JUDGMENT OF: Estcourt J, Brett J, Cuthbertson J

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Appellant given one year and nine-month sentence of imprisonment for aggravated burglary and demanding property with menaces with intent to steal, ineligible for parole until half served - Co-accused guilty of aggravated burglary but not guilty of demanding property with menace - Co-accused's role was significantly less than that of the appellant - Co-accused sentenced to nine months' imprisonment, wholly suspended for a period of two years - No utility in comparing the sentences of the co-accused and the appellant - Sentence passed by the learned sentencing judge comfortably within the range of sentencing discretion and recent sentences passed by judges of this Court for such offending - Sentence has not been shown to be unreasonable or plainly unjust - Appeal dismissed.

Hall v Tasmania [2015] TASCCA 6

Taylor v the State of Western Australia [2015] WASCA 72, Considered

Respondent: Office of Director of Public Prosecutions

Judgment Number: [2025] TASCCA 11

1. The appellant, Todd Michael Walker, appeals to this Court against a sentence of imprisonment for one year and nine months and an order that he not be eligible for parole until he had served half of that term.
2. The single sentence was imposed by Jago J on 18 December 2024, upon the appellant being found guilty by a jury of the crimes of aggravated burglary and demanding property with menaces with intent to steal.
3. The appellant originally appealed against both his conviction and sentence but on his appearance on a directions hearing earlier this year, he advised the presiding judge that he wished to withdraw his appeal against conviction and pursue only his appeal against sentence. His appeal is on the sole ground that the sentence was manifestly excessive in all of the circumstances.
4. The task of this Court on an appeal of this nature needs to be borne steadily in mind. It has been explained many times in this Court and in others. A restatement of the relevant principles is to be found in Hall v Tasmania [2015] TASCCA 6 where Pearce J said at [51]-[52]:

"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried, and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

1. The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]."
2. In the decision of the Western Australian Court of Appeal in Taylor v The State of Western Australia [2015] WASCA 72, McLure JA at [27]-[31] made the following observations:

1. This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
2. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
3. Sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect.
4. Manifest excess applies to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.
5. The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally."

1. The learned sentencing judge was required to make findings as to the circumstances of the offending consistent with the jury verdicts. Her Honour made the following findings:

"Sometime on or shortly before 10 June 2020, you went to a residence at Lillico. The complainant lived at that address. Another person, a Stephen Douglas, was also regularly at that address. He would use that address to conduct drug transactions. You attended there to meet with Mr Douglas. You provided Mr Douglas with some money, most likely between $5,000-$7,000, and made an arrangement for Mr Douglas to purchase drugs for you. Ms Henricks observed this transaction and was also present when Stephen Douglas made arrangements to travel to Hobart to purchase drugs on your behalf.

Mr Douglas was arrested on 10 of June 2020 and thus was never able to fulfill the arrangement that he had entered into with you. On the evening of Sunday, 14 June 2020 you and another associate, Daniel Clarke, attended the Lillico residence. Ms Henricks was there but Mr Douglas, obviously, was not. It is unclear from the evidence whether you appreciated Mr Douglas would not be at the residence. In any event, consistent with the jury verdict, I am satisfied you entered the premises intending to steal money to make good the loss you had suffered by Mr Douglas not fulfilling the arrangement. You forced your way into the residence and proceeded to a bedroom. You kicked open the bedroom door and entered. Ms Henricks was on the bed. You leant over her. You were wearing a set of brass knuckle dusters. You pushed those knuckle dusters into her cheek and said to her 'where's the money'. She told you she did not know what you were talking about. You nevertheless insisted that she make payment to you. You said to her that you would bash her and put her in the ICU if she did not provide you with the money. Again, Ms Henricks told you she did not know what you were talking about and invited you to search the residence. You declined to do so. You said to her that she had until Wednesday to come up with the money or you would burn the house down with her in it.

Mr Clarke encouraged you to settle and the incident came to an end. You and Mr Clarke left. Ms Henricks was scared as a consequence of your behaviour but she was not injured. She reported the matter to police the following day. When you attended at Ms Henricks residence you were wearing a Bandidos Outlaw Motorcycle Club t-shirt. At that point, you were a long-standing member of the Club. I am satisfied that your wearing of the t-shirt was a deliberate attempt to convey an additional level of threat to Ms Henricks. You wanted her to believe (irrespective of the truth of it) that she needed to act upon your demands as you had the backing of a notoriously unlawful motorcycle club. The presence of your accomplice in the room would also have had the effect of exacerbating the fear and apprehension felt by Ms Henricks".

1. The learned sentencing judge made the following comments on passing sentence:

"Ms Henricks declined to provide a victim impact statement. That, of course, does not mean that she has not suffered adverse consequences. Indeed, it was apparent from the manner in which she gave her evidence that she remains badly affected by your crimes. In my assessment, she presented in a manner that is consistent with someone who has had her home invaded in such a gratuitous, violent and threatening manner. She was alone at the residence. She was vulnerable and defenceless. I have no doubt that she was gravely concerned and scared by your conduct and given the intensity of it, it is reasonable to infer that she would have believed that you may carry out some or all of the threats you made. That is particularly so, given you sent a message to her the following evening, essentially reiterating your demands and the threats to cause her harm.

You are 40 years of age. You currently reside with your parents and have their ongoing support. You also have the support of a partner. You are not currently employed although you have a solid employment history having pursued many different types of employment over the years. You are hopeful of returning to work in the landscaping industry. You have a reasonably substantial record of prior convictions, including numerous examples of alcohol-related driving offences, some anti-social offending and a number of prior convictions for matters of violence. You also have a conviction for trafficking in firearms in 2018 and further convictions for offences contrary to the Firearms Act in 2021. You have convictions for common assaults in 2003, 2004 and 2005 and a conviction for a Criminal Code assault matter in 2007. You were sentenced to actual imprisonment in 2008 for common assault, two counts of assault with indecent intent and a count of threatening a police officer.

Significantly, on 17 August 2021, you were sentenced by this Court for the crimes of aggravated burglary and assault. Those crimes occurred in June 2018, and whilst you had not been sentenced for those crimes when the incident with Ms Henricks occurred, you obviously had not reflected upon your behaviour and made any changes. The circumstances associated with the 2018 matter are not dissimilar to this incident. In respect to that matter, you demanded money from a person who apparently owed a debt to the motorcycle club. When that debt was not repaid in accordance with your demands you attended his residence, with others, and assaulted him to secure repayment. Your use of violence to recover perceived debts is very concerning. It is demonstrative of an attitude of thuggery and lawlessness. You have demonstrated no insight or remorse for your conduct and whilst, of course, you must not be punished for exercising your right to trial, you are not entitled to the mitigation a plea of guilty would have attracted.

I take into account that these crimes occurred over four years ago and in more recent times there does appear to have been a slowing in your offending. I am told that the motorcycle club in which you were heavily involved has now disbanded. There appears to be a correlation between that event and the abatement in your criminal offending. That is a positive. It can only be hoped that now that association has come to an end, you will move to a more law-abiding lifestyle. Because of that prospect, I will allow for parole at the earliest opportunity.

In my assessment these are very serious examples of the crimes of aggravated burglary and demand property with menaces with intent to steal because the crimes involved an invasion of Ms Henricks' home, they were committed in the company of another person, a weapon was used, and the crimes were committed in circumstances where unlawful criminal activity, namely a drug deal, was the motivation for the crimes. Ms Henricks had nothing to do with whatever arrangement you had with Mr Douglas but you would not listen when she told you she knew nothing of your grievance, and you were prepared to subject her to what must have been a terrifying and traumatic experience. She was entitled to feel safe within her own home. You invaded that home for the purpose of demanding payment of a spurious debt and threatened to inflict serious violence upon her if it was not paid. Such behaviour must be strongly condemned and punished, and others who may be minded to behave in a similarly lawless manner, must understand serious consequences will flow."

1. As was noted by her Honour, the appellant had committed similar offences three years before the crimes for which she was sentencing him, although he had not been sentenced for the earlier offences prior to committing the later crimes. That earlier offending was also serious.
2. What occurred was that the appellant had met a Mr Sujica in early 2018 when he visited a motor cycle club of which the appellant was a member. At the beginning of June 2018 the appellant went to the victim's home, unhappy that he had done something to give the club a bad name. He demanded, apparently on instructions from others, that the complainant pay $2,000 as punishment. Although he told the jury that he had no intention of paying any money, Mr Sujica entered into an arrangement with the appellant to pay by instalments. When he did not pay the first instalment despite further demands, the appellant, at around 6.30am on 10 June 2018, went to the home in Latrobe in which Mr Sujica lived with his aunt, Lesley Pintar. Ms Pintar was then in her early 70s. The appellant knocked on the glass sliding door at the rear of the house adjacent to the kitchen and living area. When Ms Pintar went to the door the appellant asked her to wake Mr Sujica. When he came to the door the appellant again demanded money and when he said he could not or would not pay, the appellant attempted to punch him. Mr Sujica was struck a glancing blow near his eye. At that stage a man who had accompanied the appellant walked past him and into the house. He was wearing a stocking over his head and had a tomahawk which he swung at Mr Sujica, who was struck on his right hand. The blow caused a deep eight centimetre laceration to his palm which bled profusely. When Mr Sujica fell to the floor, the appellant with the other man, stepped into the house and began to punch and kick Mr Sujica. By that time, two or three other men also entered the house. One of the men pressed Ms Pintar for her phone. When the appellant and the other intruders eventually left, Mr Sujica was taken to the hospital where his wound was cleaned and stitched. The wound was deep and had penetrated the muscle.

1. As pointed out by counsel for the State, Mr Allen, the appellant was jointly charged with both crimes along with a second man by the name of Daniel Clarke. The jury found Mr Clarke guilty of aggravated burglary, but not guilty of demanding property with menaces. Moreover, his role was significantly less than that of the appellant. Mr Clarke was convicted of the crime of aggravated burglary and sentenced to nine months' imprisonment, wholly suspended for a period of two years.
2. I accept the submission made by counsel for the State that there is no utility in comparing the sentences of Mr Clarke and the appellant.
3. No question of parity arises in my view.

1. There is absolutely no merit in this appeal.
2. Like many other crimes, aggravated burglary and demanding money with menaces are not susceptible to a tariff given the many differing circumstances in which the crimes are committed alone or in combination.
3. Equally, so called comparable sentences offer little assistance. All such cases do is show the range of sentences that have been imposed in very broadly analogous cases. On my own review of the Court's sentencing database over the last 25 years, it simply cannot be said that a sentence of 21 months' imprisonment in the case of an aggravated burglary committed to demand money with menaces, is outside the range of sentences imposed in analogous cases. Even less so when the sentence is imposed upon a defendant with a prior conviction for similar home invasion style violent offending, for which a lengthy prison sentence was ordered. In saying this, I do not lose sight of the fact that the appellant had not been found guilty and convicted and sentenced for the earlier offending, prior to committing the later crimes.
4. As I said recently in this Court in another appeal against sentence, in my view the sentence passed by the learned sentencing judge was comfortably within the range of a sound sentencing discretion and entirely conformable with the range of sentences passed by judges of this Court in recent years in cases of such violent offending. The sentence has not been shown to be unreasonable or plainly unjust.
5. I would dismiss the appeal.

1. I agree with the orders proposed by Estcourt J and his Honour's reasons for those orders. I agree also with the further comments made by Cuthbertson J.
2. The crime in this case had a high degree of objective seriousness and warranted emphasis on general deterrence. It was a home invasion perpetrated by the appellant in company with another. He threatened the complainant with lethal force and reinforced his threats by wearing the t-shirt referred to by her Honour and sending a follow up message reiterating his threats. He demonstrated no remorse and was not entitled to the benefit of a plea of guilty. Estcourt J has dealt with his prior convictions.
3. In my view, home invasions for the purpose of threatening or perpetrating violence are to be regarded as extremely serious. The following observations of Wright J in R v Meers and Moles [1998] TASSC 32, made almost 30 years ago, are as relevant now as then:

"Offences of this kind were practically unheard of a few years ago. Now, whilst not exactly prevalent, they are becoming more common. I regard so called 'home invasions' as a particularly serious type of offence. Such criminal conduct undermines the feeling of security that most members of the community expect to enjoy in their home environment. The violent intrusion of strong young men, whether alone or in a group, into a family dwelling in the middle of the night, or, indeed, at any other time, must be a terrifying experience for the householder and his or her family. Such crimes constitute criminal conduct of the utmost gravity and must be met with firm and resolute punishment by the Court, particularly if serious injury has resulted from the attack."

1. Whilst this case did not involve the causation of serious injury, his Honour's observations, in particular the gravity of a home invasion and its potential for harmful consequences, are applicable. Further, conduct of this nature will invariably involve some degree of premeditation, as it did in this case. It is, accordingly, particularly amenable to general deterrence. Those who would perpetrate home invasions for such purposes must appreciate that the consequence will be severe punishment.
2. I agree with Estcourt J that the sentence in this case was well within the range of sound sentencing discretion. In fact, speaking for myself, I would regard the sentence as towards the more lenient end of that range. Further, the appellant was fortunate, having regard to his criminal history, that the non-parole period was not longer than that provided for in the sentence.

1. I have read the reasons for judgment of Estcourt J in draft and agree that the appeal should be dismissed for the reasons he has given. These additional reasons address a particular argument raised by the appellant which related to the likelihood of him achieving parole during the course of his sentence.
2. The sentence imposed on the appellant included an order that he not be eligible for parole until he had served one half of the period of imprisonment. One of the appellant's arguments was that the sentence imposed by her Honour was manifestly excessive because he had no prospect of being granted parole. The appellant explained he had previously been refused parole on the basis that his proposed parole address, living with his parents, was deemed unsuitable. The refusal of parole to which he referred must have related to previous sentences of imprisonment imposed upon him as he is not eligible for parole in respect of the sentence the subject of this appeal until late October 2025.
3. The appellant explained the Parole Board's decision was based on their assessment that his parents supported criminal activity, apparently related to the appellant's former membership of a motorcycle gang. The exact connection between the appellant's membership of the motorcycle gang and his parents' alleged support of such criminal activity was left unexplained during the course of the appeal hearing. The appellant urged the Court to consider substituting a lesser sentence, or replacing the non-parole period with a suspended sentence, based on his asserted inability to be granted parole to his only available parole address.
4. Such an argument reflects a misunderstanding of the nature of a non-parole order when compared with a partially suspended sentence. It also asks the Court to approach the determination of whether the sentence imposed on the appellant is manifestly excessive in a way that is contrary to settled authority.
5. Where a suspended period of imprisonment is imposed, the offender is not required to serve the part of the sentence held in suspense unless ordered to do so following breach proceedings: s 25(4) of the Sentencing Act 1997. In the context of a partially suspended sentence, an offender is entitled to be released upon expiration of the period of the sentence that is not held in suspense. If the conditions of suspension are breached, application may be made for an order under s 27 of the Sentencing Act which includes an order activating the part of the sentence held in suspense. Release from custody is automatic; a person subject to a suspended sentence must, however, comply with any conditions imposed to avoid the possibility of being ordered to serve the period held in suspense.
6. By contrast, a non-parole period set by a sentencing court reflects the minimum period of time that the court determines that justice requires to be served by the offender, having regard to all the circumstances of the crime: Power v The Queen [1974] HCA 26; 131 CLR 623 at 629; Deakin v The Queen [1984] HCA 31; 54 ALR 765; Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10]. The purpose of legislation providing for parole eligibility is to "provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate": Power v The Queen at 629 (emphasis added).
7. The prospect of parole "provides a prisoner with the hope of release and an incentive for rehabilitation": Brennan v Tasmania [2022] TASCCA 9, Wood J at [83] (emphasis added) citing Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 per Dawson, Toohey and Gaudron JJ at 536. There is, however, no guarantee that a person who becomes eligible for parole will be granted conditional release. The decision to release a prisoner on parole rests with the Parole Board, not the sentencing court. Such decisions are made pursuant to the Corrections Act 1997. While the Parole Board is required to consider whether a prisoner should be released before the date upon which they become eligible for release, it may refuse to make an order granting parole: ss 72(1) and (3)(c) of the Corrections Act. The Parole Board is required to take into account a range of factors set out at s 72(4) when determining whether or not to grant parole. Those factors include the likelihood of the prisoner reoffending, the protection of the public, the prisoner's rehabilitation and probable circumstances after release from prison. A prisoner may be heard personally by the Board on the matter of his or her eligibility: s 72(2) of the Corrections Act. There is, however, no right to release on parole. A non-parole period is not, therefore, interchangeable with a suspended period of imprisonment.
8. It is well settled that it is not appropriate to take into account the likelihood or otherwise of parole when determining the length of an appropriate sentence of imprisonment: R v Paivinen [1985] HCA 39; (1985) 158 CLR 489 per curiam at 494-5; R v Yates [1985] VicRp 3; [1985] VR 41 per Young CJ, Starke, Crockett and Hampel JJ; George v R [1986] Tas R 49 per Cox J at 64. This longstanding principle was recently confirmed by the High Court in The King v Hatahet [2024] HCA 23. At [26]- [28], Gordon A-CJ, Steward and Gleeson JJ (Beech-Jones J agreeing at [62]) set out the rationale for this principle as follows:

"...it is thought to be too speculative for a judge to make a prediction about the probability of a parole order being made: '[n]ot only are the circumstances at the expiration of the minimum term unpredictable: they include circumstances which are beyond the power of the offender to control', including, for example, the offender's future health. That also includes what a parole board... might or might not do. It further includes the possibility that 'the legislative scheme, as well as practice and policies, regarding the parole system may validly change from time to time'....

The differing and distinct functions of the judicial and executive branches, adverted to above, have also been seen to support a conclusion that the function of a judge in sentencing does not include a consideration of the prospects of release on parole. As this Court observed in Elliott v The Queen, subject to the appellate system, the exercise of judicial power with respect to trials is spent upon the subsequent imposition of a sentence: '[t]he controversy represented by the indictment [is thereby] quelled and, allowing for any applicable statutory regime, the responsibility for the future of [an offender passes] to the executive branch of the government of the State'. Indeed, having regard to the function of sentencing, described above .... it is correct to observe that any policy of a parole board... may properly be seen to be 'irrelevant'.

Moreover, it is now well recognised that, in the fixing of a sentence, attempts to predict what might happen upon the expiration of a non-parole period - described as the 'making of an administrative guess' - would lead to outcomes that are inconsistent with a core object of sentencing, namely, the need to ensure that an offender is adequately punished. ... As the plurality observed in Power v The Queen, the nature and purpose of a non-parole period is 'to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'. Adjusting a sentence arrived at in conformity with the foregoing, whether upwards or downwards, to take account of the probability of parole would result in a sentence which then had precisely ceased to be in conformity with what the law requires." (emphasis added, citations omitted)

1. In accordance with this authority, it would be an error for this Court to consider the likelihood or otherwise of the appellant being granted parole when determining whether the sentence imposed by her Honour was manifestly excessive. The relevant question for this Court is whether the sentence imposed is unreasonable or unjust in light of the gravity of the offending and the circumstances of the case. In my view, the sentence imposed was entirely appropriate in all of the circumstances. I would dismiss the appeal.