R v Albanus [2004] VSCA 236

5. After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on 6th August 2004 to three months' imprisonment on count 1, two years' imprisonment on count 2, nine months' imprisonment on count 3 and six months' imprisonment on each of counts 4 and 5. His Honour directed that four months of the sentence imposed on count 3, two months of the sentence imposed on count 4 and two months of the sentence imposed on count 5 be served cumulatively upon each other and upon the sentence imposed on count 2, but that otherwise all the sentences be served concurrently. That made a total effective sentence of two years and eight months' imprisonment, in respect of which a non-parole period of 15 months was fixed and a declaration made regarding 281 days' pre-sentence detention.

8. Leave to appeal was granted on 1st October 2004. The grounds of appeal read:

"Ground 1: The individual sentences, the total effective sentence and the non-parole period are manifestly excessive. Ground 2: The learned judge erred: (a) in taking into account an irrelevant consideration - namely, that the appellant had been 'banned' from the complainant's premises; and (b) in failing to pay sufficient regard to a relevant consideration - namely, the persistent provocative behaviour of the complainant towards the appellant's girlfriend. Ground 3: The learned judge erred in ordering any cumulation of the sentence on count 4 on the other sentences. Ground 4: The learned judge erred in failing to pay any or sufficient regard to the hardship in being returned to prison having spent about nine months on remand and an even longer period on bail awaiting trial."

12. Rather than adopt the Crown's summary of evidence, I shall incorporate [2] to [10] of the sentencing remarks in these reasons. That has the advantage of highlighting the detail in which the judge referred to the provocative behaviour the subject of ground 2(b). Addressing the appellant, his Honour said:

"2 The circumstances surrounding these offences are as follows. The victim in this matter, Gregory Jesse, lived at a boarding house in Room 1, 235 York Street, South Melbourne. Your then girlfriend, Rachel Pacquin, lived at this boarding house opposite the victim's room. On the material before me, I am satisfied that prior to and leading up to these offences, the victim was somewhat of a pest in his actions towards your girlfriend, Rachel Pacquin. 3 He had, on occasions, asked your girlfriend out but she had declined. He had, on occasions, listened to conversations at her door, spied on her and on occasions tried to see into her unit. On one occasion the victim in this matter had banged on her door and called her a bitch. The depositional material also reveals that on one occasion the victim in this matter asked your girlfriend for sex for payment of money. You strongly objected to the victim's conduct towards your girlfriend. 4 I accept on the material placed before me that in the months leading up to 1 October 2002, you had on several occasions intervened on your girlfriend's behalf. In the months leading up to these events you had conducted yourself in an intimidating and harassing manner towards your eventual victim. You, of course, must not and will not be sentenced for any matters which are not on the presentment before me. However, by way of background material, your counsel conceded, and in my view properly so, that there had been a degree of harassment and intimidation by you for a considerable period of time towards the victim in this matter prior to these events. 5 Such had been your actions that in approximately May 2002, the Southport Community Housing Group, which operated the boarding house, banned you from attendance at the boarding house. Whilst it is not altogether clear as to what triggered the events on 1 October 2002, there is a strong suggestion in the depositional material that your girlfriend upon being propositioned to have sex for payment of moneys passed this fact onto you. It was this fact which appeared to trigger your actions towards the victim on this occasion. 6 On 1 October 2002, you attended the Southport Community Boarding House armed with an iron bar. You went to the front door of the victim's room, opened the security door and then bashed against the wooden door of the victim's room. The bashing on his door by you included kicking at it. Your actions left scuff marks towards the bottom of the door. The victim went to the door to determine what the commotion was and slightly opened it. You suddenly pushed open the door and forced your way into his room. The victim had offered resistance by putting his foot against the base of the door, but this was not successful. You were holding the iron bar as you forced your way inside the victim's front door. 7 The bashing on the door, including kicking it and the damage to its lock, constitute the facts and the circumstances that make up Count 1 on the presentment, the charge of criminal damage. The circumstances of you forcing your way into the victim's room, armed with an iron bar, with intent to assault the victim therein, constitutes the facts and the circumstances that make up Count 2 on the presentment, aggravated burglary. 8 Once inside the victim's room, you were saying to the victim that he should say sorry to your girlfriend. The victim, fearing that he was going to be attacked by you with the iron bar, grabbed hold of the bar and a struggle ensued between you and your victim inside the premises. During this struggle you hit the victim on the top of the head with the iron bar causing approximately a three centimetre diameter bruise and associated swelling to the head. The evidence of Dr Parker contained in the depositional material was to the effect, however, that no skin was broken. It is your act in hitting your victim over the head with the iron bar and causing a three centimetre diameter bruise and associated swelling to the head which constitutes the facts and the circumstances making up Count 3 on the presentment, recklessly cause injury. 9 The victim in the matter continued to struggle and at one stage tried to run from you. However, the victim fell as he was running away and grazed his knee. You removed a fire extinguisher from nearby, on a mount in the hallway outside the victim's room, raised it above your head with both hands. You told your victim again to say sorry. The victim then replied that he was sorry and started to get to his feet. You, however, said to the victim, `On your knees' and threw the fire extinguisher at your victim. It is your act in throwing the fire extinguisher at the victim and placing him in fear which constitutes Count 4 on the presentment, common law assault. 10 Due to the noise and commotion that occurred during your struggle with the victim, police had been notified and attended at the premises. One of the police officers who attended the premises was policewoman, Catherine Zulian. At this stage you had retrieved the fire extinguisher, approached the police officer and threw the fire extinguisher at her, narrowly missing her. It is your action in throwing the fire extinguisher at policewoman Catherine Zulian that constitutes Count 5 on the presentment, common law assault."

That extract also refers to the circumstances which led to the appellant's being banned from the boarding house in which the complainant lived. It will be recalled that that ban was the subject of ground 2(a).

17. In support of his argument on ground 1, Mr Croucher emphasised the sentence imposed on count 2. He submitted that the following features of the offence put it at the lower end of the scale of seriousness for aggravated burglary. First, the appellant had been provoked by the complainant's persistent inappropriate behaviour towards the appellant's girlfriend. Secondly, the offence occurred during the day, not at night time. Thirdly, the entry to the complainant's room was only brief. The recklessly causing injury and both the assaults occurred in the hall outside, the struggle having spilled out into the hall. Fourthly, the appellant pleaded guilty, albeit at a late stage. (Nevertheless, it may be added, the judge gave him full credit for the plea.) Counsel submitted that greater culpability attached to the assaults than to the entry as a trespasser armed with a weapon with intent to commit an assault. I should say at once that I do not accept that there was any error in his Honour making the sentence on count 2 the base sentence. The maximum custodial penalty is 25 years' imprisonment and the appellant violated the sanctity of the complainant's home.

20. Mr Croucher contended that the sentence imposed on count 2 was manifestly excessive and that the total effective sentence, too, was outside the range. Unsurprisingly, no complaint was made of the non-parole period. Having regard to the judge's less than favourable conclusions on the appellant's prospects of rehabilitation, it was a lenient non-parole period measured against the head sentence. True it is that the appellant had made some progress, particularly with his addiction to alcohol, whilst he had been on bail, but that is more than reflected in the minimum term fixed. It does not pluck at the heart strings, in the circumstances of this case, that he had been on bail for a substantial period. He had applied for bail. He had made progress that was factored into the disposition. In my view, that is all there is to say about ground 4, to which Mr Croucher turned after his submissions on manifest excess.

23. 7 That left the ban from the premises, the provocation and the alleged error in cumulating part of the sentence imposed on count 4. The short answer to the first two points is that the judge was entitled to take into account the fact that the appellant had been banned from the premises and did take into account, and gave weight to, provocation in the form of the harassment of the appellant's girlfriend. The argument on ground 2, though ingeniously put, is, in my respectful opinion, without substance.

26. Under cover of ground 3, Mr Croucher submitted that it was artificial to describe the assault, as opposed to the recklessly causing injury, as a separate incident. He also criticised the disposition on count 4 on the basis that count 5 involved the same physical conduct, yet it was an assault on a different victim, a police officer in the execution of her duty. Yet the same sentences had been imposed and the same cumulation directed. There are, therefore, two complaints to be considered. As to the assault not being a separate incident, Mr Ryan pointed out that at that stage the appellant had been disarmed and was presented with a fleeing victim who had fallen over. He took a weapon of opportunity and assaulted the complainant with it. Mindful that the ground complains only of the direction for cumulation, he submitted that partial cumulation was called for. Whether or not it was called for, in my opinion it was open to the judge.

29. The other complaint had to do with the comparison between the sentences on counts 4 and 5. It may be that what I have said already is enough to dispose of that complaint, but it is perhaps worth observing, not for the first time, that structural arguments are to be discouraged. It is only against individual sentences and orders for concurrency and cumulation that an appeal may be brought: see R. v. Boucher[1]. If the sentence on count 4 is within the range and the measure of cumulation directed is justified, no complaint can be made by way of comparison with the sentence imposed on count 5 unless the disconformity is such as to impugn the instinctive synthesis. Usually, that is not the case because, within limits, a judge is permitted to adopt a broad-brush approach in fashioning an appropriate total effective sentence in a case like this.

32. In summary, this was a home invasion by a man armed with an iron bar, followed by three distinct assaults on two victims, and the appellant had recent convictions for relevant offences. Both general and specific deterrence was therefore important. I do not accept Mr Ryan's submission that the head sentence, as opposed to the non-parole period, was merciful, but equally I do not consider that any of the grounds is made out and I would dismiss the appeal.

36. I agree with the learned presiding judge, for the reasons that he gives, that the appeal should be dismissed. I wish to express my particular concurrence with his Honour's observation that the fact that the appellant had been banned from the boarding house was an aggravating circumstance appropriate to be taken into

account. At the risk of entering into the heresy of structural arguments, it may be that more than one view was open to be taken about whether the sentence imposed on count 4 should have been made concurrent with the sentence imposed on count 2: cf. the observations of the Court of Criminal Appeal in R. v. Robertson[2]. Be that as it may, however I agree with the learned presiding judge and therefore that the view taken by the sentencing judge was a view open to be taken.

41. I agree with the learned presiding judge's reasons and the order he proposes.

[1] [1995] VicRp 7; [1995] 1 V.R. 110 at 116.