R v Siggins [2002] VSCA 97

2. I will ask Eames, J.A. to deliver the first judgment.

6. On 24 October 2001 the applicant appeared at the County Court, Morwell and pleaded guilty to one count of intentionally damaging property contrary to s.197(1) of the Crimes Act 1958, one count of theft contrary to s.74 of the Act and one count of aggravated burglary contrary to s.77(1) of the Act. The maximum penalty on the first two counts is ten years' imprisonment and for the last count is 25 years' imprisonment.

9. The applicant who is aged 29 years, and was 27 at the time of the offences, admitted 141 prior convictions from 15 appearances between 1990 and 2000, including six convictions for burglary and 89 convictions for theft.

12. On 28 November 2001 a Judge of the County Court sentenced the applicant to 12 months' imprisonment on count 1, to 18 months' imprisonment on count 2 and to four years' imprisonment on count 3. The learned sentencing judge ordered that 10 months of the sentence on count 1 be served concurrently with the sentence on count 3, and that 12 months of the sentence on count 2 be served concurrently with the sentence on count 3[1]. The total effective sentence was four years and eight months with a minimum non-parole period of two years and six months. His Honour also ordered that the applicant make restitution to victims, for damaged property, in the total sum of $20,304.

15. The applicant seeks leave to appeal on two grounds (as amended):

(1) That when regard is had to the penalty ultimately imposed, the learned sentencing judge erred in failing to accord the following features of mitigation sufficient weight either alone or in combination:

(a) the remorse evidenced by the applicant;

(b) the applicant's assistance to the investigating authorities and his undertaking to give evidence if required at the trial of his co-accused;

(c) the employment prospects of the applicant;

(d) the family circumstances of the applicant as they related to the burden he would suffer while in prison; and

(e) the medical circumstances of the applicant as they related to the burden he would suffer while in prison.

(2) That in all the circumstances of the case the sentence imposed on count 3 and the non-parole period were manifestly excessive.

An application for leave to appeal was refused pursuant to s.582 of the Crimes Act by Phillips, J.A. on 8 March 2002.

21. Count 1 arose on 17 December 2000 when the applicant, after drinking heavily, drove with a friend to a nearby lake and when speeding down a boat-ramp collided with a motor vehicle and trailer parked nearby. Having once collided with the vehicle the applicant became enraged, no doubt at his own stupidity, and then accelerated into the vehicle again and did so repeatedly causing substantial damage not only to that vehicle and trailer but to his own vehicle as well. The applicant said that he was so drunk that he had little subsequent recollection of these events.

24. Count 2 relates to events occurring between 25 December 2000 and 1 January 2001. The applicant and a friend, one Malone, had been drinking with a third person, one Lazaris. Lazaris features in the events surrounding both counts 2 and 3, but has not yet faced trial on charges arising out of those events. As I will discuss, the applicant has undertaken to give evidence against Lazaris and the latter's criminal responsibility, if any, has not yet been determined by a court. Nonetheless, the learned sentencing judge, as he was entitled to do, made findings of fact as to the role of Lazaris for the purpose of considering sentence of the applicant and his co-accused Malone, and the Crown does not challenge those findings of fact on sentencing in this case.

27. To return to the events of count 2, later in the evening those who had been at the applicant's house drove to the home of the applicant's own father, and finding that he was not at the home drove away with his boat and trailer. The boat was first taken to Malone's home and then later removed to Lazaris's premises. Lazaris proceeded to strip and disguise the boat, which he subsequently sold. Although the larceny of the boat was not the applicant's idea he took advantage of the theft, by removing its engine and installing it in his own boat. In doing so, he repainted the engine so as to disguise it.

30. Count 3 occurred on 27 March 2001 when Lazaris and Malone joined the applicant at his home. The applicant had been drinking prior to their arrival. A fourth person was with Lazaris. Lazaris told the applicant a story about how he had sold a Commodore motor vehicle to one Jenny Rowley, but she had failed to pay the due sum and he wanted the vehicle back. Rowley had been in a relationship with Lazaris which had come to an end. Lazaris told the applicant that the police had refused to intervene to restore the vehicle to him. Lazaris said he had attempted to retrieve the vehicle but had been rebuffed when he attended the flat at which Rowley resided and that there were violent people on the premises, drug users, who might seek to prevent him repossessing the car.

33. The applicant, and others, were affected by alcohol on this evening and in that state they agreed to accompany Lazaris to the home of Rowley to recover the vehicle. In doing so they all armed themselves, the applicant taking a fishing gaff, Malone a baseball bat and Lazaris a large screwdriver.

36. The applicant and the others attended the property at Highland Street, Moe, and Lazaris attempted to open the car door with the screwdriver. The male occupant of the house, one Pearson, having seen what was occurring, opened the security door and called out to the interlopers. Malone then rushed to the front door screaming obscene abuse to the effect that they wanted the car and he added "I'm going to fucking kill ya". As he did so, Malone dropped the baseball bat near the door then grabbed the security door and forced it open as Pearson tried to close it. The applicant then ran to assist Malone and together they forced the door open, knocking the male occupant backwards into the house and causing him to bump into Rowley's three-year-old son. The three-year-old and two-year-old sons were standing with their mother close to the door. When the male occupant fell to the ground Malone moved on top of him, holding his throat.

39. In the statement of facts it is asserted that when Malone held down Pearson the applicant pointed the fishing gaff in the direction of the left side of Pearson's head and made a threat to kill him. In his record of interview the applicant strongly denied that he had employed the fishing gaff in that manner. He said that he had stood outside the door with the weapon and had pointed it in the direction of the male occupant. However, in a separate written statement to police, dated 23 May 2001, the applicant said that when Pearson had fallen to the ground inside the door of the flat the applicant, to use his own words, "stood over Sean and the bloke on the ground just in case there was some other blokes in the flat like George said there would be". The applicant said that he then noticed children were in the flat, contrary to what he had been told to expect by Lazaris, and then, upon finding what proved to be the car keys just outside the flat, he left the doorway area and went to the car. Having opened the car door he went back to the flat, placed the gaff outside the doorway, and tried to push Malone off Pearson, who he was still holding on the floor. When they departed, so the applicant told police, he remonstrated with Lazaris about the manner in which they had been misled by him as to what would transpire at the flat, in particular about the fact that, contrary to what he had assured them, Rowley and the children were in the flat.

42. Given the fact that the applicant denied that he had at any time intended to employ violence against the occupants, the dispute on the question of the use of the fishing gaff was important and his Honour may be thought to have found in the applicant's favour on that issue, because his Honour found that the applicant had remained at the door when armed with the fishing gaff. As Mr Gyorffy pointed out, however, had his Honour found that the gaff had been used in a manner which constituted an assault then he would not have been entitled to take that matter into account on sentence because it had not been alleged in the presentment: see R. v. Newman and Turnbull[2]. In this case, however, the prosecutor very fairly conceded that it was open on the evidence to conclude that the applicant had never intended that a weapon should be used against any occupant, and his Honour appears to have also reached that conclusion.

45. His Honour found, however, that many threats had been made and it must be taken that that included threats from the applicant which were intended to intimidate the occupants. His Honour held that Lazaris had acted in a threatening and violent manner towards Rowley. His Honour quite rightly described the incident as a most unpleasant and nasty set of circumstances. It came to an end after the applicant found the set of keys to the car, whereupon the interlopers departed, with the applicant and Malone walking backwards down the driveway and telling the male occupant that "you don't know who you're fucking with" and making various other threats before being driven away from the scene.

48. The applicant was interviewed by the police on 28 March 2001 and made full admissions of his involvement in all three matters.

51. As to count 1, the damage to the motor vehicle and boat trailer, his only explanation was alcohol. He said he would have consumed at least a slab of beer himself prior to driving and he did not know why he repeatedly smashed his own vehicle into that of the other person.

54. As to count 2, he said he could not exactly recall stealing his father's boat, because of his extreme intoxication, but he agreed that he took the motor from the stolen boat. The applicant told the police that he had not seen his father for years and did not get on with him. He said that the next day, after he sobered up, he was pretty disgusted with himself for getting involved in the matter. The applicant assisted the police in trying to recover parts for the boat and to restore it to its original state.

57. As to count 3, his only explanation for the aggravated burglary was alcohol. However, he said that he believed what he had been told by Lazaris, namely, that the victim had, in effect, stolen the car by not paying for it. He said he had taken the fishing gaff with him so as to "look scary", because he feared that there would be people in the flat who might be aggressive. He agreed with the interviewing police that having the gaff did intimidate the persons in the flat, and also agreed that there had been a fair amount of hysteria in the flat. The applicant denied to the police that he had used words to the effect that he would kill the occupants.

60. Aggravated burglary is an extremely serious offence which would normally attract a substantial sentence of imprisonment. There are, however, some unusual features in this case, both factors personal to the applicant and in the circumstances of the offence. It is of particular importance in this case that the learned prosecutor, in making his very helpful and extremely fair submissions, acknowledged that each of the factors which counsel for the applicant had identified as mitigating the conduct of the applicant was indeed applicable in this case, and that it was open to the Court to conclude that in the special circumstances of this case the head sentence on count 3 and non-parole period did constitute manifest excess.

63. In particular, Mr Gyorffy noted that the applicant's contention that he had been misled by Lazaris had weight, and his contention that he had never intended that anyone might be harmed was supported by Pearson's own statement to police where he said that the applicant had yelled at Malone to get off Pearson and not to hit him. Mr Gyorffy noted, too, that the applicant had no history of violence despite his many convictions for other offences, and had many personal factors in his life which militated in his favour.

66. I do feel a good deal of sympathy for the applicant. He has had to make his way in life with many significant disadvantages. It is very much to his credit that he has achieved much, having a loving and long-standing relationship with his partner and their three children, and for the two years before he was sentenced had built a successful wood-cutting business which not only provided for himself but enabled him to employ two others. It is tragic that his conduct on the occasions which gave rise to these charges put all of that achievement at risk, and ended his business, at least while he is imprisoned. Alcohol is one explanation for his conduct but the behaviour in which he engaged during the home invasion which constitutes count 3 is explained in part not just by reference to alcohol but also to the malevolent influence of the man Lazaris whose idea it was and who alone stood to gain from the enterprise. It seems not to be disputed that, as the applicant told the police when interviewed, Lazaris lied to him in order to gain his involvement in a situation in which he would not have engaged had Lazaris been frank with the applicant.

69. The influence of Lazaris, the lies he told and the effect of alcohol all led to the applicant engaging in conduct of a very serious kind, which had the potential to have occasioned serious injury to others. The applicant became involved although he had never previously been involved in violence. Character letters tendered on his behalf spoke with simple eloquence of his non-violent disposition and capacity for good deeds and hard work.

72. In his report which was tendered on the applicant's behalf forensic psychologist Mr David Bruce said of him that he is naïve, and has a low cognitive potential, and had limited success at school. The applicant had difficulties as a child and a poor relationship with his father, who was violent towards him, and with whom he had no contact since the age of 22. The applicant ran away from home at the age of 16, together with his present partner. He was illiterate until imprisoned on an earlier occasion and gained sufficient literacy to conduct his business. Mr Bruce said that the applicant probably suffers a specific cognitive disability, possibly attention deficit disorder. In addition, he suffers the condition of otosclerosis in the right ear. That means that he suffers almost total deafness in that ear and he also has only 70% hearing in the other ear. Mr Bruce said that the applicant had been made to feel useless and inferior at school and throughout his life, and Mr Bruce said that children with the applicant's disabilities are desperate to feel wanted and accepted and they are "almost invariably led by others who are disposed to 'use' them". He said that such people are prone to engage in criminal conduct in response to an overwhelming need to be accepted by a group with which they can identify.

75. All of those factors played a part in the applicant's foolish decision to help Lazaris recover what the applicant thought was his car. The applicant said that he thought Lazaris had the keys, and, thus, that there might have been no cause for any confrontation with the occupants of the house, and the learned sentencing judge accepted that violence was not a necessary part of the scheme. The applicant told the police that he did not go there to hurt anyone, and that he would not have participated if they were intending to hurt anybody. As I have said, the Crown concedes that those contentions are supported by the evidence.

78. Nonetheless, the applicant went armed, and quickly became involved, employing his weapon to terrify the occupants of the house, who were indeed terrified, especially the small children who were present. Even if that was not an activity which the applicant anticipated, and even if the presence of children was not expected, the judge rightly regarded the behaviour as very serious.

81. The report of Mr Bruce is supported by a report from a psychiatrist, Dr Carol Newlands, who emphasised the applicant's significant alcohol problems. She said that the applicant reported both renal and hepatic damage. The applicant would often commence drinking at breakfast time. He had attempted alcohol counselling programs but had not completed them. It seems to me essential that the applicant does persist with such courses while in prison, and after his release. It is clear that but for alcohol misuse he has a capacity to enjoy a very productive, crime-free life as a respected member of the community.

84. His capacity for stability is shown by the facts that the applicant has been with his partner for 14 years and has three children, and had worked long, hard hours in his business. Whilst doing so he gained a number of licences and certificates for the job. The applicant recently purchased a home, and has undertaken obligations under a mortgage, which are no doubt now a burden. This all redounds to the applicant's credit, and the learned sentencing judge gave credit for those efforts. The applicant recognised just how much he had placed in jeopardy, by his conduct. After these charges, and prior to sentencing, he dissociated himself from those whose influence had brought him into criminal behaviour.

87. The applicant's counsel, Mr Kowalski, in his thorough and helpful submissions, submitted that whilst the relevant mitigating factors were all taken into account by the learned sentencing judge the severity of the sentence demonstrated error because those factors could not have been given appropriate weight. Alternatively, the sentence on count 3, and the non-parole period, he submitted, demonstrated manifest excess.

90. Among the factors which were the subject of particular attention was the applicant's plea of guilty and the fact that he was providing assistance to the authorities by undertaking to give evidence against the co-offender Lazaris, who has pleaded not guilty to charges arising out of these incidents.

93. His Honour said that he gave the applicant credit for pleading guilty at the earliest opportunity, and would impose a lesser sentence on that account. He said, too, that he gave the applicant credit for being totally co-operative with investigating police and for assisting their investigations, and for offering continued assistance in the prosecution of the alleged offender Lazaris. He accepted that the applicant was genuinely remorseful, not merely as indicated by his plea but as noted in reports and references tendered to the court.

96. The sentencing of the applicant presented a difficult task for the learned sentencing judge. His Honour recognised the many factors that weighed in his favour, but was faced with the applicant's appalling record, especially for offences of dishonesty. He noted that the applicant had received six suspended sentences in the past and had breached three of them. The applicant received three intensive correction orders, with some problems in compliance on two occasions. On 3 July 1995 the applicant was sentenced to imprisonment for an effective eight months, on account of breaches of two suspended sentences and one intensive correction order. On the same day the applicant was sentenced to four months, concurrent, for new offences, including one count of handling stolen goods. That is the applicant's only occasion of actual imprisonment and he used it to gain the benefit, at least, of tackling his illiteracy.

99. The applicant was last in court in November 1998 when he was sentenced to imprisonment for theft, for breach of a suspended sentence, and a drug possession offence, but all charges were made subject to a further suspended sentence. The applicant did not breach that order and thus had not re-offended in the period between November 1998 and the commission of these offences, a period of two years.

102. The incidence of events sometimes described as home invasions must be discouraged by the courts. It would only be in a rare case that such conduct would not result in a significant sentence of imprisonment. As serious as the circumstances here were, however, it is accepted by the Crown that they are not such as to bring this offending into the category of the more serious offences of the kind.

105. It is often said that the question whether a sentence is manifestly excessive does not admit of much discussion. It is either perceived to be so or it is not. In this case I hesitate to interfere with the sentence of the learned sentencing judge for a number of reasons. In the first place, his Honour gave very careful and thorough consideration to all relevant factors, and it is conceded by counsel for the applicant that his Honour identified and weighed every relevant factor and made appropriate findings of fact. Secondly, his Honour was sentencing offenders in an area of the State where he has the benefit of extensive experience in dealing with offenders.

Thirdly, the outcome which I propose may seem to some to constitute merely a minor tinkering with the sentence imposed, a course which this Court eschews, and one that sentencing judges are entitled to consider unhelpful to their own difficult task. It is, however, inevitable that any variation in the sentence cannot be more substantial than I propose, given the fact that the appeal relates only to the one sentence, and the non-parole period, and that the individual sentences on counts 1 and 2 and the cumulation orders are not challenged.

109. It is clear that the applicant has been the recipient of leniency from courts on a number of occasions. This is perhaps another instance of mercy being offered to him by a court. He could have no confidence that it would be repeated.

112. Notwithstanding all the considerations against altering this sentence, which I have discussed, I am drawn to conclude that, in the very special circumstances of this case, the contention has been made out that the head sentence on count 3, and the non-parole period, are manifestly excessive.

115. In my opinion, leave to appeal should be granted and the appeal should be allowed so as to substitute on count 3 a sentence of three years' imprisonment. I would not vary the effective periods of cumulation with the new sentence on count 3 of portion of the sentences on counts 1 and 2 which resulted from the orders made below, but I would vary the non-parole period by reducing that period from two years six months to one year and eight months.

127. Subject to anything counsel may say, the Court orders as follows:

The application for leave to appeal against sentence is granted.

The appeal is treated as instituted and heard instanter and allowed.

The sentence passed on the appellant in the County Court at Melbourne on 28 November 2001 is varied so as to substitute for the sentence imposed on count 3 a term of imprisonment for three years. The sentences imposed on counts 1 and 2 are confirmed.

It is directed that two months of the sentence imposed on count 1 and six months of that imposed on count 2 be served cumulatively upon each other and upon the sentence imposed on count 3, so that the total effective sentence is three years and eight months' imprisonment.

The Court fixes a period of one year and eight months as the period during which the appellant is not eligible to be released on parole.

The orders made in the County Court on 28 November 2001 for restoration, for disposal and pursuant to s.464ZF of the Crimes Act 1958 are confirmed.

The Court declares that the period of 205 days is to be reckoned as already served under the sentence imposed this day and directs that the making of this declaration and its details be noted in the records of the Court.

[1] Having regard to the terms of s.16(1) it would have been more appropriate that the learned sentencing judge direct that periods of the sentences on counts 1 and 2 be served cumulatively with the sentence on count 3, rather than to express the sentence in terms of portions of the sentence to be served concurrently, but the intention of his Honour as to the effective sentence is nonetheless clear.