Kiezenberg v The Queen [2017] VSCA 72

1 The applicant, Nick Kiezenberg ('Kiezenberg'), 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 the Crimes Act. The judge imposed the following sentence in the County Court on 2 December 2016:[1]

Aggravated burglary [Crimes Act 1958 s 77]

Intentionally causing injury [Crimes Act 1958 s 18]

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

2 Kiezenberg now seeks leave to appeal against sentence.

3 It should be noted that the sentence in this table reflects the Record of Orders, signed by the sentencing judge on 2 December 2016. There is a discrepancy between the Record of Orders and the transcript of his Honour's sentencing reasons. In the Record of Orders no cumulation was ordered and the total effective sentence is four years and six months' imprisonment. By contrast, in the sentencing reasons, the judge ordered that one year of the sentence on the intentionally causing injury charge (charge 2) be served cumulatively on the sentence on the aggravated burglary charge (charge 1), and he referred to a total effective sentence of five years and six months' imprisonment.[2] The difference is significant. It is also relevant to the question of whether the grounds of appeal based upon manifest excess (ground 1) and parity (ground 3) are reasonably arguable.[3]

4 In those circumstances, and for the reasons below, leave to appeal against sentence on proposed grounds 1 and 3 should be referred to a bench of two or three judges and, if leave is granted, heard at the same time as the appeal. In my view, the matter should return to the judge before the application for leave to appeal can be dealt with in this Court for the purpose of clarifying the sentence he imposed.

5 For the reasons below, I would refuse leave to appeal with respect to proposed ground 2.

6 On the evening of 26 July 2015, Kiezenberg entered as a trespasser a home at 29 Queen St, Frankston, with the intent to commit an offence and the knowledge that a person was in the home (charge 1). He then proceeded to punch and wrestle with a man in the home (charge 2). His co-offender, Christopher Russell ('Russell'), hit the same man on the head and arm with a metal bar. Either Kiezenberg or Russell then hit the man over the head with a wooden kitchen chair. The man suffered a fractured skull and lacerations to his head.

7 Kiezenberg and Russell went to the property after Kiezenberg's sister had been told to leave a gathering there where a handful of people were socialising and using drugs. They confronted the residents of the house while Kiezenberg's sister remained in the car.[4]

(1) The sentence imposed on charge 1, the sentence imposed on charge 2, the total effective sentence and the non‐parole period fixed are each manifestly excessive.

(2) The sentencing judge erred by sentencing the applicant on the basis that this Court has made it clear that substantial periods of imprisonment must be imposed for the offence of aggravated burglary.

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

9 The judge recorded Kiezenberg's personal circumstances in his sentencing reasons, including Keizenberg's 'dysfunctional and disrupted childhood'[5]; the sexual assault at the age of 15 which left him 'traumatised';[6] his psychotic episodes, reliance on the disability support pension, and diagnosis of schizophrenia;[7] his treatment for schizophrenia and polysubstance abuse since 2012;[8] and the support he has of people in the community.[9]

10 In describing the offending, the judge noted that Kiezenberg did 'not have the additional form of aggravation, possession of a weapon' that his co-accused Russell did.[10]

11 The co-accused, Russell, pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury, and one charge of attempting to pervert the course of justice. Russell was sentenced on charge 1 (aggravated burglary) to imprisonment for six years, on charge 2 ( intentionally causing injury) to two years' imprisonment (the same sentence as that imposed on Kiezenberg), and with respect to the second indictment and the charge of attempting to pervert the course of justice, to two years' imprisonment. The judge directed that one year of the sentence imposed on charge 2 and one year of the sentence imposed with respect to the charge of attempting to pervert the course of justice be served cumulatively on charge 1, resulting in a total effective sentence of imprisonment of eight years. He ordered that there be a non-parole period of five years and nine months.

12 The judge took into account Kiezenberg's relevant prior convictions, including charges of aggravated burglary with an offensive weapon, criminal damage and intentionally causing injury in 2007.[11] In comparison with his co-accused, the judge concluded:

there 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 the victim was disgraceful, but you did not strike him with the iron bar. Your prior criminal history, although clearly relevant, is not as extensive and or as concerning as that of Russell.[12]

13 He noted that the sentencing judge in Kiezenberg's previous aggravated burglary charge had found that imprisonment would have a significant effect on Kiezenberg's mental health and the judge in that previous matter had imposed a two-year community-based order which Kiezenberg had successfully completed.[13]

14 The judge considered two references tendered on Kiezenberg's behalf and concluded that his prospects for rehabilitation 'are substantially better than those of [his] co-offender. Indeed, they can be described as good'.[14] Those references indicated that Kiezenberg would be offered a job when he was released from custody and that he is remorseful and ashamed of his conduct.

15 In addition, the judge took into account a report from the Court Integrated Services Program which Kiezenberg participated in while on bail. The judge noted, in reference to Kiezenberg:

You successfully completed drug and alcohol counselling, and focused on programs to prevent reoffending, to maintain drug abstinence, to minimise harm, and other supportive programs. You are said to have engaged well with treatment, and demonstrated motivation and commitment to successfully completing the program. You have made positive changes to your lifestyle, and are said to present as resilient and insightful into your progress. The report gives this court comfort as to your future prospects for rehabilitation.[15]

16 Kiezenberg submits that the individual sentences for each charge, the total effective sentence and the non-parole period are all manifestly excessive. In particular, he contends that the judge gave insufficient weight to a variety of factors including his:

• engagement in the Court Integrated Services Program;
• pleas of guilty;
• remorse;
• good prospect for rehabilitation;
• troubled background; and
• ongoing psychotic symptoms (including auditory hallucinations).

17 Further, Kiezenberg submits, the judge did not give 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. Specifically, he was not carrying a weapon and the offending did not involve extensive planning, premeditation or the use of disguises. He argues that this distinguishes his offending from that in Director of Public Prosecutions v Bowden,[16] which the sentencing judge described as 'not dissimilar' to his offending.[17]

18 Taking into account all these factors, Kiezenberg contends that the relevant sentencing purposes could have been achieved by imposing a 'combination sentence' (a term of imprisonment of two years or less combined with a community correction order).[18] He therefore relies on two types of manifest excess: that the sentence is too long and that the wrong type of sentence has been imposed.[19]

19 Kiezenberg submits that the judge erred in applying Hogarth v The Queen[20] and Bowden as a basis for finding that a substantial period of imprisonment was required for the offence of aggravated burglary.

20 Kiezenberg submits that parity was misapplied on the second charge, given that he and his co-offender both received a sentence of two years' imprisonment on the charge of intentionally causing injury.

21 An assessment of the ground of parity differs according to whether one considers that the sentence imposed in the Record of Orders is accurate or whether the sentence imposed in the transcript of the sentencing reasons is regarded as accurately conveying the sentencing disposition intended by the judge. Given there is no order for cumulation in the Record of Orders for Kiezenberg, it might be thought that the judge considered that Kiezenberg had a lesser culpability for the intentionally causing injury charge than that of his co-offender who, despite also receiving a two-year term of imprisonment on the charge, was subject to cumulation of one year on top of his other charges.

22 The discrepancy between the Record of Orders and the transcript of sentencing reasons also raises a question with respect to the ground of manifest excess. Although the total effective sentence varies between the Record of Orders and the sentencing reasons, the non-parole period of three years and three months is the same in both. The non-parole period therefore represents 59 per cent of the head sentence by reference to the sentencing reasons and 72 per cent of the sentence recorded in the Record of Orders.

23 A non-parole period approaching 75 per cent is usually reserved for particularly serious offending or for cases where negative findings have been made regarding the offender's prospects of rehabilitation.[21]

24 Given the general affirmative remarks made by the judge about Kiezenberg's prospects for rehabilitation, in particular his finding that those prospects can be described as 'good',[22] it is reasonably arguable that a non-parole period of 72 per cent is manifestly excessive. This is particularly so when regard is had to Kiezenberg's co-accused who, despite having 'grim' prospects of rehabilitation,[23] received a non-parole period that represents 72 per cent of his head sentence. Non-parole periods that bear the same proportion to their respective head sentences do not reflect the judge's conclusion that Kiezenberg's prospects for rehabilitation were 'substantially better' than those of Russell.[24]

25 With respect to ground 2, namely, that the judge mis-applied Hogarth and Bowden with respect to the offence of aggravated burglary (charge 1), Kiezenberg's complaint is, in substance, that the judge considered that, in the light of Hogarth and Bowden, he was obliged, or required, to impose a substantial period of imprisonment and that such an obligation constrained the exercise of his sentencing discretion. I do not consider that the judge approached the question of sentencing on charge 1 as an application of a general rule rather than by consideration of the individual circumstances of the case. In my view, the judge carefully dealt with all of the particular circumstances of the offending and of Kiezenberg's personal history and brought those considerations to bear upon the sentence he imposed on the offence of aggravated burglary. He imposed a substantial sentence not by reason of applying a general rule, but because he considered that Kiezenberg's 'involvement in the infliction of injury [was] too serious ... to justify'[25] a lesser sentence such as a term of imprisonment and a community correction order. He described Kiezenberg's involvement in punching the victim as 'disgraceful'.[26] He also noted that it was significant that, in Kiezenberg's criminal record, he had relevant prior convictions for like offending.[27] I do not consider that ground 2 is reasonably arguable and I refuse leave to appeal on this ground.

26 Leave to appeal against sentence is refused with respect to proposed ground 2.

27 The matter should be referred to the judge for clarification of the sentence that he imposed.

28 Leave to appeal against sentence on proposed grounds 1 and 3 ought be referred to a bench of two or three judges and, if leave is granted, be heard at the same time as the appeal. The application for leave to appeal on proposed grounds 1 and 3 should not be heard until the sentence has been clarified by the judge.

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

[3] The grounds of appeal are set out at [8] below.

[4] Sentencing reasons [2], [5]-[7].

[16] [2016] VSCA 283 ('Bowden').

[18] Sentencing Act 1991 s 44.

[19] See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325 [6].

[20] [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[21] See Gray v The Queen [2010] VSCA 312 [21] (Nettle JA): 'although there is no legal requirement for a set ratio between head sentence and non-parole period ... , current sentencing practice is generally to set a non-parole period at between 60 and 66 per cent, increasing to 75 per cent in the "worst category of case"'. See also R v Tran [2006] VSCA 222 [28] (Redlich JA): 'As the benefit of the minimum term is for the purpose of the offender's rehabilitation, the sentencing judge's assessment of the offender's prospects of rehabilitation will have a significant bearing on the minimum term to be fixed.' (citations omitted).