Fisher v The Queen [2018] VSCA 222

1 After a trial before a jury in the Trial Division of this Court, the appellant was convicted of five charges of assault and one charge of aggravated burglary. On the aggravated burglary charge he was convicted and sentenced to a term of imprisonment of 6 years 3 months. On four of the assault charges he was convicted and sentenced to a term of imprisonment of four months on each of them, and on the fifth to a term of imprisonment of eight months. No part of the sentences on the assault charges were accumulated on the aggravated burglary sentence, thus the total effective sentence was 6 years 3 months' imprisonment. The sentencing judge fixed a non-parole period of 4 years 3 months.[1]

2 The appellant sought leave to appeal on the sole proposed ground that the sentence imposed on the charge of aggravated burglary, the total effective sentence and the non-parole period are manifestly excessive. On 25 October 2017 a judge of this Court granted the appellant leave to appeal.

3 The appellant committed the offences on the night of Sunday 26 January 2014 at a residential property in Deer Park. The offending was the culmination of a confrontation between two groups, one associated with Ben Borg, and the other associated with Phillip Labanie. The confrontation was prompted by allegations made by Ben Borg's ex-girlfriend against Phillip Labanie.

4 The first confrontation was on the night of Friday 24 January 2014 when Ben Borg and a number of associates went to the Deer Park property to confront Phillip Labanie. The two groups verbally confronted each other there. Each side displayed weapons. There was no physical confrontation. The Borg group left when satisfied that Phillip Labanie was not present.

5 On Saturday 25 January 2014 a group associated with Phillip Labanie went to the residential property of the Borgs. There was a physical confrontation in which Ben Borg was punched, kicked and tasered. He was taken to hospital where he stayed overnight.

6 Later that same Saturday there was another confrontation at the Borg residence. Between 20 and 40 people associated with the Labanies arrived to confront those associated with Ben Borg (who numbered around 15). The situation on that occasion was diffused without violence.

7 While these confrontations on Friday 24 January and Saturday 25 January 2014 were taking place, the appellant was on a hunting and fishing trip with Ben Borg's cousin, Adam Power. After being contacted and told what was occurring, they cut short their trip and returned to Melbourne together on Sunday 26 January 2014. While travelling back to Melbourne, Mr Power made calls and sent text messages organising a 'run through'. The appellant sent a group text message to 10 people that read: 'Tomoro we gonna go see a few guys that stabbed Adams little cousin come for spin if use want'.

8 Just before 10:00 pm on Sunday 26 January 2014 13 males, including Mr Power and the appellant, mostly wearing dark clothing associated with the Rebels Motorcycle Club, went to the Deer Park address. They were carrying a range of weapons, including axes, machetes, baseball bats, knives and chains. The appellant was carrying some sort of wooden stick or bat. They assaulted five people who were sitting on the porch. They smashed cars and windows, and forced their way inside the house by hacking through the front door with an axe. Once inside they went on a terrifying rampage, smashing the building and its contents with various weapons. Some of those inside managed to escape, one man did not. He was beaten to death in a rear bedroom.

9 The appellant was charged initially with murder. He was discharged at committal on that charge. He was then charged with manslaughter. After three trials, he was acquitted of manslaughter.

10 The sentencing judge summarised the offending in the following terms:

This is a serious example of the offence of aggravated burglary. The offending took place at night, in a suburban house, where its occupants were entitled to feel safe. Thirteen men, similarly dressed in intimidating clothing, carrying a range of dangerous and frightening weapons, swiftly and unexpectedly invaded the property as a united force, noisily smashing things as they pursued the occupants into and through the house. Although the entire episode only lasted around two minutes, it caused your victims to fear for their lives, and left two people physically injured. It must have been an absolutely terrifying ordeal for those who were present at the house at the time. The 'run through' had been pre-planned, and all of the offending that occurred was within the scope of the enterprise which you had helped to orchestrate (presumably, as some sort of retaliation for what members of the Labanie group were understood to have done to Mr Power's cousin).[2]

11 The appellant was born in October 1990. He was aged 23 at the time of the offences and 26 at the time of sentence.

12 According to the material tendered on the plea, the appellant grew up in a loving and supportive family. His schooling was unremarkable. He excelled at sport. He left school after Year 11 and has been regularly employed since then, save for a period of incapacity as a result of a motorcycle accident.

13 Character references by family members, friends, football coaches and employers describing the appellant in very positive terms were tendered on the plea. There was little mention in that material of the appellant's association, or former association, with the Rebels Motorcycle Club. The material tendered on the plea testified to the appellant's remorse.

14 The appellant had previously been involved in violent offending. On 9 March 2012 in the Melbourne Magistrates' Court he was found guilty of offences of affray and recklessly causing injury. A community correction order of 12 months was imposed upon him without conviction. The order required 100 hours of community work, amongst other conditions. That community correction order expired approximately ten months prior to the offending which is the subject of this appeal. In the course of the plea, the appellant's counsel described the prior offending as having occurred in a nightclub in the course of a confrontation between two groups. Senior counsel told the sentencing judge:

my client was part of an assault upon [the victim] who fell to the ground and it looks as if my client has punched [the victim] in the head or it is said the accused along with other co-accused have joined in with the accused punching [the victim] to the head.[3]

15 The sentencing judge set out the circumstances of the offending in greater detail than we have done.[4] She described the three trials which the appellant underwent. In the first trial in February 2016 he was convicted of the aggravated burglary and assault charges but the jury was unable to reach a verdict on the manslaughter charge. In June 2016 he faced a second trial on the manslaughter charge where the jury was again unable to agree. His third trial began in February 2017. He was then acquitted of the manslaughter charge.[5]

16 Given the way the prosecution case was run, the sentencing judge observed that the jury must have been satisfied that in the case of each of the assaults the appellant had been party to an agreement to engage in an assault, and in the case of the aggravated burglary the appellant had been party to an agreement to enter the house as trespassers with the intent to assault people in the house with the offensive weapons that the group, including the appellant, were carrying.[6]

17 In relation to the appellant's individual actions the sentencing judge said the following:

As far as your physical actions were concerned, you told police that you ran onto the property, smashed the front bedroom window and a yellow ute which was parked in the driveway, then ran a few steps inside the house before leaving the property. Your counsel sought to argue that those were less serious acts than Mr Power's, and that they lasted for a shorter time. In fact, I have made no finding that Mr Power engaged in any specific act during the incident. It is clear that he was one of several men in the group who was carrying an axe or an axe-like weapon, any one or more of whom may have smashed through the front door and inflicted damage to the ute. Even if there was an evidentiary basis for me to find that Mr Power was the person who did those particular acts of physical damage (which there is not), there was no admissible evidence that he did anything more than that, or was present in the house for a longer period than you. For those reasons, I am not satisfied that your actual conduct on the night was less serious than Mr Power's.

Mr Power was sentenced on the basis that he was the primary organiser of the 'run through', and therefore bore responsibility for the various acts done by group members, which were within the scope of the joint criminal enterprise that he orchestrated.

Even accepting your account as to your actions on the night, that does not adequately reflect the totality of your role in the offending, or your moral culpability. Although I accept that your role was not as substantial as Mr Power's, you were one of the organisers of the group. Your role in sending out the group text message (the 'call to arms' to various members and associates of the Rebels Motor Cycle Club) was not an insignificant one. In those circumstances, you also bear some (albeit a lesser) responsibility for the acts of others in your group in relation to the assaults and aggravated burglary.[7]

18 The sentencing judge referred to the only victim impact statement that had been filed.[8] She considered in some detail the appellant's personal circumstances and the plea material tendered on his behalf.[9] She found that the appellant was genuinely remorseful.[10]

19 The sentencing judge referred to the prior offending.[11]

20 She addressed the issue of the appellant's age, observing that while he was not a young offender in the legal sense, he was youthful at the time of the offending.[12] She went on to say that the seriousness of the offending and the appellant's role as one of the organisers meant she had given only limited weight to the appellant's youth.[13]

21 The sentencing judge found the appellant had very good prospects of rehabilitation.[14] She said that although there 'may not be a great need for specific deterrence', general deterrence, denunciation and just punishment had a very important role to play.[15]

22 The sentencing judge addressed the issue of parity by reference to the sentences imposed upon Mr Power.[16] Mr Power had been convicted of manslaughter and was sentenced to 10 years' imprisonment on that charge. He was sentenced to a term of 7 years' imprisonment on the aggravated burglary.

23 It was submitted on behalf of the appellant that there were a number of factors which, as senior counsel put it in oral submissions, ought to have put 'downward pressure' on the sentence imposed for the aggravated burglary.

24 The first such matter was the acquittal on the manslaughter charge and the need to ensure that the seriousness of the appellant's offending was not improperly elevated by the death, in relation to which he had been acquitted. It was a necessary conclusion from the jury verdicts, and a conclusion which the sentencing judge had accepted, that while the appellant's offending involved an intention to assault in a way that was not 'bruise free', he had not intended the persons inside the house to be exposed to the risk of serious injury.

25 The second matter relied upon was the limited role which it was said that the appellant had played in the aggravated burglary itself. In that respect the portion of the sentencing judge's reasons where she repeated what the appellant had told police, as quoted above, was relied upon.

26 The next matter referred to was the need to take care to avoid double punishment by reference to the five assault charges.

27 A matter said to be particularly important was the three trials which the appellant had undergone and the delay which had occurred between the offending and his sentence as a consequence. It was submitted that the fact that there were three trials was itself an exceptional circumstance, which the sentencing judge had recognised. It was submitted, however, that the appellant had been entitled to a 'more wide ranging recognition' by virtue of the fact that he had had a murder charge and a manslaughter charge 'hanging over his head' for a considerable period of time, and that during the period of the delay both whilst on bail and in custody he had made major efforts towards rehabilitation.

28 The next matter relied upon was a submission that, whilst the appellant was not entitled to the benefit associated with a plea of guilty or an offer to plead guilty, he had admitted the circumstances which constituted the aggravated burglary offence in his record of interview, and the sentencing judge had correctly found that he was genuinely remorseful. It was submitted that the appellant had not pleaded guilty to the aggravated burglary for forensic reasons related to the charge of manslaughter which he also faced.

29 Finally, it was submitted on behalf of the appellant that there were a number of mitigating factors in his favour including a good work history, positive character material, family and community support, relative youth, a relatively minor criminal history, and very good prospects of rehabilitation.

30 On behalf of the respondent it was submitted that this was a particularly serious example of a very serious offence. Reference was made to, and reliance placed upon, this Court's decision in Hogarth v The Queen.[17] It was submitted that the sentencing judge had addressed all of the circumstances relied upon by the appellant. The sentence imposed on the charge of aggravated burglary, the total effective sentence and the non-parole period were not wholly outside the range of sentencing options available to the sentencing judge, and were accordingly not manifestly excessive.

31 The maximum penalty for aggravated burglary is 25 years' imprisonment. In Hogarth this Court observed that sentencing courts had up until that time not been imposing sentences reflecting the objective seriousness of this form of offence. The Court in particular referred to and deprecated the fact that the upper limit of sentences appeared to be six or seven years' imprisonment.[18] This Court expressed the view that there had been a failure to have proper regard for the maximum penalty of 25 years.[19]

32 This was a very serious aggravated burglary. It was undertaken by a large group of men, armed with weapons, in 'uniform', consequent upon a 'call to arms' by Mr Power and by the appellant. The confrontation was premeditated and planned. It was motivated by an intention to confront, to intimidate, and to injure. It occurred at a residential property at night. An armed group, of which the appellant was one of the organisers and one of the participants, determined that they would, in effect, take the law into their own hands, and visit their form of justice on their adversaries. Conduct of this kind is intolerable and strikes at the foundations of a law abiding civil society. It demands a stern response. In such cases, general deterrence and denunciation are most important.

33 The appellant's own role in this offending was an important one. He cut short his trip in order to return, and to participate in what was planned. He was one of the organisers. His physical role in the incident itself was not less than that of Mr Power.

34 The appellant had been involved in prior violent offending in company less than two years before the aggravated burglary. The community correction order which was imposed upon him as a result of that offending expired approximately ten months before the aggravated burglary.

35 On the other hand, the appellant had very supportive material about him tendered on the plea, and the sentencing judge drew positive conclusions about his remorse, and his prospects of rehabilitation. It is also significant that the appellant went to a committal hearing, and then underwent three trials, where he was facing a much more serious charge arising out of the death which occurred that night. When the issue of leave to appeal was being considered, it seems that that aspect of the matter had particular prominence in the submissions made. The sentencing judge was fully aware of those circumstances, and it is not suggested that she overlooked that consideration.

36 In our opinion the sentencing judge's analysis of the competing considerations in this case was entirely correct. Notwithstanding the mitigating features in the appellant's favour, including the three trials he underwent and the consequent delay; and notwithstanding her conclusions as to the appellant's remorse and prospects of rehabilitation; given the nature of the offending as we have described it, in our view the sentence imposed was a moderate one, and was certainly not outside the range of sentencing options open to the sentencing judge. This was very serious violent offending, in company and with weapons, by an offender who had violently offended in company before. The appellant was youthful at the time of the offending but, as the sentencing judge observed, in accordance with authority,[20] the weight to be given to youthfulness is significantly reduced in relation to offending of this kind.

37 The sentence imposed for the aggravated burglary, the total effective sentence, and the non-parole period were not manifestly excessive. We will dismiss the appeal.

[1] DPP v Fisher [2017] VSC 21 ('Reasons').

[3] Transcript of Proceedings (16 March 2017) 36.

[17] [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[20] DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132-3.