Hatzis v The Queen [2021] VSCA 43

CRIMINAL LAW - Appeal - Sentence - Total effective sentence of 5 years and 1 month's imprisonment with non-parole period of 3 years - Whether manifestly excessive - Objective gravity of offending assessed too highly - Leave to appeal granted - Appeal allowed - Resentenced to 3 years and 6 months' imprisonment with non-parole period of 2 years and 3 months - DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486 considered.

1 On 17 July 2017, the applicant, who was then represented by counsel, pleaded guilty before a judge in the County Court to aggravated burglary[1] (one charge - charge 2); intentionally causing injury[2] (two charges - charges 3 and 4); recklessly causing injury[3] (one charge - charge 1); criminal damage[4] (one charge - charge 5); and persistent contravention of a family violence protection order[5] (one charge - charge 6); together with the related summary offence of contravening a family violence protection order.[6]

2 Following a plea conducted by counsel on the applicant's behalf, the judge sentenced the applicant on 27 July 2017 to a total effective sentence of five years and one month's imprisonment, with a non-parole period of three years, in accordance with the following table:

Persistent contravention of a family violence protection order

Contravention of a family violence protection order

3 By a Notice styled 'Application for Leave to Appeal Against Conviction and Sentence' ('Notice'), dated 21 July 2020, the applicant - despite having pleaded guilty - sought leave to appeal against both his conviction and his sentence. Since any notice of application to appeal against conviction or sentence should have been filed on or before 25 August 2017[7] - so that the applicant's Notice was only a couple of weeks short of being three years out of time - the applicant also sought an extension of time.[8]

4 On its face, the applicant's Notice, personally signed, was a hybrid. Plainly, it was not drawn by anybody with legal training. By its terms, it invoked s 278 of the Criminal Procedure Act 2009 - which gives a right of appeal against sentence - and contended that the sentence imposed was 'manifestly excessive' in light of five enumerated 'particulars'. It sought orders that 'the whole or part' of the sentencing judge's 'judgement' be 'quashed', and that the 'Sentence' be 'wholly quashed; reduced; or set aside'. The first particular, however, was directed to the applicant's conviction, and asserted that 'contradictory evidence, implausible statements, and VicPol errors and discrepancies' should have 'led to reasonable doubt in several charges and/or led to reduced sentences', and seemed to suggest that the judge should have entertained a reasonable doubt about the applicant's guilt of 'several charges' (or, alternatively, 'led to reduced sentences').

5 Moreover, the Notice was accompanied by an affidavit, affirmed by the applicant on 21 July 2020, the third paragraph of which suggested that the applicant wished to appeal against both his conviction and sentence. Errors by the sentencing judge 'in relation to the conduct of the trial' - there having been no trial - were alleged. And a further affidavit, also affirmed by the applicant on 21 July 2020 - which purported to provide reasons for the applicant not having filed an application for leave to appeal within the 28 day statutory time limit - asserted (among other things) 'errors by [the sentencing judge] in regards to both the convictions and sentences'.

6 Following some guidance from the Court in the course of the hearing, however, the applicant - who was not represented by a legal practitioner - abandoned any challenge to conviction, and made it plain that the gravamen of his application touching sentence was that the sentence was manifestly excessive. With perspicuous fairness, counsel for the respondent indicated that, were the Court to consider the applicant's sentence to be manifestly excessive, the respondent would not stand in the way of the extension of time being granted. That was a very proper position to adopt.

7 In the result, the Court concluded that the sentence imposed upon the applicant was manifestly excessive. Thus, although we considered that the reasons advanced by the applicant for failing to bring his application for leave to appeal within time were unsatisfactory, we were of the view that the interests of justice tilted in favour of an extension of time being granted.[9] At the conclusion of the hearing we therefore granted the extension of time; granted leave to appeal against sentence; allowed the appeal; and ordered that the applicant be resentenced in the manner set out below.[10] We indicated that we would later provide reasons for those orders. These are those reasons.

8 By way of brief overview of the applicant's offending, as at 16 March 2016 the applicant had been in a volatile domestic relationship with a female, Andrea Kerr, for some 12 years. In the afternoon of that day he punched her in the left side, and, after she fell to the ground, he kicked her in the back (charge 1). Ms Kerr reported the attack to police. A family violence order was served on the applicant, forcing him to leave the premises he shared with Ms Kerr; and, at 1.35 pm on 23 March 2016, a full intervention order of 12 months' duration, naming Ms Kerr as one of two affected family members, was served upon him.

9 Charges 2 to 5, and the related summary charge, relate to events on the evening of 7 May 2016. In short, the applicant smashed the window of the premises where Ms Kerr was living and climbed in (charge 2). Shortly afterwards, he attacked a male acquaintance of Ms Kerr's, Gary Hicks, causing him to suffer a black eye and grazed cheek (charge 3). A little later, the applicant punched Ms Kerr to the left cheekbone, grabbed her hair and tried to pull her arms behind her back (charge 4). He also pulled the telephone line out of the wall to prevent Ms Kerr from calling police (charge 5). The activities founding charges 2, 3, 4 and 5 breached the intervention order of 23 March 2016 (related summary charge). Charge 6 relates to activities after the applicant was arrested and interviewed on 9 May 2016. Between 23 June and 4 August 2016, he sent a number of letters from prison in breach of the intervention order (charge 6).

10 Returning to the events of Saturday, 7 May 2016, arrangements had been made for the applicant's and Ms Kerr's nine-year-old son to spend the weekend with the applicant. At about 9.00 pm that evening, Mr Hicks visited Ms Kerr at her residence. A few minutes later, the applicant arrived at the premises. Mr Hicks then departed through the unlocked back door. The applicant then started kicking the front door and bashing the front lounge room window, yelling 'Where is that fucking low life cunt'. It seems that the front window smashed and the applicant climbed through it, ripping the curtains down (charge 2 - aggravated burglary). The applicant pushed Ms Kerr, abused her and searched for Mr Hicks. Being unable to find him, he left in his car.

11 A few minutes later, the applicant returned. He encountered Mr Hicks, and started throwing punches, one punch hitting Mr Hicks' left eye. Mr Hicks, who suffered a black eye and grazes, pinned the applicant to the ground (charge 3 - intentionally causing injury). Mr Hicks then left.

12 The applicant then went into the house and abused Ms Kerr. Her son was distressed and crying. As we have mentioned, the applicant punched Ms Kerr to the left cheekbone, and then grabbed her hair, forcing her head backwards. He then grabbed her arms and tried to put them behind her back, causing her significant pain (charge 4 - intentionally causing injury). The applicant then pulled the phone cables out of the wall preventing Ms Kerr from using the land line to contact the police (charge 5 - criminal damage). Ms Kerr then left the house and hid behind a tree until the applicant left.

13 At 8.15 pm the next day, the applicant drove his vehicle into a tree outside Ms Kerr's residence. He was taken to hospital. On Monday, 9 May 2016, the applicant was released from hospital, arrested and interviewed. He has been in custody since then.

14 The applicant was aged 57 or 58 years at the time of offending, 59 at the time of sentence, and is now approaching 63.[11] He met Ms Kerr in Brisbane in 2003, and they commenced to cohabit in 2004. Their son was born in May 2005. From 2004 to 2007 they lived in Melbourne suburbs, before moving to the King River Valley. In 2011 they moved to Barkly, and rented a property in Landsborough until separating as a result of the events of 16 March 2016.

15 Having been born in Greece, the applicant completed two years of National Service in the Air Force. After leaving the armed forces, he migrated to Australia in 1981; but, although he gained a permanent resident visa, he never obtained citizenship (the ramifications of which we will shortly turn to). Despite poor English, the applicant found work in the security industry and later in various aspects of housing construction. In more recent times he had derived income from manufacturing horticultural equipment such as garden stakes.

16 The applicant has had three major relationships, and, as we have said, has a son with Ms Kerr. It seems that child protection officers from the Department of Health and Human Services have recently contacted the applicant in prison to discuss the welfare of his son, now aged 15.

17 Apart from convictions for dishonesty offences in 1998, the applicant's criminal history generally is limited to breaches of intervention orders in 1994 (two occasions), 2014 and 2015 (coupled with a finding of guilt for unlawful assault). Both the 2014 and 2015 findings of guilt involve Ms Kerr, and, it seems, reflect the turbulent nature of the relationship. The seriousness with which the court viewed the conduct underpinning those findings of guilt might be gauged by the dispositions. Thus, on 11 November 2014, the court adjourned the matter without conviction for 12 months, and ordered the applicant to pay $500 to the Court Fund. Similarly, on 3 February 2015, the court adjourned the matter without conviction for 12 months, and ordered that the applicant accept counselling.

18 A highly relevant matter which was not put before the sentencing judge is the applicant's immigration status. Despite having lived in Australia for most of his life until he was imprisoned, the fact that he was sentenced to more than 12 months' imprisonment has rendered him liable to deportation. That consequence flows from s 501(3A) of the Migration Act 1958 (Cth), which, in combination with ss 501(6)(a), 501(7)(c) and 501CA, provides that a 'non‐citizen' is liable to deportation if he or she is convicted of an offence and sentenced to a term of imprisonment of at least one year. Visa cancellation was thus mandatory in the applicant's case - he is an offender sentenced to imprisonment of one year or more - unless he satisfied the Minister that there is a reason to revoke the cancellation decision. The Act required the applicant's permanent residency visa to be cancelled, and imposed upon him - the 'non‐citizen' whose visa has been cancelled - the obligation to dissuade the Minister from deporting him. In the result, the Minister decided not to revoke the cancellation of the applicant's visa, and his subsequent application to review the Minister's decision in the Administrative Appeals Tribunal failed. The applicant has since issued proceedings in the Federal Court in an attempt to obtain relief, but those proceedings have not been determined.

19 As earlier indicated, we have concluded that the sentence imposed on the applicant is manifestly excessive. Although that conclusion does not depend on the attribution of identified specific error, and ordinarily does not admit of much elaboration or sustained argument,[12] we think it is likely that the judge assessed the gravity of this instance of aggravated burglary too highly.

20 In the course of her sentencing remarks, the judge cited passages of this Court's judgment in Meyers,[13] as providing 'guidance regarding assessing the gravity of any particular instance of aggravated burglary'. She also said:

I note, of course, the difference in factual circumstances in other cases from yours. It is always difficult comparing cases factually as facts vary enormously case to case, as do matters in mitigation and personal to an offender.

21 The offending in Meyers objectively was significantly more serious than the applicant's. In Meyers, the respondent pleaded guilty to aggravated burglary; false imprisonment; intentionally causing injury; damaging property; and carrying a longarm firearm. His offending was premeditated. He went to his former domestic partner's home armed with a double-barrelled shotgun, the barrels of which he had earlier sawn off. Apart from the sawn-off shotgun, he was also equipped with a nail gun; crow bar; cable ties and rolls of 'gorilla tape'; various knives and cutting tools; and a plastic drop sheet or poncho. Having smashed the rear sliding door of his former partner's home, the respondent pushed her onto a bed and attempted to tie her up with cable ties. In so doing, he put his hands around her throat, making breathing difficult. When she tried to escape, he hit her over the back of the head with the shotgun, causing a laceration. She fell to the floor. As she tried to get up, the respondent brought the shotgun down on her face. As the respondent and his partner then struggled, he stuck a finger in her eye, bit her on the back of the head and strangled her. Eventually, he trussed her up on the bed with cable ties on her wrists and ankles, so that she was unable to move. The victim's ordeal ended only when police (including the Special Operations Group) attended.

22 Initially, the sentencing judge in Meyers imposed a sentence of three years' imprisonment for the aggravated burglary, a total effective sentence of three years and six months' imprisonment, and a non-parole period of 18 months. On an appeal to this Court against the inadequacy of the sentence, the Court imposed a sentence of four years' imprisonment for the aggravated burglary, a total effective sentence of five years and six months' imprisonment, and a non-parole period of three years.

23 By way of contrast, the applicant's offending - in particular, the aggravated burglary - was not premeditated. It appears to have been a somewhat spontaneous and impulsive reaction borne of jealousy provoked by seeing Ms Kerr in the company of Mr Hicks. Moreover, the offending that occurred after entry had been effected did not display the kind of gross violence displayed in Meyers, serious though it was. Indeed, counsel for the respondent properly conceded that the applicant's offending was not attended by a number of aggravating features often found in cases of aggravated burglary (for example, use of a weapon or offending in company).[14]

24 Axiomatically, every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features.[15] Bearing in mind the caution that sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished, however, a general overview of sentences imposed for offences of a similar character may play a part in informing the instinctive synthesis, particularly insofar as such an overview may provide a general guide to current sentencing practices.[16] As Gageler and Gordon JJ observed in Dalgliesh:[17]

Sentences are not binding precedents,[18] but are merely 'historical statements of what has happened in the past'.[19] As was said in Hili v The Queen, '[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits'[20] (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.

25 It was made clear in Dalgliesh (among other things) that reasonable consistency in sentencing should be maintained as an aspect of the rule of law (albeit that reasonable consistency in the application of relevant legal principles does not require adherence to a range of sentences that is demonstrably contrary to principle).[21] The Court emphasised that the imposition of a just sentence in a particular case is an exercise of judicial discretion concerned to do justice in that case.[22] An examination of sentences imposed in comparable cases may, however, inform the sentencing task.

26 Accepting that the range of sentences available in the present case was not 'capped and collared' by the sentence imposed in Meyers,[23] the individual sentence imposed by the judge in the instant case for aggravated burglary, and the non-parole period, are the same as were imposed in Meyers on appeal (the total effective sentence being only a few months shorter), in circumstances where, as we have said, the offending in that case was significantly more serious. So much supports our conclusion that the sentence imposed on the applicant was manifestly excessive.

27 In resentencing the applicant, we regard his immigration status as highly relevant for two reasons. First, the applicant has been - and remains - in a state of uncertainty as to whether he will be deported at the completion of his sentence. (As we have said, he is on notice that he will be deported unless he is successful in his proceeding in the Federal Court challenging the decision of the Administrative Appeals Tribunal.) Secondly, deportation will amount to an additional punishment, because it destroys the opportunity to continue to reside in this country.[24] In Allouch, it was held that the prospect of deportation should only lead to a lesser sentence where there was sufficient evidence of both the risk of deportation and the impact of that risk.[25] In that case, the applicant had been sentenced to 12 months' imprisonment. Through inadvertence, the sentencing judge was not informed of his immigration status. On the appeal, that was considered to be a matter of real significance.[26] As indicated, we also regard the applicant's immigration status to be of real significance.

28 For the foregoing reasons, we granted leave to appeal, allowed the appeal and resentenced the appellant to a total effective sentence of three years and six months' imprisonment, with a non-parole period of two years and three months, in accordance with the following table:

Persistent contravention of a family violence protection order

Contravention of a family violence protection order

[1] Crimes Act 1958, s 77. The maximum penalty is 25 years' imprisonment.

[2] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.

[3] Crimes Act 1958, s 18. The maximum penalty is five years' imprisonment.

[4] Crimes Act 1958, s 197(1). The maximum penalty is 10 years' imprisonment.

[5] Family Violence Protection Act 2008, s 125A. The maximum penalty is five years' imprisonment or level 6 fine.

[6] Family Violence Protection Act 2008, s 123. The maximum penalty is two years' imprisonment or level 7 fine.

[7] See Criminal Procedure Act 2009, ss 275(1) and 279(1).

[8] See Criminal Procedure Act 2009, s 313(1)(a).

[9] See Madafferi v The Queen [2017] VSCA 302, [11].

[11] His date of birth is 26 March 1958.

[12] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J_); Leimonitis v The Queen_ [2018] VSCA 198, [32].

[13] DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486, [45]-[46] (Maxwell P, Redlich and Osborn JJA) ('Meyers').

[15] DPP v Zhuang [2015] VSCA 96; (2015) 250 A Crim R 282, 292 [30] (Redlich, Priest and Beach JJA).

[17] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428, 454 [83] ('Dalgliesh') (citations as in original).

[18] Wong [2001] HCA 64; (2001) 207 CLR 584 at 605 [57].

[19] Hili [2010] HCA 45; (2010) 242 CLR 520 at 537 [54] quoting Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at 71 [304].

[20] [2010] HCA 45; (2010) 242 CLR 520 at 537 [54]. See also Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; (2007) 172 A Crim R 181 at 196 [31].

[21] Dalgliesh, 445 [50] (Kiefel CJ, Bell and Keane JJ).

[22] Ibid 444-5 [49] (Kiefel CJ, Bell and Keane JJ).

[23] Dalgliesh, 445 [50] (Kiefel CJ, Bell and Keane JJ); DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 196 [31] (Nettle JA).

[24] Allouch v The Queen (2018) 276 A Crim R 1, 8 [39] (Beach and Weinberg JJA) ('Allouch').

[25] Ibid, 8 [40] (Beach and Weinberg JJA).

[26] See also Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288; Konamala v The Queen [2016] VSCA 48; Da Costa v The Queen [2016] VSCA 49; (2016) 307 FLR 153; Magedi v The Queen [2019] VSCA 102, [46]-[48]; Akot v The Queen [2020] VSCA 55, [34].