Kiezenberg v The Queen [2017] VSCA 235

1 On 13 September 2016, the applicant pleaded guilty to one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 and one charge of intentionally causing injury contrary to s 18 of that Act. On 2 December 2016, a judge of the County Court sentenced the applicant, then aged 32, as follows:[1]

6 years and 6 months' imprisonment with a non-parole period of 4 years

2 On the same date, the judge sentenced the applicant's co-offender, Christopher Russell, then aged 27, as follows:

9 years and 6 months' imprisonment with a non-parole period of 7 years

3 The applicant seeks leave to appeal against sentence on two grounds, namely, that the sentences imposed on him are manifestly excessive (Ground 1) and that the judge misapplied the parity principle on charge 2 (Ground 3).[2]

4 For the reasons that follow, Ground 3 is made out. Accordingly, the application for leave to appeal will be granted, the appeal will be allowed and the applicant will be resentenced as set out at [65] below.

5 On the evening of 26 July 2015, a group of young people, including the applicant's sister Katherine Kiezenberg, were socialising and using drugs at a house in Queen Street, Frankston. Ms Kiezenberg's behaviour upset other people at the house, and she was asked to leave. After leaving the house, she met the applicant, the applicant's friend, Mr Russell, and Mr Russell's friend, Sheridan Schnurfeil. The four of them drove back to the Queen Street house.

6 The applicant, Mr Russell and Ms Schnurfeil walked to the house, while Ms Kiezenberg waited in the car. Without knocking, they entered the house through the open front door and the applicant and Mr Russell approached one of the residents, Travis Burke. The applicant punched Mr Burke in the head and wrestled with him. Mr Russell produced a metal bar from his pants and used it to strike Mr Burke to the side of the head and forehead. Mr Burke raised his arms to protect his face and Mr Russell struck his elbow. Either the applicant or Mr Russell picked up a wooden chair and struck Mr Burke over the head with it before they and Ms Schnurfeil left the house and drove away.

7 Mr Burke was taken to hospital by ambulance. He suffered a depressed parietal skull fracture and parietal skull laceration. He has made a full recovery with no indication of any residual damage.

8 The applicant and Mr Russell were arrested and interviewed by police on 27 July 2015.[3] The applicant stated that he was at home all weekend with his mother and declined to make any further comment. Mr Russell admitted that he went to the Queen Street house and assaulted Mr Burke. Mr Russell was refused bail and was remanded in custody. The applicant was granted bail after 17 days.

9 The offences of aggravated burglary and intentionally causing injury with which the applicant and Mr Russell were charged related to the events on the evening of 26 July 2015. The aggravated burglary was constituted by their entry as trespassers to the Queen Street house with intent to commit an assault on a person present in the house. Mr Russell committed the offence of attempting to pervert the course of justice while he was on remand, by asking his mother and brother to dissuade witnesses from giving evidence against him.

10 The applicant suffered from a dysfunctional and disrupted childhood. He was raised by his grandmother until the age of six and then by his mother before being returned at the age of 12 to his grandmother's care. His mother was only 16 years old when he was born and he never met his father. He was diagnosed with ADHD as a child and prescribed Ritalin. He attended various primary schools, and completed Year 10 at Langwarrin Secondary College.

11 After school, the applicant obtained employment as a labourer doing fencing work, concreting, and furniture removal.

12 He was sexually assaulted on one occasion at the age of 15, while he assisted a video shop owner, and that left him with feelings of confusion. He was traumatised and confused as to his own sexuality and was afflicted by intrusive traumatic dreams as a result of the assault. That post-traumatic stress response continues to linger.

13 The applicant consumed alcohol excessively between the ages of 18 and 26 and then reduced his use of alcohol. He used cannabis from the age of 13 until experiencing his first psychotic episode at the age of 21. He first used crystal methamphetamine shortly before a second psychotic episode which occurred when he was 24.

14 He received a disability support pension after that time. He had been diagnosed with schizophrenia, and his use of cannabis, amphetamines and methamphetamine contributed to his psychiatric illness. Drug induced psychosis had previously been considered as a diagnosis for the applicant.

15 The applicant has an eight year old son with a former partner. His son lives with his former partner and at the time of sentencing, the applicant had not had contact with him for six years.

16 In a report dated 13 October 2016, Dr Adam Deacon, a consultant psychiatrist, said the following:

[The applicant] superficially presented as mentally well and stable in this assessment, but he continues to be afflicted with residual psychotic symptoms; most prominently auditory hallucinations and intrusive visual imagery. He reported that he is compliant with prescribed antipsychotic medication. ...

[The applicant's] mental illness, schizophrenia, does not appear to be germane to the offences. He was under the influence of crystal methamphetamine, and likely affected by residual psychotic symptoms, at the time of the offence, but his conduct occurred independently of these combined problems. ... His decision to engage in the offence was not driven by psychotic symptoms, but given he was under the influence of crystal methamphetamine, his capacity to think and act reasonably, and exercise reasonable judgement, may have been impaired.

[The applicant] is currently reasonably mentally stable, albeit he continues to be afflicted with residual psychotic symptoms. It would be reasonable to surmise that he might experience prison more onerously than one would expect in an individual without a major mental illness. His condition is likely to remain unchanged in custody, but it is not uncommon for stress related to the prison environment to contribute to mental instability.

17 Over the few years preceding sentence, the applicant had been able to work from time to time as a concreter with a family friend, Allen Murphy. Mr Murphy gave evidence on the plea and said that he had known the applicant for 15 years and would give him a job when he was released from custody. A friend of the applicant's mother, Bernadette Murphy, provided a written reference in which she detailed the applicant's tough childhood and stated that the applicant was 'remorseful' and 'utterly ashamed of his actions'.

18 In relation to the applicant's prior criminal history, on 24 August 2006 he was convicted and fined by the Dromana Magistrates' Court for various traffic charges and one charge of theft.

19 On 17 July 2007, he was convicted in the County Court of charges of aggravated burglary with an offensive weapon, criminal damage, and intentionally causing injury. That offending involved the applicant and three others, armed with weapons, breaking into a house in the early hours of the morning. They assaulted a neighbour who came to assist and caused extensive damage to the property. The applicant claimed to be acting out of a misguided sense of loyalty in committing those offences. In sentencing the applicant for those offences, a judge of the County Court described his conduct as 'remarkably stupid', and found that he was less morally culpable than his co-offenders.[4] The applicant was 22 years old at that time. The judge noted that, in 2005, the applicant had been diagnosed with acute psychiatric symptoms and hospitalised. The applicant claimed at that time to have ceased drug use and to have his alcohol consumption under control. The judge found that imprisonment would have a significant adverse effect on the applicant's mental health, and imposed a community-based order for two years, which he successfully completed.

20 When the applicant was granted bail on the current charges, he was placed on the Court Integrated Services Program ('CIS program'). A CIS program report dated 12 November 2015 was tendered on the plea. The report stated that the applicant had successfully completed drug and alcohol counselling, with a focus on programs to prevent reoffending, maintain drug abstinence, minimise harm, among other supportive programs. The report stated that the applicant engaged well with treatment and demonstrated motivation and commitment to successfully completing the CIS program. It said that the applicant had made positive changes to his lifestyle, and presented as resilient and insightful in relation to his progress.

21 Mr Russell had an 'appalling upbringing'.[5] He was disowned as a child by his father, brutalised by his stepfather, and ejected from his home at 13 years of age. After that, his housing was organised by the Department of Human Services and he lived with foster families, before living on the street or couch-surfing with friends. He had little education and was diagnosed with ADHD in primary school. He was using illicit drugs including methylamphetamine at the time of the offending.

22 Mr Russell was involved in a car accident on 4 April 2015 and his grandmother died on 28 May 2015. His methylamphetamine abuse escalated as a result of those events.

23 Mr Russell had a substantial prior criminal history. The judge noted that, since the age of 19, Mr Russell had been out of custody for approximately one year and that his 'prior history paints a grim picture for [his] future prospects'.[6]

24 On 23 August 2007, he was released on a youth supervision order by the Frankston Children's Court for offences of burglary, theft from a shop, intentionally damaging property, theft, unlawful assault, and unlawfully entering premises.

25 On 30 January 2009, he was before the Dandenong Magistrates' Court on charges of breaching an intervention order, stating a false name and address, resisting police, criminal damage, failing to answer bail, theft of a motor vehicle and possession of cannabis. He was released on a suspended one-month term of imprisonment and a community correction order ('CCO'). The suspended term of imprisonment was restored on 22 April 2009 and he was ordered to serve the one-month term of imprisonment.

26 On 19 June 2009, the applicant was again before the Dandenong Magistrates' Court on charges of recklessly causing injury and making a threat to kill. He was also convicted of failing to answer bail, theft, robbery and cannabis charges. He was sentenced to an effective term of eight months' detention in a youth training centre. He was subsequently transferred from a youth training centre to an adult prison.

27 On 7 May 2010, he was sentenced by the County Court to an effective term of imprisonment of four years and six months, with a non-parole period of two years and three months, for offences of attempted armed robbery, attempted robbery, and four charges of intentionally causing injury. He was released on parole on that sentence in March 2013 but breached his parole in October of that year and was placed back in custody. He was released from prison on that sentence on 26 March 2015, approximately four months before the current offending.

28 The judge stated that the applicant was entitled to a reduction to the sentence that would otherwise be imposed as a result of his pleas of guilty, and accepted that they demonstrated remorse and had utilitarian value, despite the fact that they were not entered at an early stage.[7]

29 The judge accepted the applicant's psychiatric illness ought to be taken into account in mitigation, and specifically, that limbs 5 and 6 of the considerations set out in R v Verdins[8] were applicable.[9] The judge said the following about the applicant's mental illness and other mitigating factors:

Your illness will make your time in custody more onerous for you than it would for someone without schizophrenia. In addition, your time in custody may adversely affect your mental health. I have reduced the sentence I am about to impose to reflect these factors.

...

I take into account your troubled childhood background, the remorse to which I have referred, and your prospects for rehabilitation. I obviously give effect to the principles set out in Verdins as I stated before.[10]

30 The judge said that the applicant 'should have learnt [his] lesson' from his prior court appearance in July 2007 and noted that it had not deterred him from similar conduct in this case.[11]

31 In relation to the culpability and criminal record of the applicant compared to those of Mr Russell, the judge said:

[T]here is a significant difference between your culpability and that of your co-offender. Your offence of aggravated burglary does not involve you carrying a weapon or being aware that your co-accused carried a weapon. Your involvement in punching your victim was disgraceful, but you did not strike him with the iron bar. Your prior criminal history, although clearly relevant, is not as extensive ... or as concerning as that of Russell.[12]

32 The judge considered that the applicant's prospects for rehabilitation were 'substantially better than those of [Mr Russell]' and could be described as 'good'.[13] In that regard, the judge referred to the reference provided by Ms Murphy[14] and said that he took into account the contents of that reference in sentencing the applicant.[15]

33 The judge referred to the CIS program report[16] and said that it 'gives this court comfort as to [the applicant's] future prospects for rehabilitation'.[17]

34 As to the appropriate sentence, the judge said the following:

Your counsel submitted that it would be appropriate for the court to impose a term of imprisonment and a community corrections order for your offending. For reasons that I will come to, I am unable to accept that submission. The offence of aggravated burglary and your involvement in the infliction of injury are too serious, in my view, to justify such a disposition. The Court of Appeal in the much-cited decision of Boulton gave this court guidance as to when a community corrections order should be imposed, either alone or in combination with a term of imprisonment. Your offending is too serious for such a disposition. The Court of Appeal has made it clear in cases such as Hogarth v R [2012] VSCA 302, DPP v Meyers (2014) 44 VR 486, and Bowden ... that confrontational aggravated burglary is a particularly nasty form of criminal conduct. The maximum penalty for the offence is 25 years' imprisonment, and that indicates the seriousness with which Parliament regards the offence. At paragraphs 41 and following of Bowden, the Court of Appeal looked at various sentences imposed for similar offending and concluded at paragraph 74 that the respondent in that case should be sentenced to a term of imprisonment of four years on a charge of aggravated burglary. But for constraints of principles of parity, a sentence of six years and six months would have been imposed. The offending in Bowden was not dissimilar in my view to your offending, and Bowden had also entered pleas of guilty. I have had full regard to the factors set out in paragraph 23 of Bowden in determining the seriousness of your offence. Significantly, as I say, you have relevant prior convictions for like offending.[18]

35 The judge concluded as follows before sentencing the applicant and Mr Russell:

In sentencing both of you, I must have regard to a range of different factors. I must give effect to principles of both general deterrence and specific deterrence. I must deter others from behaving like you did and I must deter both of you from repeating such behaviour. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation. I take into account the effect your crimes have had on your victim and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence you have committed. I must try to balance your personal circumstances with the circumstances of your offending.

Clearly, principles of general deterrence and specific deterrence and denunciation are the primary sentencing considerations in this case. I give full effect to the mitigatory factors to which I have referred for both of you, but the Court of Appeal has made it clear that substantial periods of imprisonment must be imposed for the offence of aggravated burglary.[19]

36 The extant proposed grounds of appeal are in the following terms:

Ground 1:

The sentence imposed on charge 1 (4 years 6 months imprisonment), the sentence imposed on charge 2 (2 years imprisonment), the total effective sentence (5 years 6 months imprisonment) and the non‐parole period fixed (3 years 3 months imprisonment) are each manifestly excessive.

Particulars:

(a) The sentences imposed are manifestly too long.

(b) The sentencing judge gave manifestly insufficient weight to the applicant's engagement with the [CIS program], his pleas of guilty, his remorse, his good prospects for rehabilitation, his troubled background and his ongoing psychotic symptoms (including auditory hallucinations).

(c) The sentencing judge failed to have sufficient regard to the absence of certain otherwise aggravating features, which distinguished the applicant's offending from more serious examples of offending of this kind (such as in DPP v Bowden [2016] VSCA 283).

(d) The wrong type of sentence has been imposed given that the sentencing judge could have given effect to all relevant sentencing purposes - including deterrence and denunciation - by imposing a 'combination sentence'.

Ground 3:

The sentencing judge erred by misapplying the parity principle on charge 2.

Particulars:

(a) The sentence imposed on charge 2 (2 years imprisonment) gives rise to a justifiable sense of grievance in light of the sentence imposed on Russell on charge 2 (2 years imprisonment).

(b) That the same sentence was imposed on both the applicant and Russell on charge 2 fails to reflect:

(i) The distinction between the applicant's culpability and Russell's culpability in relation to the commission of that offence;

(ii) The sentencing judge's conclusion that there was a significant difference between the applicant's culpability and Russell's culpability;

(iii) The differences between the applicant's subjective circumstances and Russell's subjective circumstances.

(c) Having regard to the parity principle, the sentence imposed on the applicant on charge 2 ought to have been less than the sentence imposed on Russell on charge 2.

37 The applicant submitted that there were 'compelling reasons' to impose a combination sentence pursuant to s 44 of the Sentencing Act 1991 in this case and the judge fell into error by rejecting the applicant's submission that such a sentence ought to be imposed. According to the applicant, the sentences themselves reflect that 'a substantial wrong has occurred during the sentencing process'.[20]

38 The applicant submitted that the sentences are 'manifestly too long and the wrong type of sentence has been imposed' in the light of a number of matters.

39 In particular, the applicant contended that the judge gave insufficient weight to a variety of factors, including that: he had not previously been sentenced to a term of imprisonment; he remained traumatised by sexual abuse perpetrated upon him when he was 15 years old; his early development was 'marked by considerable adversity and trauma'; he has had psychotic episodes and continues to experience ongoing psychotic symptoms; he has been diagnosed with schizophrenia; he previously successfully completed a community based order; he is remorseful and ashamed of his offending conduct; he took significant steps towards his own rehabilitation while on bail, engaged in counselling and abstained from illicit drug use; his prospects of rehabilitation were described as 'good' by the judge; and he pleaded guilty which reflected his remorse.

40 The applicant referred to the fact that he had successfully completed the CIS program while he was on bail and relied on the contents of the CIS report set out at [20] above. He also relied on the opinion of Dr Deacon set out at [16] above. According to the applicant, imprisonment would be a greater burden on him, and that wa[21]accepted by the judge.21

41 The applicant also submitted that the judge failed to have sufficient regard to the absence of certain otherwise aggravating features, including that he was not carrying a weapon and the offending did not involve extensive planning, premeditation or the use of disguises. The applicant relied on Director of Public Prosecutions v Bowden[22] in which this Court said that the taking of a weapon for the purposes of committing a burglary markedly increases the objective gravity of the offence.[23]

42 According to the applicant, that the judge failed to have sufficient regard to the absence of those factors is reflected in the sentences imposed and the judge's conclusion that the offending in Bowden was not dissimilar to the applicant's offending.[24] According to the applicant, while his offending was clearly serious, there were considerable differences between his offending and the offending in Bowden, namely, that in the latter case:

Bowden was wearing a camouflage suit, including a hood and was carrying a jemmy bar, a set of ground‐down keys, night‐vision goggles and a large hunting knife. [He and his co‐offender] entered an upstairs bedroom where two of the victims, A and E, were sleeping. E woke up. She screamed loudly. A then woke up and tried to get out of bed. Bowden ran towards him and they started fighting. Bowden was waving the knife around ...[25]

43 The applicant also relied on Boulton v The Queen[26] in relation to the imposition of CCOs and the benefits of imposing them to commence on the completion of a term of imprisonment.

44 In oral argument, the applicant relied on a Sentencing Snapshot published by the Sentencing Advisory Council ('SAC') which showed that, between 2010-11 and 2014-15, terms of imprisonment for aggravated burglary ranged from two months and six days to six years and nine months.[27] The applicant submitted that the sentence imposed on him falls towards the upper end of that range which meant that, when his 'powerful' mitigating circumstances are taken into account, the sentence fell outside the range of sentences reasonably open to the judge.

45 The applicant also relied on the principle of parsimony.

46 The Crown submitted that the sentence imposed on the applicant was within range and could not be said to be manifestly excessive, particularly in the light of the following matters:

(a) The offence of aggravated burglary carried a maximum penalty of 25 years' imprisonment.

(b) The offending involved a home invasion in the early hours of the morning.

(c) The applicant entered the Queen Street house in the presence of two others.

(d) The intent of the applicant in entering the house was to commit assault, and indeed he punched Mr Burke in the head immediately upon entering the house.

(e) The applicant had relevant prior convictions, in particular for aggravated burglary with an offensive weapon, criminal damage and intentionally causing injury.

47 According to the Crown, in imposing sentence, the judge had regard to each of the matters outlined by the applicant and to his submission on the plea that a CCO ought to be imposed.

48 The Crown submitted that any dissimilarities between the offending in this case and other cases (such as premeditation and wearing camouflage) cannot overcome the fact, as stated by the judge, that 'confrontational aggravated burglary is a particularly nasty form of criminal conduct'.[28]

49 The Crown relied on the following passage of this Court's decision in Hogarth v The Queen:[29]

[C]urrent sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practice. The necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases.[30]

50 According to the Crown, had the applicant been carrying a weapon and not entitled to the benefit of the mitigatory matters taken into account by the judge, it could be expected that a greater sentence would have been imposed on the applicant.

51 In our opinion, Ground 1 must be rejected essentially for the reasons submitted by the Crown.

52 The confrontational aggravated burglary committed by the applicant was, as conceded by him and found by the judge, a serious offence. The sentence imposed by the judge was in accordance with the principles for sentencing for this type of offence set out in cases such as Hogarth, Director of Public Prosecutions v Meyers[31] and Bowden. In those cases, this Court emphasised that, ordinarily, a lengthy period of imprisonment should be imposed for the offence of aggravated burglary.[32]

53 It is true, as submitted by the applicant, that the offending in the present case lacked some of the features of the offending in Bowden. Unlike the offender in Bowden, the applicant did not disguise his appearance, carry a weapon, force entry into the relevant property or disturb sleeping occupants. Nevertheless, there were some similarities in the offending, including that the offending occurred in company late at night in circumstances which frightened the occupants of the relevant property and disrupted their peaceful activities. The additional aggravating features in Bowden were reflected in the sentence of six years and six months' imprisonment that the Court said it would have imposed on the offender in that case had it not been constrained by the parity principle.[33] The absence of those aggravating features explains why the sentence imposed on the applicant was significantly lower.

54 We reject the applicant's submission that the nature of his offending and the mitigating factors in his favour necessitated the imposition of a custodial sentence of up to two years' imprisonment combined with a CCO. While a CCO is inherently punitive, it is less punitive than a custodial sentence. In the present case, the seriousness of the offending, denunciation, protection of the community, general deterrence and specific deterrence warranted a substantial custodial sentence. A custodial sentence of two years or less, combined with a CCO, would not have satisfied these sentencing considerations.[34]

55 We reject the applicant's submission based on the Sentencing Snapshot published by the SAC. The historical statistics set out in the Sentencing Snapshot say nothing about the circumstances of each individual case that is covered by the statistics and do not provide any meaningful assistance in assessing whether the sentence imposed by the judge was manifestly excessive.

56 In all the circumstances, the sentence imposed by the judge was well within the range of sentencing options reasonably available to him.

Ground 3: Application of the parity principle

57 The applicant submitted that the fact that he and Mr Russell were both sentenced to 2 years' imprisonment on the charge of intentionally causing injury 'constitutes sentencing error' in light of the judge's conclusions as to their respective culpability and prospects of rehabilitation.

58 In particular, the applicant referred to the judge's conclusions that there was a significant difference between the applicant's culpability as compared to that of Mr Russell, and that the applicant's prospects of rehabilitation were 'substantially better'.[35] The applicant also submitted that none of the Verdins principles applied to Mr Russell, nor was there any evidence of remorse on Mr Russell's part, while both of those matters were relevant in sentencing the applicant.

59 In its written case, the Crown submitted that there is no justifiable sense of grievance in respect of the two sets of sentences. According to the Crown, the judge was aware of the differences between the two co-offenders and sentenced accordingly. The Crown also submitted that the need to apply Verdins to the applicant's sentence did not lead to any misapplication of the parity principle. The Crown contended that in accordance with the submissions made on the plea, the judge took into account limbs 5 and 6 of Verdins.

60 In its oral submissions, the Crown offered a possible explanation for the identical sentence imposed on the applicant and Mr Russell in relation to the charge of intentionally causing injury. That possible explanation was that the judge moderated the sentence for Mr Russell due to the principle of totality, as he had pleaded guilty to the additional charge of attempting to pervert the course of justice. Despite this possible explanation, the Crown conceded it was 'a little bit odd' that the sentences were identical and that the issue 'needs to be looked at' by this Court. However, the Crown stopped short of formally conceding that Ground 3 was made out and noted that it would not be appropriate for this Court to 'tinker' with the applicant's sentence.

62 Although the applicant and Mr Russell committed the same offence, as the judge recognised, there were significant differences in their culpability. First, the applicant did not carry a weapon whereas Mr Russell carried a metal bar. Secondly, the applicant was not aware that Mr Russell was armed with a metal bar. Thirdly, whereas the applicant punched Mr Burke and wrestled with him, Mr Russell struck Mr Burke with the metal bar. Fourthly, the serious injuries inflicted on Mr Burke were caused predominantly by Mr Russell rather than the applicant.

63 In addition, the applicant was able to call in aid substantial mitigating circumstances that did not apply to Mr Russell. They included his less extensive criminal history, Verdins limbs 5 and 6 and his better prospects of rehabilitation. In addition, while Mr Russell had breached the terms of a suspended sentence, his parole and bail, the applicant had successfully completed a community-based order and the CIS program. Further, while the judge found that the applicant was remorseful, he made no such finding in relation to Mr Russell.

64 In these circumstances, the parity principle required the judge to impose a sentence on the applicant in relation to the charge of intentionally causing injury that was less severe than the sentence imposed on Mr Russell for that charge. Although the judge acknowledged the material differences in the culpability and personal circumstances of the applicant and Mr Russell, inexplicably, those differences were not reflected in the sentences he imposed. The possible explanation propounded by the Crown is speculative. Without a rational explanation, the only conclusion available is that the absence of any difference in the sentences imposed was unjustified and infringed the notion of equal justice that is embodied in the parity principle.[36]

65 The sentencing discretion having been reopened, the applicant will be resentenced as follows:

66 Pursuant to s 6AAA of the Sentencing Act 1991, a declaration will be made that, but for the applicant's plea of guilty, we would have sentenced him to a total effective sentence of six years' imprisonment with a non-parole period of four years.

[1] DPP v Kiezenberg [2016] VCC 1877 ('Sentencing remarks').

[2] On 3 April 2017, this Court refused the applicant leave to appeal on an additional ground of appeal (Ground 2): Kiezenberg v The Queen [2017] VSCA 72.

[3] Ms Schnurfeil was also arrested. Her circumstances are not presently relevant.

[4] R v Johnson [2007] VCC 789 [28]-[29].

[8] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[10] Sentencing remarks [40], [47].

[12] Sentencing remarks [43]. See also sentencing remarks [2] where the judge noted that the applicant did 'not have the additional form of aggravation, possession of a weapon' that Mr Russell did.

[14] See [17] above.

[16] See [20] above.

[20] The applicant cited House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[21] The applicant referred to paras 40 and 47 of the sentencing remarks. See [29] above.

[22] [2016] VSCA 283 ('Bowden').

[23] Bowden [2016] VSCA 283 [30].

[24] See [34] above.

[25] Bowden [2016] VSCA 283 [9].

[26] [2014] VSCA 342; (2014) 46 VR 308 ('Boulton').

[27] Sentencing Advisory Council, 'Sentencing Snapshot No 184: Sentencing trends in the higher courts of Victoria 2010-11 to 2014-15, Aggravated Burglary' (June 2016) 3.

[28] Sentencing remarks [48]. The Crown cited Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth'); DPP v Meyers (2014) 44 VR 486 ('Meyers'); Bowden [2016] VSCA 283.

[29] [2012] VSCA 302; (2012) 37 VR 658.

[30] Hogarth [2012] VSCA 302; (2012) 37 VR 658, 674 [62].

[31] (2014) 44 VR 486.

[32] See Akoka v The Queen [2017] VSCA 214 [82] n 63.

[33] Bowden [2016] VSCA 283 [74].

[34] It is not necessary for us to determine whether, if a combination sentence were to be imposed, such a sentence would be governed by s 44(1) of the Sentencing Act 1991 in its present form or in the form it was in when the applicant was sentenced on 2 December 2016. Cf Younger v The Queen [2017] VSCA 199 [42]-[57].

[35] See [31]-[32] above.

[36] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610-11; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 480 [45].