DPP v Daniel [2008] VSCA 76

**3 The respondent, David Daniel, pleaded guilty in the County Court to one count of aggravated burglary and one count of intentionally causing serious injury. On the count of aggravated burglary, the sentencing judge sentenced the respondent to 12 months' imprisonment. On the count of intentionally causing serious injury the sentencing judge imposed a further sentence of imprisonment for a period of 12 months. No order for cumulation was made and, therefore, by reason of s 16(1) of the Sentencing Act 1991, the sentences were to be served concurrently. The sentencing judge then ordered, pursuant to s 19(1) of the Sentencing Act 1991, that the sentence of imprisonment be served by way of intensive correction in the community.

4 The charges arose out of an incident involving the respondent in the company of a group of young men invading an acquaintance's house and then inflicting serious injuries upon him. The respondent and four other members of the group were each sentenced by the sentencing judge on 30 October 2007 and two other members were sentenced on 30 October 2007 and 24 April 2008. All of the offenders were the subject of intensive correction orders.

5 The Director of Public Prosecutions ("the Director") filed a Notice of Appeal in respect of both sentences, contending that they were manifestly inadequate.**

6 The respondent was 27 years of age at the time of the commission of the offence. He was married but had separated from his wife in early 2006.

7 In the week prior to 14 July 2006, the respondent learned that one Peter Mannaert, a friend, had formed a sexual relationship with the respondent's estranged wife.

8 The respondent formed a pact with his co-offenders, Lachlan Bell, Dean Hollands, Liam Murphy and Timothy Hollands to attack Mr Mannaert, in effect, to "teach him a lesson", because of his relationship with the respondent's estranged wife.

9 The group met on the evening of 14 July 2006 and travelled in two vehicles to Mr Mannaert's house in Ferntree Gully.

10 Having ensured that Mr Mannaert was at home, the group then went to his house, with the respondent approaching the front door alone. After sensing the respondent's aggression, Mr Mannaert tried to retreat. However, the other members of the group had, by this time, reached the door and assisted the respondent so as to force their way into the premises.[1]

11 The sentencing judge referred to Mr Mannaert's statement in his reasons and it is apposite to set it out again:**

The next thing I saw was another male come from my right side, swinging a metre-long stick. He tried to hit me with it but as I jumped back he hit David on his right-hand shoulder, neck and the window frame. After this I jumped back into my house and closed the door. As I was trying to put the lock on, David and two other males started pushing the door, prising it open. The third male had a beanie and a bandanna on, and as they entered the house I ran down the hall to the kitchen to try and get out the back door. The male with the stick was right behind me, catching me as I got to the double doors at the back of the house near the kitchen.

As I was running I could hear all of them yelling out "Kill him, get him". After I got caught they threw me to the ground. This was where I noticed the first male was also there. He also had a jumper tied around his head and his face was obstructed by a material item, making it difficult to see his face. As I was on the ground, they were all kicking and punching me all over my torso and head. They were still shouting out that they were going to kill me. After about five or ten seconds of being on the ground, I managed to break free from them and tried to run back towards the front door.

As I got to the front door, three or four guys also dressed in black clothing with their faces and heads concealed with hoods, beanies and material items, pushed me back onto the ground in the hall right at the front door. At this stage there was anywhere between eight and twelve guys in my house; none of which were known to me other than David. They all continued to punch and kick me all over the body for about 30 seconds. I remember yelling and screaming for help but they kept on hitting me harder as I yelled. I remember being punched on the left eye and kicked on the right side of the head".

**12 The respondent did not wear any disguise. Each other member of the group wore balaclavas or some similar garb in an effort to conceal their respective identities.

13 Mr Mannaert, understandably, thought that whilst he was being assaulted he was going to die. He sustained a number of lacerations and abrasions, in particular a large laceration over his right forehead. He managed to make his way to a neighbour's house and was then taken to the Angliss Hospital by ambulance.

14 The sentencing judge described his presentation at the hospital as follows:**

On examination he was found to have two large scalp lacerations, one which exposed the underlying bone. These injuries required suturing. Haematomas were seen on his forehead, temple, and eye. He suffered a left sub-conjunctival haemorrhage; abrasions to the back and arms; and tenderness was detected over the cervical and thoracic spine. These injuries generally confirm the victim's account that he was repeatedly kicked, punched and struck with a weapon.

15 By dint of good luck, Mr Mannaert suffered no fractures, but eleven sutures in total were inserted to treat the lacerations; he spent some ten hours at hospital and was then discharged. He has continued to suffer adverse effects as a result of the injuries sustained in the incident.

**16 The respondent was born on 1 August 1978 and at the time of these offences was 27 years of age. He had a prior conviction for attempted theft in March of 1997.

17 His marriage lasted for some three years, although their relationship endured for nearly ten years in total. His relationship with his wife ended, as I have said, in early 2006, although the two lived together under one roof in separate rooms for some time thereafter.

18 The respondent has in the past been a certified real estate agent, but for most of his working life has been in the floor sanding and polishing business, having operated his own business. The break-up of his relationship with his wife affected his work, and on his account, caused him to consume significant amounts of alcohol and amphetamines.

19 By the time of trial, he had obtained regular employment as a labourer earning approximately $680 per week and was living with his parents at Ferntree Gully.**

**20 The respondent, Bell, Dean Hollands, Timothy Hollands and Murphy each pleaded guilty to counts of aggravated burglary and intentionally causing serious injury.

21 The pleas were heard together on 22 October 2007 and each of the offenders was sentenced on 30 October 2007.

22 The sentencing judge took into account the following matters:

(a) That the incident at Mr Mannaert's house was "a very, very ugly incident" involving a group invasion of a private home.[2]

(b) That Mr Mannaert had sustained quite significant injuries which required medical and physiotherapist's treatment. Those injuries affected his employment. The sentencing judge also noted that Mr Mannaert suffered from psychological distress in the form of PTSD as a result of the incident. There was also damage to his house and goods.

(c) That the incident was the subject of crude planning and efforts had been made to conceal the identities of the offenders.

(d) The contents of Mr Mannaert's victim impact statement.

23 In terms of mitigation, his Honour appears to have paid particular regard to the following matters concerning the Respondent:

(b) That he was generally forthcoming to the police in respect of his role in the incident.

(c) That the attempted theft conviction was of no relevance and he should be treated as a person with no relevant prior convictions.

(d) That he had, consequent upon this incident, attempted to reform himself in terms of alcohol and amphetamine use, and had made positive steps towards his rehabilitation.

(e) That he was currently employed and had formed a steady relationship.

(f) That he had not been in any trouble since this subject offence.

(g) That the relationship between Mr Mannaert and the respondent's estranged wife was understandable in terms of arousing hurt and anger, but that the attack was "disproportionate and wickedly wrong".

24 The sentencing judge was clearly troubled by the appropriate sentence to be imposed. Indeed, he said as follows:**

In adopting this course I have taken a considerable risk and the lengthy summary of your respective personal circumstances is placed on the record just to indicate that I have given earnest consideration to your situation and I have taken this course, notwithstanding the completely understandable submission that the Crown made, that this conduct should be visited with immediate terms of imprisonment.

Prison should be a last resort punishment for young offenders, and what I have done is decided to impose terms of imprisonment but if you are willing to serve them by way of intensive correction order in the community, that is the disposition that I will make.

**26 He then sentenced the respondent to the term of one year's imprisonment on both counts to be served by way of intensive correction in the community.

27 The co-offenders before his Honour were also sentenced to terms of imprisonment by the sentencing judge. Murphy and Bell to six months' imprisonment on both counts, Timothy and Dean Hollands to eight months' imprisonment. Each of the sentences was to be served concurrently. Each was the subject of an intensive correction order.

28 The Court was told by senior counsel for the Director that on 24 April of this year the sentencing judge sentenced the remaining two co-offenders Karl Ravenhorst and Michael McClinden to six months' imprisonment on both counts to be served pursuant to an intensive correction order.

29 The Court was also informed that the respondent has, without breach, completed one half of his sentence being served as an intensive correction order. He currently assists his parents in the running of their nursery when not engaged in community work.**

30 The principles governing an appeal by the Director of Public Prosecutions are well known and do not need to be set out in any detail. In Director of Public Prosecutions (Vic) v Bright[3], Redlich JA summarised the position as follows:

A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke and Director of Public Prosecutions (Vic) v Johnston. One is that an appeal should not be brought unless the sentence reveals such "manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle". An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be "clear and egregious", the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and "undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes". When resentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a "rare and exceptional" character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.

Crown appeals inevitably excite an examination of whether there is reasonable proportionality between the sentence and the gravity of the crime. The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime. (Citations omitted.)

31 The one ground of appeal of the Director is as follows:

The sentences imposed and the total effective sentence are each manifestly inadequate, and the order that the total effective sentence be served by way of intensive correction in the community has resulted in a sentence which is manifestly inadequate.

**32 In a candid and particularly helpful submission before us senior counsel for the Director acknowledged the difficulties facing a successful appeal where a term of imprisonment has been ordered to be served in the community as an intensive correction order. Rather than maintain the contention advanced on the plea that an immediate custodial sentence was necessary, he argued that an appropriate course would be to set aside at least one of the sentences to be served as an intensive correction order and in substitution impose a term of imprisonment of three years to be suspended.

33 Senior counsel for the Director acknowledged that the following three factors effectively precluded the Director from now contending that the respondent should be required to serve a period of imprisonment.

34 First was the effect of the principle of double jeopardy which would require a lesser sentence to be imposed by this Court than would otherwise have been appropriate.

35 Second was the fact that the respondent has already served half of the intensive correction order within the community.

36 Third was the fact that the Director has not appealed against the sentences imposed upon the other offenders who received sentences more lenient than that imposed on the respondent.

37 Those concessions having been properly made, it was submitted that the Court should nevertheless conclude that a sentence of twelve months' imprisonment to be served by way of intensive correction order was manifestly inadequate and that this court should impose a longer term of imprisonment which should be wholly suspended pursuant to s 29 of the Sentencing Act 1991.

38 Senior counsel for the respondent submitted that the sentence imposed was not manifestly inadequate, describing it as being at the low end of the range available. He submitted in the alternative that if the sentence was regarded as manifestly inadequate, an immediate custodial sentence was not open for the reasons advanced by counsel for the Director, but accepted that it was open to the Court, in lieu of the intensive correction order, to impose a longer period of imprisonment and wholly suspend it.

39 The task faced by this Court is, as is often said, not to determine what sentence may have been imposed by this Court, but rather to determine whether the sentence is so manifestly inadequate that it plainly demonstrates sentencing error and then in the context of a Director's appeal to determine whether this Court should interfere.

40 Both parties accepted that the learned sentencing judge had extended an element of mercy in fixing the lenient sentence which he did.

41 Whilst I assume without deciding that there may be circumstances which call for mercy that would allow a sentence to be imposed which would be outside the range of sentences appropriate for the offence committed, this was not such a case. Here the leniency which the trial judge wished to extend had to be exercised within the confines of the range of sentences available. In my view a sentence of twelve months' imprisonment to be served by way of an intensive correction order fell outside that range and was manifestly inadequate.

42 The conduct of the respondent and his co-offenders, who as a group intended that harm be inflicted on the victim and who in the frightening circumstances I have described invaded the victim's home and caused him serious injury, was of very serious order and were it not for the factors which are now present (which I will set out in a moment), it would have been necessary to impose a term of imprisonment which the respondent should be required to serve immediately.

43 In the light of these observations, the following matters are relevant to a determination of whether this Court should now set aside the impugned sentence.

44 First, it is not contended by the Director that the sentencing judge ignored a relevant sentencing principle or, alternatively, had regard to any irrelevant principle. To the contrary, the sentencing judge (who is vastly experienced in this area) seems to have been mindful of all relevant considerations and anguished considerably over the appropriate sentence. In fixing the sentence it is plain enough that his Honour was primarily motivated by the good character of the appellant and the relative youth of the appellant and his co-offenders.

45 Second, the sentencing judge did impose a period of imprisonment of one year. It is not to be treated as anything other than a term of imprisonment; s 19(5) of the Sentencing Act 1991 makes that clear.

46 Third, the overall discretion of the sentencing judge must be the subject of careful consideration prior to this Court interfering with the sentence on a Director's appeal. This is particularly so where an experienced judge forms a view that leniency at a particular stage of the offender's life may lead to reform[4] - as is clear was the case here.

47 Fourth is the application of the double jeopardy principle. The respondent has already been sentenced to a term of imprisonment to be served as an intensive correction order within the community. This Court must be mindful of the effect of exposing the respondent to sentencing on two occasions in considering whether to disturb the sentencing judge's discretion. It is clear that this consideration is relevant in the first place to a determination of whether the impugned sentence should be disturbed and secondly as bearing upon the sentence that should be fixed where the Court has resolved that the sentence is so inadequate as to warrant appellate interference.[5]

48 Fifth, and directly related to the previous proposition, is the fact that since 30 October 2007 the respondent has, as a matter of fact, been serving the intensive correction order. Speaking of the principle of double jeopardy in the context of an intensive correction order, in Director of Public Prosecutions (Vic) v Fevaleaki,[6] Redlich JA said as follows:**

This latter consideration will have particular application where the sentence that has been imposed at first instance has already been served in whole or part in the community and the offender, as in the present case, is exposed for the second time to the prospect of immediate custodial sentence.

In Director of Public Prosecutions (Vic) v Anderson[7] Eames JA said:

It is a very serious step to imprison a person who has been dealt with and released into the community by a trial judge.

**49 Sixth, the mitigatory factors were not without merit and clearly warranted consideration by the sentencing judge.

50 Seventh, each of the co-accused have been the subject of terms of imprisonment ordered to be served pursuant to an intensive correction order. No appeal by the Director has been lodged in respect of any of those sentences. To vary the respondent's sentence to a greater period of imprisonment will undermine the parity considerations which effect the imposition of all the sentences.

51 Eight, the respondent has, whilst serving the intensive correction order, been the subject of this appeal.

52 The attack on Mr Mannaert in the security of his home was both vicious and unwarranted. It deserved condemnation and a sentence of imprisonment was patently justified. As I have already said the penalty of one year imprisonment, given the outrageous nature of this invasion by the respondent amongst a group of miscreants with accompanying violence being inflicted upon the victim requiring hospitalisation, was inadequate. A more substantial and severe sentence of imprisonment should have been imposed. There is considerable force in the submission of senior counsel for the Director that a substantial period of imprisonment be imposed, wholly suspended if necessary.

53 However the test on a Director's appeal is not satisfied solely by the inadequacy of the original sentence. Rather, there are a number of other matters to be taken into account, which I have endeavoured to identify. These are particularly relevant where the principle of double jeopardy operates in the context of a respondent who has for some time been serving an intensive correction order.

54 For these reasons I am of the view that the Court should not interfere with the impugned sentence, nor should we, despite the force of the Director's submission, increase the term of imprisonment and wholly suspend it.

55 Nothing in this conclusion should be understood to endorse the sentence imposed by the sentencing judge. It was too lenient; however in the peculiar circumstances of this case, too much water has now passed under the bridge to interfere with it. Nonetheless there will be occasions when, notwithstanding that a respondent is the subject of a non-custodial order, it will be appropriate on a Director's appeal to set aside the impugned sentence and impose a custodial sentence forthwith.**

**56 The sentencing judge was too lenient. The sentence was inadequate. However for the reasons I have endeavoured to articulate the appeal must be dismissed.

[2] His Honour also described the incident as a "very serious, ugly affair".

[3] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538 [10] and [11].

[4] See R v Osenkowski (1982) 30 SASR 212, 212-3; see also DPP v Leach [2003] VSCA 96; (2003) 139 A Crim R 64 [44]-[49].

[5] DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524 [24].

[6] [2006] VSCA 212; (2006) 165 A Crim R 524 [24].

[7] (2005) VSCA 68 [59].