Humphries v The Queen [2010] VSCA 161

1 The appellant pleaded guilty in the County Court to one count of an attempt to commit aggravated burglary. The sentencing judge imposed a sentence of three years' imprisonment with a non-parole period of two years. The appellant now appeals against that sentence on two grounds. First, that the learned trial judge wrongly treated the fact that appellant was drug affected at the time of committing the offence as an aggravating factor. Second, that the sentence imposed is manifestly excessive in the circumstances.

2 The circumstances of the offending were agreed between the parties before the sentencing judge and are not contested on the appeal. In essence, the appellant, whilst armed with an imitation weapon, attempted to break into the occupied home of his drug supplier with the purpose of stealing drugs. The detail is as set out in the reasons of the learned trial judge:

In the early hours of the morning of 26 September 2008 you were drug-affected, probably due to an overdose of anti-depressant medication which you were taking in large quantities. You went to a friend's house in Fairbairn Drive, Corio, at about 1.20 am, but your friend would not allow you to enter the house. She noticed that you were carrying a silver toy gun which she thought belonged to one of her children, but you explained that you had found it nearby.

About 10 minutes later you went across the road to 50 Fairbairn Drive, which was the home of Raymond Dannatt and Sharon Reiss. You had been to that place 40-50 times before to obtain drugs from Dannatt, who was your amphetamines supplier. You later told police that you had gone to those premises so you could break in and steal drugs. Initially you were looking for a screwdriver to help you do that, but then you found the toy gun which I have mentioned.

First, you looked through a bedroom window and saw Dannatt weighing up amphetamines and putting the drug into bags. Then you went and knocked on the front door. Dannatt's partner, Sharon Reiss, asked who you were. You gave a false name of "Luke" and said that you wanted to speak to Dannatt. Reiss opened the door a little to see who it was. She said that you were hiding your right arm behind your back, but she saw something shiny in your hand which she thought was a gun. Surprisingly, she told you to come back the next day, but you were yelling at her to let you in so that you could talk to Dannatt. She told you to go away or she would call the police, and closed the door on you.

You then yelled loudly that you wanted to enter the house, and tried to smash through the security door with the toy gun, thereby causing minor damage. While this was happening, Reiss called the police on 000 and told them that you were banging on the front door and that you had a gun, although she said she had not seen it properly.

Meanwhile, you threw the toy gun away, returned to the bedroom window through which you had seen Dannatt previously, and kicked it in so that you could enter the house and steal the drugs. Having heard the window shatter, the occupants obtained a loaded sawn-off shotgun which Dannatt had purchased some time previously because there had been incidents at that address where he and Reiss had been threatened.

I accept your account to police that, having broken the bedroom window, you slightly parted the curtains and saw one of the occupants holding the shotgun pointed in your direction. Not surprisingly, you turned to retreat, but were shot to the rear of your left shoulder. You then ran back to your friend's home across the street. A short time later police and ambulance arrived and you were taken to hospital.

3 The appellant received pellet wounds to his left shoulder consisting of multiple lacerations over a distance of 15 centimetres. The pellets were lodged only superficially with no deep penetration and no other injuries were discovered. Treatment consisted of antibiotics, analgesia and wound dressing. No enduring injury has been caused.

4 Since the age of 19 the appellant had been a heavy amphetamines user and had been prescribed Xanax as an anti depressant medication to deal with the deleterious effects of his drug use. It was common ground between the parties on the plea that the appellant was drug affected at the time he committed the offence. Counsel for the appellant explained that the appellant had consumed up to 70 tablets of Xanax over the previous 24 hours. The appellant submitted that the sentencing judge erred in treating the fact that the appellant had committed the offence under the influence of these drugs as an aggravating factor.

5 In the course of dealing with various mitigating factors raised on the plea, his Honour said:

Thirdly, it was submitted in your favour that you were demonstrably drug-affected on the night ... I do not consider this to be a mitigating circumstance. To the contrary, the fact that you were so affected by drugs did not occur inadvertently, and you must be taken to have understood the effect of excessive consumption of that drug. I consider this fact to be an aggravating circumstance. Moreover, the fact that you were affected by drugs at the time of your offending means you had less control over your actions, and this while you possessed an offensive weapon in a highly-stressed situation.

6 In support of the view that his consumption of drugs in these circumstances might be regarded as an aggravating factor, his Honour referred to the decisions of the Court of Appeal in R v Hay[1] and R v Martin.[2] As is explained in Martin 'the critical factor in determining the significance of drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender'. Where foreknowledge is shown, that factor may be treated as a circumstance of aggravation as the offender's 'moral culpability is the greater because of his foreknowledge of the likely consequences.'[3]

7 As an aggravating factor must be proven beyond reasonable doubt before it can be so treated, it was submitted for the appellant that there was insufficient evidence to conclude beyond reasonable doubt that he had foreknowledge of the likelihood of the consequences of his consumption of Xanax in any quantity. The Crown pointed to the following evidence which, it was contended, was sufficient to support the inferential finding. First, there was the statement in a comprehensive psychological report by Dr Paul Grech dated 10 August 2008 that '[the appellant] acknowledged that alcohol is often implicated in his anger'. Second, Dr Grech had recorded the appellant's statement under the heading 'Substance/Alcohol Use' that 'he had been "injecting a lot of ice and heroin" in the lead up to the most recent offending' and that he had supported his $100 per day heroin habit by shoplifting. Additionally, the Crown referred to the finding of the learned sentencing judge that 'all of your property offences were committed so that you could obtain money to buy drugs'.

8 None of this material tended to prove that appellant knew that a likely consequence of his consumption of Xanax was that he would be disposed to engage in conduct of the kind which occurred here. The Crown was driven to rely on the submission made by counsel for the appellant on the plea that:

[t]he real problem here as well Your Honour on my instructions and also from conferencing with his sister and family, is the Xanax that he's prescribed for his anxiety which - it's a never ending cycle keeps going around. He gets out of prison and gets back on the Xanax and abuses those and the whole thing starts again.

9 This statement was made in the context of a submission that his Honour should look favourably upon the appellant's prospects of rehabilitation because of his apparent efforts to stop using drugs whilst in prison. That consideration was quite separate from the question whether the offending conduct was a foreseeable consequence of taking Xanax. It may be that it was counsel's statement that led his Honour to the conclusion which is now challenged, but if so it was necessary to inform the defence that he intended to rely upon the appellant's consumption of this drug as an aggravating factor. The Crown had not sought to rely upon the appellant's consumption of Xanax as an aggravating fact. It received no attention in prosecuting counsel's submissions. While that did not preclude the sentencing judge from so treating it, his Honour was obliged to inform the appellant if he was contemplating doing so, as senior counsel for the Crown conceded.

10 It is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of a fair opportunity to a party to correct or contradict any prejudicial or adverse finding which the judge may make, unless the risk of such a finding necessarily inheres in the issues to be decided.[4] In the present case, there was no such 'inherent risk' regarding this matter. The offender's counsel could not reasonably have anticipated that the sentencing judge would treat his drug use as an aggravating factor. That being so, his Honour needed to draw the existence of the risk to counsel's attention so as to afford counsel the opportunity to respond.

11 That did not occur. That was a breach of natural justice, which vitiates the exercise of the sentencing discretion. Moreover, we do not consider that counsel's statement during the plea provided a sufficient basis upon which it could be concluded beyond reasonable doubt that the appellant foresaw the likelihood that the consumption of Xanax would lead to conduct of the kind which occurred. Senior counsel for the Crown properly conceded that the sentencing discretion must be re-opened.

12 It is therefore unnecessary to consider the appellant's second ground, alleging manifest excess. The question remains whether the Court is of the view that a difference sentence ought to have been passed.

13 It is convenient to first refer briefly to the appellant's personal circumstances. These were, again, not in issue before the learned judge nor on the appeal.

14 The appellant was aged 28 at the date of sentencing. He has a long-standing history of drug abuse. This history was set out as follows:

Unfortunately, when you were in Year 8, you met up with some unsavoury people in their early twenties with whom you began injecting heroin. By 13 you were drinking alcohol, by 14 smoking marijuana and by 17 you were injecting half a gram of heroin per day, which you financed at $100 per day by the commission of dishonesty offences. Apparently after some time in custody you detoxified from heroin, and have not used that drug since. However, at 19 you began using amphetamines and continued to do so regularly thereafter. Leading up to the commission of this offence you had been seriously abusing Xanax, an anti-depressant medication which had been prescribed to you, it would appear, to deal with the deleterious effects of your drug addiction.

15 His Honour appeared to accept Dr Grech's conclusions that the appellant was at significant risk of developing an anxiety or depressive disorder; was in the 'severe' range for patients diagnosed with major depression; also possibly suffered from an attention-deficit disorder condition in the context of an anxiety-spectrum and major mood dysfunction; and appeared to have a below-average intellect. That said, counsel did not, on the plea or on the appeal, seek to invoke Verdins principles in mitigation of the sentence.

16 The criminal history of the appellant was described by the learned sentencing judge as 'long and disturbing'. As his Honour recognised, the appellant had appeared in the Magistrates' Court on 14 separate occasions, from which he had sustained 70 prior convictions. The appellant had been convicted of a number of dishonesty offences, including burglary in 2006. Further, he had been convicted of offences of violence, including recklessly causing serious injury in 2000 and 2001, and assault and possessing a controlled weapon (a screwdriver) in April 2008. The trial judge concluded that the appellant's criminal history demonstrated him to be a 'chronic, determined and unrepentant offender' and that the appellant had 'truly escalated the gravity of [his] criminal history by the commission of this offence'. None of this could be challenged.

17 The appellant had had a long-term relationship, of approximately 11 years, which terminated shortly before the commission of these offences. The appellant has two children from this relationship, a son aged nine and a daughter aged eight. He has a poor employment record, with a few factory and truck-driving jobs which were held for only short periods. As to the appellant's prospects of rehabilitation, the sentencing judge referred to the report of Dr Grech, who had concluded:

He presents as having some prospects of rehabilitation, in the event that he is linked in with a clinical psychologist and completes the relevant therapeutic and vocational programs in custody, but this would need to be continued following his eventual release.

18 The sentencing judge also had before him two negative urine tests returned from the period that the appellant was in prison pending sentencing. The judge concluded that this was consistent with the submission on his plea. He was, however, guarded about the appellant's future prospects, observing that 'of course, the true test in this regard will come' when the appellant is released into the community.

19 In support of the view that a different sentence ought to have been passed, counsel for the appellant referred to a number of factors in mitigation. It was submitted that the appellant had 'suffered a serious wound'. While an injury sustained in the commission of an offence can in some circumstances be considered as a factor in mitigation, the appellant appears to have suffered no lasting injury. We doubt whether the label 'serious' is appropriate to describe his injuries, but accept that this is a factor of some limited relevance. The appellant's guilty plea, as was accepted by the trial judge, came at the earliest possible stage. At 28 years of age at the time of sentencing, the appellant was still young. Further, it was submitted that despite his antecedents he had some prospects of rehabilitation. It was said that the appellant's early drug use was the result of a lack of parental supervision and that he was now making a real effort to overcome his dependence on drugs.

20 The Crown relied upon the objective seriousness of the offending. It was a premeditated and persistent home invasion at night. The appellant was armed for a part of the time with an imitation firearm. He had what was described as an 'appalling' criminal history. It was submitted that general and specific deterrence loomed large in the instinctive synthesis.

21 The Crown drew attention to the effects on the victims and the findings made by the sentencing judge in that regard. The evidence on the plea, accepted by the trial judge, was that at least one of the victims (Dannatt) was responsible for running a drug trafficking business from the property. The appellant, as the sentencing judge found, had been supplied with amphetamines by Dannatt at these premises on some 40 to 50 occasions. The appellant agreed he had committed the crime in an attempt to break in and steal drugs. The response of the victims, in using a shotgun in their possession to repel the appellant, speaks eloquently of their lifestyle at the time. They concealed the gun and disposed of the ammunition and drugs before the police arrived.

22 One issue that received some attention in the reasons of the learned sentencing judge was the identity of the person who shot the appellant. In his record of interview, the appellant refused to specify whether Dannatt or Reiss (Dannatt's partner) was responsible. It appears that Dannatt and Reiss both faced charges arising from the incident, with Dannatt receiving a sentence of six months' imprisonment for being a prohibited person in possession of the firearm and Reiss convicted and fined $750 for the weapon. They both gave the police false accounts to cover up the existence and use of the gun. As the appellant was retreating when he was shot, the sentencing judge found that they had no excuse to shoot him. Before the sentencing judge the appellant, through his counsel, indicated that Dannatt and not Reiss had been the shooter. Reiss had no prior convictions. His Honour concluded that it was likely that Reiss took the blame for something that Dannatt did. His Honour also found that the appellant had thrown away the toy gun before he attempted to enter the house through the bedroom window.

23 All persons, no matter what their circumstances may be, are entitled to the protection of the law. That Dannatt had engaged in criminal activity did not mean that he could be attacked with impunity by others.[5] As the judge said, it would not have been proper to decrease an otherwise proper sentence because involvement in violence was a staple of the victim's normal life. His Honour proceeded upon the basis that the victims were entitled to be free of physical violence of any kind.[6]

24 At the same time, the fact that the victim of a crime is engaged in illegal activity at the time of an offence may be relevant in assessing the consequences of the crime for the victim.[7] Here the appellant, for the purpose of feeding his addiction, had attempted to burgle premises from which he had been regularly supplied with drugs over a long period. The victims had established an environment in which they could have anticipated the possibility of the very violence perpetrated by the appellant. This explained the presence of the loaded sawn-off shotgun which had been acquired, as his Honour found, because there had been other threatening incidents at their premises. Counsel for the appellant submitted on the plea that a distinction existed between the present victims and a law abiding citizen, which should be reflected in a lower penalty.

25 His Honour therefore had to determine the consequences of this offence for these particular victims. Neither victim provided a victim impact statement but, on the basis of their police statements, the 000 tape recording and other material, his Honour found that each was terrified by the appellant's conduct and suffered extreme anxiety. It had not been challenged on the plea that the victim Reiss was 'scared' at the time she called 000 and there was little challenge on the appeal to his Honour's findings. In our view, the weight which his Honour attached to the consequences for these particular victims was open on the evidence.

26 An attempt to commit aggravated burglary is, like the principal offence, a serious offence. The maximum sentence is 20 years' imprisonment. As the sentencing judge said, such offences committed by drug addicts to obtain money and drugs to feed their addiction are prevalent. His Honour rightly emphasised the need for the imposition of substantial sentences of imprisonment for offences of this kind.[8]

27 In response to the judge's request for assistance, the prosecutor submitted that the appropriate range for this case was three to three and a half years' imprisonment on the head sentence, and two to two and half years' imprisonment as the minimum term.

28 Senior counsel for the Crown accepted that a six month gap between the top and the bottom of the range given was not sufficient and did not provide the sentencing judge with sufficient assistance. Ordinarily the sentencing range open in any given case will allow a 'generous ambit within which reasonable disagreement is possible.'[9]

29 The prosecutor announced the Crown's position immediately following the defence plea in mitigation. Nothing was said by the prosecutor in response to the matters advanced in mitigation. His Honour might therefore have inferred that it was the Crown's position that nothing said on the plea warranted any decrease in the proposed range. If that was the Crown position, it should have been made clear.

30 On the appeal, senior counsel for the Crown suggested that it would be difficult for the Office of Public Prosecutions to arm a prosecutor with instructions which took account of matters to be raised on the plea. We respectfully disagree. That would be nothing unusual, or difficult, about counsel who was briefed to appear for the Crown on the plea being given authority to modify the Crown submission on range in the light of matters raised in mitigation. This is the very kind of judgment which counsel (in matters of all kinds) are expected to make in the course of running a case. If necessary, of course, the matter could be stood down to enable prosecuting counsel to consider the position, or seek further instructions.[10]

31 The alternative would be for the judge to be informed that the range identified by the Crown did not take account of matters advanced on the plea. In those circumstances the sentencing judge would be left to assess the appropriateness of the Crown's submission on range in the light of those additional matters. Again, there is nothing unusual or difficult about this as a matter of procedure.

32 The prosecutor referred the judge to the decision of this Court in DPP v El Hajje.[11] In that case, which concerned the completed offence of aggravated burglary, the Court noted that current sentencing practice might be out of step with the very high maximum penalty (25 years) fixed for the offence. In the present case the sentencing judge said:

... I consider that for a significant time, sentencing judges have felt constrained by current sentencing practice not to impose longer sentences for aggravated burglary and the attempted commission of such an offence. I have certainly felt so constrained, and consider that a more meaningful relativity in sentence between the offence and the maximum often needs to be achieved. However, in fairness I do not propose to implement such a line of reasoning against you, because your plea has been entered on the basis of current sentencing practice - a principle which the Court of Appeal has recently acknowledged.

33 With respect, his Honour was right to regard himself as constrained, by considerations of fairness, to sentence the appellant conformably with current sentencing practice. The investigation of the adequacy of current sentencing practices must, as the Court said in El Hajje, await the mounting of an appropriate case by the Director, as occurred recently in Winch v R.[12] The remarks of the judge in the present case would seem to underline the importance to be attached to that exercise.

34 The judgment in El Hajje included a table of sentences in 20 recent cases of aggravated burglary. The appellant in this case submitted that the sentence of three years' imprisonment imposed on him was towards the higher end of the sentences in that table, and was at the top of the range for attempted aggravated burglary. The Crown responded that the sentencing practice for aggravated burglary should inform sentencing for the attempt. If the offence had been completed, it was submitted, it would have constituted a serious example of aggravated burglary.

35 Despite the appellant's relative youth, the sentencing judge was rightly guarded as to his prospects of rehabilitation, given his lengthy criminal history and longstanding drug addiction. Where an offence is a continuation of a long history of

drug-related property offences, principles of specific and general deterrence must loom large in the exercise of the sentencing discretion. In our view, the sentence imposed by the judge was well within range in the circumstances of this case.

37 I agree that the appeal should be dismissed for the reasons stated by Maxwell P and Redlich JA.

[1] [2007] VSCA 147, [33] (Maxwell P) and [17]-[18] (Buchanan JA with whom Whelan AJA agreed).

[2] [2007] VSCA 291; (2007) 20 VR 14, [17]-[30], [59].

[4] Ucar v Nylex Industrial Products [2007] VSCA 181; (2007) 17 VR 492; R v Fisher [2009] VSCA 100; (2009) 22 VR 343, [65]; R v Lowe [2009] VSCA 268, [20].

[5] R v McGrath, (Unreported, Court of Criminal Appeal, Supreme Court of Victoria, Crockett J, 12 April 1989).

[6] DPP v Smeaton [2007] VSCA 256, [25] (Maxwell P).

[7] R v Mallinder (1986) 23 A Crim R 179, 183 (O'Bryan J); R v Webb [1971] VicRp 16; [1971] VR 147, [105]-[151]; Sentencing Act 1991 (Vic) s 5(2)(da) 'the personal circumstances of any victim of the offence', s 5(2)(daa) the impact of the offence on any victim of the offence, s 5(2)(db) 'any injury, loss or damage resulting directly from the offence.

[8] DPP v Stone & Uren [2003] VSCA 208.

[9] The phraseology is that of Asquith LJ in Bellenden v Satterthwaite [1948] 1 All ER 343, 345, adapted by Brennan J in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 and applied in R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, [7]-[8].

[10] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.

[11] [2009] VSCA 160, [34]-[35] ('El Hajje').

[12] [2010] VSCA 141.