1. The applicant had two co-offenders, Mohammed Hassan[12] ('Hassan') and Farischa Bibi[13] ('Bibi'), who also pleaded guilty to charges which included aggravated burglary and theft. At the time of the offending the applicant was aged 29 years; Hassan was 32; and Bibi was 31. The victim of their offending, Charlie Zammit, was aged 58, was legally blind, and lived alone in Albion.
2. For a time, some years ago, Mr Zammit was Bibi's stepfather, having married her mother in 1999, separating in 2004. Bibi was married to Hassan. The applicant's former partner was Bibi's cousin.
3. In early 2021, Bibi rang Mr Zammit's brother and introduced herself as 'Barbara', the younger sister of Mr Zammit's ex-wife. She asked for Mr Zammit's telephone number, and provided her own telephone number so that Mr Zammit could call her. Some days later, Mr Zammit told his brother he was happy to receive a call from her. Bibi was then given Mr Zammit's number.
4. On 18 April 2021, Bibi rang Mr Zammit pretending to be Barbara, saying she wanted to visit him at his home. Later that evening, she went to Zammit's house and identified herself as Barbara. Mr Zammit thought Barbara's voice sounded different, but nonetheless accepted it was Barbara. He had not heard Barbara's voice for a long time and he could not see the person claiming to be Barbara.
5. On that evening, and on two other occasions in subsequent days, using the ruse that she was Barbara, Bibi deceived Mr Zammit into lending her money. He provided her with a card and a PIN. On three separate occasions, Bibi withdrew $1000.
6. As purported security for the 'loan', Bibi had given Mr Zammit a bracelet, telling him that it was worth $8500. Having withdrawn the cash, she asked Mr Zammit if he still had the bracelet, but he told her that he had given it to his sister. This made Bibi angry. The applicant, Hassan and Bibi subsequently devised a plan for the applicant to enter Mr Zammit's home by subterfuge and steal from him.
7. On 24 April 2021, the applicant called Mr Zammit and said he was 'from the Government'. The applicant told him that Mr Zammit's rental agent had contacted the government asking that they check the batteries in his smoke alarm. Mr Zammit believed the applicant to be a genuine caller.
8. At about 4.15 pm that afternoon, the applicant and Hassan - who were both on bail for other matters (see summary charge 8) - drove with Bibi to Mr Zammit's home. Bibi waited in the car. The applicant and Hassan approached the front door and knocked. Mr Zammit let the applicant in (charge 2), believing that he was there to attend to the smoke alarm, while Hassan remained at the front door. Once inside, the applicant asked Mr Zammit where his wallet was and if he had any credit cards. When Mr Zammit said those things were with his sister, the applicant approached Mr Zammit and ripped a gold necklace from his neck. He then struck Mr Zammit to the left-side of the head causing him to fall and hit his head on a coffee table. Mr Zammit lost consciousness. He sustained injuries to his head and face, including superficial abrasions and a three centimetre shallow laceration to the right temporal aspect of his skull (charge 3). The applicant - who had taken the gold chain, a Bluetooth speaker, two mobile telephones and a cordless home phone (charge 4) - and Hassan then returned to the car where Bibi was waiting.
9. At around 5.00 pm, Mr Zammit's brother found the injured Mr Zammit in a pool of blood in the living room and called emergency services. Police attended. The applicant's fingerprints were found on a box which had contained one of the mobile phones stolen during the aggravated burglary.
10. On 29 April 2021, search warrants were executed on Bibi's home and she was arrested. The applicant was arrested when he walked out of her home. Hassan was also at the premises. Police found the mobile phones which had been stolen, and they seized Bibi's phone, which had been used to contact the victim. The applicant told police that he had known Bibi for a week and she had asked him to do jobs for her. He said Mr Zammit owed Bibi money. The applicant said he felt sorry for the victim, and denied doing anything to him, or getting anything from him or the house. When police searched the applicant's home, they found two improvised handguns (charge 5) and four .22 short calibre cartridges, two 12-gauge shotgun cartridges, three 12-gauge shotgun cartridges, 26 .22 long rifle calibre rimfire cartridges and two .22 long rifle rimfire cartridges (summary charge 12), together with a ninja throwing star (summary charge 15). A cannabis plant weighing four grams was growing in a pot in a shed (charge 6), and a press-sealed bag of cannabis weighing two grams was found in his bedroom (charge 7). A gold chain in a container was found on the top shelf of his bedroom and a Bluetooth speaker was on top of his bedhead.
11. When interviewed by police, the applicant said Bibi had sought his assistance to collect money from people but he always refused. He denied going to the victim's house or assaulting him, and stated that he was being set up. Later, he said he had, 'nothing to show', from the events at the victim's home. He denied knowledge of the cannabis plant, and said the firearms did not belong to him.

1. Although manifest excess is a conclusion that does not depend on the identification of specific error, it is plain that the judge adverted to all relevant considerations in his reasons for sentence.
2. Among other things, the judge observed that the 'entry into the home of a vulnerable blind, elderly man to steal from him is conduct deserving of denunciation and deterrence'. The applicant's prior criminal history means specific deterrence is relevant. General deterrence is also important, and the applicant's 'conduct once inside the house calls for condign punishment for [his] gratuitous and unprovoked violence'. The judge was, however, 'conscious of not imposing double punishment'.
3. The judge was 'guarded' as to whether the applicant's pleas of guilty were accompanied by remorse, but was prepared to accept that the remorse expressed in a letter of apology was genuine. The judge referred to the applicant's personal circumstances, and noted that at the time of the offending the applicant was 'abusing methamphetamines and GHB'. He had suffered an assault at the hands of his ex-partner and friends, fracturing his hand. A psychologist, Ms Gina Cidoni, had assessed the applicant and provided a report dated 21 November 2021. The judge summarised Ms Cidoni's report - which he said he took into account - as follows:

[80] You had obtained a medical mental health care plan but had not begun counselling. In custody you had been on an Avanza an anti-depressant as well as another anti-depressant escitalopram. Ms Cidoni summarised your drug-taking history from aged 17 onward involving alcohol, cannabis and methamphetamines and GHB. She noted no though disorder or delusional beliefs. Intellectual testing indicated borderline to low average capacity. You present as anxious, lonely and socially apprehensive. Your illicit substances opine Ms Cidoni, reduce your tension. Still fantasies of enhanced esteem and bolster your diminished self-confidence.

[81] You experience flashbacks and nightmares and intense anxiety and [hyper]-vigilance, anger and panic attacks with a chronically depressed mood. You lack insight and consequential thinking skills and you present as highly impressionable, preferring to follow rather than lead. Your thought processes are immature and insecure. You presented with a borderline cognitive function on verbal and memory tests, these cognitive deficits indicate poor impulse control and acting without thinking.

[82] Clinical diagnosis is post-traumatic stress disorder, generalised anxiety, persistent depressive and substance use disorder. Drug use would have caused your thinking and judgment to be disturbed. Ms Cidoni wrote that you present as lacking basic tools to handle life, self-understanding and resolving issues which cause you stress. You have used drugs to self-medicate against depressive and anxiety symptoms. Your low cognitive functions she writes as well as your mental state, would render prison more onerous and may adversely be affected by reclusion.

[83] Lacking the maturity to adopt and cope with change, your immaturity and confusion may be misinterpreted and you are easily led. Your post-traumatic stress disorder would result in hypervigilance in a tense environment-like prison, where your maladjustment would worsen. I take this into account in setting your term.

[84] You would require drug treatment and psychological therapy. ...

1. The judge noted that it was to the applicant's credit that he had undertaken courses whilst on remand. He noted references received from the YMCA Bridge project (which is aimed at providing post-release recruitment support and employment opportunities), and letters from the applicant's parents and aunt. The judge also noted negative urine drug screens from June to September 2021. He also noted the letter of apology to the victim.
2. Many of the applicant's prior convictions, the judge said, were relevant to his prospects of rehabilitation, which the judge assessed as 'guarded'. The judge said that the applicant 'committed these current offences whilst on bail and therefore this relevant history indicates that specific deterrence is relevant and significant in [the applicant's] case as well as community protection'.
3. Finally, the judge also took delay and its effects into account, observing:

This is your first time in custody and you have done your best to use the time beneficially, despite restrictions and limitations pertaining to the pandemic. However, your conduct was reprehensible. In my view, you acted as a thug at the service of others. You were sentenced after the matter first listed in this court and ever since the plea in June has been delayed by the pandemic and also by the situation pertaining to Ms Bibi and her inability to have her matter heard together with [Hassan and] you. It has meant that it has been hanging over your heads for a longer than expected period without fault of your own. I take that delay into consideration. Both as regard [sic] to the fairness limb and the rehabilitation limb, each of you in my view should receive an amelioration because of it.

1. In this Court, counsel for the applicant submitted that the circumstances of the aggravated burglary (charge 2) do not warrant an individual sentence of four years' imprisonment. Counsel submitted that violence, threats, or fear instilled in the victim, are crucial in assessing the gravity of the offence. Additionally, citing Meyers,[14] counsel submitted that the following factors are ordinarily relevant to an assessment of the gravity of a particular instance of aggravated burglary: the offender's intent at the point of entry; the mode of entry; whether the offender was armed; whether the offender was alone or in company; the time of day; what the offender knew or believed about who would be inside; and whether the offender was someone of whom the victim was particularly frightened. In this case, many factors of aggravation were absent. The present case should be considered less serious than one where entry was forced.
2. Counsel for the applicant submitted that the applicant entered a plea of guilty at the earliest opportunity, and during a time when the ordinary operations of the court had been significantly interrupted due to the effects of the COVID-19 pandemic, but the sentence imposed does not reflect those mitigating features.[15] Documentary evidence - negative urine drug screens between 10 June 2021 and 21 April 2022; an attendance record for Narcotics Anonymous; a letter of support from the YMCA Bridge Project; and a letter of apology to the victim - indicated that the applicant had taken positive steps towards rehabilitation. The applicant was also able to rely on the ongoing support of his parents and extended family. His past compliance on Community Correction Orders was another factor relevant to an assessment of his prospects of rehabilitation.
3. As to delay, although the applicant's plea was first listed to proceed on 9 February 2022, it was not heard until 8 June 2022. The plea was adjourned on multiple occasions due to the failure of Bibi to appear. As a result, the applicant had the matter hanging over his head for an extended period, and he had taken steps towards rehabilitation in the meantime. The sentence imposed indicates, however, that the judge must have given insufficient weight to delay.

1. Counsel for the respondent contended that the sentence was within the appropriate range. The applicant's is a serious example of aggravated burglary, notwithstanding that it does not meet the description of a 'confrontational' aggravated burglary, as contemplated in Hogarth[16] and Meyers. Counsel submitted that the extreme vulnerability of the blind victim, and the callous exploitation of that vulnerability by the applicant, elevates this offence in seriousness quite substantially. While the applicant complains that the factual basis of the aggravated burglary must not have been properly taken into account, the contrary is true. Counsel submitted that it is apparent that the judge acted appropriately and took into account the nature of the victim who was targeted.
2. It is also apparent from the sentence, counsel submitted, that the sentencing judge gave full credit for the early plea of guilty and its increased significance due to it being entered during the pandemic. Similarly, the applicant's prospects for rehabilitation were also taken into account, the judge describing them as 'guarded'. The judge also took the delay into account, even though defence counsel on the plea had said it was 'not a significant factor'. Moreover, the judge took the mitigating features into account, although these had to be balanced against the gravity of the offending and the high moral culpability of the applicant. The applicant was on bail at the time of the offending - an aggravating factor - and the impact of the offending upon the victim was significant.

1. In written submissions, counsel for the respondent pointed out that the judge had found that the cannabis possessed by the applicant was not more than a small quantity of cannabis, and was not possessed for a trafficking purpose, so that that the maximum penalty was five penalty units.[17] That being so, it is necessary that this Court 'impose a penalty that is in accordance with law'.[18] On charge 7 we would order that the applicant be convicted and discharged.[19]

1. We are not persuaded that the sentence under challenge is manifestly excessive.
2. Although the applicant's aggravated burglary was not accompanied by a number of the aggravating features identified in Meyers, it was nonetheless serious. He was able to accomplish entry through trickery due to the extreme vulnerability of the occupant. Indeed, at the time that he attempted to gain entry to the victim's home, the applicant knew that Mr Zammit was frail and vulnerable.
3. Moreover, the recklessly causing injury perpetrated after entry was a nasty offence. It was a gratuitous, disturbingly callous and cowardly crime, perpetrated on a very vulnerable victim in the sanctity of his own home. Aptly, the judge described the applicant's conduct as 'reprehensible'. Plainly, it was a serious example of the offence of recklessly causing injury. The applicant, without any provocation, viciously struck the victim - who, because of his blindness, was truly defenceless - to the head, and left him unconscious in a pool of blood. Given the circumstances in which that offence was committed, including the extreme vulnerability of the victim who was entitled to feel safe in his own home, and the applicant's very considerable moral culpability, the individual sentence of 18 months' imprisonment on that charge was lenient. Furthermore, the order for cumulation of a mere nine months of that sentence on the aggravated burglary demonstrates that the judge had an eye on totality, and was astute not to inflict double punishment on the applicant. It was also a significant aggravating feature that the applicant was on bail at the time that he committed the present offences.[20]
4. Further, the consequences of the applicant's offending for his victim were relatively pronounced. In his Victim Impact Statement, Mr Zammit said that he was treated in hospital for his wounds, which took 'a while to heal'. It took him two to three months to get over his physical injuries, and it took some time before he could sleep properly. He suffered from nightmares and is 'very scared a lot of the time'. Indeed, he is 'scared to open the door to anyone', is worried by noises that he hears and 'was anxious about leaving [his] flat'. He finds it 'difficult to trust people'. Although, of course, it must not be permitted to overwhelm other factors, the impact of the offences on the victim is a matter to which regard must be had.
5. Significantly, the applicant also has a relevant prior criminal history. In 2012, he was dealt with for theft of a motor car. He was placed on a community correction order ('CCO') in 2015 for possessing a controlled weapon, criminal damage, driving offences, drug possession, making threats to kill and contravention of an intervention order. In 2016, without conviction, he received a bond for affray and recklessly causing injury; and in 2017 he was fined for assault with a weapon, assault, burglary, theft and escaping from police. Another CCO was imposed on the applicant in 2019, for dangerous driving whilst being pursued by police, supplying a drug of dependence to a child, resisting police, property damage, entering a private place without authorisation and possession of cannabis. Although the applicant is not to be punished again for his previous offending, his criminal record is an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.[21]
6. Importantly, there is nothing in the applicant's personal circumstances that provides any real explanation - or any mitigation - for his offending. Indeed, the highest Ms Cidoni could put it was that the applicant

was affected by methamphetamines and GHB, which would have caused his thinking and judgment to be disturbed. Additional factors at play are his borderline intellect, which makes him naïve and impressionable; and his experiences of violence that have resulted in PTSD with symptoms of hyperarousal such as anger and irritability because of being in a constant state of fight or flight.

Mr Tseros presents as lacking in the basic tools needed to handle life, including understanding himself and his own functioning and struggling to solve problems that create distress. He battles with depressive and anxiety symptoms, and he uses drugs to self-medicate against these.

1. The approach to a ground contending that a sentence is manifestly excessive was summarised in Leimonitis:[22]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[23] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[24] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[25] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[26]

1. In the present case, not only were specific and general deterrence and denunciation important in arriving at an appropriate sentence, but it was also necessary that the sentence imposed adequately punish the applicant for his serious offending. Balancing all relevant factors, we do not consider it to be reasonably arguable that any component of the sentence imposed was altogether outside the range available to the judge in the sound exercise of the sentencing discretion.
2. Leave to appeal against sentence should be refused.

[1] His date of birth is 20 December 1991.

[2] Crimes Act 1958, s 77. The maximum penalty is 25 years' imprisonment.

[3] Crimes Act 1958, s 18. The maximum penalty is five years' imprisonment.

[4] Crimes Act 1958, s 74. The maximum penalty is 10 years' imprisonment.

[5] Firearms Act 1996, s 7C. The maximum penalty is 10 years' imprisonment.

[6] Drugs Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is one year's imprisonment if the court is satisfied that cultivation is not for a purpose related to trafficking; or in any other case, 15 years' imprisonment.

[7] Drugs Poisons and Controlled Substances Act 1981, s 73. The maximum penalty is five penalty units if the court is satisfied that no more than a 'small quantity' of cannabis was possessed; one year's imprisonment if the court is satisfied that possession was not for a purpose related to trafficking; or in any other case, five years' imprisonment.

[8] Bail Act 1977, s 30B. The maximum penalty is three months' imprisonment.

[9] Firearms Act 1996, s 124. The maximum penalty is 40 penalty units.

[10] Control of Weapons Act 1990, s 5AA. The maximum penalty is two years' imprisonment.

[11] See [27] below.

[12] His date of birth is 15 December 1989.

[13] His date of birth is 7 February 1990.

[14] DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486, 498 [48] ('Meyers').

[15] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344.

[16] Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[18] Sentencing Act 1991, s 104B(2)(a). See also Criminal Procedure Act 2009, s 280(3)(b).

[19] Sentencing Act 1991, s 73.

[20] DPP v Milson [2019] VSCA 55, [61]; R v Gray [1977] VicRp 27; [1977] VR 225, 229-230 (Gillard, McInerney and Crocket JJ); R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crocket J, Fullagar and Marks JJ agreeing); R v Basso & Frazetto [1999] VSCA 201; (1999) 108 A Crim R 392, 397-8 [21]-[26] (Chernov JA), 404-5 [57]-[63] (Charles JA); DPP v Galea and Mosut [2000] VSCA 87; (2000) 112 A Crim R 507; R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA, Bongiorno JA agreeing); Samuels‐Orumnwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA, Maxwell ACJ and Redlich JA agreeing); Makieng v The Queen [2022] VSCA 52, [45] (Priest and Kyrou JJA). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences 'must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term'.

[21] R v O'Brien and Gloster [1997] 2 VR 714, 718.

[22] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).

[23] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].

[24] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

1. [26] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15].