DPP v Lehmann [2005] VSCA 9

5. The respondent was born on 26 January 1976 and at the time of the offence he was 26 years of age. He had a significant criminal history. As the judge recorded in her Honour's sentencing remarks, it included numerous convictions for offences of dishonesty and several involving violence. He spent time in a youth training centre in his late teens and his record reflects that the experience was not sufficient to deter him from further offending. He breached sentences imposed in respect of subsequent offences, including community based dispositions, and in March 1999 he was sentenced to serve 114 days imprisonment for breach of an intensive corrections order. In June 2000 he was sentenced to a wholly suspended sentence of imprisonment for assault on a householder - the victim had come out from his home to stop damage being done by the respondent in the course of a drunken rampage - and thereafter the respondent breached the terms of the suspension by contravening an intervention order involving his former domestic partner and child. On 28 February 2002 he was sentenced to 21 days imprisonment for contravention of the intervention order, that sentence also being wholly suspended for a period of 12 months, and three months later on 29 May 2002, during the period of suspension, he committed the offence of burglary which is the subject of this appeal.

9. The principal victim of the offence was the respondent's former employer, Mr. Peter Przywara. Mr Przywara was the owner of Bellara Motors in Car City, Ringwood and he had given the respondent a job as a used car salesman in 2002. The respondent had worked for Mr Pzywara as a used car salesman for a period of about 10 months during 2002, and had then moved on to a position as a used car salesman with Etheridge Ford in Ringwood. After some six months in that position he had moved to Yarra Valley Toyota in Lilydale (only a few days before the offence). The respondent and Mr Pzywara had become friends while the respondent was working at Bellara Motors and they remained friends after the respondent moved on to other positions. Among other things they shared an interest in motorcycling. Before the commission of the offence the respondent had been to visit Mr Przywara at his home on a number of occasions, and they had been motorcycling together. Ironically, they had planned to go for a ride together on the weekend following the commission of the offence.

12. On 29 May 2002 the respondent went to work at Yarra Valley Toyota and at 9.45 am he telephoned Mr Przywara from work, ostensibly to inform Mr Przywara that he had taken a new position at Yarra Valley Toyota. It appears very likely, however, that the real purpose of the call was to establish that Mr Przywara was not at home. About an hour later the respondent left Yarra Valley Toyota and drove to Mr Przywara's home and entered it, believing that no one was at home. As it happened Mr Przywara's 18 year old daughter was at home, alone and asleep in her bed, and at around 11.00 am she woke to hear a noise from the computer room, next to her bedroom, which sounded to her as if someone were moving things around. Thinking that it may be her mother or one of her sisters she called out: "Who is there?", and when she received no answer she walked into the computer room. Finding that no one was there she walked into the lounge room, only to find that no one was there either, but she then heard a noise from the other end of the house in the area of her parents' bedroom and headed in that direction.

15. Upon walking into the bedroom Ms Przywara noticed that things appeared a little out of place and she became fearful. She pushed the door of the walk-in wardrobe to open it and saw two hands in dark green socks followed immediately by the respondent coming out towards her. She had seen him before when he had been to the house to visit her father and she recognised him straight away. She was standing up at the time and as he came out of the door she was pushed back and to the side and then he pinned her down for a few moments. She urged him not to do anything - just to leave and not to hurt her - and she kept on repeating that request. He responded by asking her whether there was anyone else at home and when she said that there was not he got up and left. After locking herself in her parents' bedroom she telephoned her mother for assistance and the matter was reported. Police attended at the scene and found two laptop computers in their covers lying on the floor and leads pulled out from the walls.

18. At 4.20 pm the police attended on the respondent at Yarra Valley Toyota and the respondent then accompanied them to the Lilydale Police Station at their request to be interviewed. He admitted that he knew Mr Pryzwara and that he had been to his home on a number of occasions but he denied that he had been to Mr Pryzwara's home that day or was otherwise involved in the burglary.

22. The judge sentenced the respondent on the basis that the jury had convicted him of having entered Mr Pryzwara's house with intent to steal, but with the expectation that no one would be home, and that nothing had been stolen or damaged. Her Honour said, however, that while those considerations might be thought to suggest a burglary of relatively low culpability, it was evident that the offence had been planned - it was not impulsive - and that it was further aggravated by the breach of Mr Pryzwara's trust and friendship involved in the commission of the offence, and the fact that the respondent had not shown any sign of remorse for what he had done.

25. The judge also referred in detail to the respondent's criminal history and remarked that it reflected a very unsettled and anti-social period in the respondent's late teens and up to his mid 20's in which he committed repeated serious offences, with some associated drug and alcohol abuse. Her Honour was nevertheless satisfied by evidence tendered on the plea in mitigation that there had been a significant improvement in the respondent's behaviour and lifestyle in the three years preceding the commission of the offence, following his marriage and the birth of a child, and the judge stated that she was much impressed by the fact that the respondent had been in constant employment as a car salesman throughout all of that time. As her Honour put it:

"I accept that you have ceased contact with the former friends and substances that influenced your previous offending. From what I am told, even the differences with your former partner who is the mother of your older daughter, have been resolved to the extent that your daughter stays with you every second weekend [and] I note that it was for breaching an intervention order involving them that you were last before this court."

"I also note that for at least the last three and a half years if not a little more, since commencing employment with Mr Przywara, you have maintained virtually constant employment as a car salesman. You were employed by Mr Przywara for some ten months, then apparently by Etheridge Ford for approximately five months and, having just started a new job in the week of this offence and notwithstanding that your employer there knew on the day this offence was committed that you were arrested for it, you remained in that employment for a further two years. I am informed that four or five months ago you changed employment to another car sales position, but that your present employer is unaware of you facing this charge. For someone with the criminal history you had accumulated, it is to your credit that you have maintained steady employment, and this is consistent with what I have been told of the changes in your approach to life since your marriage to your wife, Amanda, and the birth of your child."

31. The judge explained that it was necessary to impose a sentence which amounted to adequate punishment and which was sufficient to deter the respondent from committing further offences, and her Honour referred also to the need for general deterrence of crimes of the kind in question. But the judge concluded that in all the circumstances a sentence of only eight months' imprisonment was warranted. And her Honour was also persuaded that because of the improvement in the respondent's behaviour since his marriage it was appropriate that he serve the sentence by way of intensive correction order. Thus her Honour sentenced the respondent to eight months imprisonment to be served by way of a intensive corrections order with all core conditions to apply.

35. The sole ground of appeal is that the sentence imposed was manifestly inadequate. The Director contends that the judge:

a) failed to reflect adequately the gravity of the offence generally and in this case in particular;

b) failed to take into account or sufficiently to take into account the aspect of general deterrent;

c) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

d) gave too much weight to factors going to mitigation;

e) gave insufficient weight to the respondent's relevant prior criminal history generally;

f) gave insufficient weight to the respondent's history of breaching community based dispositions;

g) gave insufficient weight to the applicable maximum penalty of 10 years' imprisonment; and

h) gave insufficient weight to the breach of trust disclosed by the commission of the offence.

46. The gravamen of the Director's contentions is that the judge gave insufficient weight to the meanness of the offending given the relationship between the respondent and Mr Przywara, the premeditated nature of the offending including a visit to Mr Przywara's home only a few weeks before the offence, the circumstances of the confrontation between the respondent and Ms. Przywarra, the fact that the offending remained unexplained and unacknowledged and the complete absence of remorse.

49. The Director submits on that basis that a sentence of only eight months imprisonment was plainly inadequate and that even the maximum period of 12 months open for an intensive corrections order was not within the range relating to the offending of a person in the position of the respondent. The Director says that nothing less than an immediate custodial sentence was and is required, even though a partially suspended sentence or a relatively low non-parole period would be a satisfactory sentencing disposition.

52. For the respondent, it is contended to the contrary that it is plain from the sentencing remarks that the judge took all of the considerations mentioned into account, and that her Honour was entitled for the reasons she gave to conclude that a sentence of only eight months to be served by way of intensive correction order was the appropriate sentence. Alternatively, it is said that, even if the sentence were thought to be manifestly inadequate, the principle of double jeopardy as it applies to a Crown appeal should preclude this Court from intervening to re-open one in the sentencing discretion.

56. The judge's carefully constructed sentencing remarks leave no room for a suggestion of specific error. It is evident that her Honour was well aware of the applicable sentencing principles and that she took care to note and give weight to relevant sentencing considerations. The sentencing remarks make plain the respective weights that her Honour thought it appropriate to give those considerations in her sentencing synthesis. The only thing which has or could be said in support of the appeal is that the sentence was remarkably lenient.

59. In my opinion the sentence was remarkably lenient. It looks to me to be very much towards the bottom end of the scale and, given the respondent's antecedents and apparent lack of remorse, it is difficult to conceive of the offence as amongst the least serious examples of burglary likely to be encountered. A survey of past decisions essayed in Fox & Frieberg's work on sentencing identifies as the four major factors that have been taken into account in imposing sentences for burglary: the amount stolen and recovered (even though strictly speaking it should be the subject of separate charge); the degree of skill involved in the planning and execution of the offence (which may encompass the element of breach of trust where the burglary has been carried out by a person who is or has been employed by the victim); the amount of damage cause to premises; and the risk of injury or violence to returning house holders or the degree to which those in occupation have been subjected to fear). It may be noted that all but one of those considerations is present in this case. The same survey suggests that the median custodial sentence for burglary ranged in the period surveyed from 10 ½ months to 18 months, and that it was only in the least serious of cases that a sentence of less than 12 months imprisonment might be expected. The mid-range was comprised in the large part of sentences of between one year and three years, and more serious cases were shown to have attracted sentences of greater than three years. Similar conclusions emerge from the most recently published sentencing statistics for superior courts in Victoria. They show a sentencing range for burglary of two months to six years with an average of 21.5 months and a median of eighteen months. [1] So, other things being equal, I should have thought that the respondent's offence warranted a sentence of imprisonment of between one year and three years and that an intensive corrections order was really not an option.

62. I also observe that although different maximum sentences apply in other States, the range of sentences for burglary likely to be imposed in Victoria is considerably below what are described as "the tariffs" in New South Wales and Queensland. It is surely arguable that the considerations which underlie the approach which is taken in those other states apply as much in Victoria as they do in those other states[2]. No doubt the point cannot be taken too far, because it is dependent upon conclusions about the prevalence of burglary and hence the need for greater measures of general deterrence, and the Director has not made any attempt in this appeal to mount the sort of evidence of prevalence that has been said to be required to support a substantial change in a sentencing range[3]. But it is at least another reason to doubt that the sentence imposed in this case was in all the circumstances adequate.

65. In the end, however, I am not satisfied that the sentence has been shown to be manifestly inadequate. Despite the respondent's antecedents and apparent lack of remorse, and despite the other aggravating considerations mentioned by the judge and emphasised by the Director, it is plain that the judge was satisfied that the respondent had undergone some sort of attitudinal metamorphosis since his marriage, and that it was of a kind and extent which rendered complete rehabilitation a real likelihood. It also appears from the discussion which occurred in the course of the plea that her Honour accepted that an immediate custodial sentence might so much disrupt the financial stability of the respondent's young family as seriously to threaten and perhaps to destroy that prospect of rehabilitation.

68. The Director points to the fact that the respondent committed this offence some years after his marriage and thus some years after he is supposed to have undergone the significant changes in character and approach to life to which the judge referred. The implication is that in all the circumstances the judge paid too much credence to the idea that the respondent has changed. There is force in that submission. But it was for the judge to find the facts upon which she based the sentence and in the absence of identifiable error or perversity in the fact finding process her Honour `s findings stand.

71. Despite therefore what I regard as the remarkable leniency of the sentence I am not persuaded that it was erroneous for her Honour to show that degree of leniency. As King CJ said in Osenkowski[4], and has so often rightly been repeated in other cases, it is important that Crown appeals not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has

traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.[5] In my opinion this was one such a case.

75. I conclude by adding that even if it were thought that the sentence was manifestly inadequate, I would not be disposed to intervene. Although the difference between the existing sentence and any which might properly be imposed in re-sentencing would be more than marginal, I consider that the respondent has for now so long been at liberty and done so much towards compliance with the intensive corrections order that it would be unduly burdensome for him to be incarcerated[6]. As we were told this morning, since the sentence was imposed the respondent's wife (who was at the time of sentencing the family's principal breadwinner) has lost her employment and she is now four months' pregnant. The respondent is therefore the sole provider for the family and he faces obligations $1,700 per month for mortgage expenses and a further $200 per month child support for his elder daughter; he is involved for 12 hours per week in compliance with the corrections order, including the whole of each Friday and a further four hours at Swinburne Institute in a course as part of the corrections order; and he is working every other day of the week, including Sundays, in order to make ends meet.

78. In all the circumstances, I would dismiss the appeal.

82. In my opinion, when regard is had to the nature of the conduct in which the respondent engaged, conduct that was appropriately described by the learned sentencing judge as mean, and his prior criminal history, the sentence imposed upon him on this occasion was manifestly inadequate. Of particular significance, in my

mind, is the fact that it was only three months before he committed the offence with which we are concerned, that he had successfully appealed to the County Court against two sentences of imprisonment imposed upon him in the Magistrates' Court on separate occasions.

86. He had been given the benefit of dispositions that did not involve immediate incarceration. He appears to have paid absolutely no regard to the opportunity that was afforded to him in consequence, nor indeed does it appear that those dispositions, and even the concerns that he must have experienced at that time about the possibility of incarceration, had any deterrent effect upon his behaviour.

89. However a period of three years has now elapsed since the commission of the offence, during which the respondent has been at liberty, and has demonstrated a level of responsibility to his family and the broader community that had not hitherto been evidenced. He has been in constant employment, and is the sole breadwinner for his family.

92. It would appear clear that incarceration at this point of time would have very drastic repercussions, not only from his perspective, but from that of other persons who are dependent upon him. In view of the efforts that he has made towards his rehabilitation, the period of time that has elapsed since the commission of the offence, the fact that interference by this Court would now convert a non-custodial disposition, in a practical sense, into a real one, and the other circumstances to which our attention has been drawn to this morning, I consider, that in the exercise of the discretion reposed in this Court, that the appeal should be dismissed.

96. I consider her Honour's sentence and its reasons were most perceptive. I do not consider that the sentence imposed was manifestly inadequate, nor do I consider that the sentence was remarkably lenient. It was at the bottom of the range.

99. Her Honour correctly identified the aggravating features of the matter,

including the presence of the young woman in the home, the fear she was subjected to, and the close temporal proximity of three months since the suspended sentence was imposed upon the respondent in the County Court.

103. On the other hand, the respondent sought to ascertain that no-one was home and affirmatively believed that no-one was home. His conduct towards the 18 year old daughter present was only directed to ascertaining how he could leave. Had he done anything further in relation to the daughter, he would have been in deep trouble and rightly so.

106. The sentencing judge correctly identified, in my view, the fact that the respondent was turning his life around. Subsequent events have confirmed that. In all the circumstances I consider the sentence was at the bottom of the range, but not manifestly inadequate.

110. The order of the Court is that this appeal stands dismissed.

COUNSEL: If the Court pleases. We seek a certificate, Your Honour.

[ ]1 See Victorian Higher Courts Sentencing Statistics, 2002/2003 at p. 33

[2] See R v Hayes [1984] 1 NSWLR 740 at 742-3; R v Joyce [1986] 1 Qd R 47 at 49.

[3] R v Downie & Dandy [1998] 2 VR 517 at 520; R v Lim & Ko [1998] VSCA 54 at [34].

[4] R v Ozenkowski (1982) 30 S.A.S.R. 212 at 212-213.

[5] See for example DPP v Carter [1998] 1 VR 601 at 607; DPP v Alateras [2004] VSCA 214 at [2].

[6] R v Costi and Hortis, unreported, 30 Noverber 1992, per Southwell J; R v Hayes (1987) 29 A Crim R 452 at 469, per Kirby J.