DPP v O'Brien [2019] VSCA 254

1 As this Court said in Hogarth v The Queen,[1] home invasion 'is a particularly nasty form of criminal conduct':

Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders - acting in anger and often fuelled by alcohol - is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.[2]

2 Until 2016, those who participated in a home invasion were prosecuted, and sentenced, for the offence of aggravated burglary. Indeed, home invasions were viewed as a very serious form of aggravated burglary, as appears from the Sentencing Overview for that offence published by the Judicial College of Victoria.[3] The Sentencing Overview shows that, of the 15 highest sentences for aggravated burglary reviewed by this Court in the period 2009-2018, 12 were for home invasion.

3 In 2016, the Victorian Parliament created a new, specific, offence of home invasion.[4] That offence carries the same maximum penalty as aggravated burglary (25 years' imprisonment). The offence is committed if a person, in company with one or more others, enters a home as a trespasser, with intent to steal or to commit an offence involving assault or criminal damage (carrying a maximum of five years or more) and either:

(a) the person is carrying a weapon or an explosive; or

(b) there is another person in the home, whether or not the offender knew that there would be a person present.

4 As the parties to this appeal accepted, the sentencing decisions of this Court concerning home invasion as a form of aggravated burglary remain directly relevant to sentencing for the new offence. In particular, as the parties also accepted, what this Court said in Hogarth and in Director of Public Prosecutions v Meyers[5] about the need for higher sentences for this egregious form of conduct continues to apply.

5 In the present case, the respondent was an active participant in a very nasty home invasion. Although he did not initiate the offending, he was the leader of the violent attack on the house, using a sledgehammer in attempting first to break down the front door and then in smashing windows, before terrorising those inside. His co-offender, who followed him in, was carrying a rifle. The respondent was sentenced to 20 months' imprisonment, together with a two-year Community Correction Order ('CCO'), with attached conditions.

6 The Director of Public Prosecutions has appealed against the sentence (and the sentence for an assault committed while inside the premises) on the ground of manifest inadequacy. For reasons which follow, we would allow the appeal and resentence the respondent to six years' imprisonment, with a non-parole period of three years and six months.

7 This home invasion had all of the terrifying features referred to by this Court in Hogarth. Sentencing courts must continue to respond to conduct of this kind with substantial sentences. General deterrence is 'a sentencing principle of great importance in cases such as these'.[6]

8 After a plea of guilty, the respondent was sentenced as follows:

Home invasion (Crimes Act 1958 s 77A)

Non-prohibited person possess registered Category A long arm while not the holder of a licence (Firearms Act 1996 s 6(1))

Possess cartridge ammunition while not the holder of a licence (Firearms Act 1996 s 124(1))

Unlawful assault (Summary Offences Act 1966 s 23)

20 months' imprisonment and a CCO for 2 years with the following conditions:

1. Pursuant to s 48E of the Sentencing Act 1991, to be supervised, monitored and managed as directed by the Secretary from the Department of Justice and Regulation;
2. Pursuant to s 48D(3)(e) of the Sentencing Act 1991, to undergo assessment and treatment, including testing for any mental health conditions;
3. Pursuant to s 48D(3)(f) of the Sentencing Act 1991, to undergo offending behaviour programs; and
4. Pursuant to s 48D(3)(b) of the Sentencing Act 1991, to undergo assessment and treatment for alcohol abuse or dependency.

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Section 6AAA statement:

The total effective sentence, individual sentences and the orders for cumulation imposed on each of charge 1 on the indictment, and on summary charges 3 and 5 are manifestly inadequate in all the circumstances.

10 The circumstances of the offending were as follows. On 7 July 2018, the respondent was at home with his friends, drinking alcohol. Sometime later, he and two co-offenders left his house in his white utility. The respondent was a passenger in the vehicle.

11 At approximately 10 pm, the respondent and co-offenders parked the vehicle outside a block of units. Armed with a large sledgehammer, the respondent left the vehicle with one of the co-offenders ('the first co-offender'), who had with him a .22 calibre rifle. The other co-offender ('the second co-offender') remained in the driver's seat of the vehicle as the lookout, while the respondent and the first co-offender approached the front door of Unit 2 ('the unit'). The occupants, a male ('B') and a female ('M'), lived in separate bedrooms in the unit. Both occupants were home.

12 The respondent forcibly struck the front security door with his sledgehammer. B heard a loud noise and went to the front door to investigate. As he opened the wooden door, leaving the security door closed and locked, he saw the respondent holding the sledgehammer and the first co-offender holding the rifle. The faces of both intruders were partially covered with black motorcycle masks. B told the respondent and first co-offender that they had the wrong house. The respondent struck the front security door again, causing the door to buckle inwards. B closed the wooden door and held it shut while the respondent continued to strike the security door with the sledgehammer.

13 At this point, M came out of her bedroom and yelled, 'Fuck off. You've got the wrong place'. She then telephoned her partner ('G'), and asked him to come to the unit, as two men were trying to break the front door down. G made his way to the unit.

14 The respondent turned his attention to a bedroom window. He used the sledgehammer to break both windows of B's bedroom. He and the first co-offender entered the unit through the smashed windows. Both were armed with their weapons. (Charge 1 - home invasion) B ran out the back door of the unit and climbed onto the boundary fence. From that vantage point, he could observe the events that were unfolding inside the unit.

15 B heard either the respondent or the first co-offender ask M for ice (crystal methamphetamine) and cash. She responded that she had none. The respondent then said, '[G's] family have sent us here, stay away from the family'. (Charge 5 - unlawful assault) The first co-offender approached M's motorcycle, which was in the lounge room, and said to the respondent that they should put it in his vehicle.

16 As M moved to stop the respondent and the first co-offender from taking her motorcycle, the first co-offender raised the rifle and pointed it at her. M grabbed the rifle and pushed it away. Later, M told police, 'As the first male was going for the bike, I felt like [the respondent] was getting in over his head, his expression changed'.

17 G arrived at the unit. The second co-offender drove away in the respondent's vehicle, leaving the respondent and first co-offender behind. G then entered the unit, and the respondent and first co-offender exited the premises through the front door. By this stage, the respondent was armed with both the sledgehammer and the firearm. (Charge 3 - possess registered long arm without licence) G returned to his vehicle and pursued the respondent's utility until he collided with it on Melton-Gisborne Road. The utility flipped on its side and skidded into a tree. The second co-offender fled on foot.

18 Police attended the collision scene and searched the utility which, it will be recalled, was owned by the respondent. They located 14 bullets for a .22 calibre rifle. (Charge 4 - possess cartridge ammunition without licence) At the unit, police seized a large yellow-handled sledgehammer and a packet of cigarettes left behind by the respondent and first co-offender. M provided a summary of events for the police, but became frustrated and walked down the street towards her friend's house. As she was walking, she saw the respondent nearby heading towards a park and carrying something in his hands. M alerted police.

19 The respondent disposed of a red-handled sledgehammer and a firearm, which were later found. He was then arrested and searched. A black motorcycle half face mask was located in the pocket of his jacket.

20 The respondent was taken to the Melton Police Station and given time to sober up before being interviewed. During his record of interview, he denied involvement in the offending, and stated that he had consumed half a dozen beers and three quarters of a bottle of bourbon that afternoon. He claimed that he was simply walking past the unit at the time of his arrest and that his utility had been stolen. He also denied owning a firearm.

21 On 20 February 2019, the respondent provided a statement to police, in which he said:

(a) The first co-offender was named Matthew but the respondent did not know his surname. The respondent described 'Matthew' as 'mid-20s, about 5'11, slim build and he always wears a cowboy hat'.

(b) G's father wanted M scared away from his son, and had driven the respondent and 'Matthew' to the unit in the respondent's vehicle.

(c) The respondent had the firearm in his car in case a horse needed to be put down.

(d) The respondent was 'blind drunk at the time' and could not remember much about the offending.

22 The appellant confirmed that, at the time of the hearing of this appeal, no other person has been charged in relation to the events on 7 July 2018.

23 The respondent put extensive submissions on the plea. In short compass, it was submitted that:

• He was intoxicated at the time of offending.
• His offending was spontaneous.
• He was prevailed upon to offend by G's father.
• His offending was out of character.
• He had assisted police and placed himself at risk by doing so.
• He was 36 years old at the time of offending; 37 at the time of sentence.
• He had a happy, uneventful childhood.
• He had completed Year 11.
• He completed an apprenticeship as a diesel mechanic.
• He had an unremarkable prior criminal history with no relevant prior convictions.[7]
• He had a solid long-term work history, mainly as a truck driver.
• At 22 years old, he met his current partner, who was then aged 45, a single mother with four children. He became their stepfather and provided financial support for the entire family. The children consider him to be their father.
• His partner and stepchildren remain steadfast in their support for him.
• His former employer will provide support on his release.
• On remand, he is employed as a welder at Marngoneet Correctional Centre in the metal shop.
• He has found imprisonment emotionally difficult.
• He has increased his alcohol intake in the last few years.

24 Numerous highly supportive character references were tendered on the respondent's behalf. A psychological report from Mr Peter Hanley, provisional psychologist, was tendered. Mr Hanley's report was reviewed by Mr Patrick Newton, clinical and forensic psychologist. Mr Hanley's opinion was that the respondent suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, sufficient to meet DSM-5 diagnostic criteria. Mr Hanley considered there was a moderate risk of recidivism. The respondent's anxiety, particularly about the ramifications of making a statement, will likely make his prison sentence more burdensome. Counsel for the respondent submitted that the prospects for rehabilitation were strong, and that a combination sentence of a period of imprisonment and a lengthy CCO was appropriate.

25 On the second day of the plea hearing, counsel for the respondent took the judge to the sentences passed from 2007 to 2019 for the offence of aggravated burglary. As noted earlier, it was common ground that sentencing decisions for that offence, subsequent to Hogarth and the change in sentencing practice, were material to the sentencing exercise.

26 The respondent directed his Honour to a number of judgments of this Court decided after Hogarth. His Honour correctly observed that 'Hogarth made it quite plain that this type of offending is a particularly nasty, serious type of offending'.

27 The defence ultimately submitted that a combination sentence, of a term of imprisonment and a CCO, was an appropriate disposition. The prosecution repeated that a term of imprisonment with a non-parole period was the only appropriate form of sentence available, given the objective seriousness of the offending.

28 The judge acceded to the defence submissions and imposed a total effective sentence of 20 months' imprisonment, and a CCO with various supervisory and therapeutic conditions attached.[8] We shall review the more prominent of his Honour's reasons for this disposition.

29 His Honour accepted the following matters in mitigation of sentence:

• The guilty plea was entered at an early stage.[9]
• The respondent has no relevant prior convictions.[10]
• The respondent assisted the authorities in a statement dated 19 February 2019.[11]
• The respondent has 'strong prospects for rehabilitation'.[12]
• The respondent suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which will make any prison sentence 'more burdensome'.[13]

30 The judge remarked that the legislature viewed the relatively new offence of home invasion as a serious offence by reference to the maximum penalty. He reviewed the decisions of Hogarth, Collier v The Queen[14] and Meyers. On several occasions, during the plea hearing and sentence, his Honour remarked upon the objective seriousness of this offending, while accepting that the respondent was not the precipitator of this very serious course of offending.[15] The judge noted that the respondent made denials and lied during his record of interview with police, although his plea was entered early.[16]

31 His Honour described the character references as 'impressive',[17] as was the family support available to the respondent, who was family oriented and could boast a solid work history.[18] Whilst his Honour accepted that the respondent's decision-making processes were affected by alcohol, he correctly stated that this constituted no 'defence or excuse' for the offending.[19] His Honour considered the combined impact of the mitigating circumstances to be 'powerful' and that this offending was 'out of character'.[20]

32 His Honour then imposed sentence and remarked, 'If your references were not as good as they were, you would be serving more time'.[21]

33 In commendably brief submissions, senior counsel for the appellant reviewed the objective features of the offending and submitted that the sentence imposed was wholly inadequate, regardless of the powerful mitigating features. Senior counsel stated that the appellant's real concern was with the sentence imposed on the offence of home invasion (charge 1).

34 Senior counsel for the respondent, in submissions which were likewise commendably brief, contended that the sentence imposed, while lenient, was within the permissible range open to his Honour and should be seen as a product of the powerful combination of mitigating factors.

35 His Honour's reasons for sentence were thorough and careful. All that could be said for and against the respondent was conscientiously analysed. We have nevertheless concluded that the composite sentence of 20 months' imprisonment with a two-year CCO on charge 1 (home invasion) was outside the range reasonably open, having regard to the seriousness of the offending.

36 Manifest inadequacy is a difficult ground to establish.[22] It is insufficient for an appellate court to conclude that it would have imposed a different, higher sentence. Where no specific error is identified, as in this case, the impugned sentence must be shown to be wholly outside the permissible range of sentences available.[23] On charge 1, we consider that inadequate weight must have been accorded to the objective gravity of the offending, the need for deterrence (both general and specific) and the need to denounce this type of conduct.

37 The respondent and the first co-offender, armed with a sledgehammer and rifle respectively, smashed their way into a private house which they knew to be occupied, with the intention of intimidating a female occupant. Whilst the respondent was present, his co-offender pointed a rifle at this occupant. It is unnecessary to repeat further details of this offending. It is egregious. Those considering such antisocial conduct must know that stern punishment will follow their apprehension. The sentence imposed does not send this message, nor is it a proportionate response to this grave offending.

38 As mentioned earlier, both senior counsel accepted that it was appropriate to examine prior statements of this Court relating to aggravated burglary,[24] and to consider sentencing practices in factually similar offending. An examination of the sentences imposed in recent times for 'confrontational aggravated burglary' demonstrates that much higher sentences of imprisonment than was imposed in this case are regularly imposed - often higher by a factor of three or even four. True it is that a two-year CCO was also imposed on charge 1, but in our view, this does not bring the respondent's sentence near to an appropriate range.

39 It follows that we must allow this appeal. In resentencing the respondent, we do not lose sight of his impressive suite of factors in mitigation, including his prior good character, his solid work and family history, and his current situational Adjustment Disorder, which we accept will make his time in custody more onerous. We also do not lose sight of his assistance to authorities, albeit of limited real value, and we agree with his Honour that the respondent's prospects for rehabilitation are strong. These factors have led us to impose a lower head sentence and minimum term than we would otherwise have imposed.

40 We shall resentence the respondent on charge 1 to six years' imprisonment. We shall leave all other summary sentences and orders for concurrency intact. The total effective sentence is six years' imprisonment. We set a minimum non-parole period of three years and six months. But for the respondent's plea of guilty, we would have imposed a total effective sentence of seven years and three months' imprisonment, with a minimum period before parole eligibility of five years.

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Section 6AAA statement:

7 years and 3 months' imprisonment, with a non-parole period of 5 years

[1] [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[3] Judicial College of Victoria, Victorian Sentencing Manual, ch 32.15.4 (VSCA Overview - Aggravated Burglary Sentenced as the Principal Offence, as at 16 July 2019).

[4] Crimes Act 1958 s 77A.

[5] [2014] VSCA 314; (2014) 44 VR 486, 495 [36]-[38] ('Meyers').

[7] He did, however, admit some old driving offences.

[8] We note that, as a result of a subsequent legislative change, a combination sentence will no longer be available for the offence of home invasion, which has been classified as a 'Category 2 offence' under the Sentencing Act 1991.

[9] DPP v O'Brien [2019] VCC 738, [56] ('Reasons').

[14] [2018] VSCA 47.

[22] See, eg, DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128] ('Karazisis'); DPP v Zhuang [2015] VSCA 96; (2015) 250 A Crim R 282, 295 [40]; DPP (Cth) v Ramos [2018] VSCA 290, [39]; DPP v Macarthur [2019] VSCA 71, [59]-[60].

[23] Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127].