R v Lambourn [2007] VSCA 187

Criminal law - Sentencing - Parity - Double punishment - Manifest excessiveness - Total effective sentence of 38 months with non-parole period of 18 months reduced to 26 months with non-parole period of 14 months.

1 Following a trial in the County Court at Melbourne, on 20 June 2006 the applicant was found guilty of two counts of criminal damage (Counts 1 and 5), one count of aggravated burglary (Count 2) and one count of intentionally causing injury (Count 3). After hearing a plea in mitigation of penalty, on 23 June 2006 the judge sentenced the applicant on Count 1 to 14 days in prison, on Count 2 to 30 months' imprisonment, on Count 3 to 12 months' imprisonment and on Count 5 to two months' imprisonment. The judge further ordered in effect that six months' of the sentence imposed on Count 3 and the whole of the sentence imposed on count 5 be served cumulatively on the sentence imposed on Count 2,[1] thereby making for a total effective sentence of 38 months' imprisonment, and imposed a non-parole period of 18 months. The applicant now applies for leave to appeal against both conviction and sentence.

**2 The applicant was born on 10 March 1983 and so is now aged 24. At the time of the offending, on 23 and 24 September 2004, he was 21. He was arrested on 28 September 2004 and gave a "no comment" Record of Interview. He was then charged with aggravated burglary, intentionally causing serious injury, unlawful assault, criminal damage and theft and released on bail. Two co-offenders, Peter William Luke, born 13 September 1982, and Brendan Vidler, born 30 July 1977, were arrested on 24 September 2004 and admitted the offending. They were charged and released on bail.

3 The matter was listed for trial on 14 June 2006 at the County Court at Wangaratta and, after mention, was adjourned to the following day. The next day, Vidler was arraigned before the judge and pleaded guilty to Counts 2 (aggravated burglary), 5 (criminal damage) and 6 (theft). Counsel for the applicant stated that the applicant would plead guilty to Counts 1, 3 and 5, but not guilty to Count 2. The applicant's position was that he was not guilty of aggravated burglary because he did not form the intention to assault the victim until after entering the victim's premises. Counsel for Luke stated that Luke would plead not guilty to the matters alleged against him, Counts 2, 3, 4 and 5.

4 A jury was empanelled and the trial proceeded against the applicant on the count of aggravated burglary alone and, as against Luke, on the counts of aggravated burglary, intentionally causing injury, an alternative count of recklessly causing injury, and criminal damage.

5 The Crown case was that, after the applicant had gone around to the victim's home for drinks on the night of 23 September 2004, and consumed alcohol to the point of so misbehaving that he was made to leave, he returned in the early hours of the following morning with Luke and Vidler, forced open the front French doors of the victim's home, entered and then bashed the victim, ostensibly in order to obtain payment of a debt of some $100 alleged to be due from the victim to Vidler. The applicant and his co-offenders then left the house and pursued the next door neighbours into their house, and in the process of attempting to obtain entry to the neighbour's house, Luke Lambourn broke the glass front door.

6 The applicant's defence was that he was not guilty of aggravated burglary because he had not entered as a trespasser. Alternatively, his counsel contended that, if the applicant had entered as a trespasser, he was not guilty of aggravated burglary because he had not entered with intent to assault the victim and did not form such an intent until he had been inside for some time.

7 The judge charged the jury on the basis that in order to convict the applicant of aggravated burglary they had to be satisfied beyond reasonable doubt that the applicant entered the house as a trespasser, which is to say without the express or implied consent of the victim, and that at the time of entering the house the applicant had the intention to assault the victim.

8 Defence counsel took exception to that direction on the basis that it was not enough for his Honour to tell the jury that they needed to be satisfied that "the entry [was] made without the consent, expressed or implied of the occupier and in this case you can assume that [the victim], is the occupier." After referring his Honour to this court's decision in R v Taylor,[2] defence counsel submitted that it required his Honour to make plain to the jury that "there had to be a particular intention [to enter as a trespasser] on the part of the accused, as well as this issue of implied or otherwise of the consent". She further submitted that, as the judge had put the direction to the jury:**

"...it sound[ed] more along the lines of what was in the mind of [the victim] or what would have been in his mind in terms of the consent side of things, or even the implied consent, rather than what was in the mind of the accused as they entered."

**9 The prosecutor submitted to the contrary that it was not necessary for his Honour to give such a direction, because "it hasn't been the real battleground in this case" and because no one had submitted in terms to the jury "that a point of issue was the intention to trespass", and "because the real issue was whether [the applicant] intended to assault."

10 The judge appears to have been influenced by the prosecutor's submission. His Honour ruled that:**

"Having read Taylor's case I do not believe it is of any assistance to me in this particular case. That case concerned very different facts to the one before the court, and in particular I refer to paragraph 34 of the decision of the majority...

In this case the occupant was questioned in cross-examination by [defence counsel], and certainly his partner, Michelle, as to the number of visits that Lambourn made to the house in question over six or 12 months prior to 24 September 2004. It was never suggested to Jarvis, the principal occupant, or any of the other occupants, that Lambourn had an unlimited right to enter the premises.

It was never suggested, obviously for good reason, to Jarvis, the principal occupant and the victim of the subsequent assault, that he gave permission to Lambourn to enter his house at any time of the day or night whenever he chose to do so. That question, in my view, should have been put fairly and squarely to Jarvis if any such argument as was raised in Taylor's case, was ever to be made..."

Appeal against conviction -intention to trespass

**11 The applicant attacks the judge's ruling. Counsel for the applicant submits that, despite what the prosecutor said about the real issues in the case, it was necessary for his Honour to go on to make plain that it was also incumbent on the Crown to establish that the applicant knew or was reckless as to whether he did not have consent.

12 I accept that submission. The law is that an accused is not shown to have entered premises as a trespasser[3] unless the Crown establishes beyond reasonable doubt that the accused knew that he or she did not have permission to enter the premises or was reckless as to whether he or she did not have permission to enter the premises. The point was decided by the High Court in Barker v The Queen[4] and revisited by this court in R v Taylor.[5]

13 It is true, as the judge said, that Taylor's case was concerned with very different facts. But in point of principle it was concerned with the same issue of what it is that the Crown must prove in order to establish a count of aggravated burglary in circumstances where the accused may have believed that he had some form of permission to enter, even if not permission to enter for the purposes of committing assault. Of course, it cannot reasonably be supposed that an occupier of premises would consent to a person entering the premises for the purposes of committing an assault. But the point of Taylor was that, depending upon the circumstances, one may conceive of a person entering premises with intent to commit an assault and yet so doing in the belief that he or she is entitled to enter.

14 Contrary to what the prosecutor told the judge, intention to enter as a trespasser was a point of issue to which both counsel had referred in terms and for which there was a basis in the evidence.[6] The prosecutor had said this about it in his final address to the jury:**

"...Two issues [defence counsel] told[7] us were big issues as far as her client is concerned, bearing in mind the (indistinct) to prove these elements, but the defence raised two issues for your consideration in relation to the crime of aggravated burglary as far as Lambourn was concerned. Firstly, did he enter as a trespasser, and the defence contends, no onus of proof, but that [sic, they] contend that the Crown hasn't proved that element beyond reasonable doubt ....

"...Consider this when you think about whether or not he entered as a trespasser, that what she seemed to be putting was, 'Well, they're all good friends and they all used to have beers together', and this is all just (indistinct) all this sort of business. Of course they come and go as they please (indistinct)...

...It's just beyond comprehension, in my submission, that he wouldn't have realised that he was trespassing. He would have realised that he was an intruder."

Defence counsel, as well as appearing to refer to the subject in opening, referred to it in her closing address in these terms:

"...you couldn't be satisfied beyond reasonable doubt, when you take into account all of those matters, that Mr Lambourne had the intention required at the time of entering that house to constitute a trespass..."

**15 Consequently, the question of intention to enter as a trespasser having been put in issue as it was, it was for the Crown to prove beyond reasonable doubt that the applicant knew or was reckless as to whether he did not have permission to enter, and it was not incumbent on the applicant to put to the victim that he gave permission, even less that he gave permission to enter for the purposes of committing an assault. To adopt and adapt the language of Gleeson CJ and Heydon J in MWJ v The Queen,[8] why would defence counsel want to run the risk of eliciting answers from the victim which undermined the appearance that the applicant may have been in the habit of coming and going more or less as he chose?

16 Of course, defence counsel's failure to put squarely to the victim that the applicant had permission to come and go more or less as he chose was a matter to be taken into account in deciding whether the Crown had proved beyond reasonable doubt that the applicant knew or believed that he did not have consent to enter when he did. It was also significant that defence counsel did not explore with Crown witnesses whether the previous visits by the applicant to the premises had occurred in circumstances similar to those in this case, namely, in the middle of the night, into darkened premises, and by way of forced entry. In effect, the cross-examination barely, if at all, agitated the issue relating to the basis upon which the applicant might have thought he was entitled to enter the premises as he did on the night in question. But even so, the dearth of cross-examination did not mean that defence counsel could not put the argument to the jury or that the jury were not bound to consider it.

17 Although counsel for the Crown initially sought to resist that conclusion, as I understood his submissions in the end he accepted that the question of intention had been put in issue in opening and in final addresses and that arguably there was some basis in the evidence, albeit a very weak basis, from which to infer that the applicant may have believed that he had permission to enter. If so, he very fairly conceded, the judge should have directed the jury that they needed to be satisfied beyond reasonable doubt that the Crown had excluded the possibility that the applicant did non know and was not reckless as to whether he lacked permission to enter.

18 In my view the judge's failure so to direct the jury was a material misdirection.**

**19 Counsel for the Crown submitted that if it were held that the judge's direction was deficient, the proviso should be applied. He argued that, having regard to the jury's verdict (which implied that the jury found the applicant to have had the intent of assaulting the victim at the time of entry to the premises) and the fact that the entry was effected in the early hours of the morning by forcing the French doors in order to gain access, this court could and should be satisfied beyond reasonable doubt that the applicant knew that he did not have permission to enter when he did. There is force in that contention.

20 Counsel for the applicant sought to resist it by arguing that this was a case in which it would be proper to allow the appeal and order a new trial, regardless of whether the court were persuaded of the applicant's guilt. In counsel's submission, the fact that there had been a misdirection as to an element of the offence meant that there has been no determination by the jury of guilt of the offence and, therefore, that there has been "such a serious breach of the presuppositions of the trial as to deny the application of...[the] proviso".[9]

21 In the alternative, he submitted that the court could not be satisfied of the applicant's guilt to the requisite standard and he prayed in aid evidence that the applicant was a friend of the victim, and had been to his house on up to 15 occasions, and that the applicant was in the habit of dropping around unannounced to drink and smoke and talk with the victim. He also placed reliance on testimony that on some occasions the French doors were used as a means of access to the house, and that the applicant had used them as such before, and evidence that, although the French doors were closed and locked on the night of the offending, they could be forced open without damage by pushing them in with "a fair bit of force", and that there were not damaged when the applicant entered. He submitted that, faced with those facts, the court could not be satisfied beyond reasonable doubt that the applicant knew or considered it possible that he did not have permission to enter the premises in the manner and at the time he did.

22 In my view the Crown's contention is to be preferred. No doubt, there are cases where, despite overwhelming evidence of guilt, it is not appropriate to apply the proviso. But I do not consider that this case is one of them. In Weiss[10] the High Court gave as an example of such a case, one in which there has been a significant denial of procedural fairness. But there is no rigid formula to determine what constitutes "such a radical or fundamental error" as to preclude the application of the proviso.[11] Contrary to the submission of counsel for the applicant, it is not necessarily enough to exclude the application of the proviso that a jury has been misdirected as to the an element of the offence charged. As the majority put it in Krakouer:**

"...we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every 'wrong decision of any question of law' lead to the quashing of the conviction or a new trial. As was said in Wilde v The Queen '[t]here is no rigid formula to determine what constitutes such a radical or fundamental error' as to preclude the application of the proviso. Simply demonstrating that there was a misdirection on a matter relevant to the jury's consideration is not sufficient."[12]

**23 The correct view of the matter is that, if upon its review of the facts and circumstances of the case, the court is satisfied that the applicant would not have had a chance of acquittal by the jury if properly instructed, it will be open to apply the proviso;[13] and, in my view, the applicant in this case would not have had a realistic chance of acquittal by the jury if properly instructed as to the element of intent. As I see it, there was a large body of evidence from which it could properly be inferred that the applicant knew or at least believed that he may not have had permission to enter the premises at the time and in the manner he did. Having considered that evidence, some of which is summarised below, I am satisfied that the jury, if properly instructed, could not but have excluded the possibility that the applicant did not know or believe that he lacked permission to enter.

24 The victim, Nicholas Anthony Jarvis, gave evidence that on 23 September 2004 he was living in the premises with his partner, Michelle McCall. Her sister Danielle, from Tasmania, was staying with them. At about 9.00 pm that night, Peter Luke and the applicant came over for a friendly drink. Mr Jarvis had known Luke for about six years and met the applicant, through Luke, a couple of years before. He had also known Vidler for approximately two years. Luke had previously been around to Mr Jarvis' place approximately a dozen times, but was returning to Queensland the following day. Mr Jarvis said that he had not expressly invited Luke and the applicant to come to his home on 23 September 2004 but he said that it had not been unusual during the preceding 10 days for Luke to pop over for a chat. When Luke and the applicant arrived, they knocked at the front door and Mr Jarvis answered the door and let them in. They had a few beers but then something was said which made the applicant angry and to want to fight Mr Jarvis. Luke restrained him and they left. Shortly after that, Mr Jarvis heard a crash out at the front of his home. He went to have a look and saw that the lattice fence dividing his property from the neighbours' property had been broken. Then he went to bed at around midnight. He, Michelle and Danielle slept in the lounge room on mattresses because they were in the process of moving out and had shifted most of their belongings.

25 At some stage after that he was woken by a loud bang. His dog started barking. He heard what sounded like a few people talking out at the front. At that moment, the lounge room French doors were forced open and the applicant, Vidler and Luke walked in one after the other. The French doors were not the front door through which Luke and the applicant had entered earlier that evening. Mr Jarvis said that the front door was the main entrance and that the French doors were only used "occasionally". The blinds made them awkward to use. They were vertical blinds that went all the way across the window. The French doors had been locked but Mr Jarvis said that they could be forced open with a bit of force. He did not think there was damage done to the doors although the blind was broken in the middle. Mr Jarvis was sleeping in boxer shorts and only had time to pull on a T- shirt before Luke, the applicant and Vidler came in. Mr Jarvis said that the applicant approached him in an aggressive manner and demanded that he pay about $100 which the applicant alleged that Mr Jarvis owed to Vidler. Mr Jarvis said that it was "quite obvious" that the applicant wanted to fight him. The girls just stood there. The applicant, Luke and Vidler were not letting them leave, although they were not physically restraining them either. There was a lot of yelling going on. Mr Jarvis said that the applicant was yelling at him and, at the same time, trying to discuss repayment of the debt to Vidler. He said that Vidler was not happy because the debt had been outstanding for some time. Mr Jarvis said that the argument felt as though it lasted for about two minutes. He thought that Luke gave him "a look" at one stage to indicate that he could not do anything about it. Then suddenly the applicant hit the wardrobe behind Mr Jarivs and started hitting Mr Jarvis. He hit Mr Jarvis in the back of the head and on the forehead. Mr Jarvis said that they were "pretty hefty blows" and he had "rather large lumps too (his head) and all that sort of thing". He was hit several times. He told the applicant to get off him but decided not to fight back because he thought he would be outnumbered. He believed that he was hit for about 15 seconds before he fell back on the floor. He said that at that point the neighbour from next door shone a torch inside and the men yelled out that it was the police. He thought Vidler pulled the applicant off him because they did not want the police involved. Mr Jarvis said that he was pretty badly bruised and had a slight headache. Mr Jarvis and Michelle ran out the front and went next door.

26 Danielle Kaye McCall, gave evidence to similar effect. She said that on 23 September 2004 she was visiting her sister, Michelle McCall and her boyfriend, Jarvis, at their home at 5 Graham Street, Euroa. The applicant and Luke came around in the evening. They brought some VB cans and had a few drinks together. She said that the applicant was a friend of Jarvis. She had known the applicant for about two years. As she saw it, the first visit that night was just a matter of dropping around, as friends do. Darren Amos was also present. After a while, however, the applicant started becoming "pretty aggressive". He was "looking for a fight and he wanted Jarvis to take him over to Shepparton... so he could get into a fight". Jarvis refused as he had been drinking and the applicant started to raise his voice in anger at Jarvis and became rude. Ms McCall thought it was Jarvis who asked the applicant to leave, although she was not entirely sure whether it was him or not. In any event, after the three men had been there about half an hour, all three left. She fell asleep not long after that on a mattress in the lounge room.

27 At about 2.30 am she was woken by the sound of the French doors in the lounge room being pushed open. There were four doors. The flyscreen doors opened out and the double glass door opened in. She said that Jarvis had locked the glass doors before he went to bed. She saw Luke coming through the door, followed by Brendan Vidler and then the applicant. According to Ms McCall: " I just more or less said who did they think they were to just barge in and ... while we were all sleeping at this time of night, like... at like that time of the morning". The applicant was yelling at Jarvis that he owed Vidler money. Jarvis was standing at the doors by the hallway. The applicant hit the wardrobe door and then started hitting Jarvis. Ms McCall said that the applicant "had [Jarvis] down on the ground and had his legs on Nick's chest and was punching him in the face". She yelled to Michelle to go and get a baseball bat, in an attempt to bluff the intruders. She and her sister then tried to pass through the hallway doors but were stopped by Vidler blocking their way. The applicant was punching Jarvis in the face. Jarvis asked Vidler for help and after a few more hits Vidler told the applicant to stop. Vidler and Luke wrestled the applicant away from Jarvis. She heard Vidler say: "The cops are here, let's go". The three men left and walked down the driveway.

28 Michelle Sandra McCall also gave evidence to similar effect. She said that on Thursday 23 September 2004, Luke and the applicant came around at about 6.30 pm and stayed for about 15 minutes. She added that she believed that she could be wrong about the times because her memory was affected by epilepsy, and that it affected her recollection of "times and stuff", but she said that she clearly recalled the events like they "happened yesterday". They came with some cans and shared a few drinks. The applicant started getting aggressive. He wanted Jarvis to do something for him and Jarvis would not do it. He asked Jarvis to go to Shepparton and Jarvis refused. The applicant was getting upset with Jarvis and started kicking boxes and furniture around and yelling. Luke tried to get him to calm down. They both left. Before they left, the applicant asked her whether he could leave his phone there to charge and pick up later. She refused. Darren Amos was also present but was not involved. Ms McCall heard yelling outside and two minutes later she heard something smash and the applicant and his co-offenders burst unannounced through the French doors. She saw Luke pulling the applicant away and telling him "That wasn't on" and that he wasn't going around there to do anything else like that. She saw their neighbours' fence had been kicked in and telephoned the police. The police came around and they had a conversation about what had occurred. She went to bed at 10.30 - 11.00 pm.

29 There is as well the effect of the jury's verdict, from which it may be taken that they were satisfied beyond reasonable doubt that the applicant entered the premises with the intention of assaulting the victim and, while that of itself does not necessarily say anything as to whether the applicant knew or believed that he lacked the victim's permission to enter, the fact that the applicant went there with the intent to assault, and burst unannounced through French doors into the very room in which the victim and the other inhabitants of the house were sleeping, in order to launch more or less immediately into the assault, is in my view a factor which when combined with the others to which I have referred renders unreal the idea that the applicant did not or believe that he may have lacked permission to enter as he did.

30 As has been noticed, counsel for the applicant stressed the evidence of the previous occasions on which the applicant entered with permission through the French doors, the occasions on which he had been received and entertained when he arrived unannounced, the fact that he had been at the premises earlier in the evening, and the fact that the French doors were opened without apparent damage except for the blind. But, in my view, all of that was effectively set at nought by the consideration that this entry was effected in the blackness of the early hours of the morning, while all of the lights in the premises were off, and while to an outsider it must have been plain that the occupants were probably asleep. Even allowing that the applicant was in the habit of dropping around to the victim's home from time to time - for drinks or to smoke or simply to talk - and that he may have assumed if not expected that he would be welcome when he did, it was quite another thing for the applicant to crash through closed and bolted French doors into the victim's sitting room, as the victim and the other occupants slept in the early hours of the morning, after the applicant had earlier in the evening been ejected for misbehaviour. No matter how much licence the applicant may have been given to come and go during waking hours for the purposes of social intercourse, in my view he must have realised that he did not have consent to enter when he returned.

31 Counsel for the applicant properly conceded that there were not any credit issues involved in determining the issues of the applicant's intention to trespass, and in my view there are not any other sufficient "natural limitations" to preclude the court in this case proceeding wholly or substantially on the record.[14]

32 In the result, I am satisfied that the applicant was proved beyond reasonable doubt to be guilty of the offence of aggravated burglary on which the jury returned its verdict of guilty.

33 Consequently, I would dismiss the application for leave to appeal against conviction.**

**34 The applicant seeks leave to appeal against sentence on grounds that the individual sentences, the total effective sentence and the non-parole period are all manifestly excessive; that the sentences imposed on the applicant offend parity when compared to the sentences imposed on Vidler; and that the sentence imposed on Count 5 (the count of aggravated burglary) constitutes or incorporates a measure of double punishment for the offence of intentionally causing injury, which the orders for concurrency do not wholly consume.

35 These grounds of appeal may conveniently be dealt with together. As has been seen, the judge sentenced the applicant on the count of aggravated burglary to a sentence of 30 months' imprisonment. Contrastingly, his Honour sentenced the applicant's co-offender, Vidler, to only 10 months' imprisonment for the same offence. As the Crown points out, Vidler was an aider and abbettor as opposed to a principal in the first degree. He pleaded guilty and did not have the same record of prior convictions as the applicant. Consequently, he may not have been thought of as being in need of the same measure of specific deterrence as the applicant. But, as counsel for the applicant points out, Vidler was considerably older than the applicant, and in the end the judge was satisfied that the applicant had by the time of sentencing gone so far towards rehabilitation that he was not in need of specific deterrence. It is also to be observed, as this court has before, that the notion that, as a general proposition, an aider and abettor would be expected to receive a lesser penalty is one which must be approached with considerable circumspection.[15]

36 In those circumstances, it strikes me that the difference between 10 months and 30 months is so disproportionate as to be beyond the bounds of parity and thus to result in a total effective sentence which is manifestly excessive. If so, the sentence discretion is re-opened. In those circumstances, it is unnecessary to determine whether the excessiveness of the sentence is due to an element of double punishment for the offence of intentionally causing injury, although I suspect that is the case.

37 The maximum penalty for the offence of aggravated burglary is 25 years' imprisonment[16] and that reflects the grave seriousness with which the offence is regarded and reviled. But in terms of nature and gravity of offending, I put the subject offence in the lower half of the scale. Certainly, it was serious; because, among other reasons, the entry was effected with intent to assault. The applicant was in an aggressive frame of mind when he left the premises earlier in the evening. He returned with violent intent. He "warmed up" on the neighbours' door. There is substance in the Crown's contention that the offence of breaking and entering for the purposes of effecting an assault can only be viewed as serious. But, given the circumstance which preceded it, it is in my view still to be regarded as a fair way from the most serious instances of aggravated burglary which come before this court.

38 Moreover and more importantly, as the judge observed in his sentencing remarks, the applicant was a relatively young offender. He also came from a respectable family and since leaving school he had been hard at work at a number of jobs. Regrettably, he had some ten prior convictions arising out of five court appearances between May 1996 and April 2004, and they included burglary, thefts and drugs as well as assaulting a police officer and causing wilful damage. Despite being dealt with leniently in the past, by way of fines, a community based order and an intensive correction order, he had failed to avail himself of the opportunities which those dispositions had afforded him. But his offending was due largely to the effects of alcohol (to which he had taken in a big way while working as a shearer) and as the judge also found, when the applicant was not drinking, he was a respectable hardworking young man in whose favour a number of witnesses (including his employer) spoke highly. Further, since the commission of the offences, the applicant had taken large steps to turn his life around. He had obtained another steady job as a shelf stacker at a supermarket in Sale and he had found accommodation for himself and his young female partner for whom he took financial responsibility. A report tendered on the plea showed that he had severely curtailed his drinking, and other evidence showed that he no longer associated with elements who had previously led him into trouble. It followed, as the judge said, that the applicant had already achieved a large measure of rehabilitation and that specific deterrence did not loom large.

39 Plainly enough, one of the major considerations in sentencing for crimes of this kind is general deterrence. Aggravated burglary, especially aggravated burglary of a person's home, is an intolerable offence which strikes at the safety and sense of security of the community. Other things being equal, therefore, this court would be bound to impose a sentence which sends a clear message that those who commit offences of the kind will be sternly punished. But sometimes community protection is best achieved via the path of effective rehabilitation and so, in the case of young offenders, rehabilitation is usually the primary consideration. Moreover, where, as here, there has been a substantial period of delay since the commissi on of the offence and a young offender has in the meantime taken significant steps towards effective rehabilitation, one must also take care to avoid the imposition of a sentence that may prejudice further improvement.

40 With respect, I see no reason to disagree with the individual sentences which the judge imposed on Counts 1, 3 and 5. But balancing the sentencing considerations to which I have referred, and bearing in mind current sentencing practices,[17] I consider that the sentence imposed on Count 2 should be reduced to 18 months' imprisonment.

41 In the result, I would re-sentence the applicant as follows: on Count 1 (the first count of criminal damage) to 14 days imprisonment; on Count 2 (the count of aggravated burglary) to 18 months' imprisonment; on Count 3 (the count of intentionally causing serious injury) to 12 months' imprisonment; and on Count 5 (the second count of criminal damage) to two months' imprisonment. I would order that six months' of the sentence imposed on Count 3 and the whole of the sentence**

imposed on Count 5 be served cumulatively on the sentence imposed on Count 2 and on each other, thereby making for a total effective sentence of 26 months' imprisonment. I would further order that the applicant serve not less than 14 months' imprisonment before being eligible for parole.

42 I agree with Nettle JA and Kaye AJA, for the reasons which their Honours give, that the application for leave to appeal against conviction should be dismissed. I agree with Nettle JA, for the reasons which his Honour gives, that the application for leave to appeal against sentence should be granted, the appeal allowed, and the applicant re-sentenced as his Honour proposes.

**43 I have had the advantage of reading in draft the judgment of Nettle JA. For the reasons given by his Honour, I agree that the application for leave to appeal against conviction should be dismissed, and that the application for leave to appeal against sentence should be allowed. I also agree with the sentences proposed by his Honour.

44 The issue of the intention of the applicant to enter the premises of the victim was hardly a live issue at the trial. In the circumstances of the case, namely, a forced entry, in the dead of night without prior warning, into a darkened house, and with violent intent, it is difficult to conceive that it was possible that the applicant might have known or believed that he had permission to make the entry which he did. At the trial, no doubt for good reason, the applicant's counsel barely broached the issue in cross examination. Nevertheless, it appears that in her preliminary opening counsel did foreshadow the issue as a live issue. Furthermore, the applicant's intention to trespass on the premises was the subject of final address by both the prosecutor and defence counsel. The evidentiary basis for the issue was so faint as to**

be almost indistinct, but, nonetheless, there was some basis for it. In those circumstances, in my view, the issue was sufficiently raised that it became a matter for the jury, as the judges of the facts, to determine it. Accordingly, it was the obligation of the trial judge to give the jury directions on it. His Honour's failure to do so constituted a misdirection to the jury.

45 I further agree that the proviso to s 568(1) of the Crimes Act 1958 applies. Indeed this is a strong, if not compelling, case for the application of the proviso. The issue which was the subject of the misdirection did not involve any question of credit. The question of the applicant's intention to trespass on the victim's premises was wholly a matter of inference. On any view, the only reasonable inference is that the applicant intended to enter the premises as a trespasser, that is, he did not hold any belief that he had permission to do so. On the facts of the case there is no possible rational hypothesis to the contrary. It follows that if the jury had been properly instructed as to the requisite intention to trespass, there is no realistic basis upon which the jury might have acquitted the applicant. Accordingly, the proviso to s 568(1) should apply.

[1] The judge expressed the order in slightly different terms but it is plain from the context that this is what his Honour intended.

[2] [2004] VSCA 189; (2004) 10 VR 199.

[3] For the purposes of the law relating to burglary.

[4] [1983] HCA 18; (1983) 153 CLR 338.

[5] [2004] VSCA 189; (2004) 10 VR 199.

[6] Cf R v Spero [2006] VSCA 58, [43] et seq (Redlich JA).

[8] [2005] HCA 74; (2005) 80 ALJR 329, 333 [19]; see also R v MG [2006] VSCA 264, [7] (Ashley JA).

[9] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 317 [46].

[10] [2005] HCA 81; (2005) 224 CLR 300, 317 [46].

[11] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ); Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202, 212 [23] (Gaudron, Gummow, Kirby and Hayne JJ).

[13] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 524-525 (Barwick, CJ); The Queen v Storey [1978] HCA 39; (1978) 140 CLR 364, 376 (Barwick, CJ); Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 630 [116]-[120] (McHugh J); R v AJS [2005] VSCA 288; (2005) 12 VR 563, 569 [28]-[31].

[14] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41].

[15] DPP v SJK [2002] VSCA 131, [47]; aff'd on appeal in GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198, 209 [23]; and see also The Queen v Johns [1980] HCA 3; (1980) 143 CLR 108, 117 (Stephen J); R v KCF [2006] VSCA 270.

[16] Crimes Act 1958, s 77(2).

[17] The August 2006 Sentencing Advisory Council Sentencing Snapshot for aggravated burglary in higher courts of Victoria showed that individual sentences of imprisonment for aggravated burglary ranged from three months' to seven years; that the individual sentence median term of imprisonment was two years; and that the most common individual sentence term of imprisonment was one year. Total effective sentences ranged from three months to ten years, with a median of two years and nine months. The most common total effective sentence was two years.