R v Ashdown [2003] VSCA 216

1. That the sentence was manifestly excessive; and

2. That the learned judge erred by giving undue weight to certain uncharged acts.

The nature of those uncharged acts will appear shortly.

11. The circumstances which led to this charge are not complex but there was a good deal of uncertainty as to precisely what the appellant was doing that night in the house which he entered and why he was there. The appellant said that he had spent most of the evening and night drinking at a nearby hotel, starting at some hour between 7 and half past 8. By the time he left at about 2 or 3 a.m. the next morning he had consumed over a dozen pots of beer, some bourbons and several other mixed alcoholic drinks. As he walked along the street, he saw a window open on the second story of a suburban house. Whether he was entering the house as a challenge or whether he hoped that he could get "something for free", as he said in his interview, is not entirely clear but his plea in the court below in effect admitted that he entered with intent to steal. Despite his intoxicated state he managed to balance his way across a roof and into the house through a partially opened window. Once inside he made a seemingly comprehensive if haphazard search of both floors turning lights on in several but not all of the rooms he entered. Despite the fact that a number of valuable items such as a purse and cash were lying on tables and were obvious for anyone to see, the appellant neither took nor attempted to take anything.

14. Eventually he came upstairs again to the main bedroom at about 5 a.m. in the morning, so it seems, where the owners of the house were asleep. Again, the appellant found nothing to take. The room was only half lit by a light from another room so that he said he tripped and thus came close to that side of the bed where the female householder lay. The appellant's activities awoke her. What she saw, she asserts, and was not denied by the appellant at the sentencing hearing, was the appellant standing close to her with his pants down and seemingly masturbating. She could not see his penis but the light was sufficient for her to observe the definite actions of a man attempting to masturbate himself. Once she realised what the appellant was about she exclaimed: "what the f... are you doing?" though he asked her to keep quiet, she then shouted at him to get out. As he pulled up his trousers and fled down the stairs and out on to the street she followed him down and slammed the door behind him. Notwithstanding her apparent presence of mind, indeed bravery inasmuch as her husband did not assist her in the chase as he was not yet awake, she suffered shock from the appellant's disgusting behaviour which, not surprisingly, she found grossly offensive. The circumstances of and surrounding the burglary left her feeling very insecure and therefore afraid for her safety even in her own home.

17. In due course the appellant was apprehended. In a long interview he admitted entry and movements inside the house but he denied any acts of masturbation, though he conceded that in his condition he could not remember all that occurred. He acknowledged that his behaviour was illegal and rude. There would seem little doubt that he expressed genuine remorse on a number of occasions both to the police and subsequently.

20. The appellant who was aged 30 at the time of the offence and is now 32 has at all times indicated a willingness to plead to the count of aggravated burglary, at least as it is now formulated. There were other charges brought at various times against the appellant, including indecent assault and common law indecent exposure but they were all withdrawn before the plea hearing. Nevertheless, the basis upon which they were withdrawn was a concession that the Crown could lead evidence to establish all the circumstances of the offence including the allegations as to masturbation. It was specifically agreed that the female witness did not have to be called, a factor relied upon by the appellant's counsel as an additional favourable aspect to his plea of guilty over and above the allowance customarily made for such a plea in this State.

23. On the other hand, the appellant had to concede that he had been found guilty of 66 prior offences at 19 earlier court appearances. The best that could be said of this very bad record stretching back to the age of 18 was that, although there were a number of property offences of which he had been found guilty in the early 1990s, most of his offences since 1993 had either been minor drug offences or other kinds of minor offences. At the plea hearing there was psychiatric evidence which confirmed that he had problems in relation to the taking of both drugs and alcohol but there was no evidence of psychiatric disorder, although substance abuse had led to a dislocated personal life exacerbated by his offending over the years.

26. The plea hearing was not elaborate and no witnesses were called although the psychiatrist's report was tendered. There was no real issue as to the behaviour of the appellant in the house for, although his counsel said his client did not recall his masturbating, he was "accepting that what the victim says in her statement is correct" and he did not wish to put the victim through any further distress. In substance it was said that the burglary, though of a serious kind, was largely brought about by his intoxicated condition, that his conduct inside the house must have resulted from a level of disinhibition and that the failure to take or attempt to take any property showed that there was no serious intent to steal.

29. The learned sentencing judge in his reasons recounted these matters briefly but said he found it difficult to reconcile the appellant's agility in getting into the house with his asserted allegation of heavy intoxication. His Honour accepted what the female householder had said and that that had had a substantial effect upon her, causing very considerable emotional upset as well as apparently affecting adversely her marriage. His Honour accepted the fact that the appellant had not attempted to deny any conduct other than the masturbation and that there was an early plea of guilty. He accepted that he had shown remorse. His Honour noted that he had come from a normal family background, that he had had a drug problem from the age of 18 or 19, but that he now had had employment as a boiler maker for the preceding three months. As to the allegation that it was a spur of the moment decision resulting from his consumption of alcohol, his Honour said that such an excuse was "a minimal mitigating factor". In dealing with the psychiatric report the judge emphasized that he showed some understanding of substance abuse but that his very substantial criminal record meant that in the circumstances his Honour did "not see many redeeming features". As a result he imposed the sentences I have described earlier.

32. It is appropriate that I deal first with the specific ground relied upon by the appellant, namely that the judge wrongly gave undue weight to the uncharged acts in his sentencing process. A number of submissions were made, one of which was that it was not open to the judge to be satisfied beyond reasonable doubt that the particular behaviour, namely the masturbation in front of the female householder, had occurred. I have already referred to that passage in the transcript where counsel appearing for him on the plea made clear the basis for the plea and his client's acceptance, for those purposes, that he had behaved in the way the victim described. Having regard to that concession, which involved the assertion that the appellant had thereby relieved the prosecution of the need to call the victim, it would seem impossible for the appellant now to claim that this particular behaviour was not made out to the requisite standard.

35. More significant was the claim that it was wrong to give any weight to the uncharged act in determining the appropriate sentence. The argument was largely dependent on principles which are well known and which were stated by this Court in R. v. Newman and Turnbull[1]. The assumption behind cases such as that, however, is that there is a second significant offence which apparently occurred but which was not the subject of any charge. As the President said in Newman and Turnbull[2], it is appropriate then for the Crown to lay a separate charge in relation to circumstances which amount "to a discrete and serious offence": see also the passage cited by the President at 152 from R. V. Teremoana[3]. In such a case, it is clearly both inappropriate and unfair to sentence for an uncharged act which is not comprehended by the count in respect to which the plea is made.

38. In the present case, however, it is by no means clear that any offence was directly committed by the appellant inside the house over and above the aggravated burglary. If there were offences, they were of a relatively minor kind. Doubtless the offence of burglary is complete when the accused has entered the premises but it does not follow, as the night the day, that everything that thereafter occurs is irrelevant to the sentencing process. In the first place, there may be relevant retrospectant evidence that may assist in determining the intent of the offender and the seriousness with which the burglary may be viewed. If an offender takes nothing and seemingly tries to take nothing, as in this case, then it is easier to say that, although he may have had an intent to steal, it was not part of any systematic or deliberate plan to take property from the premises. The apparent difficulty in the present case is that his acts of masturbation had little to do with his intent to steal and were merely disinhibited acts which objectively were likely to cause serious offence to the victim inside her own house.

41. Secondly, the presence of the victim is, by statute, the aggravating factor, namely in the present case a person in the house, and it is that person's sense of outrage at the invasion of her privacy by the burglar which the offence of aggravated burglary was here intended to protect. Thus, the way in which that privacy is breached by the burglar is of relevance, albeit that the act of burglary was technically completed at the time. It is not irrelevant, just as the manner of disposition of a body may be relevant in sentencing a person for murder or manslaughter. In burglary, it is just as relevant as, say, whether a burglar left the house tidy or in a mess. Precisely what effect the later event should have on the sentencing process must depend on the circumstances in each case.

44. Consequently, in my opinion there was no error in taking the event into consideration. Of course, the alleged facts must be established to the relevant standard but counsel for the appellant below made the relevant concession on that issue. Moreover, in the present case, the parties' agreement that the additional circumstance might be led as part of the Crown case on the aggravated burglary charge, would make it inappropriate to allow the appellant now to resile from that concession. Likewise, counsel on this hearing properly made that concession to this Court.

47. The ground, as argued in those ways, is not made out, unless undue weight has been given to the factor, which is an issue which can be more satisfactorily evaluated in considering the first ground, that is, that alleging manifest excess.

50. As to the ground of manifest excess, the respondent concedes that the sentence was a very stern sentence indeed. Whether the current range of sentences for aggravated burglary is appropriate in the light of the increased maximum of 25 years since 1997 does not here arise. It is sufficient to say that the maximum is clearly directed to the worst classes of case and that is certainly not this one.

53. Indeed, in the scale of sentences for aggravated burglary, this cannot be treated in the higher range at all. Doubtless, there is admitted to be an intent to steal and doubtless what the appellant did on the premises was highly offensive. It was serious in the sense that one of the occupants had her sense of privacy grossly invaded and she was caused humiliation in a way which has had continuing effects.

56. The circumstances of the present case, in my opinion, are not otherwise to be thought of sufficient seriousness to merit a sentence of six years, a term which appears not often to have been exceeded in recent years, whatever be the appropriateness of the current range. As to the nature of the burglary, the allegation is that it was with intent to steal which is serious enough but not unusual, unless other events point to some greater significance. In fact, the attempt to steal turned out to be fruitless, not because of the absence of anything worth stealing but because of the haphazard way in which the appellant, probably by reason of his intoxicated condition, went about his task. Perhaps he was only "casing" the premises; perhaps in his intoxicated state he lost concentration, but nothing was taken and no physical damage was caused to the premises. That points to an absence of planning, premeditation, system or the like which might demonstrate an intention to commit a serious burglary.

59. 19 Then again, the aggravating factor, the factor which brings this offence into the category of aggravated burglary, was what seems to have been the recently added factor that there is a person on the site of the burglary and knowledge or recklessness as to that presence. Important though that is, there was no element of deliberation directed in the present case to harming the individuals in fact sleeping in the house. The burglary is to be condemned but there seems, on the appellant's part, to have been little concentration by him on this factor, if it can so be described, no deliberate and conscious attempt to harm their feelings, to humiliate them or to offend their sense of security. By this I mean that the act was casual and opportunistic. Indeed, it seems that it was only when the appellant came to the bedroom that he paid any attention to those who were present in the household. Then it was a disinhibited rather than a planned act of indecency which he carried out. It was an act to be condemned as adding greatly to their sense of invasion of privacy and to their humiliation, particularly of the female victim, but it has never been suggested that it was a planned act. If it had been, then a different class of burglary could have been charged, one that is frequently seen as justifying a higher sentence. Thus the act of indecency was one unrelated to the form of burglary charged. It was merely an offensive act which the appellant performed opportunistically. He was, of course, a burglar and one may properly take into

account his behaviour as a burglar (subject, of course, to Newman and Turnbull), but only as aggravating the sense of invasion and of humiliation felt by the victim.

63. 20 In these circumstances, a sentence of six years with a minimum of four years before eligibility for parole was well outside the range of permissible sentence. In re-sentencing one must take into account all the factors already mentioned, but keeping to the forefront that no property was taken, no damage was done and no physical harm was caused or intended by the appellant, as well as his remorse and plea of guilty. The appellant was, nevertheless, an "aggravated" burglar and there was a sense of outrage and shock and humiliation indirectly caused by the appellant to his victim, one which led to certain after-effects of some seriousness. That factor must be recognised in part, as must the fact that his constant record of petty crime leaves one to doubt that his chances of rehabilitation are particularly great.

66. In all the circumstances, therefore, I would re-sentence the appellant to a term of three years imprisonment and, having regard especially to the last stated factor, direct that he serve a minimum of two years before becoming eligible for parole. I would therefore allow the appeal and re-sentence the appellant accordingly.

78. The order of the Court is that the appeal be allowed, that the sentence imposed below be set aside and that in lieu thereof it be ordered that the appellant be imprisoned for a term of three years and that it be directed that the appellant serve a period of two years before becoming eligible for parole. The customary order

will be made declaring the period of 371 days already served by the appellant which is, of course, a period from the date when the original sentence was imposed, and it is directed that that figure be entered in the records of the Court.

[3] (1990) 54 SASR 30 at 38.