Criminal division – sentencing

See also R v Davis [2006] VSCA 8.

In R v Aujla & Anor [2012] VSC 503 T Forrest J imposed a sentence of IMP6y6m on a 40 year old man who had been found guilty of aggravated burglary of his estranged wife’s cousin’s house in the course of which he seriously injured the cousin. The accused Mr Aujla believed that the victim had encouraged his wife to leave him and to obtain an intervention order against him. At [14]-[15] his Honour said:

“Some years ago, Winneke P captured the essence of the crime of aggravated burglary. Offences of this type ‘strike directly at the heart of people’s domestic security and their capacity to feel safe in their own homes’: Director of Public Prosecutions v Jovicic (2001) 121 A Crim R 497, 507…The community has a legitimate expectation that those who intrude into private homes intending violence to the innocent occupants will be punished sternly. That punishment must deter others from similar conduct and it must express the community’s denunciation of the impugned conduct.”

In R v Ray & Vella [2014] VSC 165 T Forrest J imposed sentences of IMP3y/2y & IMP2y9m/1y9m on accused who were aged 20 & 23 at the time of the offending and who had been found guilty of aggravated burglary and false imprisonment but not guilty of manslaughter. Described by his Honour as a “serious example of the offence of aggravated burglary”, this was a confrontational aggravated burglary in the context of a dispute concerning stolen property. His Honour found that remorse and the prospects for rehabilitation of both accused were high.

In upholding a sentence of 18 months imprisonment on a count of aggravated burglary in R v McCarthy [2010] VSCA 87, Buchanan JA (with whom Maxwell P agreed) said at [11]:

“In my opinion the sentence imposed upon the appellant was appropriate, even lenient. The invasion at night of Stewart's home and the cowardly assault upon him in company were serious crimes. In cases of this kind general deterrence is a significant aim. Home invasion and unprovoked violence occasioning serious injury are not to be countenanced. The appellant's record discloses a continuing disregard for the law. Notwithstanding the pleas of guilty, I am of the opinion that no less a sentence should be imposed.”

In R v Saltalamacchia [2010] VSCA 83 the appellant, who had no prior convictions, pleaded guilty to offences involving the invasion of his ex girlfriend’s home and was sentenced to 2 years imprisonment for aggravated burglary. On appeal the sentence was partly suspended. At [26] Maxwell P said:

“[W]e are imposing, as her Honour did, a sentence of two years for the aggravated burglary. In my view, counsel for the Crown was right to describe that as a lenient sentence, though as the Court pointed out (and as may be gleaned from the table of sentences for this offence set out in the judgement of the Court in DPP v El Hajje [2009] VSCA 160), this would appear to be reflective of current sentencing practices. As the Court said in that case, there is a real question about the adequacy of current practices, having regard to the 25 year maximum and the community expectation that home invasions be severely punished.”

In his judgment in R v Le [2010] VSCA 199 at [37] Maxwell P responded to counsel’s submission about sentencing statistics for aggravated burglary in the period 2002/03 to 2006/07 as follows:

“Those statistics suggest that there is a very serious question to be examined about whether current sentencing practices for aggravated burglary can be justified, in view of Parliament's clear instruction to the Courts in 1997 to sentence for this offence within parameters marked out by an increased maximum of 25 years. {As to the significance of the maximum, see R v AB (No 2) (2008) 18 VR 391, 403–4, [40]–[41].} This Court raised the same issue, in relation to the same offence, in DPP v El Hajje [2009] VSCA 160, [33], decided more than a year ago.”

In Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302 the Court of Appeal dismissed the prisoner’s appeal against a sentence of 4½ years imprisonment on a count of aggravated burglary, referred to by the Court as a “home invasion” or “confrontational aggravated burglary” and described as follows:

“Home invasion is a particularly nasty form of criminal conduct. For further discussion of the terror which this offence often causes its victims, see Bonacci v The Queen [2012] VSCA 170, [1]. Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders — acting in anger and often fuelled by alcohol — is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.”

Annexed to the judgment are two tables. Table A is a compilation of 23 cases from the Court of Appeal and the County Court (the latter cases selected by the DPP) dealing with sentences for this species of the offence since 2005. Table B is a compilation prepared by the DPP of all sentences for aggravated burglary in the superior courts in 2011. The tables show that a sentence of greater than 5 years imprisonment has been “quite exceptional”. The Court of Appeal said at [61]-[62]:

“To insist upon appropriate relativities between individual sentences and the maximum is to recognise that the maximum is to be treated as a sentencing yardstick, as explained by the High Court majority in Makarian v The Queen (2005) 228 CLR 357, 372 [31]. For the reasons we have given, current sentencing practices for confrontational aggravated burglary do not adequately reflect that yardstick. As this Court has said previously, where there is a conflict between the guidance afforded by the maximum penalty and that afforded by current sentencing practices, it is the maximum which must prevail: CPD (2009) 22 VR 533, 550–1 [74]; DPP v DDJ (2009) 22 VR 444, 461 [70]; AB (No 2) (2008) 18 VR 391, 405–6 [47]–[49]. It follows, in our view, that current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide.”