Potter v The King [2023] VSCA 104

1. The sentencing judge erred in finding that the applicant's prospects of rehabilitation were 'reasonable at best'. 2. The sentencing judge erred in failing to take into account the increased burden of imprisonment to the applicant by reason of his anxiety about his inability to care for his wife. 3. The sentencing discretion should be re-opened as a result of the combined effect of errors identified in grounds 1-4.[3] 4. The sentence imposed is manifestly excessive.

1. The applicant was 42 years old at the time of the offending and residing at an address in Werribee. The victim was 39 years old at the time of the offending and was residing in a property adjacent to the applicant's unit.
2. At about 6:00pm on 2 December 2021, the applicant left his home address and walked to the victim's address, carrying a number of black zip ties. The applicant opened the wire door at the front of the property and began banging aggressively on the front door with a closed fist and yelling loudly. He called out 'Open the fucking door. I'm going to fucking kill you, you fucking cunt.'
3. The victim was inside the property at the time eating a meal in the dining room. His wife was sleeping in another room. As he was eating, the victim heard loud banging and swearing coming from the front door, and thought that the front door was being kicked in.
4. The victim had only met the applicant once before and did not recognise his voice. The victim approached the front door and opened it slightly so that he could see who was there. The applicant kicked the door wide open and entered the property, pushing the victim backwards into the house (charge 1 - aggravated burglary).
5. The victim then recognised the applicant as someone he had conversed with six months earlier when the applicant and his wife were looking for their lost cat. They had not spoken again since then, and the victim did not realise that the applicant was his neighbour.
6. The applicant grabbed the victim by the collar and started punching him to the stomach about six times. As he did this, the applicant used his foot to close the door behind him. The applicant continued to yell and swear at the victim as he punched him and repeated that he was going to kill him. A brief struggle ensued, resulting in a chair near the front window being knocked over and a hanging picture being knocked off the wall (charge 2 - common assault).
7. The applicant grabbed the victim by the right ear. As he did so, the victim managed to open the front door and exit the property. The applicant took hold of his arm. At first, the applicant held him inside, but then the applicant followed the victim outside and continued to swear at him.
8. Two witnesses observed the applicant enter the property and exit with the victim a short time later. The witnesses rushed to the property and confronted the applicant, saying 'What the fuck do you think you're doing?'
9. The applicant continued yelling and said that the victim had killed his wife. He said that his wife had suffered a stroke which was caused by a tick from pigeons that belonged to the victim. The applicant kept screaming 'You've killed my missus.' The victim said he did not know what the applicant was talking about.
10. One of the witnesses told the applicant to leave, which he did after a short time, heading toward his own residence. The victim and witnesses said that the applicant seemed 'aggressive and erratic' throughout the incident. The victim was left shaken up, and his hands were shaking. The victim had pain in the right hand side of his stomach after the incident as well as a small scratch on his right ear.
11. In a recorded interview with police the applicant made admissions to the offending as follows:

(a) he said that his wife was in hospital with an infection caused by a tick. He said that she had suffered a stroke; > > (b) he said that a nurse from the hospital had called him and informed him of her condition just prior to the incident. He said that he had gone into shock and just let loose; > > (c) he said that he had gone to the victim's house and knocked on the door. He admitted to pushing the victim into the house when the victim opened the door. He agreed that he had not been invited inside; > > (d) he said that he was 'angry' and in a really bad state, but that he does not take drugs. He said that he went to the property in a 'rage' and couldn't control himself; > > (e) he agreed there had been a 'pushing and shoving' inside the house. He said that he had 'wrestled' the victim; > > (f) he said that he took the black zip ties with him to the property but he was 'just holding them' and did not intend to use them; > > (g) he said that after the incident he had panicked, and stayed with his children at their house because he knew he was in trouble; > > (h) he said that he had spoken to the victim about the fact that there were pigeons at his property about six months earlier. He said that he told the victim that the pigeons would make someone sick; > > (i) he said that the pigeons had caused his wife's stroke; and > > (j) he said that he knew that what he did was 'not good' and that he had 'no right' to do it, but that he was 'angry' and that the victim had been 'told and warned'. Later, when asked if he understood the seriousness of his offending, he said that he did not.

1. In 1998, the applicant was sentenced, without conviction, in relation to dishonesty offences. Those charges were adjourned for 12 months.
2. The applicant was sentenced to an Intensive Correction Order on 30 September 2009 for drink driving related offences. This order was complied with.
3. On 29 June 2012, the applicant was sentenced, without conviction, in relation to charges of assault with weapon and criminal damage. Those charges were adjourned for 12 months with treatment conditions.
4. On 15 March 2016, the applicant was sentenced to a term of imprisonment in combination with a CCO with treatment conditions for the offences of assault with weapon, unlawful assault and failing to answer bail. This sentence was appealed, and on 13 May 2016 the applicant was resentenced to a straight CCO which included both treatment and unpaid community work.
5. On 5 October 2018, the applicant was convicted and fined in relation to one charge of unlawful assault.
6. On 7 March 2020, the applicant was sentenced to a CCO for family violence related breaches and assault.

1. In referring to the case of Meyers,[4] the sentencing judge noted that a number of the aggravating circumstances that often accompany aggravated burglaries were absent, namely that the applicant was not in company, he was unarmed and it was not late at night. However the sentencing judge was satisfied that the applicant's intention was to confront the victim and that there was 'some degree of planning as evidenced by the black zip ties in his possession'. Immediately after referring to the zip ties, the judge said that he did not take this into account as an aggravating factor as there was no evidence of the applicant's intentions with the zip ties.[5]
2. The applicant's offending was assessed as being towards the lower end of the range of objective seriousness.[6]
3. The sentencing judge acknowledged that the applicant's partner had suffered a stroke in November 2021 and that the applicant continued to care for her and performed the majority of the housework.[7]
4. When addressing the applicant's criminal history, the sentencing judge said the applicant was sentenced for assault with a weapon once in 2012 and twice in 2016;[8] and that the applicant had been on four previous community based orders and that he had a current breach pending action listed in the Magistrates' Court in January 2023.[9]
5. The sentencing judge considered the applicant's prospects for rehabilitation to be 'reasonable at best' when considering his criminal history, the pending breach proceeding, his assessment by Corrections as being a high risk of general reoffending and his personal circumstances.[10]
6. It was accepted by the sentencing judge that Limb 1 of Verdins[11] was enlivened and that the applicant's moral culpability ought to be reduced to a 'moderate degree'.[12] The sentencing judge also accepted that the applicant pleaded guilty at an early opportunity and that his plea had a high utilitarian value which was especially important given the pandemic caused backlog. He also accepted that the applicant was genuinely remorseful for his offending.[13]
7. The sentencing judge concluded that the applicant had been given 'several chances' to serve sentences in the community and that this had not deterred him from violent offending.[14]

1. The applicant submits that the judge erred in saying that there was 'some degree of planning' as evidenced by the possession of the black ties. He submits that there was no evidence that the black cable ties were involved in any way in the offending and the prosecution did not rely on them on that basis. The prosecutor did say that the possession of the ties were 'concerning' but did not seek to say that they were relevant either to show planning or that they were intended to be used by the applicant.
2. We accept that the judge misspoke when he observed that the cable ties evidenced some degree of planning. However it is a point that goes nowhere. First the relevant finding was consistent with a concession made by the applicant on the plea that 'some degree of pre-meditation obviously that is conceded, to a certain degree' and Counsel for the applicant said that the applicant's premeditation did not amount to 'significant planning'. Second, and more importantly, the judge did not treat the presence of the zip ties as an aggravating factor, and put it out of consideration. It was not used adversely to the applicant. It was a factual error that was immaterial to the sentence. We reject ground 1.

1. Under cover of this proposed ground, the applicant submits that the judge made two factual errors in relation to the applicant's criminal history. First the judge wrongly said that the applicant had been sentenced twice in 2016 and second that he had four CCOs.
2. The respondent accepts that the judge erred. In 2016 the applicant was sentenced to a combined CCO and 2 months' imprisonment for an assault. He appealed and, also in 2016, the County Court allowed the appeal and resentenced the applicant to a CCO. No term of imprisonment was imposed. It seems plain enough that the judge treated the two entries in the applicant's criminal record for 2016 as involving separate offending, when in fact they were two entries for the same offence. Similarly, there was double counting of one of the CCOs.
3. Faced with these errors the respondent submits that either the error was immaterial or that in the event this Court resentences no different sentence should be imposed. The principles to be applied to determine whether an error is material in the sense that it vitiates the sentence has been considered in a number of decisions of the Court.[15] In Gillespie (a pseudonym) v The Queen,[16] Whelan and McLeish JJA said:

A mistake of the kind made by the sentencing judge here will not be an 'error in the sentence' so as to vitiate the sentencing discretion in every case. If it can be seen that the mistake was so insignificant that it 'could not have materially affected the decision' then it will not be an error 'in the sentence'. The court must be satisfied that the mistake could not have materially affected the decision before concluding that there is no error in the sentence. If there is such error, the court must then consider whether it is satisfied that a different sentence should be imposed.[17]

1. A person's criminal history is plainly an important matter when it comes to sentence: it will often inform an assessment of the prospects of rehabilitation and the need for specific deterrence. The applicant's criminal history was used by the judge in this way. In doing so the judge wrongly attributed to the applicant an additional crime of violence in 2016, namely, assault with a weapon. His criminal history was not extensive and proportionally, an additional single conviction for a crime of violence in the relatively recent past - especially one involving a weapon - had the real potential to assume significance.
2. Subject to considering whether a different sentence should be imposed, ground 2 is made out and vitiates the sentence.

1. Under this ground, the applicant submits that the judge's assessment of the prospect of rehabilitation, which he said was 'reasonable at best', was not open.
2. There is no merit in this ground.
3. The applicant has a history of resorting to violence where he is under pressure. It is true that, as the judge found, the particular matrix of facts that led to this offending were unlikely to be repeated. However, it could not be doubted that his history, including struggle with alcohol addiction, pointed to ongoing risks of future offending. The applicant has sought treatment, was genuinely remorseful and has family and other supports, but the past history and the fact that past community based orders had not prevented further offending provided an ample foundation for the judge's cautious assessment.

1. The applicant submits that the judge failed to address his submission that the burden of imprisonment would be increased because of anxiety and concern felt by the applicant by reason of his inability to care for his partner after her stroke.
2. In part, the respondent responded to this argument as if it were based on the impact that the applicant's incarceration would have on his partner. Thus the respondent submitted that there was no evidential basis to establish exceptional circumstances of family hardship necessary to treat this as a mitigating factor.[18] The applicant did not, however, rely on this aspect of the plea in that way.
3. The respondent also submits that there was very little evidence about the condition of the applicant's partner: no medical evidence nor evidence as to her current health and the extent of her ability to look after herself.
4. Although the judge acknowledged that the applicant's partner had suffered a stroke in November 2021 and that the applicant continued to care for her and performed the majority of the housework he did not identify the anxiety that the applicant would suffer by reason of incarceration as a factor that would or might render imprisonment more onerous. That matter had been advanced by the applicant on the plea and the judge gave no reason for rejecting it, or at least did not indicate that he accepted it as he should have.[19]
5. In our opinion, this aspect was a discrete matter on which the applicant relied. Given the commendably careful reasons for sentence, we are persuaded that the judge overlooked the matter. It may be that, like the respondent, he considered that a Markovic point was being made. Whether or not that is so, we are persuaded that the judge did not deal with the submission.
6. We would uphold ground 4.

1. Given our conclusion on grounds 2 and 4, there is no need to deal with this ground. Had it been necessary to do so, we would have rejected it. Given the nature of the offending, a term of imprisonment was plainly open as was a combination sentence. The terms of imprisonment and of the CCO imposed by the judge were well open to him.

1. Having found error it is necessary for this Court to determine what sentence it would impose in the exercise of its own discretion.
2. From the perspective of the innocent victim, the offending was atrocious. It involved an entry to his house by a man who he did not recognise and who was yelling threats and struck him forcefully in the stomach. It must have been a most confronting and disturbing episode. The victim impact statement, to which the judge rightly had regard, shows how significant the impact was.
3. Within the scheme of this particular offence, which carries a maximum term of imprisonment of 25 years, it was at the lower end. Nevertheless, it involved a serious invasion of the sanctity and privacy of his neighbour's home. It was entirely unjustifiable and the motivation bordered on the irrational. The applicant's criminal history, and his alcohol addiction and personality meant, as the judge rightly found, that his prospects were at best reasonable. It is of concern that past non-custodial dispositions have not had a sufficient deterrent effect.
4. Against these matters were the applicant's plea of guilty, the well-recognised consequences of the pandemic,[20] his remorse and the anxiety of separation from his partner for whom he was the principal carer. As well, his impaired mental state contributed to the offending reducing his moral culpability at least to a moderate degree.
5. Assimilating these matters, a term of imprisonment is required in combination with a CCO. We would impose a somewhat shorter prison term than was imposed by the judge. In our opinion, a sentence of 6 months' imprisonment should be imposed to recognise the gravity of the offending and address specific and general deterrence, while accommodating the mitigating factors which the applicant can call in aid. We would impose a CCO on the same terms as did the judge. The applicant was assessed as suitable for a CCO. The terms of the CCO will reflect those imposed by the judge.

[1] Contrary to s 77 of the Crimes Act 1958.

[3] Ground 5 is not a ground of appeal but rather a conclusion or submission on the consequence of the errors contended in Grounds 1-4.

[4] DPP v Meyers (2014) 44 VR 486; [2014] VSCA 314.

[5] DPP v Potter [2022] VCC 2111, [27] ('Reasons').

[11] R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[15] See, eg, Johns v The Queen [2020] VSCA 135.

[16] [2018] VSCA 151.

[18] Citing Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589; [2010] VSCA 105 ('Markovic').

[19] Ibid 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

[20] Worboyes v The Queen [2021] VSCA 169.