1. On 6 February 2024, the appellant pleaded guilty to three charges of theft of a motor vehicle,[1] five charges of theft,[2] one charge of attempted burglary[3] and four charges of burglary.[4] The appellant also pleaded guilty to the following related summary offences: use a vehicle without number plates affixed[5] and possess prohibited weapon without exemption.[6]
2. On 20 February 2024, the appellant was sentenced by his Honour Judge Murphy in the County Court at Melbourne as follows:[7]

• Total Effective Sentence: 3 years and 6 months' imprisonment
• Non Parole-Period: 2 years and 4 months' imprisonment

1. On 15 November 2023, a co-offender of the appellant was convicted by jury verdict. The appellant and his co-offender were sentenced together on 20 February 2024. The co-offender was sentenced to a total effective sentence of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 3 months. The co-offender's offending included an instance of attempted aggravated burglary which was not the subject of a charge against the appellant. Conversely, it did not include charges equivalent to charges 1 and 2 against the appellant.
2. On 29 August 2024, Boyce JA granted leave to appeal against the appellant's sentence on the following grounds:

Ground 1: The individual sentences on charges 3, 4, 5, 7, 8, 9, 10, 11 and 12, the total effective sentence, and the non-parole period are manifestly excessive having regard in particular to:

a) the appellant's pleas of guilty;

b) the appellant's lack of any prior convictions;

1. the appellant's good prospects of rehabilitation and his genuine remorse; and

d) the objective seriousness of the offending.[9]

1. It can be seen that the sentences appealed include four sentences for burglary of 24 months and five sentences of 18 months with respect to one attempted burglary and four thefts. Each of these thefts was consequent upon a burglary.
2. The trial judge summarised the offending and assessed its objective gravity within a framework of incidents involving multiple offences.[10]

Preparatory incident : Theft of Motor Vehicle and Theft - Mr Messenger (Charges 1 & 2)

Some time prior to 9:30 pm on 15 May 2022 a residential home in Northcote was broken into and car keys to two vehicles, house keys, and a ring worth $4,000 were stolen. A 2014 grey Volkswagen Amarok registered number 1CE 3VK valued at $28,000 and containing $20,000 worth of tools was also stolen from inside the garage.

At 6:25 am on 9 June 2022 the same vehicle, now displaying registration plates AAD 567 was caught on CCTV footage at the Coles express service station at Narre Warren. You, Mr Messenger, were captured driving the vehicle into the service station, filling it up with 76 litres of diesel and driving off without paying. The use of the vehicle constitutes the offence of theft of a motor vehicle, Count 1, and Count 2 is theft of the diesel valued at $152.51.

The prosecution is unable to prove that you were involved in the burglary at the Northcote property, and thus you are to be sentenced only for theft of the motor vehicle on the basis that you were in control of that vehicle on 9 June, and for the theft of the fuel.

As will emerge, the Amarok vehicle was involved later in incidents three and five, and was recovered by the police on 13 June 2022.

The false number plates AAD 567 were located in the stolen Toyota HiAce vehicle which is the subject of the final offence below.

Incident 1: Narre Warren - Attempted Burglary - Mr Messenger (Charge 3) and Mr Culibrk (Charge 1)

The complainant lived in a modern two storey house in Narre Warren which was equipped with CCTV cameras. Around 7:50 am on 9 June, he was upstairs in bed when he heard someone trying to open a door in his house. He came downstairs and heard the sound of someone trying to open a sliding door at the back of the house. He saw a person outside. He screamed at him. He saw the offender running towards the fence.

The CCTV footage captures the Amarok vehicle on the road outside the house from 7:30 am and a person dressed very like the person involved in the theft of the diesel earlier that morning emerging from the vehicle and walking to the front of the house.

He knocks on the door number of times. A short time later the CCTV footage shows a person walking around the backyard in the direction of the side of the house. He is rummaging through a backpack and pulls out a yellow screwdriver. He removes the fly screen from the window and appears to be talking on a mobile phone. The complainant ran downstairs and saw you, Mr Culibrk, at the back door trying to break into the house through a glass sliding door using the screwdriver and he yelled out 'Thief, thief'.

The Amarok vehicle drives away from the property and the offender at the back of the house gets into the vehicle and it drives off.

The jury must have been satisfied that you, Mr Culibrk, were the person attempting to break into the back of the house. You, Mr Messenger, have admitted that you were driving the vehicle.

Your driving of the vehicle with the false number plates, Mr Messenger, is the basis of the summary offence of driving a vehicle without proper number plates, to which you have pleaded guilty, maximum penalty 12 penalty units.

Assessment

This was a serious example of attempted burglary. The two of you were in company. You were acting in a co-ordinated manner. You, Mr Culibrk, were armed with a screwdriver to allow you to attempt to break into the property. You had removed the fly screen and the sliding door was off its tracks. There was damage to the window frame. The offending was brazen in that it was in daylight and you had disturbed the sleeping occupant of the property.

Incident 2: Glen Waverley - Burglary, Theft and Theft of Motor Vehicle - Mr Culibrk (Charges 2, 3 & 4) and Mr Messenger (Charges 4, 5 & 6)

The complainant in this matter left her suburban home around 10.30 am on 9 June 2022. She returned at 1:20 pm and found the main door was open, all drawers were open and her wedding ring, engagement ring, other valuable jewellery, her passport and her Medicare card had been taken. She called the police who took photographs. After the police left she discovered that a spare set of car keys to her Camry, vehicle registered number BVC 891 were missing. She also found a large sum of money had been stolen. The next morning she woke to take her child to school and found that the car had been stolen overnight.

You, Mr Messenger, have pleaded guilty to the burglary of the property, theft of the car and the valuables.

You, Mr Culibrk, pleaded not guilty but the jury found you guilty of the offences, relying on your association with Mr Messenger and circumstantial evidence linking you to the offending, namely, your subsequent use of the Camry vehicle in association with the recovered property.

The car was recovered by the police on 22 June when you were both arrested at the home of Mr Culibrk's mother.

The passport and Medicare card of the complainant in this matter were discovered in the stolen Toyota HiAce vehicle, which is the subject of Charge 11 against you, Mr Messenger.

Assessment

This was another brazen daytime burglary where valuable property was stolen in a residential home intrusion. Further, the two of you returned to the property at night after the initial burglary in order to steal the vehicle having earlier stolen the spare set of keys. This was determined offending where, other than the vehicle, the valuable property was not recovered.

...[11]

Incident 4: Lynbrook - Burglary and Theft - Mr Culibrk (Charges 6 & 7) and Mr Messenger (Charges 7 & 8)

The complainant in this matter returned to his suburban home on the afternoon of 20 June and found that it had been broken into and jewellery, a mobile phone and his CCTV hard drive had been stolen.

He retrieved the CCTV footage from the neighbour across the road and it was used by the police in order to identify the two of you as the burglars.

The CCTV footage, which is the basis for the charges, shows a Camry vehicle similar to that stolen in Incident 2.

The footage shows a white Camry pulling up at the property at about 10.00 am. You, Mr Messenger, are dressed in a Hi Vis jumper. You got out of the car and walked to the front door and knocked on it. You returned to the vehicle. The vehicle then can be seen to drive past the property twice a short time later.

At 10.17 AM you, Mr Culibrk, approached the house and climbed over the bins and entered the side house yard.

Fifteen minutes later Mr Messenger arrived driving the Camry, backed up to the driveway and opened the boot. The garage door opens and both of you can be seen at the back of the vehicle putting something into the boot and then both of you get into the vehicle and it drives away.

At 2:22 the two of you return to the home and again the vehicle was parked in the street. The garage door is opened and lifted and the two of you can be seen entering and leaving the property.

The stolen hard drive was later identified by the complainant and found in the boot of the Camry on 22 June. When recovered the Camry was bearing different registration plates from when stolen in Incident 2.

When your phone was seized Mr Messenger it showed multiple calls were made to the landline of the address on 20 June 2022.

Assessment

This again was another determined burglary perpetrated by the two of you. You had clearly cased the premises. After perpetrating the original burglary you sought to cover your tracks by seizing the CCTV hard drive and then returned to the property four hours later.

The phone calls from your phone Mr Messenger to the property landline shows that you must have had some knowledge of the property in order to be able to ring the landline on numerous occasions.

Incident 5: Berwick - Burglary and Theft - Mr Culibrk (Charges 8 & 9) and Mr Messenger (Charges 9 & 10)

The offending here occurred on the same day as the offending in Incident 4. The complainant left home early in the morning of 20 June. She arrived back at 4:30 pm and found that her house had been broken into. A back door had been forced causing damage to the door. A number of designer handbags had been stolen along with jewellery.

Four of the stolen handbags were located in the stolen Toyota HiAce van with false number plates BCU 587 located by the police when the two of you were arrested on 22 June. You, Mr Messenger, were found in possession of the keys to that vehicle and a bankcard in your name was found in the vehicle. You, Mr Messenger, have pleaded guilty to the charges.

You, Mr Culibrk, were found guilty on the basis of circumstantial evidence in that you, in company with Mr Messenger, were in possession of the recently stolen designer handbags which led inexorably to the conclusion that you Mr Culibrk were involved in the original burglary.

Victim impact statement.

In that statement the victim indicates that her 10-year-old son and seven-year-old daughter were the initial individuals to enter the home and discover the crime scene. This has had a major impact on them due to the fear of encountering intruders in the future and the disturbance to the sanctity of their home.

Assessment.

This is a further domestic burglary perpetrated as part of a spate of burglaries.

Incident 6: Blackburn - Burglary and Theft - Mr Culibrk (Charges 10 & 11) and Mr Messenger (Charges 11 & 12)

Between 8.00 am and 1:30 pm on 21 June, you Mr Messenger broke into the home of the complainants and stole a safe from the master bedroom that contained $10,000 worth of jewellery, legal documents, passports, keys, bank account details and bank cards. At 1:44 pm $1,000 was withdrawn from a bank account of the female complainant.

At the time of the arrest of the two of you on 22 June, the following property was found in the back of the white Toyota HiAce bearing registration number 1QK 6PY. There were keys, two bankcards in the name of the male complainant, one bankcard in the name of the female complainant, a Will in the name of the male complainant, and hard drives.

The passport cover and photograph of the female complainant were found in the rear seat of the Camry with stolen number plates BVC 891. Both of you were seen inside that vehicle.

When your phone was analysed, Mr Messenger, there was a photograph of the Blackburn property taken on 22 June at 11 am, as well as a photograph depicting a piece of paper and PIN numbers and other confidential information that had come from the stolen safe.

The prosecution relied on circumstantial reasoning to find you, Mr Culibrk, guilty by reason of complicity of this offence. You, Mr Messenger, have pleaded guilty to it. Property from the burglary was found in both vehicles that the two of you were associated with when you were arrested on 22 June.

Assessment

This was another determined burglary where you had clearly cased the property. You stole a safe and were able to open that safe and then utilised the personal material and bankcards following that theft.

Final offences and arrests - Mr Messenger (Charge 13)

On 22 June police arrested both of you. You were at the property of your mother, Mr Culibrk, and were both in the stolen Camry vehicle and had been seen near the number plate which had come from a vehicle in Vermont South. Further, you Mr Messenger were in possession of the keys to the stolen Toyota HiAce vehicle, registered number 1QK 6PY parked on the street which was displaying plates BCU 587. This gives rise to Charge 12, theft of a motor vehicle.

As noted, in the vehicle was property stolen from Incident 4, the hard drive, Incident 5, the handbags, and Incident 6, the passport document.

The items found in both vehicles were part of the circumstantial case against both of you based on recent possession of stolen goods.

When you were arrested, Mr Messenger, you were found in possession of a taser. This gives rise to the uplifted summary charge of possessing a prohibited weapon without an exemption, maximum penalty 240 penalty units or two years' imprisonment.

1. At the time of the offending, the appellant was 26. At the date of sentencing, he was 28.
2. He was born in Meekatharra in Western Australia and spent his early years with his mother and three siblings in Geraldton. His mother suffered from alcoholism and inflicted physical abuse upon her children. This abuse extended to pouring boiling water upon the appellant causing burns and scarring. It frequently involved food deprivation and locking the appellant in his room for extended periods. During these periods, the appellant's brother, Michael, cared for him and would sneak food to him.
3. At about the age of seven, the appellant left his mother and commenced to live with his father who was a truck driver and often absent from home.
4. At age 15, the appellant travelled alone to Melbourne and commenced steady employment, first as a forklift driver and then as a mobile crane operator in the construction industry. He remained in contact with, and close to, his father and his brother, Michael.
5. In 2020, the appellant started experimenting with different forms of illicit drugs, and graduated to using methylamphetamine and amphetamines. He ceased to be employed.
6. In May and June 2022, the appellant engaged in the course of offending described above.
7. In February 2023, the appellant's brother Michael committed suicide. The appellant was unable to attend his brother's funeral as a result of bail conditions to which he was subject in Victoria. His brother's death disturbed him greatly.
8. A report from Dr Paul Grech, clinical psychologist, expresses the opinion that:

Mr Messenger has been assessed whilst in custody on 30.01.24. He is diagnosed with anxiety, depression (previous suicidal ideation), PTSD, substance abuse issues, adult ADHD and he has demonstrated improving insight with psychological therapy. Mr Messenger was originally medically referred by Dr. Helen Lester (Raymond McMahon Medical Centre) on 12 September, 2022, via a Mental Health Care Plan. He had initially been referred for D/A counselling and Psychology for Change, completing two TeleHealth visits. He subsequently attended for psychology consultations with the examiner on 23.11.23, 29.11.23, 14.12.23. There is a significant family history of mental illness. His mother was an alcoholic and physically abusive towards him. His brother took his own life in February, 2023. Matt was unable to make the funeral due to his bail conditions in Victoria, which caused him great distress. He ended up watching the funeral from the side of the road after an appointment he had on the same day. The funeral was broadcast via a videolink on his mobile phone. As a consequence Matt never grieved properly. He reported that he often cries when thinking about him. Note was made of subsequent anxiety, signs of continuing, unresolved grief, PTSD, feelings of abandonment (from childhood trauma), sorrow and loneliness. He reported experiencing insomnia and nightmares. He was due to face Melbourne County Court on 6 February, 2024, in relation to motor vehicle theft, theft, attempted aggravated burglary and burglary. Mr. Messenger was also referred by his legal representative for psychological assessment. Mr Messenger has a history of multi-drug dependencies, but was making progress in addressing his anxiety, lowered mood, PTSD and adult ADHD prior to his incarceration.

Mr Messenger has engaged effectively with the examiner and presents as genuinely remorseful and willing to address his offending and mental health issues in therapy. He recognises the value of availing himself to ongoing psychological therapy. The examiner is prepared to remain involved.

1. At the time of sentence, the appellant was in a steady relationship with a partner who continued to provide him with support.
2. The appellant had not offered an early plea but the Crown had initially alleged that he was guilty of the more serious offences of aggravated burglary and attempted aggravated burglary. These offences were no longer alleged by the Crown.
3. The sentencing judge accepted that with the assistance of psychological therapy the appellant had insight into his behaviours and was genuinely remorseful.[12]
4. The sentencing judge further accepted that, as a result, and having regard to the appellant's employment history, the appellant's prospects of rehabilitation were good.[13] The sentencing judge was satisfied that as this was the appellant's first sentence it would have a very salutary impact.

I find that with continued psychological support it is very probable that you will learn the lesson of your ways and that your prospects of rehabilitation can be regarded as good. I have considered that as an important focus of the sentence.[14]

1. In turn, after acknowledging the seriousness of the offending, the need for denunciation and the need to give weight to general deterrence, his Honour said:

In your case, Mr Messenger, I will accord you significant leniency given your age and the matters that I have referred to above, and in particular the fact that you are before the courts for the first time. The community interest is in giving you this one last chance.[15]

1. The appellant submits that having regard to his personal history, lack of prior convictions, pleas of guilty, remorse and prospects of rehabilitation, the sentences imposed upon him were manifestly excessive.
2. The respondent submits that the offending was brazen and determined, with genuine consequences for the victims, and that the need for general deterrence justifies the sentences imposed. Whilst the base sentence imposed was stern, the cumulation adopted by the sentencing judge was lenient.
3. In granting leave to appeal, Boyce JA observed:[16]

As can be seen, the applicant - it seems - began offending at age 26. This offending spanned a number of days. The offending was, at least to some extent, quite out of character for the applicant and at odds with his hitherto determination to work hard, look after himself, and stay out of trouble (notwithstanding the difficulties that had attended his upbringing). It seems that drug addiction had got the better of him.

The applicant pleaded guilty in circumstances of genuine remorse. The plea was not early, but there was some explanation for this.

The sentencing judge said that he would factor into account totality and, in my respectful view, there can be no doubt that his Honour did do so. The orders for cumulation all appear quite modest. So long as the base sentence is thought to be within range, no complaint could be made about the orders for cumulation; nor in light of those orders - given the terms of section 280(1)(b) of the Criminal Procedure Act 2009 - could the lengths of the individual terms other than the base sentence be thought to present a compelling case for the grant of leave.[17]

But that leaves for consideration the base sentence - a sentence of two years' imprisonment (where the applicable maximum is 10 years' imprisonment) for the commission of charge 4.

All things considered, it seems to me that it is at least reasonably arguable that this sentence is manifestly excessive having regard to the applicant's plea, remorse, significant work history, prospects of rehabilitation and lack of prior convictions. The applicant had - it seems - shown a degree of fortitude and industry from a young age.

1. The test governing the question of whether a sentence is manifestly excessive is a stringent one. The appellant must show that the sentence imposed upon him was outside the range open to the sentencing judge in the proper exercise of his or her discretion.[18]
2. Nonetheless, in our view, the base sentence imposed in respect of the burglary involved in the second incident was manifestly excessive when regard is had to the following combination of factors:

(a) the appellant's relatively young age;

(b) the appellant's lack of prior convictions and the fact that this was the first custodial sentence imposed upon him;

(c) his pleas of guilty in circumstances where those pleas had a high utilitarian value;

(d) his genuine remorse as accepted by the sentencing judge;

(e) his prospects of rehabilitation; and

(f) the underlying disadvantage inherent in his background.

1. In Bugmy v The Queen, the High Court observed:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[19]

1. In the present case, the appellant's background may be regarded as explanatory to some extent of his lapse into offending.
2. On the other hand, as the sentencing judge found, the evidence as a whole supports the conclusion that he nonetheless has good prospects of rehabilitation.
3. We accept that, as the respondent submits, the appellant's offending falls within a category of criminal offence in respect of which general deterrence must be accorded significant weight. Nonetheless, the sentencing discretion must also respond to the personal characteristics of the offender.
4. Whilst the appellant's offending was deserving of condign punishment and denunciation, and required the imposition of a custodial sentence to give adequate effect to considerations of general and specific deterrence, it did not justify the sentences imposed when regard is had to the totality of matters relating to the appellant's personal circumstances favouring mitigation of sentence.
5. This conclusion is based on the particular circumstances of the appellant's case. We were not persuaded in argument that reference to other individual sentencing decisions made with respect to different circumstances is of material assistance in the present case.
6. In all the circumstances, we would resentence the appellant upon the base sentence to one year imprisonment and we would adjust the other sentences which are the subject of appeal proportionately.
7. We would maintain the same cumulation as adopted by his Honour in order to ensure adequate recognition of the individual offending whilst at the same time recognising the importance of totality in respect of a concentrated course of offending, which occurred within a relatively confined period of time.
8. We add for completeness that, insofar as considerations of parity affect the exercise of discretion in the appellant's case, it is plain that there are a number of distinguishing features which operate in his favour as against the position of his co-accused.

(a) The appellant's offending did not include the attempted aggravated burglary which formed the base sentence in the case of his co-offender.

(b) The appellant has no prior convictions whereas his co-offender had extensive prior convictions.

(c) The appellant had not previously served a custodial sentence whereas his co-offender had.

(d) The appellant's history of childhood deprivation coupled with subsequent substantial employment was unique to him.

(e) The psychological evidence called on the appellant's behalf supported a positive conclusion as to his prospects.

(f) The appellant pleaded guilty.

(g) The appellant expressed genuine remorse.

(h) The appellant had good prospects of rehabilitation.

1. In the circumstances, we would resentence the appellant as follows:

1. But for his pleas of guilty, we would have sentenced the appellant to a total effective sentence of 3 years and 6 months' imprisonment, with a non-parole period of 2 years and 4 months' imprisonment.

[1] Contrary to s 74(1) of the Crimes Act 1958.

[2] Contrary to s 74(1) of the Crimes Act 1958.

[3] Contrary to s 321M and s 76 of the Crimes Act 1958.

[4] Contrary to s 76 of the Crimes Act 1958.

[5] Contrary to reg 65(2) of the Road Safety (Vehicles) Regulations 2021. The particulars of offence refer to s 65(2) but the County Court Notice of Related Summary Offences reflects the terms of s 65(1) while citing s 65(2).

[6] Contrary to s 5AA of the Control of Weapons Act 1990.

[7] DPP v Culibrk [2024] VCC 141 ('Reasons').

[8] See s 321P of the Crimes Act 1958.

[9] Messenger v The King [2024] VSCA 186, [4] ('LTA Reasons').

[10] Reasons [18]-[35], [43]-[68].

[11] Incident 3 as described by the sentencing judge involved an attempted aggravated burglary by the co-accused.

[16] LTA Reasons [2024] VSCA 186, [17]-[21] (citations in original).

[17] Citing Reasons, [113] - [137]. In the sense that given the modest orders for cumulation, any error in the length of an individual term (other than the base sentence) would be unlikely to permit of a 'reasonable prospect that the Court of Appeal would reduce the total effective sentence'.

[18] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]); [2010] VSCA 350; R v Boaza [1999] VSCA 126, [42] (Chernov JA, Winneke P agreeing at [1], Phillips JA agreeing at [54]); DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.

[19] (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citations omitted); [2013] HCA 37.