R v Lowe [2009] VSCA 268

2 On 29 August 2008 the appellant was sentenced to 3 years' imprisonment on count 1 and 9 months' imprisonment on count 2. It was directed that 4 months of the sentence imposed on count 2 be served cumulatively on count 1, with the consequence that the appellant was required to serve a total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 21 months (the non-parole period being approximately 55% of the head sentence). Leave having been granted pursuant to s 582 of the Crimes Act 1958 (Vic) he now appeals against the sentences imposed.

3 Under cover of Grounds 2 and 3, which are interrelated, the appellant submits that the sentencing judge fell into error by taking into account certain facts, as aggravating circumstances of the offending conduct which were not included in the statement of 'undisputed facts' tendered during the Crown opening ('the undisputed facts'). Under cover of Ground 1 the appellant further submits that the sentences imposed are each manifestly excessive. [2]

4 The offences occurred when the appellant attended a residential property with the intention of confronting one of the complainants, Mr White. Mr White was known to the appellant. Mr White's sister, Andre, had been the appellant's partner for some three years prior to the offences. They had all been good friends until a falling out had occurred over premises which they had previously agreed to rent.

5 As there is some controversy on the appeal as to the facts and circumstances of the offending it is necessary to set out the statement of undisputed facts:

On Saturday the 29th of December 2007 at about 3:30pm, in the afternoon Hodgson was asleep on the floor of the lounge room in front of a fan and White was in the bathroom when the prisoner arrived at their home. After parking his vehicle in the driveway behind a Ford station wagon belonging to White he opened the gate at the side of the house with sufficient force to attract White's attention before entering the house. The prisoner was in possession of a claw hammer and finding Hodgson to sleep [sic] on the floor he woke her by nudging her in the back. Upon waking Hodgson saw the prisoner standing over her with a hammer demanding to know the whereabouts of White. When he was informed by Hodgson that she did not know where he was he then began a systematic search of the house.

From the bathroom White heard the prisoner calling out "Where are you?" and caught a glimpse of him moving about the house carrying the hammer. He waited in the bathroom until it was safe to leave it and then went out of the house through a side door to a shed where he picked up a tyre iron for his own protection.

The prisoner became aware of White's presence by the noise he made when leaving the house and called out to him "Come here you little cunt!". White then ran towards the side gate where he saw the prisoner emerging from the house by the side door and running in his direction with the hammer raised above his head.

White ran approximately 30 metres down Kokoda Street when he turned to see that the prisoner had ceased chasing him and was walking back to his vehicle.

...

He continued to watch as the prisoner got into his vehicle and started the engine before reversing on to the roadway. The prisoner first pointed at White and then to his vehicle before accelerating quickly and colliding with the rear of the Ford station wagon parked in White's driveway. The impact caused damage to the station wagon ... as well as to the prisoner's vehicle... The prisoner again reversed his vehicle before driving away and calling out to White 'I'll be back'.

6 It was submitted on the plea that the appellant was intending to scare Mr White whom he believed was contemplating an improper relationship with a 14 year old girl. It was said on the appellant's behalf that he chose not to report these matters to the police as he was worried it would damage the reputation of the families involved. Counsel for the appellant called the father of the girl to testify at the plea. He said that he had indicated his concerns about Mr White's interest in his daughter to the appellant's partner Andre. It was after the appellant learned of this that he went to the complainants' premises with the object of scaring Mr White away from the girl. It was not clear from the evidence presented on the plea how or when exactly the appellant was informed of the allegation.

7 Following his arrest, the appellant initially denied that he had entered the premises and admitted only to an argument with Mr White. He said that the damage to Mr White's vehicle was caused when his own car slipped out of gear and rolled forward, colliding with the back of Mr White's car. Later, on the day of the committal, the appellant pleaded guilty to the offences charged.

8 The appellant was aged 40 at the date of sentencing. He was adopted at birth and attended primary and secondary schools on the Gold Coast. As was found by the sentencing judge, the appellant has been a 'self-reliant individual' and has been involved in labouring jobs and working in the motor trade. More recently, he appeared to have been active in various business ventures. Reference was made on the plea to involvement in a new timber harvesting business.

9 The appellant lived with his partner and has a one year old child. He is the sole breadwinner in his family. The appellant admitted to 34 prior convictions from 20 court appearances. He received a short prison sentence at one of those appearances. These offences were said, on the plea, to have flowed from a drug habit which resolved some time during 2003. The learned sentencing judge found that since 2003 the appellant had 'got [his] act together'. Since 2003, the appellant has committed a number of traffic related offences but has had no convictions for more serious offences since that time.

10 The learned sentencing judge was satisfied that the appellant's early plea of guilty indicated some remorse, for which he was entitled to a discount, although his Honour failed to make any clear finding as to the level of remorse shown by the appellant. In his reasons, the learned sentencing judge observed that as a consequence of the offending, the appellant is now excluded from family gatherings, and his young child is cut off from the child's grandmother. The judge considered that 'a sentence of imprisonment [would] weigh heavily' on the appellant and his family, the consequences of the offending having caused stress on the appellant's relationship and affecting his ability to provide for his family. His Honour found, further, that the appellant has 'reasonable prospects for rehabilitation' and therefore set what was intended to be a 'lower than usual non-parole period' of 21 months (that period being approximately 55% of the head sentence).

The sentencing judge's finding of premeditation

11 By way of Ground 2 it was submitted that the learned sentencing judge erred in having regard to aggravating circumstances which were not part of the undisputed facts, without giving the appellant an opportunity to make submissions as to those circumstances. Those aggravating circumstances comprised a text message sent by the appellant to Ms Hodgson, which his Honour considered to be evidence of premeditation. The relevant part of the reasons for sentence is as follows:

Your conduct bears high moral culpability. You had sent a text message to Ms Hodgson before the event which said, 'Tick tock'. There was thus an element of premeditation.[3]

12 That text message was not contained in the undisputed facts and was not referred to by counsel or the sentencing judge during the course of the plea hearing.

13 Premeditation is, as is well established, a circumstance of aggravation.[4] As with any other aggravating factor, it must be proven beyond reasonable doubt before being taken into account in a way adverse to the interests of an offender.[5] Counsel for the appellant submitted that the sentencing judge was obliged to draw attention to the text message and to the possibility of a finding that it evidenced a degree of premeditation which was an aggravating factor.[6]

14 The respondent referred the Court to R v Halden[7] which, it said, supported the proposition that material contained in the depositions might properly be relied upon by the sentencing judge. That proposition, standing alone, is uncontroversial. But as was pointed out during the hearing of the appeal that decision, nearly 30 years old, needs to be considered in its context.

15 Since that time the usual practice at a sentencing hearing has changed. Now, it is more likely for a plea hearing to be heard on the basis of an agreed statement of facts (or statement of undisputed facts as it was in the present case) rather than on facts that could be found in the depositional material. Accordingly, a sentencing judge will often be required to inform the parties and invite submissions, if he or she intends to 'go beyond' those facts which have been agreed or are not disputed between the parties. That obligation will be informed by the principles of procedural fairness.

16 In sentencing, the judge is not fettered by the facts upon which the parties rely.[8] The judge may seek further facts from either party or may indicate that he or she intends to rely upon facts additional to those which the parties have put the court so long as it is done in accordance with ordinary legal principles appropriate to a criminal trial.[9] This Court in R v Mielicki[10] endorsed the principles set out by Kirby P in R v Chow where his Honour said:

The judge may go behind the agreement of the parties as to the approach which they urge should be taken to the facts relevant to sentencing. But in that event, the judge must be careful to avoid the kind of procedural unfairness which is inherent in accepting a plea of guilty but then proceeding to impose a sentence upon a different factual substratum than that required by the essential ingredients of the offence and agreed between the parties when the plea was taken.[11]

17 In addition to such procedural unfairness, the Court in Mielicki adverted to the further requirement that the offender be alerted by the judge to any proposed reliance upon facts - in that case contained in the depositional material - which went beyond the ambit of any agreed factual statement. That would enable any such material to be disputed or, indeed, would have given the applicant the opportunity to consider an application to withdraw his plea of guilty.[12] In R v Duong[13] the Court observed:

Procedural fairness requires that if a judge proposes to depart from an agreed statement of facts which has formed the basis of a guilty plea, and to rely instead upon facts which are not contained in, or to be inferred from, the agreed facts, the judge should inform the parties in order that they may be given a sufficient opportunity to challenge the material on which the judge is proposing to rely and, if appropriate, to withdraw the plea.

18 But as Mielicki and Duong illustrate, the judge is only required to make a disclosure of facts of sufficient significance - not every minor change he or she intends to make to the agreed facts. The relevant test in each case is whether fairness dictates such a disclosure before sentence is passed.

19 The gravamen of the appellant's complaint was that the text message was used as the basis for a finding of a degree of premeditation, beyond that which could be reasonably inferred from the undisputed facts. Some premeditation was open on the facts. On the appellant's own account, he had armed himself with a hammer and went to the complainants' house with the purpose of confronting Mr White over allegations of improper conduct. Such evidence disclosed some degree of premeditation. The intent necessary for the offence of aggravated burglary must exist at the time of entry to the premises. In most cases that intent will have been formed sometime before the commission of the actus reus of the offence.

20 We accept the submission of the appellant, however, that his Honour viewed the content of the text message as demonstrating a greater degree of premeditation, which aggravated his culpability. It is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of a fair opportunity to a party to correct or contradict any prejudicial or adverse finding which the judge may make unless the risk necessarily inheres in the issues to be decided.[14] In this case the risk that such a view might be taken was not inherent in the undisputed facts. Nor was the question of premeditation raised by either counsel in their addresses.

21 By not forewarning counsel that he might take the view that more serious premeditation was disclosed by the text message, the sentencing judge denied the appellant the opportunity to make submissions or tender evidence bearing upon whether the premeditation was more serious than cases of aggravated burglary where the premises are entered with an intention to assault a person there. It is not to the point whether this evidence was 'material', in the sense of showing that it affected the sentencing discretion, as was contended by the Crown. Procedural fairness must be upheld for its own sake, as well as for its consequences because 'the experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge'. The concern is with the fairness of the procedure adopted rather than with the fairness of the outcome; with the decision-making process not the decision.[15] The error was constituted by the failure to afford procedural fairness to the appellant, who was given no opportunity to respond to the sentencing judge's finding. In any event the Crown submission is unsustainable as the error was not 'immaterial'. Rather, the sentencing judge's specific identification of the text message as an aggravating factor, evidencing 'high moral culpability' indicated that he considered the matter to be a significant consideration in the exercise of the sentencing discretion.

23 Under cover of Ground 3 it is said that the learned sentencing judge erred by making a number of findings of fact which went outside the undisputed facts. Counsel for the appellant referred the Court to the following parts of the reasons for sentence:

On that afternoon Ms Hodgson, who was eight months pregnant at the time, was laying on the floor in the lounge room asleep. You pulled up in your four-wheel drive, opened a gate and entered the lounge room. You were standing over Ms Hodgson with a hammer raised and nudged her to wake her up and demanded to know where White was.

...

Aggravated burglary is a very serious offence as evidenced by its maximum penalty. This offence was a serious example of the crime. You invaded the home of White and Ms Hodgson who were, given your relationship with White's sister, effectively part of your extended family. You did so armed with a weapon. You then acted aggressively in the house by your conduct with Ms Hodgson and then towards White. (bolded passage indicates emphasis during submissions)

24 It was said these remarks contained findings of fact which went beyond the undisputed facts, and about which the appellant had no opportunity to make submissions. The first basis is the statement that the hammer was 'raised'. The second, is the impression that the appellant acted 'aggressively towards Ms Hodgson'. There is nothing to either of these submissions. To deal with the latter point first, we are unpersuaded that an intruder holding a claw hammer, demanding to know the location of a person (with an apparent intention to confront them) could be perceived as anything less than aggressive, at least in a general sense. The submission that the sentencing judge should have, as a matter of procedural fairness, invited argument on this cannot be sustained.

25 Secondly, while there may, depending on the circumstances, be a relevant difference between raising a hammer and holding a hammer (in the context of making a request or demand), that difference does not arise in these circumstances. A finding that the appellant threatened Ms Hodgson with personal injury to herself would be a considerable aggravating factor. But his Honour made no such finding. Rather, the sentencing judge correctly described the scene that confronted her when she awoke. Ms Hodgson was pregnant and lying on the floor in her home. The weapon carried by the appellant was visible and held somewhere above her head. We are not satisfied that he made the error contended for by the appellant.

26 Next the appellant submitted that the sentencing judge erred by considering that the appellant had acted as a 'vigilante'. Although nothing turns on the point, this term was not used by his Honour. The sentencing judge found that the appellant intended to scare, not injure Mr White. His objective was to prevent Mr White from committing a criminal offence with a 14 year old girl. Counsel for the appellant, at some length on the plea had sought to mitigate the appellant's offending by emphasising that he was trying to 'scare this man straight'. His Honour sentenced the appellant on the basis that he had decided to take the law into his own hands. In doing so his Honour was right to reject the contention that such a motive might, to any extent, mitigate the offending conduct of the appellant.

27 The vigilante aspect of an offender's conduct may in some cases be a significant aggravating factor.[16] His Honour evidently so viewed it. The experience of the law is that such intentions, particularly where weapons are involved, are a significant danger to public safety and carry a serious risk of escalation or unintended consequences. The courts will not look with leniency upon those who attempt to take the law into their own hands. In the present case the appellant's intention to 'go outside the law' and 'scare straight' the male complainant, carried a significant risk of injury or unintended consequences. That said, any invasion of the sanctity of a home with an intention to assault an occupant carries significant risks with it, which is one of the primary reasons why aggravated burglary is viewed as such a serious offence. The motive of the appellant to take the law into his own hands, if it can be so described, added little to the intent present in offences of aggravated burglary where the premises are entered with an intention to assault an occupant. And unlike many of the cases of aggravated burglary that come before this Court, it was not the appellant's intention to injure the occupants or to steal from them.

28 A vigilante is usually a person who sets out to punish a law-breaker personally rather than relying on legal authorities to do so. The appellant's objective was not to punish or physically harm the complainant, Mr White. His motive was to dissuade one of the complainants from committing a criminal offence. He chose to do so by the unlawful and extreme means of trespassing into the complainants' home while armed with the intent to scare him. Such a motive did not make the offence of aggravated burglary more serious than it would otherwise have been. Accordingly we do not consider that the appellant's motive warranted the additional weight which the sentencing judge attached to it.

29 Finally, it was suggested that the learned sentencing judge erred by limiting himself to considering the appellant's previous generosity towards the complainants as a matter relevant only to 'background and context'. His Honour said:

... Your counsel sought to put your conduct in the context that you had been extremely generous to Mr White and in particular to Ms Hodgson. You had provided employment to White ferrying vehicles to or from Brisbane and Alice Springs. He was involved in an accident in Alice Springs and you had assisted Ms Hodgson by driving her up there and paying for the airfare back. You had also put up the bond on the house where the offences took place.

While this material provides background and context for your offending it cannot excuse your conduct in seeking to take the law into your own hands and to choose not to take the matter to the authorities.

30 The appellant's support of the complainants over time was part of the appellant's antecedents. The instinctive synthesis required each of these factors to be given its proper weight. Counsel for the appellant submitted that this passage of the sentencing remarks discloses that the sentencing judge treated the appellant's generosity as cancelled out by the offending conduct. We are not persuaded however that his Honour failed to take these matters into account.

31 As we have found that Ground 2 and part of Ground 3 have been made out the sentencing discretion must be re-opened. It is therefore not necessary for us to say anything in relation to Ground 1.

32 Counsel for the appellant accepted that the seriousness of the offence was such that a term of imprisonment was within range. Counsel did, however, adopt the submission that had been made on the plea that a suspended term of imprisonment was appropriate.[17] Further, it was submitted that a lower total effective sentence should be imposed having regard to a number of mitigating factors including the appellant's plea of guilty at the earliest possible stage, the appellant's reasonable prospects for rehabilitation and the fact that the appellant had no prior convictions for offences of violence.

33 Counsel further submitted that the sentence of 9 months' imprisonment on the count of criminal damage was, in the circumstances, very substantial. The adequacy of that sentence, furthermore, fell to be considered in light of orders for compensation made by the sentencing judge, something which did not appear to have been reflected in the length of the sentence.

34 In response, counsel for the Crown referred to DPP v El Hajje,[18] in which the Court undertook some analysis of current sentencing practices for the offence of aggravated burglary and said:

[31] The Director's submission was accompanied by an extract from the Sentencing Manual published by the Judicial College of Victoria, showing that in the years 2003-04 to 2007-08, the average custodial sentence for aggravated burglary ranged from 1 year 11 months to 2 years 5 months. The median custodial sentence ranged between 1 year 6 months and 2 years 6 months. The highest sentence imposed on a single count of aggravated burglary during that 5 year period was 7 years.[19]

35 Counsel for the Crown, while acknowledging the limitations of sentencing statistics, submitted that such statistics demonstrated that the sentence imposed was not outside the applicable range and supported the view that the sentence imposed was already towards the lower end of the range. Counsel urged the Court to re-sentence the appellant to the same total effective sentence. He submitted that the offending was serious, the appellant, while armed with a claw hammer, having entered the premises in the expectation that it was occupied.

36 The conduct of the appellant, while serious, did not in our view warrant the sentence imposed, substantially for the reasons advanced by counsel for the appellant. We would re-sentence the appellant as follows:

37 The sentence of three months' imprisonment takes account of the fact that the appellant will be required to fully compensate Mr White for damaging his car. We would order that one month of the sentence on count 2 be served cumulatively on the sentence imposed on count 1 making a total effective sentence of two years and nine months. We would further order that 15 months of that sentence be suspended for a period of two years. We state pursuant to s 6AAA of the Sentencing Act 19991 that but for the plea of guilty we would have imposed a total effective sentence of 3 years and 9 months and a non-parole period of 2 years and 6 months.

[1] The relevant maximum penalties are 25 years' imprisonment for aggravated burglary and 10 years' imprisonment for criminal damage.

[3] R v Lowe (Unreported, County Court of Victoria, Judge Murphy, 29 August 2008), [10].

[4] R v Leigh Whitlow [2009] VSCA 103.

[5] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

[6] R v Li [1998] 1 VR 637, 643; R v Grillo [2003] VSCA 142, [16].

[7] (1983) 9 A Crim R 30.

[8] Malvaso v R [1989] HCA 58; (1989) 168 CLR 227, 233; [1989] HCA 58; 43 A Crim R 451, 455.

[9] Chow v DPP (1992) 28 NSWLR 593.

[10] (1994) 73 A Crim R 72. See also R v Alexandridis [2008] VSCA 126.

[11] Chow v DPP (1992) 28 NSWLR 593, 607.

[12] (1994) 73 A Crim R 72, 79.

[13] (1998) 4 VR 68, 77.

[14] Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 192.

[16] DPP v Whiteside [2000] VSCA 142; (2000) 1 VR 331 [23], [24].

[17] Section 27 Sentencing Act 1991 (Vic). Counsel referred on the plea to Leaman Leham v Business Licensing Authority (Occupational and Business Regulation) [2006] VCAT 737 and DPP v Oversby [2004] VSCA 208 where offenders were sentenced to terms of imprisonment for burglary and aggravated burglary and had received a suspended sentence.

[18] [2009] VSCA 160.