DPP v Alsop [2010] VSCA 325

Court of Appeal (Vic)|2010-11-17|Before: REDLICH and HANSEN JJA and VICKERY AJA

CRIMINAL LAW - Crown appeal - Sentence - Four counts of aggravated burglary - Sentence of two years' imprisonment on each count - DPP v Fedi El Hajje [2009] VSCA 160 considered - Manifest inadequacy - Parole cancelled by Queensland Parole Board - (Qld) - Parole sentence not taken into account - Principle of totality requiring moderation of sentences - Appeal dismissed.

1 The respondent pleaded guilty in the County Court to four counts of aggravated burglary and three counts of theft. He was sentenced on 15 May 2009 to two years' imprisonment on each of the counts of aggravated burglary, being counts 1, 3, 5 and 7, and six months' imprisonment on each of the counts of theft (counts 2, 4 and 6).

2 The sentencing judge directed that three months of the sentence imposed on each of counts 3 and 5, six months of the sentence imposed on count 7 and two months of the sentence imposed on each of counts 2, 4 and 6 be served cumulatively upon the sentence imposed on count 1 and upon each other, resulting in a total effective sentence of three years and six months' imprisonment. A non parole period of two years and three months' imprisonment was fixed.

3 The Director appeals against the individual sentences, the total effective sentence and the non parole period on the ground that all were manifestly inadequate as the sentencing judge:

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b) failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to sufficiently protect the community from the offender;

(e) failed to have sufficient regard to the maximum penalty prescribed for the offences;

(f) failed to have sufficient regard to the nature and gravity of the offences;

(g) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offences;

(h) failed to have sufficient regard to the impact of the offences on the victims;

(i) failed to have sufficient regard to the offender's extensive prior history for similar offending;

(j) failed to have sufficient regard to aggravating features of the offending, and in particular-

that the offences occurred whilst the offender was on a parole release order, and

the vulnerability of the victims;

(k) gave too much weight to the mitigating factors concerning the offender, in particular

the plea of guilty,

the role of the offender's drug addiction in the offending, and

the prospects of rehabilitation.

4 All of the seven offences the subject of the counts were committed in the early morning of 12 June 2008 in the Ivanhoe/Eaglemont area of Melbourne. The offences the subject of counts 1 and 2 occurred in the morning when the respondent entered the rear yard of residential premises in Ivanhoe, and having seen a laptop inside the house, broke a window, reached into the room and removed the laptop. The respondent, having been disturbed during this process, left the laptop just outside the broken window and left the premises.

5 Later that morning he entered the kitchen of a different building in Ivanhoe and stole two mobile phones, a mobile phone charger, an iPod, a digital camera and a wallet containing credit cards. The respondent was observed leaving the premises as one of its occupants was returning home. That conduct was the subject of counts 3 and 4.

6 Later again that morning he entered the kitchen and upstairs area of premises in Eaglemont, waking one of the occupants. The gentleman who had been woken observed a person on the back deck who ran away when he approached. The respondent stole the contents of a handbag containing about $10. This conduct was the subject of counts 5 and 6.

7 Finally, at about 5 am that morning, the respondent entered other premises in Eaglemont, where its occupants, an elderly couple, were asleep. He removed a flywire screen and entered by breaking the lounge room doors. This woke one of the occupants who turned on the bedroom light and saw the respondent standing in the doorway to the bedroom. The respondent then left back through the lounge room doors. That was the conduct the subject of count 7.

8 He was arrested on the afternoon of the same day, and the two stolen mobile phones were found on his person. In his record of interview he gave no comment answers with the exception that he had admitted to catching a bus to Ivanhoe that day and to being in possession of two stolen mobile phones.

9 Before turning to the grounds of appeal I should say something as to the personal circumstances of the respondent. He was 32 at the time he committed these offences and 33 at the date of sentencing. He had become addicted to heroin at the age of 18 and at the date of sentencing was on a methadone program. He was also taking Valium to help him control panic attacks.

10 According to the respondent he committed the offences to fund his drug habit, and in a report tendered on the plea a psychiatrist expressed the opinion that the respondent's risk of re-offending was closely linked with his ability to stay off drugs.

11 Both of the respondent's parents had problems with alcohol and had separated when he was aged 13. His mother and brother both suffered from depression. He had been diagnosed with a borderline bipolar disorder by the age of 21. The psychiatrist in his report noted that the respondent 'needed long term psychotherapeutic intervention to assist [him] with issues of impulsivity and inability to cope with stress'. The respondent's father died whilst he was in custody and the respondent was unable to attend the funeral, a fact which the psychiatrist thought had resulted in the respondent having unresolved grief.

12 The respondent has a significant criminal history including 134 prior convictions and five findings of guilt from some 30 court appearances, the majority of which were in Victoria and Queensland, two of which were in New South Wales and one in Canberra. Counsel for the Director conveniently summarised those prior convictions in the course of oral argument as follows; two convictions for aggravated burglary, 45 convictions for burglary or trespass, 28 convictions for theft, six convictions for loitering, and 19 other convictions for offences involving dishonesty.

13 The respondent submitted that there were a number of mitigating factors that must be taken into account in assessing the sentences. First, he had pleaded guilty to each and all of the offences specified and had done so at the committal mention which was, for all intents and purposes, the earliest reasonable opportunity upon which he could do so. He had, thereby, facilitated the course of justice and was, as the sentencing judge accepted, entitled to a substantial discount in sentence.

14 Second, it was submitted that much weight in the present case needed to be given to the sentencing principle of totality. Attention was drawn to the fact that all of the offences were committed on the one morning and within a short period of time.

15 The principle was also enlivened in another way. As a consequence of earlier offending by the respondent, he had breached his parole in Victoria, a parole sentence which dated back to May 2003. The respondent had been required by the parole board to serve this parole sentence of almost seven months in custody. After his arrest for the present offences he commenced to serve that parole sentence. By the time the respondent came to be sentenced for the present offences in May 2009, he had completed serving that parole sentence and was on remand for the present offences.

16 As a further consequence of the respondent's present offending, the respondent, upon the completion of the sentence that was imposed by the learned sentencing judge, was to be extradited to the State of Queensland in order to serve the balance of a parole sentence of 16 months then said to be owing.

17 On the plea in mitigation a number of documents were tendered relating to the parole sentence which was said to then be owing to the Queensland Parole Board. Firstly, there was a letter dated 26 March 2009 from a Detective Sergeant which set out the circumstances in which the respondent's parole had been suspended by the Queensland Regional Parole Board. That parole had been suspended on 29 April 2008 and a warrant had been issued. The warrant was also produced on the plea in mitigation. It showed that following the respondent's release on parole on 7 March 2008, the respondent's parole had been suspended pursuant to s 205 of the Corrective Services Act 2006 (Qld) and a warrant had been issued directing the arrest of the respondent as soon as possible. That warrant was extant at the time of the plea in mitigation and at the time that the respondent was sentenced.

18 It was said that as a consequence of the parole sentences the respondent would serve some 22 months in custody in addition to the sentences imposed by the learned sentencing judge. These parole sentences must be taken into account. Reference was made to the cases of R v Piacentino and Ahmad[1] and R v Alashkar & Tayar.[2] Attention was directed to a psychiatric report tendered on the plea containing the opinion that the respondent's ongoing incarceration was likely to exacerbate the respondent's condition, in particular his impulsivity and inability to cope with stress. Thus it was submitted the respondent's incarceration would weigh more heavily on him than it would for a person in normal health.

19 The Crown's appeal falls to be judged according to common law principles which, for the purposes of this appeal, remain unaffected by s 289 of the Criminal Procedure Act 2009. Accordingly, I approach the Crown's challenge to the sentences on the ground of manifest inadequacy on the basis that the Crown must demonstrate that the inadequacy of the sentences must be clear and egregious, the sentences being so disproportionate to the seriousness of the crime as to shock the public conscience and such as to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.

20 The respondent contended that there was nothing in this case which warranted appellate intervention. It was submitted that the sentences could not be described as manifestly inadequate, and they did not in any event fall within the class of case appropriate for a Crown appeal against sentence.[3]

21 It was further submitted, in the alternative, that if this Court were to intervene and thereby re-sentence the respondent, the Court would, in having regard to the principle of double jeopardy, be required to impose a substantially lesser sentence than that which would otherwise have been imposed, so that any increase in the sentence would be so minor that intervention by this Court could not be justified.[4]

22 The Crown submitted that the sentencing judge gave insufficient weight to general deterrence, specific deterrence and denunciation when sentencing the respondent. It was submitted that those sentencing objectives assumed particular importance in the present case given the respondent's long list of prior convictions and the fact that when the respondent committed these offences, he had only been released from prison for some three months and was on parole. Attention was drawn to the sentencing judge's 'passing reference' to the principle of deterrence set out in his Honour's reasons for sentence which it was said evidenced that his Honour had given insufficient weight to those considerations. Reference was made to the recent decision of this Court in DPP v Fedi El Hajje[5] in support of the proposition that there is a need for denunciation of offences such as aggravated burglary. The Crown submitted that consideration appeared to be absent from his Honour's sentencing remarks.

23 The Crown focused upon the sentences for aggravated burglary and submitted that his Honour attached insufficient weight to the maximum sentence of 25 years' imprisonment. It submitted that counts 1, 3, 5 and 7 were serious instances of this offence, and drew attention to the impact on the victims. It was emphasised that on two occasions the respondent was seen by the occupants of the premises whom he had disturbed from their sleep, and on one of those occasions it was an elderly couple who were awakened by the respondent in their bedroom doorway. No distinction was drawn by the sentencing judge in sentencing between the various counts of aggravated burglary, when it was evident that the circumstances of count 7 were far more serious than those, for example, of count 2. Also it was said that the respondent's removal of the laptop (counts 1 and 2) and the placing of it outside the house jeopardised the contents of the victim's computer, which contained a large amount of intellectual property in the form of articles and books written by the victim.

24 The Crown further submitted that the sentencing judge had given undue weight to the plea of guilty, as evidenced by the declaration that the sentencing judge made pursuant to s 6AAA of the Sentencing Act 1991. In Fedi El Hajje[6] this Court considered sentences in recent cases involving aggravated burglary, which showed that sentences ranging from one year and six months' imprisonment to five years' imprisonment had been imposed. The Court had noted in Fedi El Hajje that the Director did not advance any submission that current sentencing practices for aggravated burglary were inadequate. Nonetheless the Court observed:

This sentencing information raises a serious question, however, about the adequacy of current sentencing practices for this offence. The sentences being imposed appear not to reflect the very high maximum which Parliament has fixed. That is a matter of the first importance to the administration of criminal justice in this State. The matter not having been the subject of argument on the appeal, we express no concluded view on the question.

Senior counsel for the Director drew attention to what was said by the then Attorney-General when, in April 1997, she introduced amending legislation, the effect of which was to increase the maximum penalty for aggravated burglary from 20 to 25 years' imprisonment. The Minister said:

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.

This statement reinforces what the fixing of such a high maximum would itself convey. The community views offending of this kind as extremely serious and expects the courts to impose sentence accordingly.[7]

25 The Director of Public Prosecutions has recently foreshadowed his intention to argue, at first instance, that current sentencing practices for the offence of aggravated burglary are too low. However, in the present case, as in Fedi El Hajje, Crown counsel did not either at first instance or on appeal proffer any submission that current sentencing practices for aggravated burglary are inadequate. I add that even if such a submission had been made and accepted by this Court, for reasons of fairness to the respondent who pleaded guilty, this view would not result in the respondent being re-sentenced to a higher sentence.[8]

26 It need, however, hardly be emphasised that the respondent's long history of criminal conduct, much of which consisted of committing similar types of offences as the present, combined with the fact that he was on parole at the time of committing these offences, increased the need for deterrence, both specific and general, and for the protection of the community. An offender's antecedents provides an indication of moral culpability, prospects of rehabilitation, the existence of any dangerous propensity, the need for community protection and the increased need for specific deterrence having regard to the failure of previous penalties to moderate his behaviour.[9] Regard must also be had to Parliament's intention, evidenced by the very high statutory maximum fixed, that the crime of aggravated burglary should be viewed as a very serious offence. It is incumbent upon this Court to ensure the maintenance of appropriate sentencing standards in this State for crimes such as these which destroy people's domestic security and erode their capacity to feel safe in their own homes. The effect on the victims, who here included the very elderly, should not be underestimated. The frequency and nature of the respondent's violation of the privacy and sanctity of each victim's home and the theft of property constituted serious examples of these crimes.[10]

27 As is, however, so frequently the case, the sad fact is that the respondent's offending was driven by a need to feed his drug addiction, and it is not in issue that the crimes were committed for that reason. This Court has repeatedly emphasised that where an addict is fully conscious of his criminality and continues to resolve his problems by the premeditated commission of serious crimes, the addiction will not ordinarily require any substantial reduction in moral culpability. General and specific deterrence assume particular significance as sentencing considerations.

28 For those reasons a sentence of two years for the offences of aggravated burglary by an offender with the respondent's antecedent history, even allowing for current sentencing practice, would ordinarily be viewed as manifestly inadequate and egregiously disproportionate to his degree of criminality. That said, there are additional considerations which, in the present case, must be taken into account.

29 The respondent submitted that the Court should not allow the appeal and impose higher sentences because of the application of the principles of totality, which required that the individual sentences and the total effective sentence be moderated to an order that was fixed by the sentencing judge.

30 The totality principle has two limbs. First, a sentencing judge must ensure that the aggregation of the sentences appropriate for each offence are a just and appropriate measure of the total criminality involved. Second, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release. The critical question then is whether after allowing for mitigating circumstances the total sentence, including the parole sentences, reflects what is appropriate for the overall criminality of the convicted person.

31 The sentencing judge had held that the revocation of the respondent's parole by the Queensland Parole Board could trigger his obligation to serve the balance of his parole sentence, but it was regarded by his Honour as merely a possibility at the time of sentencing, as he considered that he had before him no evidence that the respondent's parole had been cancelled. Accordingly he considered himself bound by s 5(2AA) of the Sentencing Act 1991 and the case of R v Piacentino and Ahmad[11] to ignore that possibility for the purposes of sentencing the respondent.

32 The Crown submitted, before this Court, that his Honour was right to do so as it was only speculation that the respondent might have to serve such a sentence in Queensland. In my view that submission cannot be sustained. As I have said, his Honour had before him a letter from a Detective Sergeant setting out the circumstances in which the Queensland Parole Board had suspended the parole sentence, together with the warrant that had been issued by the parole board. Moreover, s 209(1) of the Corrective Services Act 2006 (Qld) provides:

A prisoner's parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed in Queensland or elsewhere during the period of the order.

33 Although that section was not apparently drawn to his Honour's attention it is, by effect, such that at the time that his Honour came to sentence the respondent, his parole had, by law, been cancelled.[12] The interests of justice required that the principle of totality should be applied to the entirety of the sentences which the respondent had to serve.[13]

34 For this reason, when determining whether the totality of the effective length of the sentences faced by the respondent in Victoria and Queensland of five years and five months' imprisonment (being the sentence fixed of three year and six months' imprisonment plus one year and 11 months of parole sentence) was proportionate to the totality of the respondent's criminality, the sentencing judge was required to consider the nature of the parole offences and the length of the parole sentence.[14] He was required and, on appeal, this Court is now required, to give due weight to the legislative policy contained within s 16(3B) of the Sentencing Act 1991 that where an offender commits a crime while released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed.[15] The Court must however seek to ensure that the sentence imposed for the subsequent offending does not produce an overall result which is out of proportion to the criminality represented by all of the offences.[16] It is for the Crown to show in the present case that if the individual sentences and total effective sentence were increased as it suggests, such sentences would then be a just and reasonable measure of the respondent's total criminality.

35 In the present case, had the sentencing judge taken into account both of the parole sentences, the length of time which the respondent would have to serve in custody would be five years and five months. Because of the operation of the principle of totality, the sentences do not satisfy the common law principles upon which a Crown appeal should be allowed. Moreover, once regard is had to the principle of double jeopardy which must be taken into account in discounting any sentence which this Court would impose, in the context of the respondent's overall criminality and the mitigating factors referred to, I would in any event have exercised the discretion invested in this Court to decline to intervene.

39 The order of the Court will be that the appeal is dismissed.

[4] R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 104-5.

[5] [2009] VSCA 160 (Unreported, Maxwell P, Vincent JA and Coghlan AJA, 26 June 2009).

[6] [2009] VSCA 160 (Unreported, Maxwell P, Vincent JA and Coghlan AJA, 26 June 2009).

[7] [2009] VSCA 160 (Unreported, Maxwell P, Vincent JA and Coghlan AJA, 26 June 2009) [33]-[35].

[8] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549; Winch v R [2010] VSCA 141 (Unreported, Maxwell P, Ashley and Redlich JJA, 17 June 2010) [26]-[37].

[9] DPP v Vucko [2008] VSCA 270 (Unreported, Maxwell P, Nettle and Redlich JJA, 18 December 2008) [18] (citations omitted).

[13] R v Mangelen [2009] VSCA 63; (2009) 23 VR 692, 697.

[15] R v Alashkar; R v Tayar [2007] VSCA 182; (2007) 17 VR 65, 75.

[16] R v Mangelen [2009] VSCA 63; (2009) 23 VR 692, 698.

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