R v Allen [2007] VSCA 97

2 The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing one count of burglary and one count of theft. The jury found the applicant guilty on the count of burglary, but acquitted him of the charge of theft. After a plea, the applicant was sentenced to be imprisoned for a term of 15 months with a minimum term of nine months' imprisonment before he was to be eligible for parole. The sentence was ordered to be served concurrently with an existing State sentence, which exceeded the length of the sentence imposed for the offence of burglary.

3 It was alleged that the applicant, between 13 October 2002 and 5 November 2002, had entered as a trespasser a dwelling house at 34 Hotham Street, East Melbourne, with intent to steal, and had stolen a large number of items comprising the contents of the house.

4 The Crown case was entirely circumstantial. The occupant of the house gave evidence that she returned to the house on 5 November 2002 after being away for four or five days. She had left the house locked. On her return, she surprised two men and a woman in their twenties, who ran out of the rear of the house and into a lane. Most of the furniture and other contents of the house had been taken. A rear window was smashed and bars covering it prised open. The back doors had been removed.

5 The only evidence implicating the applicant was supplied by DNA analysis and fingerprint evidence. DNA evidence linked a cigarette butt found near the smashed window to the applicant. The fingerprint on the door of a cabinet in the house matched the fingerprint of the applicant.

6 The applicant did not give evidence, and no evidence was led on his behalf.

7 The applicant seeks leave to appeal against the conviction and the sentence.

8 There are two grounds of the application for leave to appeal against conviction. The first is that the verdict is unsafe and unsatisfactory, in that no reasonable jury properly instructed could be satisfied beyond reasonable doubt that the applicant had an intention to steal at the time he entered the premises, and the second is that the verdict on count 1 is inconsistent with the acquittal on count 2.

9 Counsel for the applicant conceded that there was evidence the applicant had entered the burgled house and that he did so when the occupant was away, for it was well nigh impossible that he had entered the house prior to the occupant's departure. He was unknown to the owner and the occupant. Counsel submitted that it was not open to the jury to conclude that the applicant was one of the persons who were surprised by the occupant when she returned to the house, and who were described by her in some detail. All that could be concluded with any certainty was that the applicant entered the house while the occupant was away. It was not open to find beyond reasonable doubt that the applicant was a party to stealing any item of property from the house or that he intended to steal when he entered.

10 A jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless there is no other, innocent explanation, which is reasonably compatible with the circumstances.[1] In considering a circumstantial case, however, "all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."[2]

11 In the present case there was evidence that the applicant was present in a house that had been entered forcibly while its occupant was away and the contents of the house were removed, that he had been in the vicinity of the point at which entry had been forced, his fingerprint was on a door of a cabinet and an empty drawer from the cabinet lay on the floor. No innocent explanation for his presence was advanced by or on behalf of the applicant.[3] In my opinion it was open to the jury to conclude that there was no reasonable explanation for the presence of the applicant in the house which was consistent with his innocence of any intention to steal.

12 As to the second ground, for the reasons I have stated, I consider that it was open to the jury to conclude that the applicant had entered the house as a trespasser with the intention of stealing. That was not inconsistent with the existence of reasonable doubt whether the applicant did steal or was complicit in stealing. The inconsistency suggested in this case is factual inconsistency, not legal or technical inconsistency. The applicant must establish "that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion."[4] In the present case the jury may well have been satisfied that the applicant entered the house with no innocent intention but, in the absence of any evidence that he removed or was later found with any property taken from the house, entertained a doubt that the applicant did remove any property. In my opinion the jury could not be said to have acted unreasonably in reaching the different verdicts.

13 With respect to sentence, it is necessary to recount aspects of the applicant's antecedents. He is now 54 years' old. He has the record of a career criminal. He has 59 prior convictions from 25 court appearances, including convictions for assault, malicious wounding, shooting to prevent arrest, street offences, driving offences, theft, armed robbery, rape and trafficking in heroin and cannabis. He has spent 28 of the last 38 years in jail. When he was sentenced by the judge below, he was serving a term of three years and two months after being reclaimed by the Parole Board for breaches of parole.

14 The applicant grew up in a dysfunctional family. He left school at 14 years of age. He has one son aged five years, the fruit of a former de facto relationship. The sentencing judge took into account favourable evidence given by a former employer of the applicant. His Honour said that, despite his record, the applicant was now less active in crime and "you still have some prospects of rehabilitation."

15 Counsel for the applicant submitted that the sentencing judge erred in failing to properly take into account the sentencing principle of totality and, in particular, earlier periods of time spent in custody. Since committing this offence, the applicant had been in prison on unrelated matters. It appears that, since the commission of this offence three years and five months in the past, the applicant had been imprisoned for some three years and two months. When he was sentenced, the applicant was then serving a reimposed period of parole of three years, two months and seven days. Counsel said that in those circumstances the present sentence could be described as "crushing".

16 In his sentencing remarks the sentencing judge referred to the principle of totality and the need to incorporate the applicant's recent incarceration and the effect of the breaches of parole in the sentencing synthesis. In my opinion the order for total concurrency with other sentences then being served demonstrates that his Honour gave effect to those considerations.

17 It was contended on behalf of the applicant that the sentencing judge erred in finding the applicant was party to entering the house "by forcing open security bars, breaking a window and entering the kitchen."

18 It is not clear that the sentencing judge did make the finding complained of, for he said that the applicant and others had entered the premises by forcing open security bars, breaking a window and entering the kitchen. In any event, in my

view, the sentencing judge was entitled to conclude from the evidence that the applicant was one of those who first entered the house.

19 Finally, counsel for the applicant submitted that the sentence was manifestly excessive, and as a particular of this ground, contended that the sentencing judge erred in failing to properly take into account the delay that had occurred in bringing the matter to trial. As to the last matter, the sentencing judge acknowledged that there were delays in gathering the necessary scientific evidence, but said that he did not regard the delay as unreasonable nor as significant. I consider that view was justified.

20 The applicant's life has been bleak. His childhood and adolescence were disturbed, not least by his discovery as a young man that his "parents" were really his grandparents and his "sister" was really his mother, a discovery which caused him to leave home and school. He had spent most of his adult years in prison. He had no assets or family support and no prospect of a worthwhile life outside prison. Nevertheless, in large measure the applicant's plight was due to his own persistent offending, and in my view, the fact that the sentence was made wholly concurrent with the sentence which the applicant was currently undergoing renders the epithet "crushing" inappropriate. I consider that the sentence was within the range that was open to the sentencing judge.

21 For the foregoing reasons I would dismiss the applications for leave to appeal against conviction and sentence.