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[2018] VSCA 122
General information, not legal advice.
Court of Appeal (Vic)
2018-05-11
Maxwell P, Tate JA, Niall JA
Original judgment source is linked above.
[2016] VCC 1976 (Judge Maidment)
CRIMINAL LAW - Sentence - Application for leave to appeal - Aggravated burglary - Armed robbery - Causing serious injury recklessly in circumstances of gross violence - Plea of guilty - Total effective sentence of 12 years' imprisonment - Non-parole period of nine years - Whether judge erred in making adverse finding not proved beyond reasonable doubt - Whether procedural fairness denied - Whether judge erred in assessing applicant's prospect of rehabilitation as no better than poor - Whether judge erred in failing to take into account that the sentence will be served in protective custody - Whether sentence manifestly excessive - Leave to appeal refused.
1 The applicant, James Till ('Till'), applies for leave to appeal against the sentence imposed on him in the County Court, following a plea of guilty, on one charge of aggravated burglary, one charge of armed robbery, and one charge of causing serious injury recklessly in circumstances of gross violence.[1] All offences arose out of the one incident involving Till and a co-offender, Charles Hi ('Hi'), bursting into the flat of a 74 year old Turkish woman and violently assaulting her, including by Till hitting her with a metal bar and waving a knife around, while yelling at her as to where she kept her money and where was the 'ice'.
Aggravated burglary [s 77(1) Crimes Act 1958] ('CA')
Causing serious injury recklessly in circumstances of gross violence [s 15B(1) CA]
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
6AAA Statement: 16y, with non-parole period of 13y
3 Hi, who also pleaded guilty, was sentenced as follows:
Causing serious injury recklessly in circumstances of gross violence [s 15B(1) CA]
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
6AAA Statement: 13y, with non-parole period of 10y
4 The proposed grounds of appeal Till intends to rely upon, if leave is granted, are:
Ground 1:
The learned sentencing judge erred:
(a) in finding that the applicant set out to steal from an elderly and vulnerable woman; and/or
(b) in denying the applicant procedural fairness in relation to that matter.
Ground 2:
The learned sentencing judge erred in assessing the applicant's prospects of rehabilitation as no better than poor. In particular:
(a) such a finding was not open, given the link between the applicant's criminal history and his drug addiction, his concerted efforts to overcome that addiction, and his genuine remorse, willingness to work, and family support; and/or
(b) his Honour erred in treating the applicant's relapses into drug abuse following two genuine attempts at rehabilitation as only negatively informing the assessment as to his prospects of rehabilitation, without taking into account the willingness to reform and insight which those attempts demonstrated.
Ground 3:
The learned sentencing judge erred in failing to take into account the fact that the applicant will serve his sentence in protective custody.
Ground 4:
The individual sentences, orders for cumulation and non-parole period are manifestly excessive in light of the applicant's guilty pleas, genuine remorse, family support and protection status, together with other factors in mitigation.
5 The co-offender, Hi, was granted leave to appeal on two grounds; namely, that the sentence imposed for the offence of aggravated burglary was manifestly excessive and that the total effective sentence and non-parole period did not adequately reflect the differences between him and his co-offender. However, the appeal was dismissed.[2]
6 On 29 August 2017 Whelan JA, sitting as a single judge of appeal pursuant to s 315(1) of the Criminal Procedure Act 2009 ('the Act') determined, pursuant to s 280 of the Act, to refuse leave to Till on the basis that, although he considered grounds 1, 3 and 4 to be arguable, he concluded that there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence even if all of the arguable proposed grounds of appeal were made out.
7 Till has elected to renew his application for leave to appeal, pursuant to s 315(2) of the Act. The application has been determined on the papers as Till has not requested an oral hearing.
8 A summary of prosecution opening ('the Summary') was tendered on the plea. The offences occurred on 26 August 2015, starting sometime after 5:00 am. At the time of the offences the victim was a 74 year old woman residing in a flat in a block of flats in Richmond. She lived alone. At the time of the offences, she had a medical condition. Because of that condition she had an alarm system known as 'MePACS' which had to be pressed at 9:00 am each day, and she kept a key in a locked key box outside her front door so that her flat could be accessed in a medical emergency.
9 The Summary described the circumstances of the offending as follows:
On Wednesday the 26th August sometime after 5.00am [the victim] was woken by banging on her front security door and windows. She could hear an Australian man's voice yelling 'Open the door, Open the door!' On hearing this, [she] went to the telephone intercom near the front door and called the building's security guards saying 'Help please, help please, two junkies, fifth floor, fifty three, fifty three'.
The security guard ... told [her] that he could not come but that he would send someone.
Before [she] had a chance to hang up the telephone intercom her front door opened and Till and Hi rushed into her flat. They had used the key from the locked key box outside her front door to open the door.
Till attacked [her], grabbing her by the arms and swinging her into the living room. Till then pushed [her] onto the floor in front of the sofa breaking her hip. They closed the door.
Till had pulled his hoodie over his head and was wearing a hat and Hi had a mask like a balaclava with holes for his nose and eyes obscuring his face.
Till used his fists to punch [the victim] to the face. This fractured her cheek bone. During this time Till had a metal bar he had brought into the flat in his hands and was hitting [her] to the body with it causing bruising. He was yelling at [her] asking her 'where her money was?' and 'where the ice was?'
Till pushed [the victim] onto the ground and sat on top of her. When on top of her he grabbed her by the throat and was choking her. At the same time he grabbed one of the pillows in the living room and held it over her face so that she could not see or breathe. He was suffocating her. [The victim] saw blood on the pillow and knew that she was bleeding from the assault on her.
During Till's assault on [the victim], Hi was ransacking the flat. [The victim] saw him walk into her bedroom and take two bags that he filled with her valuables.
While this happened, [the security guard], having taken the phone call from [the victim], organized two security guards ... to attend at flat 53. He then called her flat to advise that guards were on their way. Hi answered the phone and when [security guard] asked to speak to [the victim] told him 'It was my mother. She went to sleep. Do not call us again. Everything is ok'.
At approximately 6.30am, while [the victim] was lying on the floor, the security guards she had called for earlier came to the door asking if she was ok. Till was still sitting on top of [her] and punched her and put the pillow back over her face. [She] could not yell for help as he had a hand around her neck choking her. Both Till and Hi remained quiet while the security guards were outside. Till was telling [her] 'Don't talk, shut up, shut up or I will kill you' putting his fingers to his mouth and saying 'shhhh'.
The security guards remained at the door for approximately 2 minutes. During this time they spoke with [her] neighbour ... who confirmed that he had seen two men knocking at her door. The security guards then left and did not open the door.
While [the victim] lay on the floor Till started looking around her flat 'like a dog sort of crawling around and looking everywhere'. [The victim] could not move at this time as her hip was broken. Till would return to [her] sporadically to swear and threaten her that he would kill her if she didn't tell him where the ice was. During this time Till had taken a knife out and was waving it around and pointing it at [her]. At one stage he threw the knife towards her on the floor saying 'I'll kill you, I'll kill you'.
Approximately half an hour after they had broken in Hi told Till that they should go and Till said 'You go, You go' and Hi left taking with him the two handbags that he had filled with [the victim's] valuables.
Till remained in the flat until after 9.00am. When [the] 'MePACS' alarm went off at 9.00am he silenced it by pressing it. During this time he searched the whole flat and destroyed most of it. He was like a 'bull in a rodeo ring' smashing everything up and going around everywhere. At one stage Till found a hammer and used it to bash open the lock on the electrical box in the kitchen and put holes in the plaster in the kitchen. He also used his knife to slash the furniture open. During this time [the victim] observed that he was 'full of anger' and kept saying 'Where is the ice, where is the ice?' [She] did not know what he was looking for.
While she lay on the floor [she] could hear him in the bathroom smashing tiles with the hammer. Till kept coming back to threaten [her] by pointing the knife at her and threatening to kill her throughout the ordeal. Till would return and sit on [her] again and bash her.
[The victim] could not move due to the pain in her hip and was on the floor for so long that [she] urinated in her clothes. It was only when Till smashed her clock off the wall and she saw it was 11.00am that [she] had any idea of how long he had been in her flat.
[She] did not know what time Till eventually left but when he did he took the metal bar he had arrived with and two suitcases with him that he had filled with her personal possessions obtained whilst he was ransacking her flat. As he left he said 'See you'.
[She] lay on the floor until approximately 11.30am when she heard someone walking past and yelled 'Help'. A cleaner ... from the flats came in and found her lying on the floor. ... went to the foyer and organised 000 to be called and then returned to flat 53 where [the victim] asked her to get her phone and to ring her daughter. [The victim] then spoke with her daughter telling her what had happened and the police and an ambulance were then called.
10 Till was identified as one of the two offenders from CCTV footage in the block of flats. When arrested Till had items belonging to the victim on him. When interviewed he professed to have no memory of where he had been at the time of the offending and then answered questions 'no comment' while acknowledging that an old lady had been hurt and asking whether she was alive or not.
11 The victim was treated at the Alfred Hospital. Amongst other injuries her left hip had suffered a closed fracture requiring a half joint replacement. Her left cheek bone was also fractured. Without treatment it was probable that the injuries she sustained would have caused her death. Her victim impact statement indicated that her mobility has been severely restricted as a result of her injuries and she is now dependent upon use of a four-wheel walking frame. She can no longer live by herself in her own home and has had to move to a nursing home. She described her emotional pain as worse than her physical pain.
12 On the plea, counsel for Till tendered a letter from Odyssey House, a report from a consultant psychiatrist, letters from family members, and a letter from Till in which he expressed remorse.
13 In the judge's sentencing reasons, which concerned both Till and Hi, he set out the circumstances of the offending in some detail. He described the effect of the offending on the victim.
14 The sentencing judge referred to the material tendered on the plea and indicated that he accepted that Till was 'remorseful for and ashamed of [his] offending conduct'.[3] The sentencing judge summarised Till's personal circumstances as follows:
You are 37 years of age. You clearly had a difficult upbringing. You have a long history of substance abuse. You have a long and bad criminal record, including a conviction for aggravated burglary, although the relatively modest term of imprisonment imposed does suggest that it was a much less serious offence than that in Charge 1 on this indictment. You have a history of moderately severe depression beginning in your early teens. That condition is apparently responding to appropriate treatment. You also have a history of alcohol and drug abuse that has resulted in episodes of drug-induced psychosis. You have attempted rehabilitation through Odyssey House during periods when you have not been serving sentences of imprisonment. There, it seems you met the mother of your six-year-old son, Gordana Stojanovic, (the author of one of the letters of reference tendered on your behalf) and also you met your co-offender, Hi. Ms Stojanovic speaks in her letter of the positive contribution you have made to your son's life. She suggests this offending is 'extremely out of character'.[4]
15 The judge assessed Till's prospects of rehabilitation as no better than 'poor' and the offending as warranting substantial imprisonment:
Given your history of relapse into drug abuse following what seem to be genuine attempts at rehabilitation, I cannot assess your long-term prospects of rehabilitation as better than poor.
There are signs that you have become somewhat institutionalized after many periods of imprisonment, and that you have been able better to deal with emotional stress whilst you have been incarcerated. That is unfortunate. But it is a consequence of your own actions. This court has no choice other than to impose a substantial term of imprisonment upon you.[5]
16 The sentencing judge described the conduct of Till and Hi as 'utterly despicable, cowardly and brutal'.[6] He said:
From the moment you pushed her to the ground and fractured her hip, [the victim] was helpless and completely at your mercy. You showed her none. Your continuing assaults upon her were shamelessly driven by what can only reasonably be described as an inhuman urge to achieve the object of your crimes at any cost. It is no excuse that you were disinhibited by taking illicit drugs. Your moral culpability for the offending the subject of Charge 3 is of a particularly high order.[7]
17 He then addressed the aggravated burglary and armed robbery offences as follows:
I regard the moral culpability of each of you as very high in relation to Charges 1 and 2. Your planning may not have been careful, sophisticated or of long duration. It was no doubt drug-fuelled, ill-informed and ill-considered. But you each set out deliberately to enter the home of an elderly and vulnerable woman to steal from her in circumstances that were calculated to terrify her. You Till were armed with a weapon, and you both anticipated the probability that serious injury would be inflicted upon your primary victim. These were callous and shocking crimes.[8]
18 He considered the need for the sentence imposed to reflect the Court's denunciation of the offending as well as giving effect to the principles of specific and general deterrence, taking account of the principle of totality and avoiding double punishment:
In the case of each of you, I am required to impose the least sentence necessary to meet the applicable sentencing principles. No sentence other than immediate imprisonment is appropriate. Offending as serious as this demands that the court expresses its denunciation in strong terms. Individual deterrence is a significant sentencing consideration, as is just punishment and protection of the community. General deterrence is a very significant principle for offending such as this.
... I am required to facilitate your rehabilitation to the extent that is possible in the light of other sentencing considerations. The totality principle is to be applied so as to moderate the degree of cumulation between sentences for individual offences ... so as to achieve a just total effective sentence. I must also be careful to avoid double punishment arising from overlap of the three offences on the indictment.[9]
19 Till submits that the judge made a finding that Till set out to steal from an elderly and vulnerable woman.[10] He submits that, as this was a factor adverse to him, it would have to be established beyond reasonable doubt,[11] and it was not open to the sentencing judge to be so satisfied. In particular, he submits that there was no evidence that Till knew that an elderly woman occupied the flat before he entered it. Rather, his conduct was consistent with defence counsel's submission on the plea that Till believed a male Turkish drug dealer lived in the flat; he repeatedly asked [the victim] where the 'ice' was and searched the flat for drugs, even slashing the furniture and smashing tiles in an endeavour to find drugs.
20 Alternatively, Till submits, the judge denied him procedural fairness by sentencing him on the basis that he planned to steal from an elderly and vulnerable woman without raising that issue with the defence on the plea.
21 In our view, although the observation made by the judge that 'you each set out deliberately to enter the home of an elderly and vulnerable woman to steal from her in circumstances that were calculated to terrify her'[12] might suggest that the judge made a finding that Till was aware that the flat was occupied by a defenceless elderly woman, there is nothing further in his remarks to suggest that he considered that Till was aware of who occupied the flat before he entered. Indeed, he describes the planning of the offending as 'ill-informed and ill-considered'.[13] Those remarks, together with his description of the fruitless and frenetic searching for drugs by Till, indicate that the judge considered that Till believed that the flat would contain drugs and that this explained the aggravated burglary. The judge was correct in observing that entry into the flat was deliberate, accompanied by the intention to steal and accompanied by the possession of an offensive weapon, namely, a metal bar, all of which was alleged in the indictment. The possession of the offensive weapon indicated that Till intended to carry out the theft by terrifying the occupants, if necessary. The yelling 'Open the door, Open the door!'[14] also indicated that Till believed that a person was inside the premises. The judge was correct in his observations to that effect. Insofar as the judge went further, we consider that he intended to say no more than that the person who happened to be inside the premises was an elderly and vulnerable woman, not that Till knew that she was there.
22 We consider that the finding alleged by Till was not made. There was therefore no error in the standard of proof applied nor any failure to give an opportunity to be heard on the issue.
23 However, we consider that proposed ground 1 is reasonably arguable.
24 Till submits that that it was not open to the judge to characterise Till's prospects of rehabilitation as no better than poor. Moreover, Till submits that his past and present offending was intrinsically linked to his drug addiction which commenced at the age of 16 (when he began using heroin). He has shown the ability to abstain from drugs for extensive periods of time, including a period of 14 months when, in 2008, he undertook the residential rehabilitation program at Odyssey House. He later returned to Odyssey House for a 17-month period from February 2014 until July 2015 but used heroin again which resulted in him being asked to leave the rehabilitation facility. By the time he committed the current offences, four weeks after leaving Odyssey House, he was using ice daily.
25 Till submits that the judge treated these failed attempts at abstinence from drugs as detracting from Till's prospects of rehabilitation when he should have considered that these were concerted attempts at rehabilitation over substantial periods of times and demonstrate his insight into the detrimental effects of his drug use and his willingness to reform. Furthermore, the fact that he has worked as a stonemason, landscaper and bricklayer also shows his willingness to contribute to society. The deep support he has from his family and his genuine remorse also indicate, it is submitted, that his prospects of rehabilitation are better than poor.
26 Till submits that although he has a lengthy and relevant criminal history, including some matters involving violence, his prior convictions were 'largely dishonesty-related' and this is submitted to have been conceded by the prosecutor on the plea. Counsel for Till submitted on the plea that, with respect to Till's prior criminal history, 'the majority of it is dishonesty-type burglary offending ... save and except for the two County Court matters, one back in 2006 [aggravated burglary (offensive weapon) and a robbery for which Till was sentenced to 14 months' imprisonment with a non-parole period of six months] and one in 1996 [armed robbery and intentionally causing serious injury for which Till was given a combined custody and treatment order]'. [15]
27 Till's 35-page criminal record shows that he appeared in adult courts between 1996 and 2013 and has prior convictions for:
28 There was no concession on the plea by the prosecution that Till's prior offences were largely dishonesty-related. On the contrary, the submission for the prosecution that the offences were 'largely dishonesty-related' related to the prior criminal history of the co-offender Hi, not to Till.
29 With respect to the prior criminal history of Till, the prosecution characterised that history as 'a violent past':
Mr Till comes before the court having been before this court, or before a court, on 25 separate occasions already. He has a history, which in my submission, it is a relevant history, because it is violent. I understand that [counsel for Till] has addressed you in relation to the charges in 1998 of armed robbery and intentionally causing serious injury. But there are also, in his history, charges of assault with weapon, 2001, carry a controlled weapon without an excuse in 2002, possess controlled weapon without excuse in 2003 - - -
HIS HONOUR: I think there was assault police before that somewhere along the line too, wasn't there?
COUNSEL: Yes. So whilst there are those robberies in his history, and - sorry, armed robbery in his history, and that aggravated burglary, there are scatterings throughout it of what I would call offences that would illustrate that Mr Till does have a violent past.
30 By contrast, the submissions for Hi on the plea from his counsel, emphasised the non-violent nature of his prior offending:
He has a not-insignificant number of prior convictions, but a reading of his prior history indicates that he is not a violent person. He's not a confrontational person. The bulk of his prior convictions relate to dishonesty and deception, but certainly nothing of the order of an aggravated burglary or an armed robbery [conceding one assault with intent to rob].
31 In response to those submissions about Hi, counsel for the prosecution said:
In relation to Mr Hi and his prior convictions, he's been before the courts on nine different occasions, and the prosecution concede that they are largely dishonesty related.
32 We consider that the judge was correct to describe Till's criminal record as 'long and bad'[16].
33 The judge was well aware of Till's attempts to render his life drug-free, his remorse, and his family support. We do not consider that the judge took a wholly negative view of Till's failed attempts to rehabilitate himself from drug use. He describes Till's attempts at rehabilitation through the residential program at Odyssey House as 'genuine'[17] and he notes the positive contribution Till has made to his son's life.[18] He describes Till not only as being remorseful but also 'ashamed'.[19] However, the judge was obliged to balance these factors against Till's lengthy criminal record and the fact that the rehabilitation attempts repeatedly failed. In our view, he did this in a manner that was open to him.
34 We consider that proposed ground 2 is not reasonably arguable.
35 On the plea the judge was informed that Till was imprisoned in the Alex North Protection Unit at Port Philip Prison, a high security protection unit. It was submitted that, because Till will serve his time in protective custody, his time in prison will be more onerous than it would have been had he served his sentence in a mainstream unit. However, the judge's sentencing reasons omit to mention this factor which, Till submits, indicates that the judge has failed to take this relevant consideration into account.
37 It might be thought that serving a sentence in protective custody is a matter of sufficient importance to warrant express mention in sentencing reasons to reflect the fact that the judge has expressly taken it into account. However, this ground is not one of an alleged inadequacy of the reasons but rather an allegation that the judge failed to take into account that imprisonment for Till would be served in protective custody.
38 We do not consider that the absence of any reference to protective custody in itself demonstrates that the judge ignored this consideration. During the plea, the judge showed that he was aware that Till's imprisonment would be served in protective custody. In recounting Till's criminal history, Till's counsel stated that Till had been stabbed in prison in 2007, 'and so since that time he has always been in protection'. When describing the courses Till had completed while in prison, his counsel said that the 'difficulty, as your Honour would no doubt be aware is that there are limitations on courses in prison, in particular when one is in the protection unit'. The following exchange then occurred:
HIS HONOUR: Will he get the opportunity of doing rehabilitation courses at - amongst others at Marngoneet?
COUNSEL: Possibly. I asked him where he would be likely to be sent, he said it might be Hopkins at Ararat. He said he's hopeful that he will have a better opportunity of doing some sort of drug program when he's ultimately a sentenced prisoner. There are a variety of different - - -
HIS HONOUR: Well I think that's so, but whether he's - because he's in protection, that that affects his ability or not.
COUNSEL: Could I have a moment, Your Honour, I might be able to answer that very quickly?
HIS HONOUR: Yes.
COUNSEL: Your Honour, I'm the told that if he goes to - effectively a solely protection prison like Marngoneet or Ararat that he will be given the opportunity of doing a drug rehabilitation course.
HIS HONOUR: Yes, all right.
39 In our view, this discussion about the implications of protective custody suggests that the judge was well aware that Till would serve his period of imprisonment in protective custody and did not ignore it.
40 Furthermore, the ambiguities surrounding the issue of whether protective custody might in some circumstances offer Till a benefit, namely, participation in a drug rehabilitation course, indicate that, although the sentencing reasons are silent on the issue, it is unlikely that 'a markedly different sentence would have followed, had the matter been taken into account'[22] so as to suggest 'an omission to take the factor into account at all'.[23]
41 We consider proposed ground 3 not to be reasonably arguable.
42 Till submits that the individual sentences, orders for cumulation and non-parole period are manifestly excessive given Till's remorse, rehabilitation prospects, and status as a protection prisoner.
43 Till also relies upon his difficult up-bringing; his poor state of mental health; his pleas of guilty which were given at the earliest possible opportunity; the absence of any intention, prior to entry into the flat, of assaulting any person or damaging any property; the need to avoid double punishment (given that the offence of aggravated burglary is complete upon entering premises as a trespasser); and the moderating influence of the principle of totality.
44 He also relies on a comparison with current sentencing practice. He highlights the sentence imposed for the aggravated burglary charge (charge 1) (eight years) as being one of the longest sentences ever imposed for that offence. He submits that the median sentence of imprisonment for aggravated burglary, from 2010/11 to 2014/15, was two years and six months.
45 It is well accepted that the ground of manifest excess is difficult to establish. It will only succeed if the appellate court considers that the sentence is 'unreasonable or plainly unjust'.[24] In McPhee v The Queen,[25] Redlich and Priest JJA highlighted the considerable problems in making out the ground:
Every single human situation is unique, and the sentencing judge's instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences ... In order for an argument of manifest excess to be successful, the excess must be 'obvious, plain, apparent, easily perceived or understood and unmistakeable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error'.[26]
47 The Crown submits that there are many recent examples of cases in this Court where offenders have been sentenced for the offence of aggravated burglary to six years or more imprisonment where the alleged intent has been to steal on entry to the premises and the circumstances of aggravation are the possession of an offensive weapon. For example, in R v Nguyen,[29] the offender was convicted of aggravated burglary by entering the premises as a trespasser with intent to steal. He was armed with an axe and, once inside the premises, bound and sexually assaulted the victim. The offender did not know the victim, who was chosen at random in an attempt to obtain money to buy drugs. There was a clear link between the offender's drug addiction and his offending and a high risk that he would re-offend if he remained addicted. The offender was sentenced to six years' imprisonment for the aggravated burglary offence. In Bux v The Queen[30] the offender was sentenced to six years' imprisonment for aggravated burglary of the home of a legally blind 70-year old man with an intellectual disability who was injured and robbed. The offender did not know the victim and entered the victim's home in the dead of night. In Kheir v The Queen[31] the offender committed an aggravated burglary in the company of four other men, one of whom was armed with a shotgun, and the victim was robbed and assaulted and money demanded for his release. The offender was sentenced to six years' imprisonment for the aggravated burglary offence.
48 More recently, in DPP v Cooper,[32] this Court re-sentenced an offender, on appeal, to eight years' imprisonment, with two years' cumulation on a base sentence of 22 years imprisonment for murder, for the offence of aggravated burglary where the relevant intent was an intent to steal. The offending involved Cooper entering premises at night while armed with a knife, knowing that the premises were occupied by an elderly man, with an initial plan to steal what was believed to be about $20,000 cash kept at the premises. Cooper had a prior conviction for aggravated burglary and the Court emphasised the need for specific deterrence, describing the sentence of two years' imprisonment imposed by the sentencing judge as 'little short of derisory'.[33]
49 Current sentencing practice, while a useful tool, is not determinative in the task of ascertaining whether a sentence falls wholly outside the range of sentences that would be appropriate for an individual offender.[34] While a sentencing judge must have regard to current sentencing practice, pursuant to s 5(2)(b) of the Sentencing Act 1991, it remains only one factor to be taken into account and not the controlling factor. It reflects the importance of consistency in sentencing; however, that consistency is not a matter of numerical equivalence but rather of consistency of the application of legal principle.[35]
50 In determining the ground of manifest excess an appellate court must be mindful of the need to identify whether the sentence imposed was inappropriate or unjust. As Ashley, Redlich and Harper JJA said in Hudson v The Queen:[36]
On appeal, the question is not whether the sentence under challenge is more or less severe than some other sentence that is within the range, but whether the sentence falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.[37]
51 Here the circumstances of the offending included Till arriving at the door of the victim's flat in the early hours of the morning, at around 5:00 am, in the company of a co-offender and armed with a metal bar and a knife. Independently of what occurred inside the flat, the possession of the metal bar evidenced an intention to use it, if necessary, in committing the aggravated burglary. Till and Hi sought to disguise their appearance, Till by the use of a hoodie and a hat and Hi by a balaclava. The evidence also showed that Till believed that there was a person present in the flat. The yelling at the door in a highly agitated state was clearly designed to intimidate and terrify the occupant of the flat. The forced entry into the flat was aggressive and frightening.
52 As described above,[38] Till's criminal history is one of a violent past. His long and bad record of criminal offending clearly shows the connection between his violent acts and his dependency on drugs, a dependency which he has failed to conquer. Given that his prospects of rehabilitation were assessed as no better than poor, and having rejected the challenge to that assessment as not reasonably arguable, it is our view that specific deterrence justifiably played a large role in the judge's sentencing task, alongside the need for general deterrence and denunciation of the offending.
53 In our view, a sentence of eight years for the aggravated burglary was stern but nevertheless within range. We would refuse leave to appeal on this ground.
54 We have concluded that at least one of the four proposed grounds of appeal is reasonably arguable, proposed ground 1.
55 Section 280 of the Criminal Procedure Act 2009 empowers the Court of Appeal to refuse leave even where the Court considers that a proposed ground of appeal is reasonably arguable providing that it considers that there is no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed.
56 Section 278 provides for a person convicted of a criminal offence to apply for leave to appeal to the Court of Appeal. Section 280 sets out how such an application is to be determined:
280 Determination of application for leave to appeal under section 278
(1) The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if -
(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b) there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Note
Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).
(2) An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3) On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so -
(a) amend the sentence first imposed by substituting a less severe sentence; and
(b) make any other order that the Court considers ought be made.
57 In determining whether there is a reasonable prospect that the total effective sentence would be reduced if leave to appeal were granted, it is necessary to consider the gravity of all the offending including the 'utterly despicable, cowardly and brutal'[39] conduct involved in the offence of recklessly causing serious injury in circumstances of gross violence (charge 3). The sentencing judge described charge 3 as in effect involving significant and brutal violence on a defenceless victim over a period of about six hours during which the victim must have been terrified, helpless, and humiliated. She would also have been in considerable pain from the injuries inflicted which would probably have caused her death had she not been treated. The judge recognised that the moral culpability associated with charge 3 was 'of a particularly high order'.[40] Nevertheless, as Whelan JA observed, the sentence on charge 3 was at the lower end of the range of an appropriate sentence for the offender in the circumstances. Moreover, the cumulation ordered was, in the circumstances, modest. It would appear that, when the judge ultimately came to fix the sentence, he chose to focus primarily upon the criminal culpability associated with charge 1 rather than that associated with charge 3. Another sentencing judge may have gone about the exercise differently and imposed a considerably larger head sentence for charge 3, fixing that as the base, and reduced the head sentence for charge 1 with appropriate cumulation, resulting in the same total effective sentence. We consider that such a sentencing disposition could not have been impugned.
58 It is our view that, if leave to appeal were to be granted, the total effective sentence would remain undisturbed. We consider that there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence.
[1] DPP v Till [2016] VCC 1976 ('Sentencing reasons').
[2] Hi v The Queen [2017] VSCA 315.
[11] R v Storey [1998] 1 VR 359.
[15] Counsel said the sentence was imposed on 14 September 1996. Till's criminal record indicates that this sentence was imposed on 14 September 1998. The combined custody and treatment order was subsequently breached.
[20] R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 439-40 [63].
[24] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 568 [56].
[26] Ibid [8] (emphasis added), citing Hanks v The Queen [2011] VSCA 7 [22].
[28] Ibid [30], citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]. See also Young v The Queen [2016] VSCA 149 [128].
[34] DPP v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37, 40 [9], 54 [82].
[35] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535 [48]- [49].
Till
The Queen [2018] VSCA 122
(2015) 256 CLR 550
(2011) 32 VR 361
(2014) 43 VR 308
(2017) 349 ALR 37
(2008) 18 VR 434
(2010) 242 CLR 520
(2010) 30 VR 610