DPP v El Hajje [2009] VSCA 160

1 On 31 July 2008 the respondent, Fedi El Hajje, pleaded guilty in the County Court at Melbourne to two counts of aggravated burglary, two counts of theft, two counts of obtaining property by deception and three counts of attempting to obtain property by deception. Those offences had all been committed between 13 December and 16 December 2006. On 26 September 2008, he was sentenced as set out below:

The judge directed that the sentence be wholly suspended for a period of 3 years.

2 The Director of Public Prosecutions appealed against those sentences by notice dated 23 October 2008. The grounds of appeal are:

1. The total effective sentence imposed in respect of counts 1, 2, 8 and 9 and the direction by the sentencing judge to wholly suspend the sentence in respect of counts 1, 2, 8 and 9 for a period of 3 years and the sentence imposed on counts 3, 4, 5, 6 and 7, resulted in the overall sentence being manifestly inadequate in the circumstances.

Particulars

In ordering a total effective sentence of 3 years imprisonment in respect of counts 1, 2, 8 and 9 and directing that the sentences be wholly suspended for a period of 3 years and in ordering a 2 year community based order with a special condition to perform 400 hours of unpaid community work in respect of counts 3, 4, 5, 6 and 7, 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 offenders' 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 for similar offending;

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

• the plea of guilty,
• family support,
• the offender's history of substance abuse,
• the role of the offender's substance abuse in the offending and
• the prospects of rehabilitation.

1. The lack of cumulation in respect of counts 1, 2, 8 and 9 was in error in all the circumstances

Particulars

In failing to direct any cumulation in respect of any of the sentences imposed on counts 1, 2, 8 and 9, the sentencing Judge -

(a) failed to properly apply the principle of totality, namely that the total effective sentence failed to reflect the totality of the offending conduct and was not "just and appropriate" in all of the circumstances.

3 The principal ground is that the total effective sentence is manifestly inadequate in the circumstances. The particulars, without making complaint of specific error, seek to identify the features which produced the alleged manifestly inadequate sentence.

4 Ground 2 does complain of a specific error relating to the absence of cumulation. Whether that be error or not, the ground cannot succeed unless this Court is convinced that a 'different sentence' should have been imposed (s 567(4) of the Crimes Act 1958 (Vic)). To that extent it is really a particular of manifest inadequacy.

5 The facts may be stated briefly. At about 11.15 pm on the night of 13 December 2006, the respondent entered a house in Brighton occupied by the Robinson family, through a closed - but unlocked - ground floor window. It was quite a bold entry as the family were at home. Mrs Robinson was in her bed upstairs, three young children were in bed, a guest was in bed in another room and Mr Robinson was working in his study. A number of lights were on in the house. Mrs Robinson's bag was stolen from the kitchen table and Mr Robinson's wallet was stolen from the upstairs bedroom where Mrs Robinson was asleep. The respondent made good his escape through the unlocked front door. That is the conduct which gives rise to counts 1 and 2.

6 At about 11.57 pm that night, the respondent managed to use a Visa card stolen from Mrs Robinson to obtain $1,000 cash from the National Bank via a Commonwealth Bank automatic teller machine ('ATM'). Two further attempts were made to obtain $1,000, but the ATM would not process the transaction. That conduct is covered by counts 3, 4 and 5.

7 The respondent managed to withdraw two lots of $500 from the account shortly afterwards. That was count 6. A further attempt to withdraw $1,000 was unsuccessful, and that was count 7.

8 At about 6.00 am on 16 December 2006, the respondent entered a house at Black Rock occupied by Mr Alan Harley, through an unlocked sliding door. The respondent stole a laptop computer, computer log, disks, webcam, a headset and a set of keys from an upstairs bedroom, and appliances from the kitchen. He entered the master bedroom where Mr Harley was asleep and stole a mobile phone, charger and spare battery. Mr Harley woke up but was not able to apprehend the burglar.

9 The respondent left a fingerprint behind in each house. He was not spoken to by the police until January 2007. He made no admissions in that interview.

10 He was not charged with these matters until July 2007 and they first came before the Court on 15 August 2007. There was a committal in November, in which the respondent tested the fingerprint evidence. He was committed to the County Court for a case conference on 29 January 2008. A trial date was fixed for 27 July 2008, and there were directions hearings on 11 March 2008 and 3 April 2008.

11 On 3 April 2008, the respondent was arraigned and pleaded guilty to these counts. The plea was conducted on 31 July 2008.

12 On 7 February 2002, the respondent had been sentenced to a total effective sentence of 7 years with a non-parole period of 5 years. He was convicted on that occasion of armed robbery, robbery (10 counts), attempted robbery (two counts), burglary, attempted burglary, theft (13 counts), attempted theft and common assault. That sentence appears to have been a lenient one, given that by February 2002 the respondent already had a very substantial criminal history. His convictions for dishonesty offences stretched back to 1993, and included multiple convictions for burglary and theft. The catalogue of his prior convictions for dishonesty offences is as follows:

13 The respondent was released on parole in August 2006. Unfortunately, he re-offended not long after his release on parole. He was charged with a number of dishonesty offences (unrelated to the offending the subject of this appeal) also committed while he was on parole. On 8 March 2007, he was sentenced in the Magistrates' Court on certain of the unrelated offences to 20 months' imprisonment, with a non-parole period of 10 months.

14 On 22 December 2006, just after committing the offences with which we are concerned, the respondent had his parole cancelled. He was ordered to serve the unexpired portion of the sentence imposed in February 2002, which amounted to almost two years ('the parole sentence'). He was serving the parole sentence at the time he came to be sentenced for the present offences. The magistrate in March 2007 had ordered that the sentence then imposed should be served concurrently with the parole sentence.

15 Thus, when Judge Lacava sentenced the respondent in September 2008, he was in custody at the discretion of the Parole Board. He was released on parole on 19 October 2008. His parole was cancelled on 19 December 2008 and he was arrested on 30 December 2008. He was ultimately released on 29 April 2009.

16 The Court was informed of these post sentence matters by counsel for the respondent on the hearing of the appeal. The Court was also informed that the respondent had been dealt with for a breach of the community-based order imposed by the judge, and that it had been reinstated. Prior to the completion of these reasons, the Court was advised by counsel for the respondent that he was again in custody, having been charged with armed robbery. He intends to contest that charge. There was some debate on the appeal about how many breaches of the community-based order there had been. In the light of subsequent events, that matter seems of little or no consequence.

17 We note that, from about August 2001 until April 2009, the respondent has been in custody for about seven years and at large for only seven and a half months. He is 33 years of age. In the course of his criminal history, referred to earlier, he has been fined, released on intensive corrections orders and community-based orders, placed on suspended sentences (both in full and in part), and sentenced to be imprisoned.

18 The respondent is a drug addict. Unless he does something about his addiction, it seems highly likely that he will continue to offend in the same way. In the time he was on parole between 12 August 2006 and 22 December 2006, he committed four aggravated burglaries, two burglaries, two attempted burglaries, nine offences of obtaining property by deception, two attempts to obtain property by deception, two thefts of motor a vehicle, two offences of driving whilst disqualified, and one offence of driving whilst suspended.

19 His Honour was told that the respondent had commenced using heroin when he was 18. The pattern of his offending seems to confirm that. He is the eldest of six children. He still has the support of his family and his parents, and three of his sisters came to Court on the plea. He is the only member of the family who has been in trouble.

20 As already noted, the respondent engaged in a spree of offending between August and December 2006. During at least part of that period, he was using methylamphetamine (commonly known as 'Ice').

21 It is not surprising that the respondent has no particular training. During his adult life he has worked only spasmodically. After his release in August 2006, he found it difficult to cope after five years in jail. He resorted to drug use. The present offences occurred after he had attended a detoxification program at St Vincent's Hospital. He had been provided with a prescription for buprenomorphine, but was unable to have the prescription filled over the weekend and he relapsed. At the time of the plea, the respondent was drug-free, though his Honour properly accepted that he was an addict.

22 His Honour ordered a pre-sentence report, which assists us in understanding the base of the sentencing decision. It stated:

Mr Elhajje presents as a highly motivated prisoner, however there are present concerns as to his ability to cope with the demands placed on him by his family whose beliefs, he at times finds difficult to adhere to. It is difficult to make comment on his ability to undertake a community-based disposition whilst the Adult Parole Board have not yet made a decision regarding his potential release on parole. Mr Elhajje has expressed a desire for a highly intensive order to be imposed by the Court for these charges however; this raises concern for this Service as it may result in him being overwhelmed and unable to comply.

Mr Elhajje has had all orders explained to him in full and he has expressed his motivation to comply with whichever Order the Court deems to be appropriate. He is at this time deemed as a suitable candidate for a community-based disposition with the above-mentioned conditions attached to his Order.

23 His Honour also had a report from GSL Custodial Services,[1] stating that the respondent had participated in 21 sessions of a cognitive skills program and had been a valuable group member. He did not complete the program. He was unable to do so through no fault of his own. There was also a report from Caraniche Drug and Alcohol Service, which showed that he had completed a comprehensive drug treatment program whilst in prison. It was said that he had been an active and useful participant in the course.

24 His Honour carried out a very careful and helpful analysis of authorities dealing with the relevance of drug addiction in the sentencing process. His Honour went on to say:

Applying these principles to this case I am of the opinion that it is possible to frame a sentence which balances principles of general deterrence, protection of the public, and specific deterrence. I must impose a punishment which is, in all the circumstances, just. The sentence to be imposed should meet the needs and expectations of the community and take account of the effect of your offences on the community. It should also take into account those matters personal to you and the mitigating factors already discussed.[2]

25 The principles which govern appeals by the Director of Public Prosecutions are well-established.[3] Counsel for the respondent sought to reinforce those principles, and the importance of the exercise of mercy. Counsel conceded that the disposition in this case was at least a merciful one and, perhaps, a very merciful one. He submitted that, when sentencing statistics for aggravated burglary were analysed, a sentence of three years was within the range. He further argued that, although this offending did involve intrusion into homes, the two aggravated burglaries were not particularly serious examples of crime, principally because they did not involve violence.

26 Senior counsel for the Director contended that it was not reasonably open to the judge to suspend the custodial sentence fully. He submitted that the evidence before the Court simply did not justify the extraordinary step of imposing a sentence without any immediate period of imprisonment, particularly when regard was had to the criminal history of the respondent. Necessarily, if the Director succeeded on that point, the community-based order component of the sentence could not be performed.

27 The submission for the Director was that the sentence

subverted the principles of general deterrence, specific deterrence and protection of the community by giving too much weight to rehabilitation. This was in circumstances where his Honour could not give rehabilitation greater weight than other factors because the prospects of rehabilitation were extremely poor.

28 The Director contended that the head sentence of three years for each of the aggravated burglaries could not be justified, when proper account was taken of the respondent's prior criminal history and the lack of plea material to establish prospects of rehabilitation. Likewise, it was contended that the sentences imposed on the theft and deception counts could not reasonably be justified, since these were 'serious examples of theft and fraud committed by a person with an extensive history of similar criminal offending'.

29 Senior counsel for the Director provided a helpful submission on what the Crown said was the indicative sentencing range open to the judge when dealing with this offender, with his record, for this series of offences. That submission was as follows:

These figures do not make any allowance for the double jeopardy discount.

30 Under s 5(2) of the Sentencing Act 1991 (Vic), the sentencing judge must have regard both to the maximum penalty fixed by Parliament for the relevant offences and to current sentencing practices. As appears from Table A above, aggravated burglary carries a maximum of 25 years' imprisonment; theft and obtaining property by deception each carry a maximum of 10 years' imprisonment; and attempting to obtain property by deception carries a maximum of 5 years' imprisonment.

31 The Director's submission was accompanied by an extract from the Sentencing Manual published by the Judicial College of Victoria, showing that in the years 2003-04 to 2007-08, the average custodial sentence for aggravated burglary ranged from 1 year 11 months to 2 years 5 months. The median custodial sentence ranged between 1 year 6 months and 2 years 6 months. The highest sentence imposed on a single count of aggravated burglary during that 5 year period was 7 years.

32 We set out below, in table form, the sentencing decisions in 20 recent cases in the County Court involving aggravated burglary. This material was helpfully provided by senior counsel for the Director, at the request of the Court.

Aggravated Burglary - County Court Sentencing Summary

33 No submission was advanced on behalf of the Director - either in writing or on the hearing of the appeal - questioning the adequacy of current sentencing practices for aggravated burglary. 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.

34 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.

35 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. The victim impact statements demonstrate just how frightening offending of this kind is to ordinary members of the community. It requires little imagination to appreciate the acute sense of vulnerability of the victim who awoke to find that an intruder had been by her bed during the night.

36 Judged only by reference to current sentencing practices, the sentences here imposed were manifestly inadequate. This was very serious offending, involving as it did entry into homes where people were asleep. The long and very serious criminal history of the respondent, and the fact that he was on parole at the time of these offences, show what a very serious risk he presents to the community. Regrettably, he has shown himself completely incapable of shaking off his drug addiction or otherwise of developing strategies to stay within the law. His record is one of persistent disregard of the law. In our view, the sentences imposed, the failure to direct cumulation, and the decision wholly to suspend the sentence, produced sentences which reveal error in principle. The appeal must therefore be allowed.

37 The learned sentencing judge regarded the respondent as somewhat let down by the system. In fact, when the respondent was released and relapsed into drug use, his parole officer arranged for his admission to a 'detox' centre, rather than report him for a breach of parole. That was a constructive, supportive response. It was in those circumstances that the respondent let himself down by his inability to abstain from drugs, even for a weekend.

38 These offences were committed over a very short period of time and the degree of cumulation required is limited. We have also taken into account the principle of double jeopardy, which is to be applied to resentencing offenders in these circumstances. In particular, we are mindful that the Court will be substituting an immediate custodial sentence for a sentence which was not. It should be assumed that we would not otherwise regard these sentences as appropriate for offending of this kind by a person with this criminal history.

[1] The company which operates Port Phillip Prison.

[2] R v El Hajje (Unreported, County Court of Victoria, Judge Lacava, 26 September 2008) ('Reasons'), [57].

[3] See judgment of Charles JA with whom Winneke P and Hayne JA agreed in R v Clarke [1996] VICSC 30; [1996] 2 VR 520; R v Bright (2006) A Crim R 538.