely justified.
71 It follows that, notwithstanding the error in the sentencing discretion, we are not satisfied that a less severe sentence should be imposed.
72 For the above reasons, the application for leave to appeal against sentence will be refused.
[1] DPP v Dirbass [2017] VCC 890 ('Sentencing remarks').
[2] Dirbass v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 23 March 2018) ('Priest JA's reasons').
[3] See s 77(1)(b) of the Crimes Act which is set out at [24] below.
[4] See s 77(1)(a) of the Crimes Act which is set out at [24] below.
[5] DPP v Dirbass [2017] VCC 1190.
[7] Transcript of Proceedings (22 June 2017) 27.
[8] Transcript of Proceedings (22 June 2017) 30-1.
[12] [1988] HCA 14; (1988) 164 CLR 465 ('Veen').
[13] (1988) 166 CLR 51 ('Baumer').
[14] [1989] HCA 33; (1989) 167 CLR 348 ('Hoare').
[15] [2006] NSWCCA 242; (2006) 66 NSWLR 566 ('McNaughton').
[16] Sentencing Advisory Council, Sentencing Snapshot No 184: Aggravated burglary (June 2016) 3.
[18] The actual number of offenders sentenced for aggravated burglary by the Magistrates' Court during this period was 665: Sentencing Advisory Council, Aggravated Burglary - Case sentence type, all people, July 2013-June 2016 (1 August 2017) SACStat Magistrates' Court .
[19] [2016] HCA 48; (2016) 259 CLR 256, 266 [19] (citations omitted) ('Kilic').
[21] Sentencing Act ss 5(2)(f), 6(a).
[22] Veen [1988] HCA 14; (1988) 164 CLR 465, 477.
[23] Veen [1988] HCA 14; (1988) 164 CLR 465, 477.
[24] Baumer (1988) 166 CLR 51, 57.
[25] Hoare [1989] HCA 33; (1989) 167 CLR 348, 354 (emphasis in original). See also Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132 [27].
[26] McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, 574 [24].
[27] [1997] 2 VR 714, 718.
[29] Kilic [2016] HCA 48; (2016) 259 CLR 256, 265-6 [18].
[30] Kilic [2016] HCA 48; (2016) 259 CLR 256, 266 [19].
[35] Sentencing Act ss 5(2)(f), 6(a).
[38] Priest JA's reasons [16]. All citations are in original.
[39] Part 2A and pt 2B of the Sentencing Act, in practical effect permit increased sentences for repeat offenders in defined circumstances. Earlier offences are not, however, classified as aggravating later offending.
[40] There may, however, be unusual circumstances - for example, repeated offending against the same victim or class of victims - when earlier offending might be a feature of aggravation. This is not such a case.
[41] DPP v Weybury (2018) 84 MVR 153, 165 [34], 170-1 [54] ('Weybury'); Sutic v The Queen [2018] VSCA 246 n 21.
[42] Weybury (2018) 84 MVR 153, 165 [34].
[43] Priest JA arrived at the same conclusion: Priest JA's reasons [22].
[44] Section 29(2) of the CPA sets out the matters that the Magistrates' Court must consider in deciding whether a charge should be heard and determined summarily. Paragraph (b) provides that one of those matters is 'the adequacy of sentences available to the court, having regard to the criminal record of the accused'.
[46] The offence of aggravated burglary is completed when an offender enters a building as a trespasser with the requisite intent and is either in possession of an offensive weapon or has the requisite state of knowledge of the presence of a person in the building. However, the offence continues for the entire period that the offender remains in the building as a trespasser. Accordingly, the offender's activities in the building during that time may inform the overall seriousness of the offence. See Salapura v The Queen [2018] VSCA 255 [57].
[47] Priest JA aptly described the applicant as 'an incorrigible burglar and thief': Priest JA's reasons [21].
Dirbass
The Queen [2018] VSCA 272
(1988) 164 CLR 465
(1988) 166 CLR 51
(1989) 167 CLR 348
(2006) 66 NSWLR 566
(2016) 259 CLR 256
(2011) 244 CLR 120
(2018) 84 MVR 153