• Total Effective Sentence 8 years
• Non Parole-Period 5 years

1. Applicant disqualified from obtaining any licence or permit from a period of 6 months, to take effect from date of release.

1. The applicant originally sought leave to appeal against sentence on three proposed grounds. At the oral hearing of the application leave was granted for the second ground to be abandoned. Consequently the proposed grounds of appeal are as follows:

Ground 1: The judge erred in reducing the weight to be attributed to the applicant's youth considering the objective seriousness of the offending.

Ground 3: The individual sentences, orders for cumulation, the total effective sentence and non-parole period are manifestly excessive.[8]

1. For the reasons that follow leave to appeal should be refused.

1. At about 3:14 am on 1 January 2024 the applicant forced his way into a residence in Grovedale, Victoria. Its occupant, Ms Sun, was then asleep in her bedroom. The applicant turned on lights in the kitchen and the living area and picked up the keys to Ms Sun's car before entering her bedroom. While she still slept, he took Ms Sun's phone from the bedside table. The applicant then used a broom handle to strike Ms Sun to her head. This caused swelling and a substantial gash which later required stitches.
2. Ms Sun woke, saw the applicant and, fearing she would be struck again, grabbed a curtain rod to defend herself. Bleeding, she ran from the house, flagged down a passing motorist and asked them to call 000. Meanwhile the applicant left the bedroom and moved throughout the property, stealing items including expensive electronic goods and the victim's wallet. He then stole Ms Sun's car and drove to a service station. There he used Ms Sun's credit card to purchase food and drinks.
3. The applicant next drove Ms Sun's car to a street in Hamlyn Heights and rammed it into the garage doors of three separate houses, damaging them but not gaining entry to the properties. He then returned to the first of the houses and rammed the garage door again, allowing him to obtain entry into the premises. A young woman was inside the house alone and asleep. The applicant entered the garage and stole a tool set.
4. A neighbour called police. Upon arrival police located the applicant in the front bushes of the property, significantly intoxicated. He was a disqualified driver, on bail and subject to an 18-month Community Correction Order ('CCO'). The damage to Ms Sun's car and the three garage doors totalled approximately $15,000.

1. The judge commenced his Reasons by summarising the applicant's offending[8] and its impact on the victims.[9] The judge characterised the offending as 'serious'.[10] The importance of denunciation, punishment, deterrence and protection of the community in the sentencing calculus for offences of aggravated burglary was noted.[11] In this regard the judge referred to DPP v Ristic,[12] whilst acknowledging the differences between the applicant's personal circumstances and those of the offender in that case_._[13] The applicant's personal circumstances were summarised as follows.
2. The applicant was 20 years of age at the time of offending and 21 years old at sentencing.[14] The judge termed the applicant's age as 'the most important matter to raise'.[15] The applicant's early childhood was affected by the drug addiction and violence of his father.[16] His parents separated when he was aged 10 and he has an older sister and two younger siblings.[17] The applicant attended local schools until age 15, following which he worked in the concrete industry for three years before commencing a carpentry apprenticeship.[18] The applicant's relationship with his mother then deteriorated and, due to an intervention order, the applicant could not remain in his mother's house.[19] He became homeless.[20]
3. The applicant has had a problem with binge drinking since age 16 or 17.[21] The applicant's cannabis use, which has spanned 'some years', was described by the judge to be a 'significant [problem]' which had progressed into the use of methylamphetamines and then heroin.[22] His drug use caused an intimate relationship to end.
4. The judge next had regard to the psychological report of Mr Jeffrey Cummins tendered on the plea. In his report Mr Cummins formed the view that the applicant had no history of adult ADHD, a Bipolar Mood Disorder or a Manic Disorder. He described the applicant to be 'moderately depressed and anxious' in the context of the sentencing. Mr Cummins stated that the applicant reported symptoms of trauma due to his father's behaviours and the applicant's dysfunctional upbringing and diagnosed him with a 'moderate level' of depression.
5. The judge then summarised the applicant's time in remand, during which he had undertaken vocational and rehabilitative drug and alcohol programs.[23] He was also employed and engaged in education. The applicant referred to these programs in his undated letter tendered on his plea. The judge noted that, during the plea, the applicant's counsel 'stepped back'[24] from the submission that despite the applicant's stated progress and access to mental health clinicians, prison would generally be more onerous for the applicant due to his anxiety and depression.
6. The judge said that while there was no casual connection between the applicant's offending and his upbringing, his childhood difficulties had affected him generally. This was a matter relevant to his moral culpability.[25] The judge also placed weight on the applicant's young age, immaturity and vulnerability in an adult gaol.[26] The judge had regard to the sentencing principles concerning youth as outlined by this Court in Azzopardi v The Queen,[27] and the statement of the Court that 'there would be cases in which factors such as youth and rehabilitation would take a 'back seat' to other sentencing considerations'.[28] His Honour also quoted the following passage from Azzopardi:

With an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a 'back seat' to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.[29]

1. The judge noted that the applicant was found at the scene of the offending significantly intoxicated. The judge determined that the applicant's case was one in which the gravity of his crimes meant that the usual importance of rehabilitating youthful offenders and keeping them out of adult gaol must yield to other sentencing purposes such as denunciation, deterrence, and protection of the community.[30]
2. The applicant's early plea of guilty was found to have significant utilitarian benefit and to be indicative of remorse. His expressions of remorse to Mr Cummins and in a letter to the Court were also taken into account by the judge and found to contribute to the applicant's prospects of rehabilitation, which remained important due to his youth.[31]
3. The judge termed the applicant's criminal history 'concerning'. It commenced in 2023 and included a 'large number' of criminal convictions for which the applicant was disqualified from driving for four months and placed on an 18 month CCO.[32] The applicant was also on bail, having committed offences within the period before and after the imposition of the CCO.[33] Given the circumstances, the judge found weight needed to be given to deterrence.[34] The importance of deterrence and protection of the community was elevated because the offending that lead to the CCO included aspects of burglaries in which people were present.[35] For this reason the judge also found the applicant's prospects of rehabilitation were 'dimmer'.
4. The judge rejected the applicant's submission that a combination sentence involving a term of imprisonment and a CCO was appropriate. In light of the seriousness of the offending, particularly against Ms Sun, the judge found that the only just and appropriate option was the imposition of a head sentence with a non-parole period.[36] The judge said:

I have reached this conclusion only after anxious consideration, as to send a young man to gaol for some of what should be the best years of his life is a grave step not lightly taken, but there is no other choice.[37]

Proposed ground 1 - youth and objective seriousness

1. The applicant contends that the judge erred by failing to properly apply the established principles for sentencing youthful offenders. Specifically, it is put that:

(a) In finding that the usual importance of rehabilitation of youthful offenders had to yield to the sentencing purposes of denunciation, deterrence and protection of the community, the judge overstated the objective seriousness of the offending. At the oral hearing of the application it was put that the judge erred in yielding the primacy of the applicant's rehabilitation arising from his youth to the more punitive purposes of sentencing.

(b) The judge failed to analyse the objective gravity of the applicant's offences. In particular, the judge did not note the presence or absence of considerations relevant to the offence of aggravated burglary as enunciated in DPP v Meyers.[38] Further the judge conflated the seriousness of the applicant's offending with that of the offender in Ristic - who was disguised and armed with a knife - by stating that 'aggravated burglaries of this kind warrant significant terms of imprisonment'. Separately, it is relevant to the gravity of the recklessly cause injury offence that the conduct was not protracted and involved only one strike.

(c) The judge did not refer to key aspects of Mills, namely that the degree of seriousness of offending by a youthful offender which justifies adult imprisonment is quite high where the offender has begun to appreciate the effect of his past criminality, and that a shorter period of imprisonment may be justified where an offender has not been previously incarcerated.

(d) The applicant's rehabilitation should not take a 'back seat' to the punitive aspects of the sentencing synthesis. His offending did not involve wanton and unprovoked violence. He did not enter Ms Sun's property with the intention to cause injury and he did not confront the victim at Hamlyn Heights at all. While the applicant was on bail and subject to a CCO, he was homeless and had relapsed into drug use. He was assessed as suitable for a further CCO. His upbringing attracted the application of the general Bugmy principle. He was ineligible for youth detention. The applicant had pleaded guilty and expressed remorse. He had a good work history and the support of his sister. He had completed several courses on remand.

1. The respondent contends the Reasons reveal that the judge gave very careful consideration and weight to the applicant's youth. The judge expressly referred to the relevant principles identified in Azzopardi, Mills and Lawrence and described the applicant's youth as the 'most important' matter of his personal circumstances. The judge further considered the applicant's immaturity and vulnerability in custody.
2. While the judge also said that the usual importance of rehabilitation for youthful offenders had to yield to other sentencing principles, the respondent submits that this does not equate to the judge stating that rehabilitation was not important or inapposite to the sentencing synthesis. Rather, the judge was saying that it was only the desirability of keeping a youthful offender out of adult prison which had to yield in the applicant's case. The judge expressly stated that the applicant's prospects of rehabilitation remained important in light of his youth. Further, the non-parole period fixed, being about 64% of the head sentence, demonstrates the weight given to this sentencing purpose.
3. The respondent further contends that the judge was required to balance the principes applicable to sentencing youthful offenders against the seriousness of the offending. It is uncontroversial that the more serious the offending the greater the weight that is placed on the punitive and deterrent aspects of sentencing and, necessarily, the lesser the weight given to the purpose of rehabilitation. The respondent submits that the applicant's offending was serious. He entered a residential premises in order to steal. Having done so he struck a sleeping woman to the head, causing her injury. The applicant then proceeded to commit a series of other crimes including an aggravated burglary on another residence. This occurred 17 days after he was placed on a CCO for offences which included aggravated burglary. He was also on bail for other offences.
4. In short the respondent submits that the judge's conclusion, that the applicant's offending was an order of seriousness which required imprisonment notwithstanding his age, was open.

1. The issue of the applicant's youth loomed large at the plea hearing before the judge. Indeed the judge asked the applicant's counsel why the matter had not resolved before the applicant turned 21 years of age.[39]
2. The central decision for the judge was whether a combination sentence of a CCO with a further term of imprisonment was the appropriate disposition, as contended by the applicant's counsel and conceded as 'within range' by the prosecution.
3. The judge concluded that it was not. The Reasons explain why. The judge said that a combination sentence did not 'properly reflect the gravity of the crimes and the need for adequate punitive sanction'.[40] It was a conclusion reached only 'after anxious consideration' because 'to send a young man to gaol for some of what should be the best years of his life is a grave step not lightly taken'.[41] The judge said that the seriousness of the applicant's offending meant that there was 'no other choice'.
4. The earlier observation of the judge that the importance of rehabilitating youthful offenders had to yield to more punitive sentencing purposes must be understood in this light. The judge, addressing the applicant, said:

Yours is a case where the gravity of your crimes means that the usual importance of rehabilitating youthful offenders and keeping them out of adult prisons must yield to other sentencing purposes that I have already mentioned, such as denunciation, deterrence and protection of the community.[42]

1. This observation immediately followed the judge's reference to the principles relating to the sentencing of youthful offenders established by Azzopardi, Mills and Lawrence, principles which the judge was 'well mindful' of and applied.[43]
2. It is orthodox that those principles embrace the tension between the desirability of sentencing dispositions which best promote the rehabilitation of youthful offenders, in part by sparing them incarceration in adult prisons, and the need - in the face of serious offending - for this aspect of rehabilitative prospects to take 'a back seat', or yield to, other sentencing considerations. That is, there is a point where the gravity of offending is such that the need for punishment, denunciation, deterrence and protection of the community can only be adequately met by a term of imprisonment in an adult gaol notwithstanding the youthfulness of the offender.
3. We are not persuaded that the judge erred in finding that threshold reached in the applicant's case.
4. In this regard we do not accept the applicant's contention that the judge either failed to analyse the objective gravity of the offending or overstated it. In particular it was not necessary for the judge to identify which of the Meyers considerations were present or absent in the applicant's offending. Those considerations should not be understood as a necessarily determinative checklist of objective gravity for the offence of aggravated burglary. The absence of some of the Meyers considerations might mean that a particular example of the offence of aggravated burglary is less objectively grave in comparison to another example where such considerations are present, but this alone says little about whether the applicant's two successive aggravated burglaries in combination with his other offending were sufficiently serious to warrant the imposition of a term of imprisonment with a non-parole period.
5. On any view, the applicant's offending was serious. As expressed by the judge,

self-evidently these crimes are serious. They have wide impact in our community as people fear criminals may break in and terrorise and/or injure them. Everyone, and certainly the victims of the aggravated burglaries here, were entitled to feel safe in their own home and in their own bed. To have premises broken into and be attacked as you sleep, as the first victim was, is a nightmare that sends chills through decent members of our community.[44]

1. Further, the judge did not equate the seriousness of the offending in Ristic with that of the applicant. Rather, the judge noted that 'each case is different'[45] and referred to the objective and subjective differences between the offender in Ristic and the applicant before stating that

[t]he point here to understand is the Court of Appeal has again and recently emphasised that aggravated burglaries of [the kind committed by the applicant] warrant significant terms of imprisonment, indeed the community expects such sentences.[46]

1. It should not be forgotten that at the time of the offending the applicant was significantly intoxicated, on bail and subject to a CCO imposed 17 days earlier for offending that included aggravated burglaries.
2. As against these factors the judge carefully considered all of the matters relied upon by the applicant in mitigation of sentence in arriving at the sentences imposed. These included 'the most important matter'[47] of his young age, the detrimental effect of his upbringing, his immaturity and vulnerability in custody, his expressions of remorse, his developing insight and rehabilitative steps taken in prison and the remaining importance of the applicant's rehabilitation.
3. The judge's conclusion that a combination sentence was inadequate to meet the competing sentencing considerations in this case reveals no error in the application of the principles applicable to the sentencing of youthful offenders.
4. Ground 1 must fail.

1. Although proposed ground 3 alleges manifest excess in the individual sentences, orders for cumulation, total effective sentence and non-parole period, at the hearing of the oral application the focus of the ground was narrowed to the sentence imposed for the first of the aggravated burglaries (charge 1) and the resulting total effective sentence.
2. To advance the argument the applicant points to other cases in which objectively more serious examples of aggravated burglary received lesser individual sentences. The applicant further notes that he was found suitable for another CCO, the prosecution conceded that a combination sentence was 'within range' and there are other cases in which youthful offenders received combination sentences for aggravated burglary.

1. The respondent contends that previous sentences are not precedent and do not set the limits of sentencing discretion. It is put that the focus must be on whether the sentence imposed fell within the range available to the judge in all the circumstances of the case. The respondent submits that it does.
2. The seriousness of both aggravated burglaries is emphasised. It is submitted that the recklessly causing injury charge was a serious example of that offence. The respondent argues that there was a need for some degree of cumulation on the base charge for charges 2 to 8, and the orders for cumulation were well within range. The non-parole period is characterised by the respondent as 'relatively lenient'.

1. A ground of appeal alleging manifest excess is difficult to establish. It must be demonstrated that the impugned sentence is wholly beyond the range of sentences reasonably available to the sentencing judge in the sound exercise of his or her discretion.[48]
2. In this case the applicant has failed to do so.
3. While other cases in which offenders have been sentenced for the same offence provide some guidance as to current sentencing practices and the appropriate range of available sentences, a ground of manifest excess will not be made good simply by pointing to sentences in other cases that are less severe for arguably more serious offending. The question remains whether the sentence imposed in a particular case falls within the range of sentences available to the judge considering both the gravity of the offence and the subjective circumstances of the offender.
4. Aggravated burglary is an inherently serious offence which carries a maximum penalty of 25 years' imprisonment. The individual sentences of 3 years and 6 months (charge 1) and 2 years and 2 months (charge 7) were well within the appropriate range. The applicant, in a highly intoxicated state, broke into two residential premises in the early hours of the morning. Two young women had their sense of security shattered. That the applicant was merely 17 days into the term of a CCO imposed, in part, for like offending, was a factor highly relevant to the sentencing synthesis. The order for 12 months' cumulation of the charge 7 sentence upon the charge 1 sentence was, in all the circumstances, modest.
5. The applicant's conduct on the recklessly cause injury charge was also very serious. The assault on the sleeping Ms Sun was not only vicious but gratuitous. The individual sentence of 1 year and 4 months' imprisonment and the order for 8 months of that sentence to be served cumulatively were well within the available range. The remaining individual sentences and the orders for cumulation are modest. The non-parole period is, as argued by the respondent, relatively lenient.
6. Putting aside the individual sentences it appears that, as with ground 1, the essence of the applicant's complaint is that the judge failed to impose a combination sentence - despite the prosecution concession that such disposition was within range - and instead imposed a term of imprisonment with a non-parole period. Manifest excess will not be demonstrated by establishing that a combination sentence was within range but only by showing that the individual sentences, orders for cumulation, total effective sentence and non-parole period were wholly outside the range appropriate to all the circumstances.
7. The prosecution concession did not bind the judge who was required to, and did, analyse the objective gravity of the totality of the applicant's offending and balance that consideration with the matters personal to him, particularly his youthfulness. As we have explained with respect to proposed ground 1, it was open to the judge to conclude, after anxious consideration, that the various sentencing purposes could be achieved only by the imposition of a gaol term and fixing of a non-parole period.
8. Ground 3 must fail.

1. The application for leave to appeal will be refused.

[1] DPP v Quilliam (County Court of Victoria, Judge Mullaly, 11 November 2024) ('Reasons').

[2] Contrary to s 77(1)(b) of the Crimes Act 1958.

[3] Contrary to s 18 of the Crimes Act.

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

[5] Contrary to s 82(1) of the Crimes Act.

[6] Contrary to s 197(1) of the Crimes Act.

[7] Contrary to s 30(1) of the Road Safety Act 1986.

[12] [2024] VSCA 251 ('Ristic').

[25] Reasons, [27], citing Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy'); DPP v Herrmann (2021) 290 A Crim R 110; [2021] VSCA 160.

[27] (2011) 35 VR 43; [2011] VSCA 372 ('Azzopardi'), citing R v Mills [1998] 4 VR 235 ('Mills'); DPP v Lawrence (2004) 10 VR 125; [2004] VSCA 154 ('Lawrence').

[28] Reasons, [33], citing Azzopardi [2011] VSCA 372; (2011) 35 VR 43, [38] (Redlich JA, Coghlan AJA agreeing at [92], Macaulay AJA agreeing at [93]); [2011] VSCA 372.

[29] Azzopardi [2011] VSCA 372; (2011) 35 VR 43, [38] (Redlich JA, Coghlan AJA agreeing at [92], Macaulay AJA agreeing at [93]); [2011] VSCA 372 (citations omitted).

[36] Reasons, [40]-[41], citing DPP v Reynolds (a pseudonym) (2022) 71 VR 336; [2022] VSCA 263.

[38] [2014] VSCA 314 ('Meyers').

[39] The judge observed that the applicant would have been better served by being managed by the Youth Parole Board rather than the Adult Parole Board. The applicant's counsel said that the applicant had made an unsuccessful application for the matter to be heard summarily about a week before he turned 21.

[48] 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.