Maslen v The Queen [2018] VSCA 90

Court of Appeal (Vic)|2018-04-13|Before: Mr J, Priest JA, Leish JA

CRIMINAL LAW - Appeal - Sentence - Aggravated burglary - Night-time home invasion with victims known to be present - Where offending did not involve weapons - Whether offending properly or usefully characterised as 'confrontational aggravated burglary' - Whether sentence manifestly excessive - Appeal dismissed - Hogarth v The Queen [2012] VSCA 302; ; ; considered.

1 On 7 April 2017 the applicant pleaded guilty in the County Court to six charges: aggravated burglary, theft, being a prohibited person possessing an imitation firearm, possession of cannabis, possession of methylamphetamine and handling stolen goods. He was sentenced on 16 May 2017 as follows:

Aggravated burglary (s 77(1) Crimes Act 1958)

Possession of a drug of dependence (methylamphetamine)

(s 88(1) Crimes Act 1958)

(s 124(1) Firearms Act 1996)

6 years and 10 months' imprisonment and a total fine of $1,061.69 (stay on fines for 6 years).

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

9 years and 2 months' imprisonment, with a non-parole period of 6 years and 8 months.

Disposal orders with respect to charges 1, 4 and 5.

Forfeiture orders with respect to charges 3 and summary charge 23.

2 The offending took place on 22 May 2016. The two victims of the offending were in a relationship and residing at an address in West Heidelberg. They knew the applicant through a former flatmate and he had attended their home on previous occasions.

3 The complainants were at home on 22 May 2016 when there was a knock on the front door between 2:30 am and 2:45 am. One of the complainants went to investigate and looked through the spyhole in the wooden front door. The persons on the other side of the door attempted to kick it down. The complainants tried to hold the door shut but the door was forced open and they were unable to prevent at least three masked assailants from entering the premises. Each of the intruders had his face covered and was wearing gloves.

4 One of the complainants recognised one of the men who had entered the home as the applicant, by his voice and physical stance. Another of the men also used the given name of the applicant in the course of the incident.

5 One of the offenders demanded money and drugs from the complainants. The men moved around the house for about 10 minutes looking for money, drugs and other items of value. They took with them a number of items including a television, four laptops, three rings, a gold necklace and two mobile phones.

6 The complainants called the police who attended at about 3:00 am. At about 9:25 am, the police again attended the home because one of the complainants had found a mask that had been worn by one of the intruders. As well as giving the mask to police, the complainants gave police the address of the applicant as the man one of them had recognised.

7 The police obtained a search warrant for the address they had been given by the complainants and later that day executed that warrant and arrested the applicant who was at the rear of the property in a bungalow. A number of items including a television, four laptops, a small amount of cannabis, a small bag of methylamphetamine, an imitation firearm, some live ammunition and a mountain bike were found in the bungalow.

8 The applicant denied any involvement in the offending and claimed that he had purchased from an unnamed person those items that had been stolen from the complainants' address. He advised that the drugs found were for his personal use. He made full admissions to the possession of the home-made imitation firearm and the ammunition. The applicant told police that he had made the weapon himself and that it was not yet operational.[1]

9 DNA analysis found that the DNA on the mask which had been found at the complainants' home matched that of the applicant.

10 The mountain bike that was seized during the search of the applicant's premises had been reported stolen from Heidelberg Heights earlier in May 2016.

11 At the plea hearing, defence counsel emphasised the difficulties which drugs had caused the applicant in his life. The applicant is the middle of three children. He attended a Catholic primary school in Ivanhoe, where he had learning difficulties which were not formally diagnosed. He commenced secondary schooling at St Joseph's in North Fitzroy, where he repeated year 7. He went on to La Trobe Secondary College and, for a time, to an alternative school in Collingwood. His secondary education did not go beyond year 8. While still at school the applicant was introduced to cannabis by older students. This served as a gateway to amphetamine and methylamphetamine.

12 After leaving school, the applicant worked in various labouring jobs. He had no formal trade qualifications but was able to hold down steady work, especially as a concreter between 2013 and 2015. He worked hard and his parents drove him to work as he had lost his driving licence.

13 The applicant had prior convictions, including for criminal damage, unlawful assault, assault with a weapon, reckless conduct endangering serious injury, theft, assault in company, burglary, affray, recklessly causing injury, intentionally causing injury and various driving offences. In 2011 he was sentenced to 2 years and 6 months' imprisonment on charges including intentionally causing injury and reckless conduct endangering serious injury. He had other prior convictions for which he had received suspended sentences and sentences of youth detention. During his time in prison he had completed a number of courses including drug and alcohol courses. He had worked in prison in metal fabrication and as a forklift driver and attained a qualification in hospitality and commercial cooking. While on parole, he had undertaken some unpaid work through Heidelberg Corrections.

14 Defence counsel submitted that the applicant had turned a corner and led a constructive life after a suspended sentence was imposed upon him in 2013 (on a collection of driving offences). He had been in a relationship and working as a concreter for approximately 16 months. When the relationship ended, so did his employment and the applicant at that time reverted to drug use.

15 Since his arrest, the applicant had been in lockdown as a result of being in protective custody after some threats were made to him. This meant that he was only permitted time outside his cell for one to two hours per day. He had remained drug-free while in prison.

16 Defence counsel informed the sentencing judge of evidence which the applicant's father was prepared to give.[2] Counsel told the judge that the applicant was a different person when not using drugs. He was kind and caring and had the support of his family. The applicant understood that he needed professional help in relation to his drug use and he planned to get that help and rely on the support of his parents and one of his brothers.

17 The applicant also wrote a letter to the court in which he accepted responsibility for his actions and the need for him to address his drug problem.

18 During the plea hearing, the sentencing judge suggested that this was a 'classic' Hogarth case.[3] Defence counsel sought to distinguish Hogarth on the basis that the intruders had not carried weapons with them, they had not entered with the intention of assaulting the complainants and no injuries had been caused.

19 The sentencing judge noted that the applicant had committed a number of serious offences over a long period. He had been sentenced to detention in 2004 (failure to comply with a community based order, reckless conduct endangering serious injury, injury, theft, recklessly causing injury, unlawfully on premises, assault in company, criminal damage), 2005 (robbery, assault in company, intentionally cause injury) and, most seriously, two years and six months with a non-parole period of 16 months in 2011 (three charges of intentionally cause injury, reckless conduct endangering serious injury, driving under the influence and other driving offences). The sentencing judge said that it was clear that the applicant had failed to grasp the opportunity when community based orders or suspended sentences had been given to him. The judge noted the tendency to violence that was a recurring and escalating feature of the applicant's prior convictions.

20 The sentencing judge stated on two occasions in his sentencing remarks that the applicant's counsel had accepted that his offending warranted a significant term of imprisonment. In fact, counsel had made the opposite submission. Counsel accepted that a term of imprisonment was warranted but submitted that the absence of weapons and the fact that no assault took place meant that the sentence was not required to be 'significant'. In any event, nothing ultimately turns on this error.

21 The judge then turned to a consideration of Hogarth. He relied upon Hogarth for the proposition that the maximum penalty for 'home invasion-style offences' was to be increased because such offending was not to be tolerated.[4] The judge found that the present offending was 'confrontational' in the sense that it was an aggravated burglary within the definitions in the Crimes Act 1958, committed late at night with an intent to steal from persons the applicant knew would be present, in circumstances where the applicant and his companions smashed in the doors. The judge continued:

That, to me, is a confrontational aggravated burglary, irrespective of how the Sentencing Advisory Council might have defined it in June 2011. I accept that you are not to be sentenced on the basis of an aggravation of this crime being brought about by the use of any weapons. That did not happen. However, to be confronted by three masked and disguised men at that time in the morning with the door broken in, demonstrates to me, a confrontational offence.

Insofar as that offence is concerned, you are subject to the determination by the Court of Appeal, where the following was said in Hogarth at [63],

'As stated earlier, the director's submission to the sentencing Judge was that, if the constraints of current sentencing practice were removed, the applicable range for the sentencing of [the offender] would be a total effective sentence of six to eight years, with a non-parole period of four to six years.'

The Court considered that was the indicative range as to the offence. Again, I point out that although weapons were used in Hogarth, the sentence in regard to Hogarth himself did not relate to such, because Hogarth was unaware of the use of a weapon, nor any intent to assault [16], albeit being primarily responsible for the crime [21].[5]

22 The applicant seeks to appeal against his sentence on the following two grounds:

The sentencing discretion miscarried because, in its exercise, the sentencing Judge improperly steered by the circumstances of, and the sentence imposed by the Court of Appeal in, Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658. In particular, the Judge erred by:

(a) mischaracterising the aggravated burglary as being a 'confrontational burglary', and

(b) sentencing the applicant on the basis of a confrontational aggravated burglary rather than an aggravated burglary with intent to steal.

In all circumstances, the individual term of imprisonment on [charge] 1, the orders for cumulation and the non-parole period are manifestly excessive.

23 The applicant submitted that the sentencing judge had viewed the offending 'through the rigid prism of a Hogarth-style confrontational aggravated burglary'. By applying the specific sentencing guidance in Hogarth, it was submitted that the judge erred in treating the case as an example of an aggravated burglary falling within the category of 'confrontational aggravated burglaries' discussed in Hogarth.

24 The applicant pointed out that in Hogarth, the Court employed the terminology adopted by the Sentencing Advisory Council in dividing aggravated burglaries into six categories: 'confrontational', 'intimate partner', 'intent to commit a sexual assault', 'intent to steal', 'intent to rob' and 'spontaneous encounter'. The Council had noted that confrontational aggravated burglary had the 'defining characteristic' of entry into premises in the context of a dispute with, or a grievance against, a person in the premises.[6] The applicant submitted that aggravating features present in a typical 'confrontational aggravated burglary', as defined, were the presence of a weapon and the fact that, at the time of entry into the building, the offender knew or was reckless as to whether the person against whom they had a grievance was present.[7]

25 The applicant submitted that this took the present case out of the category with which the Court was dealing in Hogarth. The applicant pointed out that in DPP v Meyers,[8] the Court had warned against treating Hogarth as establishing defined zones requiring a sentencing judge to decide whether a particular case fell within the scope of 'confrontational aggravated burglary' as defined by the Sentencing Advisory Council.

26 The respondent submitted that Hogarth established that the confrontational aspect to a 'home invasion' type of aggravated burglary was one factor that raised the level of seriousness of offending conduct. It was submitted that it was open to the sentencing judge to find that the applicant's conduct was confrontational in nature. It was submitted that the gravity of the offending was to be assessed by what occurred, rather than by the use of tags such as 'confrontational', which were said to be apt to mask the true nature of the offending and not to assist in a proper analysis of its seriousness.

27 The applicant submitted that the sentencing judge had allowed the decision in Hogarth, together with the 25-year maximum penalty for the offence of aggravated burglary, to 'swamp the sentencing discretion' so as to produce a manifestly excessive total effective sentence and non-parole period. The applicant drew attention to recent cases in which sentences of four to five years were imposed for aggravated burglaries which took place with weapons and, in a number of cases, violent physical assault.[9]

28 The respondent submitted that the sentence was within the permissible range and that the orders for cumulation were modest. It was submitted that both the head sentence and non-parole period were within the range of available sentencing options. The respondent drew attention to the applicant's prior convictions. The respondent also submitted that selective comparison of cases did not assist the Court in assessing the range of sentencing options properly open.

First proposed ground - misapplication of Hogarth

29 It is convenient to begin by saying more about the Court's decision in Hogarth. In that case, Hogarth had gone with two co-offenders to the home of a person in respect of whom Hogarth had a personal grievance. One of the co-offenders was carrying a weapon and all three were reckless as to whether someone would be at home. Although Hogarth instigated the burglary, he waited in the car while his co-offenders entered the victim's home, where they proceeded to break in and commit theft as had been agreed. Although the co-offenders carried weapons and assaulted the victim, the prosecution accepted that Hogarth did not know what his co-offenders planned to do to the victim. Neither their intent to assault nor their carriage of weapons was said to be relevant to the sentence to be imposed upon Hogarth.

30 Hogarth was sentenced after a plea of guilty to a term of 4 years and 6 months' imprisonment on the aggravated burglary charge. The Court rejected an argument of manifest excess, but went on to consider the adequacy of current sentencing practice for what the Director described as 'the "home invasion" category of aggravated burglary'.[10] The Court defined this field, as has been seen, by resort to the expression 'confrontational aggravated burglary'. The Court indicated that, had the constraints of current sentencing practice not applied, the applicable range for the sentencing of Hogarth would have been a total effective sentence of six to eight years, with a non-parole period of four to six years.[11] It is implicit in this observation that the sentence for the aggravated burglary charge by itself would have been about six months less: Hogarth's actual total effective sentence was five years, of which six months was attributable to cumulation for charges of theft and handling stolen goods.

31 The sentencing judge described the Court's above statement in Hogarth as a 'determination' which he held applied in the present case. Of course, the observation was no more than an indication of the total effective sentence which Hogarth might have expected to receive once account was taken of the inadequacy of current sentencing practice. The Court was not purporting to lay down any 'tariff' for application in other cases. Rather, it was indicating the extent to which current sentencing practice required modification. Having said that, however, nothing turns on the terminology used by the sentencing judge.

32 The gist of the applicant's argument is that Hogarth was concerned with the kind of aggravated burglary in which both the aggravating features[12] contemplated by s 77 of the Crimes Act 1958 are present; that is, at the time of entry, the offender is carrying a weapon and there is a person in the building, where the offender is either aware of that person's presence or is reckless as to the possibility of a person being present. In the present case, there was no weapon involved and the sentencing guidance in Hogarth was said to be inapposite as a result.

33 Were Hogarth to be read on its own, there might be some force in the applicant's argument. In terms, it deals with a form of aggravated burglary where the offender carries a weapon. However, as the applicant acknowledged, this Court made it clear in Meyers that Hogarth is not to be read as being confined to a particular subset of offending, and sentencing judges are not required to decide whether particular cases fall within the scope of 'confrontational aggravated burglary' as there described.[13] The use of such labels as sentencing tools is thereby to be discouraged; it lacks utility and may well distract from identification of the true nature of the offending. Instead, 'the decision in Hogarth should be viewed as having removed the constraint of [current sentencing practice] for aggravated burglary in all of its more serious forms'.[14]

34 It cannot be doubted that the present offending, involving a group of masked men forcing their way into the complainants' home in the middle of the night and stealing their belongings, was aggravated burglary of a serious kind, notwithstanding the absence of any weapon or any assault. As counsel for the respondent pointed out, a group of men in that situation may have little need of a weapon in order successfully to confront their victims. The sentencing judge was therefore not in error in applying the reasoning in Hogarth to the present offending, adopting his own definition of 'confrontational' aggravated burglary which differed from that employed in Hogarth.

35 It should also be observed that the sentencing judge was well aware that Hogarth himself was sentenced without regard to the use of a weapon or his co-offenders' intent to assault.[15]

36 While leave to appeal should be granted in respect of the first proposed ground, the appeal must be dismissed.

37 In Meyers, the Court listed the following as factors that will ordinarily be relevant in determining the relative seriousness of the offending in an aggravated burglary case:[16]

the offender's intent at the point of entry (whether to steal or commit assault or cause damage);
the mode of entry (eg, by forcing a door or breaking a window);
whether the offender was carrying a weapon;
whether the offender was alone or in company;
the time of day at which the burglary took place;
what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
whether the offender was someone of whom the victim was particularly frightened.

38 As has already been mentioned, on any view the present case was a serious example of this offence. It involved a group of men, disguised (however unsuccessfully), attempting to kick down the door of a home in the middle of the night, then forcing their way in and robbing (and doubtless terrifying) the occupants.

39 The applicant pointed to cases in which lesser sentences have been imposed despite the aggravating presence of weapons and gratuitous physical violence. Acknowledging that these cases do not serve as precedents,[17] the applicant submitted that they none the less confirmed what was said to be apparent as a matter of instinctive synthesis, that the sentence was outside the properly available range.

40 We disagree. To the contrary, and bearing in mind that the maximum penalty is 25 years' imprisonment, Hogarth and Meyers make it plain that a sentence of six years' imprisonment, on a plea of guilty, may well be apposite for a serious case of aggravated burglary. There were ample grounds for such a sentence for the offending in this instance. The sentencing judge rightly commented on the applicant's long history of serious and violent offending, which meant that he did not have the benefit of previous good character. The judge also gave due weight to the applicant's prospects of rehabilitation and the earliness of his guilty plea. These considerations, among others, plainly moderated the punishment that might otherwise have been imposed.

41 Nor do we consider the orders for cumulation or the non-parole period to be manifestly excessive. The total period of cumulation for the imitation firearm, theft and handling stolen goods offences was ten months. The judge stated that, in fixing the non-parole period of four years and nine months, he had been as merciful as he could.[18] We did not understand counsel for the applicant to contend otherwise.

42 As has often been remarked, manifest excess is a ground which admits of little argument or elaboration. We consider that the sentence imposed was well within the available range.

43 Leave should be refused in respect of the second proposed ground.

44 It follows that, while leave to appeal should be granted, the appeal should be dismissed.

[1] The applicant was a prohibited person in accordance with the definition contained in the Firearms Act 1996. He had received a sentence of 12 months' imprisonment, among others, on 23 March 2011 and was released on 22 June 2012. Five years had not passed since his release before the present offending took place.

[2] The judge did not require the applicant's father to give evidence formally.

[3] Referring to Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[4] Hogarth [2012] VSCA 302; (2012) 37 VR 658, 673 [56] quoting Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873 (the Hon Jan Wade, Attorney-General).

[5] DPP v Maslen [2017] VCC 604 [40]-[42] ('Sentencing Remarks').

[6] Hogarth [2012] VSCA 302; (2012) 37 VR 658, 672 [54], citing 'Aggravated Burglary: Current Sentencing Practices', Sentencing Advisory Council (23 June 2011).

[7] Hogarth [2012] VSCA 302; (2012) 37 VR 658, 660 [3]-[4].

[8] [2014] VSCA 314; (2014) 44 VR 486, 495 [36]-[37] ('Meyers').

[9] Robinson v The Queen [2017] VSCA 304; Trajanovski v The Queen [2017] VSCA 81; DPP v Bowden [2016] VSCA 283; Ross v The Queen [2015] VSCA 302.