Schaeffer v The Queen [2021] VSCA 171

1 The applicant pleaded guilty before a judge of the County Court to one charge of home invasion, two charges of theft, one charge of being a prohibited person in possession of a firearm, one charge of being a prohibited person in possession of an imitation firearm, one charge of cultivating a narcotic plant and one charge of possession of a drug of dependence. He also pleaded guilty to four summary charges. Following a plea presented on his behalf, he was sentenced to a total effective sentence of seven years and three months' imprisonment with a non-parole period of five years.

Prohibited person possess firearm [s 5 of the Firearms Act 1996]

1200 penalty units or imprisonment for 10 years

Home Invasion (Intent to Steal) [s 77A of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Theft [s 74 of the Crimes Act 1958]

Prohibited person possess an imitation firearm [s 5AB of the Control of Weapons Act 1990]

1200 penalty units or imprisonment for 10 years

Cultivate Narcotic Plant [s 72B of the Drugs, Poisons and Controlled Substances Act 1981]

Possess a drug of dependence [s 73 of the Drugs, Poisons and Controlled Substances Act 1981]

400 penalty units and/or imprisonment of 1 year

Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]

Possess cartridge ammunition without licence [s 124 of the Firearms Act 1996]

Unlicensed driving [s 18 of the Road Safety Act 1986]

Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: Total effective sentence 9 years 6 months Non-parole period 7 years 6 months

Other relevant orders: Disqualified from obtaining a driver's licence for 2 years; forfeiture

3 The applicant seeks leave to appeal against his sentence on the following two grounds:

Ground 1: The learned sentencing judge erred in failing to take into account the heightened utilitarian value of the applicant's guilty pleas due to the consequences of the COVID-19 pandemic; and the applicant's willingness to facilitate the course of justice indicated by his guilty pleas in these circumstances.

Ground 2: The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive having regard to all relevant matters, including the applicant's early guilty pleas, his disadvantaged background, the consequences of the COVID-19 pandemic, and current sentencing practices.

4 The home invasion, that was the subject of charge 2, was committed on 9 December 2019 in respect of a private home in Westmeadows. At that time the owners of the house, Claudio and Nazzerina Iulianella, owned and operated the Westmeadows IGA Supermarket. At about 4:00 am on the morning of the offence, Mr Iulianella left for work, leaving Mrs Iulianella alone in her house.

5 About one and a half hours later, the applicant and two other unknown males attended at the address and forced entry through the front door. They were each wearing black clothing and black balaclavas were covering their faces. Having entered the premises, they pulled a landline telephone from the wall socket and then entered Mrs Iulianella's bedroom, where they grabbed Mrs Iulianella by the shoulder and shook her awake. Understandably at the time she was quite terrified. The offenders made demands for money and searched through the cupboards and drawers in the bedroom. Mrs Iulianella said that she did not have any money other than a small amount in her wallet.

6 The applicant remained with Mrs Iulianella while the two other unidentified co-offenders searched the upstairs bedrooms, living room, dining room and kitchen for valuables. Mrs Iulianella described the applicant as being relatively calm during the incident, but the two co-offenders were more aggressive and were swearing. Throughout the incident the offenders referred to Mrs Iulianella as 'Nancy'. Mrs Iulianella did not tell the offenders what her name was. She was known as 'Nancy' to members of the community who attended her IGA.

7 At one point Mrs Iulianella requested that she be able to use the bathroom, and the applicant permitted her to do so. She said that she was not feeling well and the applicant got a glass of water for her from the kitchen. After a period of time the applicant directed Mrs Iulianella to sit at the bottom of the main staircase. At that time, the two co-offenders continued to search the house for valuables.

8 The applicant located a car key which belonged to Mrs Iulianella's BMW sedan in a jacket pocket near the front door. She told him that if he was going to take the car, she needed to remove some medical paperwork from it. The applicant and Mrs Iulianella both went to the garage and he removed the paperwork from the vehicle and handed it to her. The applicant then entered the driver's seat of the BMW and drove the vehicle from the address. That theft was the subject of charge 3.

9 The incident lasted for about fifteen minutes. Mrs Iulianella did not see how the other two offenders had departed from the premises. After they left, she telephoned her son and told him what had occurred. Her son then telephoned the emergency number triple zero. Police who attended the house seized a hammer and a screwdriver, a bandaid and a black ladies' jacket, all of which were swabbed and tested for DNA. Preliminary DNA results in relation to the bandaid indicated the presence of the applicant's DNA.

10 On 11 December 2019, Victoria Police conducted covert surveillance in respect of the applicant. Surveillance operatives observed a white Bentley with false registration plates parked in the driveway of the applicant's address in Eumarella Street, Tullamarine. The applicant's partner, Jessica Middleton, was observed getting into the driver seat, and the applicant got into the passenger seat of the vehicle, before it drove away. The Bentley was followed to Southgate Avenue, Southbank, where the applicant switched positions with Ms Middleton and then drove to Little Lonsdale Street, Melbourne. There he was arrested by members of the Special Operations Group. The applicant's possession of the vehicle was the subject of charge 4 (theft) and the related summary offence number 13 (committing an indictable offence while on bail). His driving of the vehicle was the subject of the related summary offence 12, unlicensed driving of a motor vehicle.

11 A search of the Bentley vehicle revealed that it had been stolen from the premises of Carways Vehicle Transport Storage Facility in Truganina on 17 October 2019. In a further search of the vehicle, police located an imitation assault rifle and a FLIR device (a Forward Looking InfraRed camera) in the passenger footwell. The applicant's possession of the rifle constituted charge 5 on the indictment (being a prohibited person in possession of an imitation firearm).

12 Subsequently, on the same day, a search warrant was executed at the applicant's address in Eumarella Street, Tullamarine. During the search police located a room that contained nine mature cannabis plants. The room was set up to cultivate cannabis with an electrical bypass in place. (Charge 6 - cultivating a narcotic plant). Police also located other items that included:

• Lysergic acid (LSD) in the form of orange tabs within a zip lock bag (charge 7 - possess a drug of dependence).
• A Louis Vuitton bag containing ammunition, a box of 'Fiocchi' ammunition, 25 loose rounds of ammunition and one loose shotgun round (related summary offence 10 - possess cartridge ammunition).
• A black balaclava.
• The registration plates belonging to the Bentley and a black case containing photographs of the applicant with the Bentley.

13 Ms Middleton was also arrested on 11 December 2019. An analysis of the contents of her mobile telephone located two recordings. The first recording, that was made on 2 November 2019, depicted the applicant driving a Bentley with Ms Middleton in the front passenger seat. The applicant was pointing a handgun out of the driver's window. Subsequently, on 23 November 2019, the applicant was again filmed by Ms Middleton standing and firing the same handgun into an open area. Those two incidents comprised charge 1 on the indictment, namely, being a prohibited person in possession of a firearm.

14 At the time of the offending, the applicant was on bail in respect of charges of possession of anabolic steroids, which were listed for hearing at the Wodonga Magistrates' Court on 11 December 2019. By committing the home invasion that was the subject of charge 2, and the theft of the motor vehicle that was the subject of charge 4, the applicant also committed two related summary offences (summary charge 3 and summary charge 13) of committing an indictable offence while on bail.

15 The applicant was arrested and charged on 11 December 2019. He was interviewed by police on the following day. In the course of the interview, he stated that:

• He did not own a BMW.
• He did not reside at the Eumarella Street address but that he had stayed there.
• He was just in the wrong place at the wrong time.
• There is no way there was paperwork in his name at the house.
• He was not involved in a home invasion two days previously - he said 'I don't do - I don't burg houses'.
• He did not know that the vehicle that he was driving was a stolen vehicle.

16 Following the interview, the applicant was charged with the offending on 11 December 2019. He remained in custody. In May 2020, he indicated that he would plead guilty to the charges.

17 In her victim impact statement, Mrs Iulianella stated that she and her husband had worked hard and sacrificed a lot of time to build their dream home in Westmeadows, which was a place where she felt that she and her family could feel happy, content and safe. She described how that feeling was shattered when the applicant and his two co-offenders broke into her home. She said:

They awoke me from a deep sleep, shone torches in my face and dragged me from my bed, screaming and swearing at me. I was terrified. I was helpless and felt that my life was in the three intruders' hands.

18 Mrs Iulianella stated that she no longer felt safe in her own home, she found it hard to sleep, and she felt vulnerable. Recently, she had been admitted to the emergency department of a hospital suffering an overwhelming panic attack.

19 The applicant was born in June 1990. He has a number of previous convictions. Between the ages of 18 and 21, he appeared before the Magistrates' Courts on various charges including assault, burglary, theft and possession of a prohibited weapon. He was twice sentenced to terms of detention in a youth training centre. In November 2011, he was sentenced to 12 months' imprisonment with a non-parole period of six months on charges of being a prohibited person possessing a firearm, handling stolen goods, recklessly causing injury, and harassing a witness. He was released on parole in March 2012.

20 On 28 September 2012, the applicant was apprehended near a liquor shop in Wodonga which he planned to rob with another offender. He had been observed by police who were conducting surveillance of the premises. At 10:00 pm, he and his co-offender put stockings over their heads and tried to enter the premises. They were then arrested and found in possession of a loaded .22 revolver. The applicant was charged with attempted armed robbery and being a prohibited person in possession of a firearm.

21 In May 2013, the applicant was sentenced on those charges by a judge of the County Court to a total effective term of six years' imprisonment with a non-parole period of three years and nine months. He was released on parole in November 2016, but was subsequently breached in March 2017 for associating with his former co-accused. After his return to prison, the applicant decided not to make any further application for parole and he completed the remainder of his sentence on 1 January 2019.

22 At the time of the offending, the applicant was 29 years of age. He spent his early childhood years in Taylors Lakes. During that time, he developed a close relationship with his father.

23 When the applicant was 12 years of age, his parents separated. After the separation, the applicant lived with his father in Wodonga. At that time, his father developed a relationship with another woman whose previous partner had become quite violent and threatening. In June 2003, the previous partner attended at the front of the house in which the applicant was staying with his father. In the confrontation that ensued, the applicant's father killed the previous partner. At the time of the incident, the applicant, who was then 13 years of age, was present in the house, and shortly after the incident he observed his father covered in blood.

24 As a result of the incident, the applicant's father was charged with, and subsequently convicted of, murder. He was sentenced to a term of imprisonment of 16 years. It is quite clear that the circumstances of the incident, and the applicant's father's imprisonment, had a significant effect on him.

25 Following his father's arrest, the applicant moved back to live with his mother and two younger sisters. He found the adjustment difficult, since his mother had developed a significant alcohol dependency problem, in which she sometimes drank to the point of collapse. She was verbally and emotionally abusive of the applicant, blaming him for his father's conviction. As a result, the applicant's behaviour deteriorated, and he became depressed and anxious.

26 In 2005, when the applicant was 15 years of age, he moved out of his mother's home and lived for one year in the home of a friend of his father. The applicant ceased attending school and commenced working at the local meatworks. During that time he had multiple appearances before the Children's Court, but nevertheless was able to maintain reasonably consistent employment. After he ceased employment at the meatworks, he worked for seven months as a plumber's labourer, then in an auto wreckers yard for eight months, and as a plasterer for approximately twenty months between the ages of 20 and 22 years.

27 After the applicant's father's imprisonment, he continued to attend the gym where he had trained and he commenced boxing at an amateur junior level. He had sixteen amateur fights before he turned 17 years, but he had to cease boxing after he suffered a serious eye injury in a wake boarding accident in 2008.

28 It was in the context of the applicant's disturbed family circumstances that he developed a dependency on drugs. From his mid-teens until about the age of 21 years, he used drugs such as ecstasy, cannabis and amphetamine mainly in social settings. He was introduced to methylamphetamine while he was in custody when he was 22 years of age.

29 After the applicant's release from prison in January 2019, he commenced a relationship with Ms Middleton, who was an old friend from Wodonga. As he had completed his entire sentence he was not required to report to Corrections. He was able to remain abstinent from methylamphetamine use for a number of months. However, in about mid-2019, he commenced taking Xanax for anxiety and depression. In July 2019, he resumed using methylamphetamine occasionally, but by approximately October his use of methylamphetamine escalated. It was in that setting that the offending in the present case occurred.

30 On the plea, references were tendered from the applicant's mother, father, younger sister, partner Ms Middleton, and her mother. The applicant's mother had remained abstinent from alcohol for a number of years. Both she and the applicant's father described how their own personal circumstances had had a traumatic effect on the applicant. In their references, they were supportive of the applicant. The applicant's partner, in her reference, also was supportive of him, stating that she was prepared to assist the applicant to adjust to normal life on his release from prison. She also explained how the applicant had used drugs as a mechanism to block out his emotions, because he had difficulty coping in the real world.

31 On the plea, counsel for the applicant tendered a report from Ms Lisa Jackson, a clinical psychologist, who interviewed the applicant at the Metropolitan Remand Centre on 6 July 2020. Ms Jackson conducted a screen test which indicated that the applicant has a mild cognitive impairment related to problems with memory, thinking and judgement, and seemed to be linked to his history of head trauma resulting from the wake boarding accident and his boxing career. She diagnosed the applicant to have symptoms consistent with post-traumatic stress disorder, and that he also had an adjustment disorder with concurrent anxiety resulting from the circumstances in which he lived with his mother after his father's arrest. On the plea, counsel for the applicant, quite properly, disavowed reliance on the principles set out in R v Verdins.[1]

32 Counsel for the applicant relied on the applicant's plea of guilty which he contended was an early plea. It was submitted that the plea had particular utilitarian value in the context of the current COVID-19 pandemic. It was also submitted that the circumstances of the applicant's imprisonment, at the time of the pandemic, would be more difficult and oppressive because of the restrictions being imposed on prisoners arising from the pandemic.

33 In his reasons for sentence,[2] the judge accepted the submission by the prosecutor that the applicant's offending constituted a serious example of the offence of home invasion.[3] In that respect, he noted that the victim, who was a 75 year old woman alone and asleep in her house, was particularly vulnerable. The circumstances in which the offending occurred were terrifying for her.[4] The judge accepted that the applicant was not as aggressive or threatening as his co-offenders, and he accepted that the applicant had attempted to keep the victim calm.[5] The judge noted that there was an element of professionalism associated with the offending, namely that it involved a degree of planning and the use of disguises.[6] The judge also took into account the impact on the victim and the fact that the applicant's offending was aggravated by the fact that he was on bail. In respect of that matter, the judge noted that in order to avoid imposing double punishment, the sentence that he imposed on the summary charge of committing an indictable offence on bail would be served concurrently with the base sentence.[7]

34 In respect of the charge of cultivation of cannabis (charge 6), the judge was not satisfied, on the balance of probabilities, that the offence was not committed by the applicant for any purpose related to trafficking. Accordingly, the higher maximum penalty of 15 years' imprisonment applied. On the other hand, the judge was satisfied that the offence that was the subject of charge 7 (possession of a drug of dependence, namely, lysergic acid) was not committed for any purpose related to trafficking, so that the lower maximum sentence of one year imprisonment was applicable.[8]

35 The judge noted that the applicant's previous criminal history, and in particular the attempted armed robbery charge which he committed in September 2013, were matters of concern, and that it was a history that tended to preclude leniency and place emphasis on the sentencing purpose of specific deterrence.[9]

36 In mitigation the judge accepted that the applicant's guilty plea was entered at an early stage, that the applicant had shown genuine remorse, and that his plea of guilty was important because it had saved the community the expense of a trial and the victim the ordeal of having to give evidence.[10]

37 The judge accepted that the applicant had had a traumatic upbringing, in which he had been deprived of the sort of needs and opportunities that most members of the community take for granted.[11] He accepted that the applicant would have important support from his family and his partner, that he had a relatively stable work history, and that the circumstance, that he had been able to abstain from drugs for some periods of time, indicated that he did have prospects for rehabilitation.[12] The judge also accepted that it was important to provide for a period of parole in order to enable the applicant to be rehabilitated into society on the completion of his sentence.[13]

38 Finally, the judge took into account the sentencing considerations arising from the current pandemic. He accepted that while the applicant was in custody he would live in an environment in which he could not control with whom he came into contact, which was a matter which would generate stress and anxiety. In addition the applicant's time outside his cell would be significantly limited, he could not have personal visits, and telephone or video communication would be limited.[14]

39 In support of ground 1, counsel for the applicant noted that, in the course of the plea, defence counsel had made a submission, with which the prosecutor agreed, that the guilty plea made by the applicant had a greater value to the criminal justice system in light of the current COVID-19 pandemic, so that it added to the utilitarian value of the guilty plea. However, it was submitted, the judge, in sentencing the applicant, failed to have regard to the additional utility of the applicant's plea in that way.

40 Counsel noted that, due to the impact of the COVID-19 pandemic, jury trials had been suspended in the Supreme Court and County Court between March 2020 and November 2020, as a result of which there was a significant backlog of trials waiting to be heard. In those circumstances, it was submitted, the judge was obliged to take into account the increased utilitarian value of the plea entered by the applicant.

41 Counsel for the applicant submitted that the judge's sentencing reasons reveal that he did not take the guilty plea of the applicant into account, as a mitigating circumstance, in that way. Counsel relied on passages in Phillips v The Queen,[15] in support of a submission that, for the purposes of transparency in the sentencing process, the 'discount,' to be awarded in respect of the guilty plea, be made evident in the course of the judge's sentencing remarks. It was submitted that if the judge had taken the additional utilitarian value of the plea into account, he would have specifically said so in the course of his sentence. In that respect, although the judge acknowledged that, as a result of the COVID-19 pandemic, the applicant's term of imprisonment would be more burdensome,[16] his Honour did not refer to the pandemic in the context of evaluating the utilitarian value of the plea.

42 Counsel further submitted that the fact that the parties had agreed, in the course of the plea submissions, that the judge should take into account the additional value of the plea, did not explain why the judge had omitted to mention it in the course of his sentencing reasons. In particular, it was pointed out that a number of other matters which were agreed between counsel - such as the fact that the applicant was remorseful - were referred to in his Honour's sentencing reasons. Further, it was submitted, the sentence imposed by the judge, and the declaration that he made under s 6AAA of the Sentencing Act 1991, weighed against the proposition that the judge had taken into account the additional utilitarian value of the plea, notwithstanding that he did not expressly refer to it in the sentencing reasons.

43 In response, the Director observed that in the course of the plea hearing, the judge did not demur from the proposition put to him, by both parties, that the applicant's guilty plea had additional value in the context of the COVID-19 pandemic. In those circumstances, it was submitted, the absence of any express reference by the judge, in his reasons, to the added utilitarian benefit of the plea, does not bespeak an omission by the judge to take that factor into account.

44 In support of that contention, the Director referred to R v Koumis,[17] in which the Court stated that a sentencing judge is not obliged to address every argument advanced on the plea. The Director also relied on the proposition, stated by Redlich JA and Curtain AJA in their joint judgment of Phillips, that a sentencing judge will not need to deal separately with the objective criteria of the utilitarian benefit of the plea and the subjective criteria of the plea, unless there is reason to conclude that less than the full weight should be given to the subjective criteria.[18]

45 The Director accepted that the circumstance that the applicant entered guilty pleas in respect of each of the charges in the course of the current COVID-19 pandemic added to the utilitarian value of those pleas. However, she submitted, the judge was not required, in his sentencing reasons, to expressly identify that factor separately when referring to the utilitarian value of the plea, and the weight to be accorded to it. In the circumstances, it was submitted, it is apparent that the judge did give appropriate weight to the applicant's plea of guilty, taking into account the additional utilitarian benefit that derived from the circumstance that it was made by the applicant during the pandemic.

46 The application for leave to appeal was argued before us on the same day as two other leave applications, in each of which the same question arose as to the weight to be given to the utilitarian value of a plea of guilty in view of the significant disruption to the conduct of criminal trials in this State since the onset of the COVID-19 pandemic. In our judgment, in Worboyes v The Queen,[19] we have outlined our conclusion that the fact that an accused person has made a plea of guilty during the currency of the COVID-19 pandemic should be accepted as augmenting the utilitarian value of the plea, and that it should therefore be accorded additional weight as a mitigating circumstance.[20]

For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.[21]

48 In the present application, the Director accepted that the plea of guilty, by the applicant to the charges against him, should be accorded additional weight in that way. The critical question, raised by ground 1, is whether the judge failed to take that factor into account in evaluating the weight to be attached to the pleas of the applicant as a mitigating circumstance.

49 In delivering sentence, the judge acknowledged, as a mitigating factor, the utilitarian value of the plea of guilty by the applicant, but his Honour did not, in doing so, specifically refer to the fact that its utilitarian value was enhanced because the plea was made during the currency of the pandemic. In particular, his Honour said:

It is to your credit however, that you chose to plead guilty at an early stage in these proceedings and have shown some genuine remorse. Your plea of guilty is also important because it has saved the community the expense of a trial and the victim the further ordeal of having to give evidence.[22]

50 During the course of submissions on this application, counsel for the applicant, at first, suggested that, in the interests of transparency, it was necessary for the judge to expressly acknowledge the additional utilitarian value of the guilty plea made by the applicant. However, she accepted, correctly, that the fact, that the judge did not expressly state that he took that circumstance into account, did not constitute an error in the exercise of the sentencing discretion. The question, therefore, is whether, notwithstanding that his Honour did not expressly refer to that circumstance as a factor relevant to an evaluation of the utilitarian value of the plea, nevertheless it is evident that his Honour did take it into account as adding to the mitigatory weight of the plea.

51 In that respect, the views expressed by this Court in Koumis, are apposite. The Court said:

While reasons for sentence need not be extensive, one would usually expect the reasons to include certain matters. Without being prescriptive or exhaustive, one would generally expect the reasons to include the sentencing judge's findings as to the circumstances of the offence and any circumstances which the judge regards as aggravating or mitigating. Reference will normally be made to the impact of the offence upon the victims. The personal circumstances of the offender which bear materially upon the sentence should be identified. It is also desirable that conclusions reached by the sentencing judge as to the primary arguments advanced by the parties, particularly if they are in controversy, should be apparent from the reasons. That is not to suggest that the sentencing judge is obliged to address every argument advanced on the plea. But the primary factors that have influenced the instinctive synthesis should be exposed during the course of the sentencing remarks. Where the sentencing remarks are deficient as to such material matters, transparency in the process is denied and interested parties are left to 'speculate' about the reasoning process.[23]

52 In applying those principles, it is important to bear in mind that in this State sentencing reasons are delivered in the second person, so that they are directed specifically to the person who is being sentenced. Ordinarily, a sentencing judge endeavours to couch the sentencing reasons in terms which will be appropriately comprehended by that person, by victims, and by other persons who are not of legal background but who may have an interest in the case. It has been emphasised in a number of decisions of this court that sentencing reasons should not be scrutinised critically with an eye that is overly zealous for the detection of a specific error.[24]

53 The context, in which the judge sentenced the applicant, is particularly relevant, in determining whether his Honour did take into account appropriately the additional weight to be accorded to the guilty plea because of the effect of the COVID-19 pandemic. In written submissions that were filed in respect of the plea, counsel for the applicant submitted that the guilty plea had a 'high utilitarian value' because it was entered at a time when the Court's operations were disrupted by the pandemic. That submission was, in effect, repeated by counsel in the course of oral submissions on the plea albeit that counsel did so in quite brief terms. The prosecutor, on the plea, expressly accepted that the utilitarian value of the plea was 'higher' during the time when the operations of the Court had been disrupted by the pandemic.

54 It is quite apparent, from the transcript of the plea, that the judge was well versed in the circumstances of the case and the written submissions that had been filed on behalf of the parties. On appropriate occasions, the judge interrupted counsel where he sought to clarify, or question, a proposition that had been put to him. In that context, it is salient that the judge did not express any disagreement with the proposition, advanced by both parties, that the applicant's guilty plea should be accorded additional weight made at the time of the pandemic.

55 It must be borne in mind that the question, which is raised by ground 1, is not whether the judge accorded the guilty plea utilitarian value. Plainly, from the passage from the sentencing remarks to which we have already referred, his Honour did so. The question raised by ground 1 is more confined, namely, whether the fact that the judge failed to mention specifically one aspect of that utilitarian value of the plea - the fact that it was made during the pandemic - should give rise to an inference that his Honour failed to take that aspect of the plea into account as a consideration that gave additional weight to its mitigatory effect.

56 As we have stated, the judge was well acquainted with the circumstances of the case, and he was thoroughly prepared for the plea and sentence. He only intervened in the plea when counsel advanced a proposition which his Honour wished to debate or clarify. His sentencing reasons were methodical and thoughtful. In those circumstances, we are not persuaded that it could be inferred that, because the judge did not specifically refer to one aspect of the utilitarian value of the guilty plea - the fact that it was made during the pandemic - meant that his Honour overlooked doing so, and that his Honour thus failed to give full weight to the guilty plea made by the applicant. On the contrary, in view of the circumstances in which the plea submissions were conducted, the nature of the sentence passed by the judge, and the structure of his Honour's sentencing reasons, we are satisfied that he did take into account, and give appropriate weight to, the fact that the plea was made during the pandemic having additional value, as a mitigating circumstance, in the manner which we have discussed in Worboyes.

57 For those reasons, ground 1 of the application for leave to appeal does not succeed.

58 In the course of oral submissions, counsel for the applicant confined ground 2 to the sentences imposed on the applicant in respect of charge 2 and charge 4, and to the order for cumulation of six months for the sentence imposed on charge 4 on the sentence imposed on charge 2.

59 In making those submissions, counsel acknowledged that there were very serious aspects of the home invasion case. In particular, the offence was committed in the middle of the night, the victim was a 75 year old woman alone in bed in her own home, and the offence has significantly affected the victim. On the other hand, counsel noted that the applicant had demonstrated some empathy for the victim, permitting her to use the bathroom, fetching her a glass of water and retrieving medical documentation from the vehicle. Further, it was submitted, the applicant's intention was to steal, rather than to assault, which is a circumstance of particular gravity in a number of home invasion cases.

60 Counsel noted that the applicant was able to rely on a number of mitigating circumstances that were of particular weight. In particular, his disadvantaged background, that was acknowledged by the judge, had been the genesis of his descent into the abuse of drugs, and offending. The applicant had pleaded guilty at an early stage. The judge found that he was genuinely remorseful. The applicant had strong family support from both of his parents and his partner, and the judge accepted that he had some prospects for rehabilitation. In addition, the applicant was young, he had a good work history, and he had demonstrated that he had been able to abstain from drug abuse. Counsel also noted that as a result of the current COVID-19 pandemic, a term of imprisonment would be particularly burdensome for the applicant, as it is for other persons who are currently incarcerated in the prison system.

61 Counsel also referred to a number of sentencing decisions of this Court,[25] and a number of sentences in the County Court, in support of the submission that the sentence of six years and six months' imprisonment imposed on the applicant, on the charge of home invasion, is the heaviest sentence ever fixed for that offence.

62 In respect of the sentence imposed on charge 4, counsel noted that the case against the applicant was not that he was the original thief of the Bentley vehicle, but that he was guilty because he had been observed driving the vehicle.

63 In response, the Director submitted that the offence of home invasion, by its nature, is a particularly egregious form of criminal conduct. In the present case, it was submitted, the offending was objectively serious. The victim was vulnerable. She was awoken in the early hours of the morning in her own home, where she was alone, to find herself surrounded by three balaclava-clad men. Unsurprisingly, the impact on the victim was significant. The applicant had extensive and relevant previous convictions, having served substantial terms of imprisonment. It was submitted that that criminal history precluded the exercise of any leniency in sentencing. Further, the fact that the applicant was on bail at the time was an aggravating feature of the home invasion charge.

64 In order to succeed, on the ground that the sentences imposed on charges 2 and 4 were manifestly excessive, the applicant must demonstrate that the sentences, in respect of those charges, are wholly outside the range of sentencing options available to the judge. In effect, it must be demonstrated that the sentences, that are the subject of the application for leave to appeal, are so excessive as to bespeak some error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour's reasons for sentence.[26]

65 The starting point, in considering the sentence imposed on charge 2, is that the offence of home invasion is, by its very nature, a serious criminal offence, the maximum sentence for which is 25 years' imprisonment. As this Court observed, at the commencement of its reasons in O'Brien, the crime of home invasion is 'a particularly nasty form of criminal conduct'.[27]

66 In the present case, there were a number of serious features attending the commission of the offence. As the judge noted, there had been a material degree of planning for the offence, in which the applicant and his co-offenders had studied the work hours of the victim and her husband, had ascertained the name of the victim, and had prepared themselves with disguises including balaclavas. As an aggravating feature, they selected the home of an elderly couple, and broke into it through the front door.

67 The victim of the offence was particularly vulnerable. At the time of the offence, she was alone and asleep. The judge accepted that at the time at which he entered the premises, the applicant believed that the victim and her husband were at work. However, he did not choose to depart from the premises when he and his co-offenders ascertained the victim was in it. While the offence was completed at the time at which the applicant entered the premises, nevertheless it might be inferred, from the fact that the applicant remained in the premises, guarding the victim, that when he entered the premises, he was minded to continue with the home invasion, even if the owner of it was at home.

68 The circumstances, in which the victim was awoken, must have been absolutely terrifying for her. She found herself, alone, in the middle of the night, surrounded by three strange men clad in disguises including balaclavas. The applicant's co-offenders were acting in an aggressive and uncouth manner. The applicant and his co-offenders invaded her sanctuary, and left her feeling vulnerable and unsafe in her own home.

69 One particular aggravating feature of the offending was that the victim was referred to by the offenders by her first name. Their reference to her name must have added to her feelings of terror and vulnerability, signifying to her that she had been under some form of observation or surveillance by the offenders before they chose to break into her home in the early hours of the morning.

70 The circumstance, that the applicant committed the offence while on bail was, as the judge noted, a further aggravating feature of the offence. The judge ensured that, by taking that factor into account in that way, he did not doubly punish the applicant, by directing that the sentence imposed in respect of the summary charge of offending while on bail be served concurrently with the sentence that was to be served in respect of the home invasion.

71 The applicant had a quite substantial previous criminal history. His conviction for the attempted armed robbery, for which he was arrested in September 2013, was a matter of particular concern. The applicant's history, and in particular that previous conviction, weighed against the extension to him of any form of leniency. It lent added weight to the requirement that the sentence be of sufficient severity to serve the purpose of specific deterrence.

72 The applicant was able to rely on a number of important mitigating circumstances. As discussed, his early plea of guilty was important, because it saved the community the expense of a trial, and its utilitarian value was enhanced by the circumstance that the plea was made during a period in which the Court's processes had been interrupted by the COVID-19 pandemic. The judge also accepted that the applicant's plea was accompanied by remorse. The judge correctly recognised that the applicant's traumatic upbringing had played a role in his descent into criminal offending.[28] In addition, the applicant was young, he had a relatively stable work history, and he had during some periods of time been able to abstain from drugs. As the judge noted, that circumstance suggested that the applicant still had prospects for rehabilitation.[29] In that respect, it was notable that the applicant now does have important family support, including from his partner, which might assist on his path to rehabilitation. Finally, as the judge recognised, a term of imprisonment would be particularly burdensome for the applicant, as it would be for any person incarcerated at this time, as a result of the COVID-19 pandemic.

73 Notwithstanding that combination of mitigating circumstances, for the reasons that we have discussed, the offence committed by the applicant was particularly serious. Taking into account the gravity of the offending, and the applicant's previous convictions, we are not persuaded that the sentence imposed on charge 2, the offence of home invasion, of six years and six months' imprisonment, was manifestly excessive.

74 In reaching that conclusion, we take into account the 'comparable cases' referred to by counsel for the applicant in her thorough submissions. However, as the High Court has emphasised in DPP v Dalgliesh,[30] comparable cases, while relevant to indicate or reveal the sentencing range for an offence, are nevertheless but one factor to be taken into account in the exercise of the sentencing discretion.[31] Comparable cases are not precedents, and in the context of sentencing, no two cases can be alike. While the sentence imposed in respect of charge 2 was quite stern when viewed in the context of the cases referred to by counsel for the applicant, that circumstance does not persuade us that the sentence imposed on that charge was wholly outside the range of sentencing options available to the judge. On the contrary, we consider that the sentence was quite appropriate in light of the serious nature of the offending undertaken by the applicant.

75 Nor were we persuaded that the sentence of nine months' imprisonment imposed on charge 4, and the order for cumulation of six months of that sentence, are manifestly excessive. The vehicle that was the subject of the charge was a 2018 white Bentley Flying Spur vehicle that was valued at approximately $276,000. The applicant has a history of offences of dishonesty and the like. In those circumstances, the sentence imposed on the applicant, in respect of that charge, was quite appropriate. Finally, for the reasons that we have discussed, the total effective sentence and non-parole period were each well within range, and appropriate to reflect the synthesis of the serious nature of the offences committed by the applicant, taking into account the mitigating circumstances relied on in his favour.

76 For those reasons, ground 2 of the application for leave to appeal against sentence must fail.

77 For the foregoing reasons, the applicant has not made out either proposed ground of appeal. However, each ground was sufficiently arguable to justify the grant of leave in respect of each of them.

78 Accordingly, the applicant will be granted leave to appeal, but his appeal will be dismissed.

[1] (2007) 16 VR 269; [2007] VSCA 102.

[2] DPP v Schaeffer [2020] VCC 1502 ('Reasons').

[15] (2012) 37 VR 594; [2012] VSCA 140 ('Phillips').

[17] [2008] VSCA 84; (2008) 18 VR 434, 439-40 [63]; [2008] VSCA 84 (Redlich and Kellam JJA and Osborn AJA) ('Koumis').

[18] Phillips [2012] VSCA 140; (2012) 37 VR 594, 604-5 [36]; [2012] VSCA 140.

[19] [2021] VSCA 169 ('Worboyes').

[23] Koumis [2008] VSCA 84; (2008) 18 VR 434, 439-40 [63]; [2008] VSCA 84 (Redlich and Kellam JJA and Osborn AJA) (citations omitted).

[24] See, eg, Zogheib v The Queen [2015] VSCA 334, 55; Ngo v The Queen [2021] VSCA 21, [29].

[25] DPP v O'Brien (2019) 280 A Crim R 1; [2019] VSCA 254 ('O'Brien'); Jackson v The Queen [2020] VSCA 95; Waika v The Queen [2020] VSCA 104; Clark v The Queen [2020] VSCA 125; Smith v The Queen [2020] VSCA 165.

[26] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).

[27] [2019] VSCA 254; (2019) 280 A Crim R 1, 2 [1]; [2019] VSCA 254 (Maxwell P, Niall and T Forrest JJA), quoting Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 659 [1]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA).

[28] Cf Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

[30] (2017) 262 CLR 428; [2017] HCA 41.

[31] Ibid 434 [9] (Kiefel CJ, Bell and Keane JJA).