DPP v Oversby [2004] VSCA 208

2. The respondent, who is now aged 42, pleaded guilty in the County Court at Bendigo to two counts of aggravated burglary (counts 1 and 3), one count of intentionally causing injury (count 2), two counts of common assault (counts 4 and 5) and one count of damaging property (count 6). He admitted eight previous convictions from six court appearances in the Magistrates' Court or its interstate equivalents between January 1981 and January 2002. They included four charges of assault (one in 1990, two in 1992 and one in 1996) and one count of recklessly causing injury in 2002, for which the respondent was sentenced to a community-based order for six months to perform 125 hours of unpaid community work. He successfully completed that sentence but had subsequent convictions for assault, threatening to kill, damaging property and breaches of an intervention order. The learned judge was informed that those offences occurred at about the same time as the offending with which we are concerned.

5. After hearing a plea for leniency on his behalf, his Honour sentenced the respondent on 12th August 2004 to 18 months' imprisonment on each of counts 1 and 3, six months' imprisonment on each of counts 2 and 5 and a community-based order for 12 months to perform 200 hours of unpaid community work and to undergo programmes concerned with anger management and alcohol counselling on count 4. On count 6 he was convicted and fined $1,000. The judge directed that three months of the sentence imposed on count 2, the whole of the sentence imposed on count 3 and three months of the sentence imposed on count 5 be served cumulatively upon the sentence imposed on count 1 and, by implication, upon each other, for he declared that the total effective sentence was two-and-a-half years' imprisonment. That sentence was wholly suspended for an operational period of three years.

8. The co-offender, Michael Graeme Ely, three years older, to whom I shall refer later, had pleaded guilty before a different County Court judge on 21st July 2003 and had given a sworn undertaking to give evidence against the respondent. He was sentenced to eight months' imprisonment, wholly suspended for two years, on a count the equivalent of count 1 and a community-based order for twelve months with 150 hours of unpaid community work on a count the equivalent of count 2. They were the only charges preferred against him.

11. The Director of Public Prosecutions appeals pursuant to s.567A of the Crimes Act 1958. The relevant part of the notice of appeal reads:

The sentence imposed is manifestly inadequate.

PARTICULARS

By ordering that the total effective sentence of 2 years and 6 months in relation to counts 1, 2, 3 and 5 be wholly suspended for 3 years and in making a community-based order of 12 months duration in relation to count 4, the learned sentencing judge - (a) failed to adequately reflect the gravity of these offences generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (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; (f) gave insufficient weight to the continuing nature of the offending; and (g) gave insufficient weight to the applicable maximum penalty in relation to counts 1 and 3, being 25 years' imprisonment."

18. Under cover of that ground, as so particularised, it was to be contended, according to the appellant's outline of submissions, both that the individual sentences imposed on counts 1 to 5 and the total effective sentence were manifestly inadequate. In my opinion, it does not matter that the ground itself fails to mention the individual sentences. Where an offender complains that a sentence imposed on a multi-count presentment is manifestly excessive, the offender is usually permitted to impugn the individual sentences as well as the directions for cumulation or concurrency and the total effective sentence. The Director should be in no different position. Similarly, no injustice is done by permitting the Director to rely on s.5(1)(e) of the Sentencing Act 1991, even though failure adequately to denounce the respondent's conduct is not included among the particulars.

21. Of more concern is the fact that the particulars confine the ground to the order that the total effective sentence of two-and-a-half years' imprisonment in relation to counts 1, 2, 3 and 5 be wholly suspended for three years and to the making of a community-based order of twelve months' duration in relation to count 4. That is not a mere pleading point. When the notice of appeal was served on him on 12th September 2004, the respondent was entitled to infer that he was at risk only in relation to the fact that the sentence had been wholly suspended and that a community-based order had been imposed in relation to count 4. Mr McArdle properly and fairly conceded that that was so.

24. Before turning to counsel's submissions I shall say something briefly about the offences. At 8 p.m. on 26th January 2003, the respondent and Ely, both of whom had been drinking heavily, went to the home of Robert Johnstone in a block of semi-detached flats in Kyabram. Ely was armed with a metal bar. The respondent and Ely knocked on the front door, then kicked the door open and entered the premises. They yelled at Mr Johnstone, aged 19, in relation to an incident about a month before when he had allegedly spat at Ely. (Mr Johnstone denied that allegation.) They punched and pushed him, but he managed to escape and ran to the flat next door. The occupants of that flat were Josh Scott, aged 18, and Brogan Lee Clark, aged 15. Mr Scott let Mr Johnstone into the flat and then locked the door, but the respondent and Ely began yelling abuse at the occupants. The respondent threatened to smash every window in the place if Mr Johnstone did not come out. The intended victim escaped through the back door and ran to a nearby house.

27. The respondent and Ely, by this time both armed with metal bars, went to a lounge room window of the flat occupied by Mr Scott and Ms Clark and removed the flywire screen. As Ms Clark attempted to shut the window to prevent them from entering, the respondent grabbed hold of her tank-top and pulled it off, exposing her breasts. As the judge said in the course of the plea, there was no indecent intention in that act. That was the basis of count 4, the count mentioned in the notice of appeal that was visited with a community-based order. Mr Scott picked up a hammer and struck the respondent on the head. The respondent then entered the flat through the window and smashed furniture, destroying a pedestal fan and damaging a television set.

30. After the respondent left the second flat, he had a further altercation with another victim, Jay Taig Sutherland, aged 19. The respondent swung the metal bar he was carrying at Mr Sutherland, attempting to hit him on the head, but he ran away. The respondent chased him into the carport area of another flat but was restrained by Ely. When Mr Sutherland ran out of the carport, the respondent hit him on the back with the metal bar.

33. The doctor who treated Mr Johnstone the following day described his injuries as consisting of lacerations on his scalp and face scratching and bruising on his interior and posterior chest wall and a small laceration on his right upper lip. He was given antibiotics and a tetanus injection. Ms Clark did not sustain any physical injuries but was scared and shocked. Mr Sutherland received a small laceration on his back and was in pain, but did not seek medical treatment.

36. When the respondent was interviewed by police he gave a false account, which may have been based on what he had been told by Ely. At the plea he testified that he could remember very little. It is not clear to what extent that was the result of alcohol and marijuana or his having been hit on the head with the hammer, a blow which caused bleeding and required six stitches.

39. Mr McArdle began his submissions by reminding the Court that aggravated burglary is an offence for which Parliament has fixed a maximum custodial penalty of 25 years' imprisonment, and these, counsel said, were particularly serious examples of that crime. The respondent was a man well into adult life, in the company of a man three years older. They burst into the home of a young person with intent to assault him. They continued the attack by breaking into the home of other young people whose only involvement was to offer refuge to Mr Johnstone. Ely was armed at the time of the first home invasion and the respondent was complicit. Both men were armed with metal bars when they entered the second flat. Not only were these home invasions, but the violence inflicted in the course of them was gratuitous and frightening. The third victim, Mr Sutherland, was attacked simply because he was in the path of the respondent and was struck even after intervention by Ely. There was, counsel submitted, little in the way of mitigation except the respondent's plea of guilty, which is not to be undervalued. The ingestion of alcohol and drugs was no excuse and the judge might well have paid more regard to the respondent's previous convictions and subsequent convictions, the latter being relevant to rehabilitation and preventing a submission that this was an isolated incident. His Honour had regard to general deterrence but not, at least expressly, to specific deterrence. It could be inferred from the sentencing remarks and the ultimate disposition, counsel said, that insufficient weight had been given to specific deterrence. For all these reasons, the decision wholly to suspend a lenient sentence of two-and-a-half years' imprisonment was not within the range of a sound discretionary judgment. General deterrence, specific deterrence and denunciation of home invasions with violence required an immediate custodial sentence and, notwithstanding the inhibitions attending a Crown appeal, this Court should intervene.

42. 13 In my opinion, there is a good deal of force in Mr McArdle's submissions. I agree that these were serious examples of aggravated burglary and that the sentences imposed were very lenient. The difficulty is that fairness to the respondent requires us to treat the notice of appeal as confined to the order suspending a total effective sentence of two-and-a-half years' imprisonment and the community-based order imposed on count 4. If a total effective sentence of two-and-a-half years' imprisonment was within the range, I do not think that manifest inadequacy is established by the decision to suspend it. It would be necessary for us to say that the judge was bound to order some or all of it to be served immediately, notwithstanding the mitigatory factors to which Mr Priest referred, not least the steps the respondent has taken to re-organise his life and rehabilitate himself, his stable employment, good work history and a supportive relationship. Little was said in relation to count 4. I would be reluctant to interfere only with the sentence imposed on that count, but in any event I consider that it was within the range.

45. For these reasons, I would dismiss the appeal.

49. I agree that the appeal should be dismissed and I agree with the reasons given by the learned presiding judge for that conclusion.

52. I add only this. Of the three victims to whom these charges related, only one provided a victim impact statement. In his victim impact statement, Mr Johnstone, although describing his reaction immediately after the events as being, in his words, that of "paranoia", downplayed the long-term consequences of the assaults upon him. In the course of the submissions during sentencing and in his sentencing remarks, His Honour demonstrated that he was well aware of the seriousness of the offences here and of the principles relating to crimes of this kind. Whilst acknowledging the seriousness of these offences, his Honour noted that the injuries that were occasioned here to the victims were relatively minor (albeit, perhaps, fortuitously). That was a matter of significance to the learned sentencing judge and in my view he was entitled to have regard to that fact and to regard it as being of importance when balancing the various sentencing considerations in this case, and when considering the weight to be given to the respondent's prospects of rehabilitation.

55. 17 His Honour, however, took care in assessing the facts and in considering whether the prospects of rehabilitation which were being urged upon him were indeed significant or were no more than pious hopes.

58. His Honour took the view that in the circumstances there were good prospects of rehabilitation and he adopted a course which, in an exchange with the respondent, the respondent clearly recognised was a merciful one indeed. His Honour, in my view, was entitled in all the circumstances to have come to the conclusion he did as to the prospects of rehabilitation. He had before him an amount of material including character references and a report from an alcohol and drugs counsellor, which lent support to the conclusion which his Honour reached that, notwithstanding the prior convictions and the subsequent events of criminal conduct engaged in by the respondent, the moment had arrived where there was a real opportunity for him to be rehabilitated. That opportunity, if seized, would benefit the community if it proved to be fruitful. His Honour only adopted the course he did after giving careful consideration to the various submissions made to him by the prosecutor in the case, who urged that an immediate sentence of imprisonment must be imposed. In addition to the supportive material which he considered as to rehabilitation in this regard, his Honour had seen and heard the respondent give evidence on oath. That, in my view, is a very important opportunity which does not always present itself to a sentencing judge when considering material placed before him which urges that the rehabilitation prospects of an offender are good. His Honour, in this case, had the advantage of considering that material in the light of the evidence which he saw and heard from the respondent himself, and it is plain that in this case that opportunity was of importance to the judge in the conclusion that he reached.

61. 19 In the recent case of Director of Public Prosecutions v. Johnston[1], the Court re-affirmed the propositions stated in R. v. Clarke[2]. After again re-stating that Crown appeals should be brought only in rare and exceptional circumstances to establish some point of principle, the Court considered the six non-exhaustive propositions stated in Clarke relating to the bases for intervention by an appellate court on a Director's appeal. After having stated those propositions, the Court added this:

"Needless to say, however, it is necessary to keep in mind other aspects of the accepted principles. In the first place, it is not merely a question of concluding that a sentence is insufficient. It must be such as to establish clear and egregious inadequacy. Secondly, where a sentence has been suspended, weight must be placed on the fact that a judge has chosen, as here, to exercise his discretion to suspend the whole sentence and it is the exercise of that discretion that must be shown to be manifestly erroneous if the discretion is to be exercised differently or not exercised on appeal."[3]

Thereafter the Court turned to the question of double jeopardy, to which reference has been made by the learned presiding judge. In this case not only had the respondent been released into the community by the judge but he had already performed more than 80 hours of the 200 hours community service which the judge had ordered that he perform under the community-based order. Other material which was placed before us lent support to the conclusion that he had, indeed, seized the opportunity given to him by the judge.

66. For these reasons and the reasons given by the learned presiding judge, I agree that the appeal should be dismissed.

70. I agree with the learned presiding judge that a total effective sentence of only two years and six months was a very lenient sentence for these relatively serious examples of aggravated burglary and intentionally causing injury. The Crown accepts, however, that the period of imprisonment which was imposed was within the range open to be imposed. The complaint is only that the suspension of the sentence rendered the sentence manifestly inadequate.

73. 22 In my opinion, it must be rare indeed that where a sentence of imprisonment is of a length that is not manifestly inadequate, but is such that it may be ordered to be suspended, an order that it be suspended operates to render it manifestly inadequate. Given the considerations to which the learned sentencing judge referred, including the respondent's plea of guilty and his prospects of rehabilitation, and bearing in mind, as Mr Priest submitted, that community protection is best advanced by rehabilitation, I am not persuaded that the order for suspension rendered this sentence manifestly inadequate.

76. For these reasons and for the reasons given by the learned presiding judge, I too would dismiss the appeal.

The Court grants to the respondent an indemnity certificate pursuant to s.15 of the Appeal Costs Act 1998.

[1] [2004] VSCA 150, per Ormiston, Batt and Chernov, JJ.A.

[2] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.