Turney v The Queen [2020] VSCA 131

1 The applicant pleaded guilty in the County Court to one charge of aggravated burglary[1] and one charge of intentionally causing injury.[2] On 30 April 2019, he was sentenced to an aggregate term of imprisonment of three years.[3] A non-parole period of one year and eight months was fixed.[4]

2 The applicant now seeks leave to appeal against his sentence on the following grounds:

(1) The sentencing judge erred by imposing an aggregate sentence.

(2) The aggregate sentence and the non-parole period are each manifestly excessive.

3 The offending occurred late in the evening of 23 August 2017. There were two co-offenders, Bradley Johnson and Peter Jones.[5] At the time of the offending, Johnson and the applicant were 23 years of age, and Jones was 22 years of age. The applicant and Johnson were employed by Jones as roof tilers.

4 The victim of the offending was Jacob Perger, who was 24 years old at the time. Approximately ten days before the offending, Jones' partner of some eight years told him that she had had an affair with Mr Perger. Subsequently, Jones and Johnson formed a plan to go to Mr Perger's house to seek retribution for the affair.

5 On the day of the offending, Jones and Johnson went to the applicant's home. The applicant was not aware of the plan that had been made by Jones and Johnson. At the applicant's house, all three offenders were drinking beer. They became considerably affected by alcohol, if not other drugs as well. During the course of the evening, further beer was purchased. Subsequently, they went to Mr Perger's house.

6 After arriving at Mr Perger's property, Johnson turned off the power to the house at the power board. He kicked the front door of the premises, causing the lock to break and the door to open. He and Jones both entered the house. They had with them one or more metal poles.

7 Johnson and Jones entered the front master bedroom, where Mr Perger was lying asleep on the bed. They began hitting him repeatedly with the metal poles. The applicant was not on the property at the time that Jones and Johnson entered, but he was nearby. Mr Perger put his arms up to protect himself, and started punching and kicking out. He was hit several times with hard objects to his left arm and elbow and also to one of his eyes and mouth.

8 After hearing banging, the applicant decided to enter the property and assist in the assault (charge 1 - aggravated burglary). Having arrived at the bedroom door, he stood in the doorway where, as the judge described it,[6] he 'would have had a clear view of what was happening to the victim'. He then joined in the attack on Mr Perger, who was in his own bed, by going to him and striking him with a closed fist once to the head (charge 2 - intentionally causing injury). At that point, Mr Perger lost vision. He reached and grabbed a lamp and threw it. He believes that the lamp hit one of the offenders, as he heard it connect. He then heard a male voice saying, 'Let's go, let's go', and another male voice also saying, 'Let's go'.

9 The three offenders ran from the house, leaving the front door open. They drove to the applicant's house. Before driving off, Jones and Johnson dumped jumpers or hoodies that they had been wearing.

10 Following the assault, Mr Perger went to a neighbour's house. The neighbour called police and an ambulance. Mr Perger was taken to the Dandenong Hospital where he received treatment for a fractured eye socket, a suspected fractured skull, a laceration to the head, six fractures in his left arm, a dislocated left elbow, a broken right little finger, and bruising to his lower back.

11 The applicant was arrested on 11 October 2017. A record of interview was conducted. During the course of the interview, the applicant made admissions concerning his role in the offending, including the following:

From there went for a drive, pulled over, that's when we entered the premises and I just ran back after I heard - like, as soon as I heard screaming and stuff like that.

Question: So you said a 'couple of steps', how far would you say you went in the house?

Answer: I wouldn't even say a metre in.

12 The applicant otherwise denied the assault on Mr Perger or that he entered Mr Perger's room.

13 The applicant was 25 years of age at the time of sentencing. The judge described him as having no relevant prior criminal history.[7] He did, however, have 'a lengthy history of misuse of drugs, commencing drinking alcohol at the age of 14, [and using] cannabis at the age of 17 and ice at the age of 18'.[8]

14 The judge referred to the applicant having a 'supportive network' and 'a good work history'.[9]

15 In August 2018, the applicant made a serious attempt to commit suicide when he jumped from a moving vehicle and was hit by two cars. He was admitted to the Alfred Hospital. He had to be sedated and restrained. He was an inpatient at the Alfred Hospital from 11 to 14 August, and in the intensive care unit from 11 to 13 August.

16 Following an examination of the applicant in February 2019, Dr Anthony Cidoni, a consultant psychiatrist, expressed the opinion that the applicant suffered from a 'major depressive disorder which [was] in relapse,' and that he had also suffered from a 'drug-induced psychotic disorder which [had] resolved'. Dr Cidoni concluded:

I believe that [the applicant] would be significantly vulnerable if incarcerated. I believe that there would be an extremely high likelihood of a worsening of the depression and a high risk of suicide, noting his previous serious suicide attempt. I have no doubt that imprisonment would weigh more heavily on him than a person in normal health.

17 In March 2019, on referral from his general practitioner, the applicant commenced clinical psychological treatment with Matthew Saunders. In a letter written in April 2019, Mr Saunders said:

[The applicant] presents with marked clinical depression that he has commenced addressing through a resolute determination to get his life back together. He has impressed as conscientious in his attitude towards treatment, has made a concerted and successful effort to remain in employment as a qualified roof tiler and has displayed thoughtful and genuine remorse about his self-reported past offending behaviour as well as considerable shame.

18 On the plea hearing, a number of medical reports and records were tendered - including the reports of Dr Cidoni and Mr Saunders, to which we have referred. Letters from the applicant's mother and stepfather, and a reference from a family friend, were also tendered. In her letter, the applicant's mother makes reference to open-heart surgery that she had recently undergone and which had 'unfortunately ... not worked out as well as expected'.

19 The applicant's plea counsel submitted that a community correction order ('CCO') was appropriate in all the circumstances. The judge raised the possibility of an aggregate sentence of imprisonment. On the question of aggregate sentence, there was the following exchange between the judge and the applicant's counsel:

COUNSEL: Just in relation to the aggregate sentence, while it might be permissible under s 9 of the Sentencing Act because they fall under the same event, if that's a way of describing it. In my submission, Your Honour would still have to be satisfied depending on the aggregate sentence to be imposed that that particular sentence is warranted for each charge. For example, if Your Honour was of the view that a sentence of imprisonment was required for the aggravated burglary, having regard to the principles but not of the view that that was required for the intentionally causing injury. If of course [the applicant] had just wandered in without the intention and joined in a fight later, he might have found himself in the Magistrates' Court potentially receiving a fine with an absence of any violent priors.

HIS HONOUR: Yes. But an aggregate term of imprisonment doesn't mean that I have to be satisfied that on each charge an aggregate sentence, standing alone may, not attract a period of imprisonment. I don't follow that. I've not thought of that.

COUNSEL: I would just ask Your Honour to very, very clearly consider the criminality that attached to each charge before making that determination.

HIS HONOUR: Absolutely and even whether you're talking about individual sentences or aggregate sentences, one looks to the totality to ensure that the sentences or sentence, aggregate if it be one, is in total appropriate.

COUNSEL: I concede that an aggregate CCO is in range and -

HIS HONOUR: Yes, well I gathered that.

20 The judge said he was particularly mindful of the need to ensure that there was no double punishment in relation to the charges of aggravated burglary and intentionally causing injury.[10] As to the gravity of the applicant's offending, the judge noted that the applicant was 'not party' to the planning and preparations of his co-offenders.[11] The judge said, however, that having heard noises coming from the victim's home, the applicant came to the premises; entered the premises with an intent to assault, came to the bedroom doorway, saw the attack on the victim with weapons and decided to join in; and joined in by striking the victim with a clenched fist, one blow to his head, whereupon he lost vision.[12]

21 The judge described the aggravated burglary that the applicant engaged in as 'a serious example', but 'towards ... the lower end of the range of aggravated burglaries'.[13]

22 The judge referred to the applicant's background circumstances, the letters which were tendered on the plea, and the reports of Dr Cidoni and Mr Saunders.[14] The judge accepted Dr Cidoni's opinion about the likelihood of the applicant's depressive condition worsening if incarcerated. He also accepted that imprisonment would be more burdensome to the applicant given his concerns for his mother's health and the medical condition described by Dr Cidoni.[15] As such, his Honour accepted that Verdins[16] principles 5 and 6 were engaged.[17]

23 The judge noted that it had been forcefully put by the applicant's plea counsel that he should obtain a report in relation to the applicant's suitability for a CCO. He said he was 'circumspect, to say the least, about such a combined sentence being appropriate in the circumstances of this case'.[18] He then observed that, while the applicant was found suitable for such an order, the report obtained was 'not entirely positive'. The judge noted that the applicant's prospects of rehabilitation were good, but said that if he reverted to the use of drugs then his prospects would 'probably vanish'.[19]

24 The judge treated the applicant's plea of guilty as an early one, saying that the plea was to be taken into account for its utilitarian benefit and 'as further evidence of remorse'.[20] The judge concluded his reasons for sentence as follows:

Sentencing young men, and no less than three of you, today with no relevant criminal history for such serious offending is a difficult task.

General deterrence, deterring others from offending is the principle sentencing factor I must, and do, take into account. Others must be deterred by the sentences that I impose on you three from committing offences such as this, which are all too prevalent in our community. People are entitled to close their front door, go about their business in their own home, go to their bedrooms and fall asleep and not have the front door kicked in, the power turned off and two men initially beating a man in his own bed with poles, then to be joined by the third, [the applicant]. There is a need for just punishment to be imposed on each of the three of you and for your cowardly and serious misconduct, to be denounced by me.[21]

Ground 1: did the judge err in imposing an aggregate sentence?

25 The circumstances in which a court may impose an aggregate sentence of imprisonment in respect of two or more offences are governed by s 9 of the Sentencing Act 1991. Section 9 relevantly provides:

(1) If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.

...

(3) If a court proposes to impose an aggregate sentence of imprisonment, it must before doing so announce in open court, in language likely to be readily understood by the offender -

(a) the decision to impose an aggregate sentence and the reasons for doing so; and

(b) the effect of the proposed aggregate sentence.

26 By its terms, ground 1 contends that the judge erred 'by imposing an aggregate sentence'. In his written case, the applicant makes two complaints: first, that the judge did not comply with s 9(3) in that he did not, before imposing the aggregate sentence, announce in open court (in language likely to be readily understood by the applicant) the decision to impose an aggregate sentence, the reasons for doing so, and the effect of the proposed aggregate sentence; and secondly, that the judge imposed an aggregate sentence when one 'ought not to have been imposed'.

27 In oral argument this morning, counsel for the applicant accepted that the making good of the applicant's first complaint would not, however, result in the sentencing discretion being reopened. The focus of counsel's oral argument was on the second complaint.

28 In support of his second complaint, the applicant's written case noted that there were only two charges on the indictment; the conduct that formed charge 1 was considerably different from the conduct that informed charge 2; and the offences were not founded on the same facts, nor formed, nor were part of, a series of events of the same or similar character. In oral argument, however, the applicant's counsel accepted that the charges were relevantly founded on the same facts or series of events. Counsel submitted that the imposition of an aggregate sentence was erroneous for the reasons given by this Court in Director of Public Prosecutions v Rivette.[22] In Rivette, Ashley and Priest JJA said:

Sixth, this Court has repeatedly stated that imposition of an aggregate sentence is inappropriate where a presentment contains only a small number of counts, or counts which vary significantly in their seriousness, or the manner in which the offences were committed. So, in Frewstal, Maxwell P said this:

The kind of case for which an aggregate sentence is appropriate is one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality. The archetypical example is the case of multiple offences of burglary and theft, committed over a relatively short period, where an aggregate sentence is a 'more flexible and pragmatic' way of 'reflecting all of the offender's conduct'.

The same point was made by Weinberg AP, Priest and Beach JJA in Fitzpatrick v The Queen, and by Redlich and Santamaria JJA in Kerapa v The Queen.

Seventh, the circumstances which are inappropriate for the imposition of an aggregate sentence have been sufficiently delineated to permit their application by trial judges and magistrates They should be understood as a principled exposition of circumstances in which an exercise of discretion under s 9(1) to impose an aggregate sentence would fall into error. That point, in our opinion, was engaged in this case. There were relatively few charges, they were distinct in character, and one of them involved much more serious offending than the others. If it was necessary to express a conclusion about ground 3, we would hold that the imposition of an aggregate sentence infringed House because the judge acted upon a wrong principle.[23]

29 In response to the applicant's submissions, the respondent contended that there was no error in the imposition of an aggregate sentence in this case. In support of the proposition that an aggregate sentence was available to the sentencing judge, the respondent relied upon this Court's decision in R v Grossi.[24] In Grossi, Redlich JA said:

The criteria for offences which may be included in an aggregate sentence, namely offences 'which are founded on the same facts, or form, or are part of, a series of offences of a same or a similar character' is identical to the criteria relevant to a determination of when charges for any offence may be joined in the same presentment and those offences exempted under s 9(1A) of the Act. Thus multiple offences on the same presentment will, by definition, be offences for which the Court may impose an aggregate sentence.[25]

30 The respondent also noted that the availability of an aggregate sentence was agreed to by the applicant's counsel during the plea hearing - albeit that the applicant's plea counsel submitted that 'a different type of aggregate sentence ought be imposed'.

31 As to compliance with s 9(3) of the Sentencing Act, the respondent submitted that statements made by the judge on two occasions, both individually and in combination, during the course of the plea, satisfied the requirements of s 9(3).

32 The first occasion relied upon by the respondent occurred during an exchange between the judge and the prosecutor as follows:

HIS HONOUR: No. The only other thing that has not been addressed at all is the question of aggregate sentence. What do you say about that?

PROSECUTOR: Your Honour, I say that my submission is that there should be, because even though it was one course of conduct between the two -

HIS HONOUR: No, as opposed to individual sentences for each of the two charges.

PROSECUTOR: Yes, yes.

HIS HONOUR: I know I can as part of the legislation.

PROSECUTOR: Yes, Your Honour.

HIS HONOUR: But sometimes it's submitted, well, don't do it. And that's particularly the case where there might be some hiatus in time between the beginnings of a course of conduct and the end part. But it strikes me that in relation to each of the accused an aggregate sentence is not only open, which it is, but appropriate. What do you say about that?

PROSECUTOR: Your Honour, it is of course - it could be viewed -

HIS HONOUR: What is the maximum penalty for the intentionally causing?

PROSECUTOR: Ten years, Your Honour.

HIS HONOUR: Ten years, yes, injury, yes.

PROSECUTOR: Ten years. Your Honour, the offending took place over a relatively short period of time involving all of the offenders. The CC television footage, the time -

HIS HONOUR: Yes, there's not much difference.

PROSECUTOR: No. So Your Honour -

HIS HONOUR: We're talking about minutes, aren't we?

PROSECUTOR: Yes. Your Honour can use that as a scale in regards to the nature of the offending - correction, the length of the offending. The entering into the premises, the - it would appear that the assault on the victim took place very quickly after both Messrs Johnson and Jones entered the premises and a short time later [the applicant] joined in, so the time frame is quite a narrow one.

33 The second occasion relied upon by the respondent occurred during the applicant's submissions in reply, and just prior to the applicant's plea counsel conceding that an 'aggregate CCO' was within range. Specifically, in response to counsel saying that the judge should 'consider the criminality that attached to each charge before making [a determination to impose an aggregate sentence]', his Honour replied:

Absolutely and even whether you're talking about individual sentences or aggregate sentences, one looks to the totality to ensure that the sentences or sentence, aggregate if it be one, is in total appropriate.

34 It is convenient to start with the applicant's second complaint that the judge was wrong to impose an aggregate sentence. We think there is some substance in this complaint for the reasons given by this Court in Rivette.[26] There were only two charges. They were distinct in character. And they involved, at least on one view, significantly different levels of seriousness if considered separately.

35 We also think there is substance in the applicant's complaint about the judge's failure to comply with s 9(3) of the Sentencing Act. Section 9(3) required the judge to make the requisite announcement about 'the decision to impose an aggregate sentence, the reasons for doing so and the effect of the proposed aggregate sentence' in open court and in language readily understandable by the applicant. It was not suggested by the respondent that the judge complied with the section in the course of giving his reasons for judgment - and nor do we think that it could have been so suggested.

36 Instead, the respondent contended that s 9(3) was complied with during the course of discussion on the plea hearing. While not foreclosing the possibility that a judge might comply with s 9(3) during the course of a plea hearing, and before sentencing, it seems to us that in most cases this would be highly unlikely because, prior to the conclusion of the plea hearing, the judge will not have made any decision to impose an aggregate sentence - let alone any specific aggregate sentence.

37 That said, the respondent's contention that the judge complied with s 9(3) of the Sentencing Act during the course of the plea hearing faces a more fundamental difficulty. On no fair reading of the transcript could it be said that the judge announced, in language likely to be readily understood by the applicant, his decision to impose an aggregate sentence, his reasons for doing so, or the effect of the sentence to be imposed. Rather, he revealed that he was contemplating making such a decision, which is not the announcement the sub-section requires.

38 We take leave to doubt that a sentencing judge's failure to comply with s 9(3) of the Sentencing Act necessarily constitutes an error in the sentence imposed within the meaning of s 281(1)(a) of the Criminal Procedure Act 2009. For present purposes, however, it is sufficient to note the applicant's concession that the failure to comply with s 9(3) of the Sentencing Act in this case did not constitute such an error. In the circumstances, we turn back to the issue of the correctness of the imposition of an aggregate sentence.

39 Even if we were to accept the applicant's complaint that the judge erred in imposing an aggregate sentence, this would not mean that this Court must necessarily grant the applicant leave to appeal. This Court may refuse an application for leave to appeal if there is no reasonable prospect that the Court would impose a less severe sentence than the sentence first imposed, or there is no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed.[27]

40 The question of whether there is a reasonable prospect that this Court would impose a less severe sentence, or reduce the total effective sentence, is closely related to the issue of manifest excess which the applicant seeks to agitate under proposed ground 2. It is therefore convenient, before proceeding further in relation to ground 1, to turn to ground 2.

Ground 2: was the sentence manifestly excessive?

41 The applicant accepts that his offending was serious and that general deterrence was an important sentencing consideration. He submitted, however, that there were also significant mitigating circumstances that informed the sentencing task. Specifically, he relied upon the following matters:

• he was a youthful offender;
• he pleaded guilty;
• his plea was entered at the earliest opportunity;
• he was genuinely remorseful;
• he had no relevant prior convictions;
• he was 'in a very vulnerable psychological state' (on this issue, he placed particular reliance on Dr Cidoni's opinions);
• the offending was spontaneous; and
• the aggravated burglary, while serious, fell towards the lower end of the range of aggravated burglaries.

42 The applicant submitted that having regard to all of the objective and subjective circumstances that fell to be taken into account, together with the principle of parsimony, a term of imprisonment in combination with a CCO 'could have satisfied all of the applicable sentencing principles'.

43 In our view, there is no substance in the applicant's contentions. The sentence was, if anything, a modest one, having regard to the gravity of the offending. As the judge observed, general deterrence was an important sentencing consideration. There was a need for just punishment to be imposed on the applicant for his serious and cowardly conduct. More specifically, members of the community are entitled to close their front door, go about their business in their own home, go to their bedrooms and fall asleep and not have the front door kicked in, the power turned off, offenders come into their home and assault them in company.[28]

44 Notwithstanding the matters in mitigation relied upon by the applicant, far from the sentence imposed by the judge being manifestly excessive, it is, as we have said, modest. Moreover, despite our views on the first ground, there is no reasonable prospect that this Court would impose a less severe sentence. A sentence of three years, with a non-parole period of one year and eight months was, in all the circumstances of this case, at the lower end of the range

45 The application for leave to appeal must be refused.

[1] Contrary to s 77 of the Crimes Act 1958. The maximum term of imprisonment for aggravated burglary is 25 years.

[2] Contrary to s 18 of the Crimes Act 1958. The maximum term of imprisonment for intentionally causing injury is 10 years.

[3] See s 9 of the Sentencing Act 1991.

[4] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for his pleas of guilty, he would have sentenced the applicant to a term of imprisonment of five years, with a non-parole period of three years.

[5] The co-offenders, who pleaded guilty to charges of home invasion and intentionally causing injury, were sentenced on the same day as the applicant to terms of imprisonment of five and a half years, with non-parole periods of three years.

[6] DPP v Johnson & Ors (Unreported, County Court of Victoria, Judge Stuart, 30 April 2019) ('Reasons') [7].

[16] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

(5) The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.

(6) Where there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this factor would tend to mitigate punishment.

[22] [2017] VSCA 150 ('Rivette').

[23] Rivette [2017] VSCA 150, [87]-[89] (citations omitted).

[24] [2008] VSCA 51; (2008) 23 VR 500 ('Grossi').

[25] Ibid 510 [39] (citations omitted). While Vincent and Neave JJA took a different view from his Honour in relation to the effect of part 2B of the Sentencing Act, there was no disagreement as to the effect of s 9 (contained in part 3) of the Act.

[26] [2017] VSCA 150, [87]-[89].

[27] See s 280(1)(a) and (b) of the Criminal Procedure Act.