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Hogarth v The Queen [2012] VSCA 302 (18 December 2012)

Last Updated: 18 December 2012

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0235

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Home invasion – Acting in concert – Offenders motivated by appellant’s grievances against victim’s son – Whether appellant was instigator – Whether planned or spontaneous – Whether sentence of four-and-a-half years manifestly excessive – Prior conviction for aggravated burglary – Disadvantaged background – Appeal dismissed – Crimes Act 1958 (Vic) s 77.

CRIMINAL LAW – Sentencing – Aggravated burglary – Confrontational aggravated burglary – Home invasion – Current sentencing practices for this species of offending – Whether reflective of objective seriousness of offending – Whether reflective of increase in maximum penalty from 15 to 25 years’ imprisonment – Winch v The Queen (2010) 27 VR 658, R v A B (No 2) [2008] VSCA 39; (2008) 18 VR 391 applied – Sentencing Act 1991 (Vic) ss 5(2)(a), (b).

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MAXWELL P

NEAVE JA

COGHLAN AJA:

Summary

1 Home invasion is a particularly nasty form of criminal conduct.[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.

2 The appellant (‘AH’)[2] pleaded guilty to taking part in a home invasion which had all of these characteristics. His case was unusual, however, in that, although it was AH’s grievances which prompted the entry into the victim’s home, he himself did not go in. He stayed in the car while his two co-offenders proceeded — in accordance with an agreement the three had made — to break in and commit theft. As will appear, the conduct of the co-offenders once inside the house went far beyond the scope of that agreement.

3 Home invasion is not, of course, a legal term. The offence which a home invader commits is the offence of aggravated burglary under s 77 of the Crimes Act 1958 (Vic). This offence is constituted by an act of burglary (entering a building as a trespasser, with intent to steal or commit assault or cause damage)[3] which has one or other (or both) of the following aggravating features:

(a) at the time of entry, the offender is carrying a weapon; or

(b) at the time of entry, there is a person in the building and the offender knows of the person’s presence, or is reckless as to whether any person is present.^[4]

4 The presence of one of the aggravating features converts an ordinary burglary (maximum penalty 10 years’ imprisonment) into an aggravated burglary (maximum penalty 25 years’ imprisonment). In the typical home invasion, both aggravating features are present. That is, the offender is carrying some form of weapon and either knows or believes that the person against whom the grievance is held is at home.[5] As will appear, the Sentencing Advisory Council in a 2011 report classified this type of offending as ‘confrontational aggravated burglary’.[6]

5 AH was sentenced to four and a half years’ imprisonment on the count of aggravated burglary. The total effective sentence was five years, and the nonparole period three-and-a-half years.[7] He has challenged the sentence as manifestly excessive. AH also contends that the judge mischaracterised AH’s role in the offending. For reasons which follow, we would dismiss the appeal. The sentence was entirely appropriate, in our view, and there was no error in the judge’s characterisation of AH’s role.

6 This case highlights, however, the inadequacy of current sentencing practices for this egregious form of aggravated burglary. As will appear, it was offending of this kind which the Victorian Parliament had specifically in mind in 1997 when the maximum penalty for aggravated burglary was lifted from 15 years to 25 years. The Director submitted on the appeal that this Court should ‘pass comment on the adequacy of sentencing practices for [this] particular category or species of the crime’, noting that the sentencing judge had expressed a similar view.[8] Although the current Director has since withdrawn his predecessor’s ‘global challenge’ to sentencing for aggravated burglary,[9] we think it both appropriate and necessary to deal with sentencing for this type of aggravated burglary.[10]

Circumstances of the offending and the role of AH

7 In accordance with accepted practice, the plea in mitigation was conducted on the basis of a prosecution summary of the facts. The prosecutor informed the judge, clearly and fairly, of the basis on which the matter had been ‘resolved’. AH pleaded guilty to aggravated burglary based on acting in concert. The joint criminal enterprise was to enter and steal, the offenders being reckless as to whether or not there was someone in the house.

8 The essential facts were not in dispute. On 26 March 2010, AH, together with an unidentified male, drove his stepfather’s car from Hoppers Crossing to Brimbank Shopping Centre in Deer Park. At the time, the car did not have any number plates attached to it. Between 9:30 and 10:30 that morning, AH stole a set of number plates in the car park of the shopping centre. These number plates were then attached to the car he was driving.

9 Later that day, AH was driving the same car (with the stolen number plates attached). He had two passengers, Carl Frost and AH’s brother, Geoffrey Hogarth. Whilst driving in the area of Taylors Lakes, AH told Mr Frost and his brother that he was angry with VA, a person who — so AH told the others in the car — had made allegations which resulted in AH being arrested.

10 AH was particularly angry with VA for preventing him from attending his mother’s funeral. AH was in custody at the time of his mother’s death and — so he told his passengers — VA had successfully objected to his being allowed out on day release because ‘he fears for his life if I’m released’. In his record of interview, AH told police:

[VA] knows that’s why I want him.

...

[T]hat’s the only reason why Carl [Frost] stopped the car ...

11 There was a related grievance against VA, concerning a debt of ‘a couple of thousand dollars’ owing to AH. The debt had accumulated over some time, apparently to fund VA’s gambling. VA kept promising to repay AH but never did. According to AH, ‘[VA]’s always said that he could borrow money off his parents if he needed to’.

12 According to AH, it was the fact that they were driving near where VA lived which prompted him to bring up these grievances. After hearing the story — so AH told police — Frost told AH to pull over, and asked him which house it was. In fact, VA lived quite near to his parents’ house, and it was the parents’ house which AH pointed out. Frost said, ‘Wait here one minute’ and then went into the house. After about five minutes, according to AH, Frost came back and said that he had ‘just pushed his way through and just started takin’ everything’. At interview, AH acknowledged that he had known, at the time Frost left the car, that he was ‘gonna do something’. AH accepted that what he had said in the car had made Frost ‘pretty worked up’. When Frost left the car, AH was expecting that he ‘would’ve ... gone off his head’.

13 What happened in the house can be summarised shortly. VA’s mother answered a knock on the door, and two men walked in. The taller of the two (T) was wearing glasses and smelt of alcohol.[11] He asked her ‘Where is your safe?’. At this time T was holding a hammer. The victim noticed that the other male (S) had a ‘long sharp thing’. S tied the victim’s hands together behind her back. T said, ‘You listen to us and you won’t get hurt’ and repeatedly asked her where the safe was. S said, ‘You’re VA’s mum. Your husband is building houses. You should be multimillionaires. Where’s your money?’. He also said, ‘Your son hurt my mum and stole $50,000’.

14 T tied the victim’s ankles together using electrical tape. Both offenders repeatedly asked her for the location of the safe, money, handbag and jewellery. The offenders stole items to the value of $25,000. At one point, S received a telephone call on his mobile phone. The victim heard him saying, ‘We are hurrying up. We couldn’t find the safe’. T took the victim into the bathroom and pulled a 22 carat gold and ruby ring off her finger. He attempted, unsuccessfully, to take her bangles as well.

15 The victim then heard her husband call out to her and she yelled to him not to come inside. She managed to take the sticky tape away from her ankles and run downstairs and into the street. She saw the two offenders running down the street with the suitcases they had taken containing the stolen goods. As they ran past the victim’s husband, T told him that VA had to give him $50,000.

16 The prosecution accepted that AH did not have any knowledge of what his cooffenders were planning to do to the victim. Neither the intent to assault nor the carriage of weapons was said to be relevant to the sentence to be imposed on him.

Ground 1: was AH the motivating force?

17 The first ground of appeal contends that the sentencing judge erred:

by finding that the commission of Counts 1 and 2 [was] not spontaneous, that these offences were instigated by [AH], that [AH] was the motivating force behind these offences’ commission, and that, in a material sense relevant to [AH’s] culpability and role, ‘but for’ [AH] these offences would not have been committed.

18 The relevant parts of the sentencing reasons are in these terms:

The notion raised that this was a spontaneously arising event is totally unrealistic and I reject that suggestion. Indeed, I am satisfied beyond reasonable doubt that there was some level of planning and planning in advance of your arrival at the scene. The suggestion that you just happened to be talking about this particular grievance, a grievance connected with a person who was in the past connected to the house that was entered and with such an exchange taking place as you happened to be driving past it, prompting people unconnected to that grievance to demand that you stop the car that you were driving and you then stopping, is of course absurd. Further, it does not fit your guilty plea, which carries with it your acceptance that you were acting in concert: that is, that there was an understanding or agreement on foot with these others to commit this crime of aggravated burglary; that is, a burglary with intent to steal, in circumstances where a person was or probably was within the building.

It so happened that your offsiders, who were unconnected to the grievance, each carried weaponry, including masking tape and ties, all of which were immediately employed. Though it might seem highly artificial, given the way the matter has been settled, I am neither prepared nor permitted to find against you that you had any knowledge of the presence of those various items including the weapons. Nor are you joined to or criminally responsible for the escalating activity inside the house. But you certainly had knowledge of what was going to take place in terms of the bare entry with intent to steal and in circumstances where you knew of the presence of someone within or were reckless as to that fact. Indeed, I find beyond reasonable doubt that you were clearly the instigator of this offence, taking no physical part in terms of entry, but driving to the scene and there unleashing your two compatriots who were aligned to your motivation. As you put it in the interview you knew something was going to happen and that one of your colleagues was going to go off his head and this in the setting where you admit the intention to steal.^[12]

And further:

[W]hatever the state of your physical disability as of the date of this event, it did not prevent you from setting off on this mission driving the car to the scene and entering into an understanding or agreement with your coaccused. As I say, you were undoubtedly the motivator and the instigator of this serious offence: that is, of the aggravated burglary. Without you, no crime would have been committed, no entry made. You clearly had a significant stake in the items that were stolen as your subsequent conduct makes clear.

As you commented in your interview, you had a debt owed to you by the victim’s son, [VA], who did not even live at that address ultimately entered. More significantly though, you blamed the victim’s son for missing your mother’s funeral. [VA] was at the time of the aggravated burglary in fact, housed in prison. He had previously lived just around the corner from his parents’ premises at the house earlier visited by your two compatriots. The motivation is referred to in the interview and is connected with his — [VA]’s somehow implicating you with the police leading to your imprisonment in the days before your mother died in 2009. As I have indicated, the notion of spontaneity in this offending is totally unrealistic and is entirely rejected by me. So, too is the suggestion that you were in some way disinhibited by the taking of drugs or prescription medication. You were driving this vehicle to this scene and parking distant from the house itself while the two men in that car left on this mission — a mission in which you joined. Charge 1 is, therefore, I find clearly a serious example of aggravated burglary by a man with a very significant and relevant history.^[13]

19 According to the appeal submission for AH, these findings were not supported by the relevant part of the prosecution summary, which was in these terms:

Upon hearing the offender’s story, Frost told the offender to pull over and asked the offender which house was that of [VA]’s parents. The offender stopped the car in [a nearby street] and Frost told the offender to wait.

It was said that, although AH was acting in concert with the other men, he only ‘went along with’ Mr Frost’s idea of committing a burglary. It was not open to find that he was ‘the motivating force’.

20 We disagree. In our view, it was well open to the sentencing judge to be satisfied that AH was the motivator or instigator of the aggravated burglary. At the outset of the prosecutor’s submission on the plea, his Honour put to counsel that AH

is the person with the grievance against that household and unleashes these two men ... into that house.

The prosecutor accepted this characterisation. Defence counsel, who conducted a thorough and careful plea on AH’s behalf, disputed the description ‘instigator’, while acknowledging that it was ‘a fine line’ given that AH ‘sows the seed’. Defence counsel agreed with his Honour that AH was ‘the connection between the raiding party and the actual house’ and was ‘the person who provides the basis for others to act’.

21 On a proper analysis of the agreed facts, AH was correctly viewed as having primary responsibility for the aggravated burglary. As his Honour said, had it not been for AH there would have been no aggravated burglary. AH had provided both the motive and the opportunity for the commission of the offence and had agreed with his cooffenders that they would enter the house and steal by way of reprisal for the grievances. More particularly:

• by voicing his grievances and expressing his anger, AH provided his co-offenders with the motive to seek revenge on his behalf;
• by identifying the house, and driving his co-offenders to a location nearby, AH provided the opportunity for them to take vengeful action; and
• in the time between their arrival and the entry into the house, AH agreed with the others that they would go into the house and steal.

22 There was no need for AH to identify where VA or his parents lived. He could simply have driven off. Instead, well knowing that Frost was incensed by what he had said and was ‘gonna do something’, AH authorised, and acquiesced in, the conduct of the others in venting their anger and taking revenge by the act of burglary. As the judge correctly said, AH ‘unleash[ed]’ his co-offenders. That AH had a personal stake in what followed was underlined by the fact that a substantial part of the stolen goods was found at his house.

23 In the course of argument on the plea, the judge repeatedly expressed scepticism as to whether the aggravated burglary could really be viewed as a ‘spontaneously arising’ event. Both counsel were careful to point out, however, and his Honour accepted, that the basis of sentencing could not travel beyond the scope of the agreed facts.[14]

24 His Honour’s finding — that there was ‘some level of planning and planning in advance of [AH’s] arrival at the scene’[15] — was nevertheless well justified, in our view. First, the uncontested evidence showed that the two co-offenders had been seen outside the home of VA himself some 15 minutes before they entered the house of his parents. The prosecutor had submitted on the plea that there had been ‘some planning of at least, say, 15 minutes that has occurred from the time they have gone from the victim’s son’s house and then to the victim’s house’. Secondly, as Coghlan AJA pointed out during argument, there had obviously been sufficient time taken in preparation for the co-offenders to equip themselves with a hammer and the other (unidentified) weapon, and with the cable ties and tape used to tie up the victim.

Manifest excess

25 Although under ground 2 the appellant challenged the entire sentence, unsurprisingly the submissions concentrated on the sentence of four years and six months imposed on the count of aggravated burglary. The judge determined that AH should be sentenced consistently with current sentencing practices, declining the prosecutor’s invitation to regard himself as unconstrained by them. The basis of that invitation will be examined below. It is sufficient for present purposes to say that, in our respectful view, his Honour was correct to approach the sentencing task in this way.[16]

26 The complaint of manifest excess must be rejected. In the circumstances of this case, the sentence of four-and-a-half years was entirely orthodox when judged by reference to current sentencing practices for aggravated burglary. This was, as his Honour said, a serious example of the offence and — importantly — this was the second time AH had been convicted of aggravated burglary. Considerations of specific deterrence and protection of the community necessarily loomed large in the sentencing synthesis. That was particularly so given that this offending took place only a matter of days after AH had completed serving his parole under sentences imposed in 2006 for burglary, theft and deception offences. Reference to the sentences tabulated in Director of Public Prosecutions v El Hajje[17] shows that, in those circumstances, a sentence of four-and-a-half years was within the range reasonably open to the judge.[18]

27 In so concluding, we do not overlook the powerful submission advanced by senior counsel for AH concerning the severe disadvantages from which AH has suffered lifelong. According to the unchallenged expert evidence, intelligence testing revealed AH to be in the ‘”extremely low” (borderline) range’. He has ‘poor impulse control, low frustration tolerance and [a] sense of being overwhelmed by multiple or complex demands’. He had an ‘impoverished education’, staying at school only until year 8. His home life was unhappy. His parents separated when he was two or three years old. He suffered physical abuse from his stepfather and was neglected by his mother who (according to AH) ‘was addicted to prescription pills, always off her face, passed out, didn’t care’.

28 At the time of sentencing, AH was diagnosed as suffering from clinical depression. According to the forensic psychologist, Ms Lechner, AH had suffered depression for many years, with his drug problem ‘only aggravating this underlying problem’. AH had begun to use heroin at the age of 13. This habit had continued for more than a decade. AH was also a long-term marijuana user.

29 Counsel for AH submitted that ‘those with few choices make bad choices’. Moreover, counsel submitted, repeated lengthy terms of imprisonment were unlikely to assist AH in overcoming any of these serious disabilities. Public money spent on imprisoning people like AH would be much better used, he contended, if it were directed at tackling the causes of disadvantage.

30 Sadly, the profile and life history of AH is all too familiar in the criminal courts.[19] The submissions made by counsel raise issues of fundamental importance concerning the social context of criminal behaviour and the inefficacy of imprisonment as a response. The orthodox approach to criminal responsibility, however, requires that a person like AH be viewed as morally as well as legally responsible for the choices he makes.

31 In the present case, AH chose to instigate and participate in — in the ways we have described — a very serious offence. It was not said on his behalf that he fell into one of those categories — mental illness[20] or intellectual disability[21] — where moral culpability for criminal behaviour is mitigated. That being so, the judge was obliged to sentence AH within the sentencing parameters fixed by Parliament, and in accordance with established sentencing principles.

The challenge to current sentencing practices

32 After AH had been charged but before he entered his plea of guilty, the Office of Public Prosecutions served on his solicitor a document headed ‘Notice of Intention to Challenge Current Sentencing Practices’. The notice was signed by the former Director of Public Prosecutions, Mr Rapke QC, and stated:

TAKE NOTICE The Director of Public Prosecutions intends to challenge in this criminal proceeding current sentencing practices for the offence of aggravated burglary contrary to s 77 Crimes Act 1958.

Please consider this notice when deciding whether to plead guilty or contest the charge.

33 On the plea, the prosecutor provided the judge with a 24page document entitled ‘Aggravated Burglary — Crown Challenge to Current Sentencing Practices’. The introductory section of this document was in these terms:

TAKE NOTICE that the Director of Public Prosecutions intends to challenge in this criminal proceeding ‘current sentencing practices’ for the offence of aggravated burglary (contrary to s 77 of the Crimes Act 1958).

AND WHEREAS the maximum penalty fixed by the Parliament for the offence of aggravated burglary is 25 years’ imprisonment.

AND WHEREAS sentencing statistics reveal the median sentence imposed for this offence is 2 years’ imprisonment.

AND WHEREAS the Court of Appeal has stated there is a serious question to be examined about whether current sentencing practices for aggravated burglary can be justified in light of the increased maximum penalty for the offence in 1997.

AND WHEREAS the Court of Appeal has stated that aggravated burglary is an extremely serious offence which would normally attract a substantial sentence of imprisonment.

AND SO for the reasons advanced in these Submissions the Director of Public Prosecutions respectfully submits that the sentencing court should sentence an accused person in light of all relevant circumstances but paying full heed to the maximum penalty fixed by Parliament and free from any constraint imposed by ‘current sentencing practices’ for the offence of aggravated burglary.

34 The Director’s submission stated — correctly — that the offence of aggravated burglary has been viewed by the courts as an extremely serious offence.[22] The submission set out the following judicial statements:

• Aggravated burglary is an extremely serious offence which would normally attract a substantial sentence of imprisonment.^[23]
• This court has on a number of occasions stated that the premeditated nocturnal invasion with criminal intent of a person’s home will always be regarded as extremely serious. Where, as here, that invasion has been effected for the achieved purpose of raping the occupant, it is, in my mind, unthinkable that the imposition of condign punishment would not follow.^[24]
• The community views offending of this kind as extremely serious and expects the courts to impose sentence accordingly.^[25]

35 The Director noted that, at the time the offence of aggravated burglary was created, the maximum penalty for burglary was 15 years. The maximum for the new offence was 25 years. The written submission contended that sentencing practices for aggravated burglary had not changed to reflect the ‘significant increase’ in the maximum penalty. A parallel was drawn with what had happened in the case of manslaughter, following an increase in the maximum.[26]

36 The Director drew attention, as this Court has done,[27] to what was said by the then AttorneyGeneral at the time the maximum penalty was increased:

The prevalence of burglary and home-invasion-style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The Government wishes to send a message to offenders that these crimes will not be tolerated. Under the Bill, where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of a person on the premises, the offender will be guilty of aggravated burglary. Aggravated burglary will carry a new maximum term of 25 years’ imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.^[28]

37 In El-Hajje, the Court (Maxwell P, Vincent JA and Coghlan AJA) included in its judgment a table, provided by counsel for the Director, setting out the sentences imposed for aggravated burglary in 20 (then) recent cases in the County Court.[29] The Court said:

No submission was advanced on behalf of the Director — either in writing or on the hearing of the appeal — questioning the adequacy of current sentencing practices for aggravated burglary. This sentencing information raises a serious question, however, about the adequacy of current sentencing practices for this offence. The sentences being imposed appear not to reflect the very high maximum which Parliament has fixed. That is a matter of the first importance to the administration of criminal justice in this State. The matter not having been the subject of argument on the appeal, we express no concluded view on the question.^[30]

38 According to the written submission in the present proceeding, the Director’s challenge to current sentencing practices was responding to such expressions of concern.[31] The Director acknowledged that, by reason of his statutory functions, he was — together with this Court — custodian of sentencing standards in Victoria.[32]

The decision at first instance

39 On the plea, the prosecutor emphasised the key points in the Director’s written submission and said:

The DPP’s submission is that the great majority of aggravated burglaries in this court should be attracting substantial terms of imprisonment [falling] between 20 and 40 per cent of the maximum penalty. ... the inescapable conclusion [is] that for such a serious offence the current sentencing practices are inadequate and do not reflect the will of Parliament and the need for general deterrence.

40 The prosecutor’s submission on the appropriate sentencing range for AH was expressed in the alternative.[33] The range which accorded with current sentencing practices was said to be a total effective sentence of four to five years and a nonparole period of three to four years. If, however, his Honour were to approach the matter unconstrained by current practices, the applicable range was said to be a total effective sentence of six to eight years, with a non-parole period of four to six years.

41 In response to a question from the judge, the prosecutor confirmed that a like submission — inviting the sentencing judge to depart from current sentencing practices — had been made in other aggravated burglary cases, but that no sentencing judge had (as at August 2011) acceded to the invitation.[34] Nor, as far as we are aware, did any judge do so after that date.

42 The Director did not appeal to this Court against any of the sentences imposed in those cases. Given that the arguments which the (then) Director was advancing were rejected by successive sentencing judges, it might have been expected that the opportunity would be taken to bring the question before the Court of Appeal. The obvious — and appropriate — course for the Director to have taken was to institute an appeal against sentence on the ground that the sentencing judge’s decision to sentence consistently with current sentencing practices had resulted in a manifestly inadequate sentence.[35] Inexplicably, however, that did not occur, and the question is now having to be addressed on an offender’s appeal.

43 The judge in the present case declined the Director’s invitation to depart from current sentencing practices, while at the same time urging the Court of Appeal to provide authoritative guidance. His Honour said:

Whilst I accept that a sentencing Judge may sentence without the constraints imposed by current sentencing practice if satisfied that those practices are not consistent with the statutory maximum penalty and whilst accepting that the Court of Appeal has on a number of occasions expressed concerns as to sentencing practices for the crime of aggravated burglary, it is my view that the occasions for a sentencing Judge reaching such a conclusion will be quite rare. I am equally sure, however, that Judges in my position would be greatly assisted by some guidance from the Court of Appeal in this area in much the same way as guidance was authoritatively provided by the Court of Appeal in recklessly causing injury cases caused by glassing referred to in Winch v The Queen.^[36]

In this particular case, that is your particular case, current sentencing practices do not constrain me to pass a sentence which is inadequate in all of the circumstances of the case. I therefore do not take up the invitation of the Director of Public Prosecutions to sentence free from such constraints.^[37]

44 His Honour went on to emphasise the seriousness of the offence, in these terms:

What you need to understand is that aggravated burglary is undoubtedly a very serious criminal offence, as the Court of Appeal, in this State, has made clear on countless occasions. Offences such as these interfere with a person’s sense of safety in their own home, and carry with them real and substantial risks of escalation as surely this case must make abundantly clear. Aggravated burglary can have a significant impact upon those who are subjected to such entries. This entry, in relation to this particular victim, though motivated by the grievance held for her son courtesy of the debt owed and his role in your missing your mother's funeral, was entirely disconnected in that sense from the actual occupants of the house. The truth is, of course, that very often in confrontational aggravated burglaries there is some motivation at play be it a grievance or a debt. The Courts must seek to suppress vigilantism, that is, people taking the law into their own hands.^[38]

The challenge to current sentencing practices on the appeal

45 On the hearing of the appeal, the Court sought a submission from counsel for the Director as to whether the challenge to current sentencing practices for aggravated burglary was maintained. In a written submission filed subsequently, the Director advanced the following contentions:

First, this is not an appropriate vehicle for a general challenge to ‘current sentencing practices’ for the crime of aggravated burglary as contemplated by this Court’s recent decision in Ashdown v The Queen; simply because fairness dictates that it would be unjust to do so given that the issue was determined by the judge in the court below and the Crown [is] seeking to raise it on an offender’s sentence appeal.

However, that does not mean that this Court should not pass comment on the adequacy of sentencing practices for a particular category or species of the crime when properly raised; that is expressly sanctioned by this Court’s decisions in Winch and Ashdown. In such circumstances, any views expressed by the Court would apply to the future sentencing of offenders for the particular category of the crime in question.

In this appeal the [Director] submits that is open to the Court to express a view as to the expected sentencing range that ordinarily should be imposed for the ‘home invasion’ category of aggravated burglary. In short, it is this very type of the crime the Parliament had in mind when dramatically increasing the penalty from 15 to 25 years’ imprisonment in 1997.

Secondly, the [Director’s] submission in relation to the above is a simple one; this Court does not have to strike out on its own into uncharted territory but rather emphasise and reinforce existing authority.

46 The Director’s submission drew attention to the statement by the sentencing judge, set out above, that it would be of great assistance to judges if this Court could provide some guidance in relation to sentencing for aggravated burglary, as was done by the Court in Winch v The Queen[39] in relation to that category of recklessly causing serious injury described as ‘glassing’. In that case, the majority of the Court (Maxwell P and Redlich JA) acceded to the Director’s submission that the Court could, and should, express a view about the inadequacy of current sentencing practices for ‘glassing’ as a particular subcategory of the offence of recklessly causing serious injury.

47 What was said in the joint judgment in Winch has been widely viewed as a helpful guide to sentencing for such offences.[40] The relevant parts of the judgment were in these terms:

‘Glassing’ cases have a number of recurrent features. The typical glassing — of which the present appeal is an illustration — occurs in or near licensed premises. It is usually an act of alcoholfuelled aggression, in disproportionate response to an actual or perceived slight. The typical offender is young and of generally good character, and is full of remorse after the event.

The consequences of glassing are, almost invariably, very serious. Striking to the face or head with a bottle or glass carries a high — and obvious — risk of serious injury. The victim of a glassing almost always suffers severe lacerations; often has permanent facial scarring; and suffers physical and psychological damage which is typically long-term and often permanent.

It is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence — recklessness — means that the offender has consciously disregarded a known risk.

...

In a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty — which marks out the sentencing parameters — and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.

Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required. It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to RCSI in a glassing case should ensure that no assumption is made about the availability of a suspended sentence. For all the reasons we have given, a person who comes to be sentenced for RCSI, on a plea of guilty, for a ‘glassing’ offence — even with all the mitigating features to which we have referred — should proceed on the assumption that he or she will be required to spend a significant period of time in actual custody.^[41]

48 It is now well established that it is a proper function of this Court, in an appropriate case, to express an opinion about the adequacy of current sentencing practices for a particular offence and, when current sentencing practices are found to be inadequate, to indicate that they should be uplifted.[42] In Ashdown, Redlich JA identified a number of circumstances in which intermediate courts of appeal had decided that it was both necessary and appropriate to do so. One such circumstance is where the objective seriousness of particular conduct has been wrongly categorised.[43]

49 A key indicator of the objective seriousness of an offence is the maximum penalty fixed by Parliament.[44] As Maxwell P pointed out in Ashdown,[45] this Court in a series of unanimous decisions has recognised the scope which exists for conflict between the guidance afforded to sentencing judges by the maximum penalty for an offence and the guidance afforded by current sentencing practice for that offence. A sentencing judge is, of course, obliged to take both considerations into account in determining an appropriate sentence.[46]

50 That conflict may be particularly acute when — as has occurred with aggravated burglary — Parliament has legislated to increase the maximum penalty for an offence, with the explicit purpose of emphasising the seriousness with which the community views the offence in question. In A B (No 2),[47] this Court endorsed the view of Nettle JA (sitting as a trial judge) that current sentencing practice for manslaughter did not adequately reflect the increased maximum penalty for that offence and that, in those circumstances, it was necessary to depart from current practice.

51 Often enough, the disparity between current sentencing practice and the applicable maximum will become apparent in a case where, because the offender pleaded guilty, the appropriateness of the particular sentence falls to be judged by reference to current practice. If the conclusion is nevertheless arrived at, that current practice does not adequately reflect the guidance provided by the maximum, then it is both appropriate and necessary for this Court to say so, for the guidance of sentencing courts.

The inadequacy of current sentencing practices in home invasion cases

52 In June 2011, the Sentencing Advisory Council published an important report entitled ‘Aggravated Burglary — Current Sentencing Practices’.[48] The sentencing judge in the present case made reference to this report at the outset of the plea. The purpose of the Council’s investigation of current sentencing was explained in the report, as follows:

When sentencing a person for an offence, one of the factors that Victorian courts are required to consider is current sentencing practices for that offence. This is particular difficult to do for aggravated burglary. The preparatory nature of the offence is one reason for this, because the gravity of a particular aggravated burglary will be affected by the nature of the offence that the person entering the premises intended to commit once inside. For example, did they break into the premises intending to steal cash while being aware that someone may have been asleep upstairs? Or did they break in knowing that a woman was alone at home and intending to rape her?

The prevalence of aggravated burglary, combined with the unusually wide range of sentences imposed and the difficulty of identifying current sentencing practices for it, prompted the Sentencing Advisory Council to undertake a detailed study of sentencing practices for this offence.^[49]

53 The Council reviewed sentences imposed in the higher courts in 2008–9, grouping the cases into six distinct categories. As mentioned earlier, one of those categories was ‘confrontational aggravated burglary’. The other categories involved (respectively):

• the offender’s (former) intimate partner;
• intent to commit a sexual assault;
• intent to steal;
• intent to rob; and
• a spontaneous encounter.

54 The defining characteristic of the ‘confrontational’ category was entry ‘in the context of a dispute with or grievance against someone in the premises’.[50] This was by far the most common type of aggravated burglary, accounting for over half of the cases reviewed by the Council. This category included

cases such as ‘drug runthroughs’ (where there is a preexisting dispute arising from illegal drug dealing and the offender breaks into premises to confront the other party and to take or damage property) and vigilante actions (for example, where the offenders seeks to punish the victim because of a belief that the victim has done something wrong).^[51]

55 The Council’s conclusion with respect to sentencing for confrontational aggravated burglary was as follows:

Confrontational aggravated burglaries tended to be less likely to result in an immediate custodial sentence than other categories of aggravated burglary. Taking other factors into account, the Council found this difference to be statistically significant, suggesting that there is something intrinsic to this type of aggravated burglary that influences sentencing outcomes. One possibility is that there may often be a degree of provocation involved in this type of offence, which may have the effect of reducing the likelihood of imprisonment.

Wholly suspended sentences were substantially more common for these aggravated burglaries than all other aggravated burglary categories (38.2% versus 19.7%). This is most likely explained by the relatively low proportion of confrontational aggravated burglary offenders with prior imprisonment or prior offences or who were on an existing order at the time of the offence.^[52]

And further:

Sentences for confrontational aggravated burglary tended to be skewed towards lowerend sentences compared with all other categories of aggravated burglary.

Immediate custodial sentences made up a lower proportion of confrontational aggravated burglaries than all other categories of aggravated burglary (48.0% versus 72.4%). When the effects of other factors were controlled for using a regression model, confrontational aggravated burglary had a significant effect on sentence outcome, decreasing the chances of an immediate custodial sentence.

Just under onequarter of confrontational aggravated burglaries (23.5%) received an imprisonment term of two years or more, compared with over half (52.6%) of all other categories of aggravated burglary.

The median imprisonment term for charges of confrontational aggravated burglary was the same as for all other categories of aggravated burglary (two years). The mean imprisonment term for confrontational aggravated burglaries was shorter than the mean for all other categories (25.3 months versus 31.4 months), the difference being statistically significant.^[53]

56 Given the intrinsic seriousness of this type of offending, these are surprising findings. Confrontational aggravated burglary is not necessarily any more serious than (say) the same offence when committed in relation to an intimate partner or with intent to commit a sexual offence. Offences of the latter kind are likely to be particularly terrifying for victims. But it seems improbable that sentences in the ‘confrontational’ category should be ‘skewed towards lower-end sentences compared with all other categories’. It must be recalled that the stated intention of the increase in the maximum penalty was to ‘send a message’ that ‘home invasionstyle offences ... will not be tolerated’.[54] Sentencing practice as described by the Council would seem not to have met that objective.

57 This conclusion is reinforced by other available information on current sentencing for home invasion or ‘confrontational’ aggravated burglary. Table A is a compilation of decisions of this Court over the past decade (together with a number of County Court cases selected by the Director) dealing with sentencing for this species of the offence. It can be seen immediately that a sentence of greater than five years’ imprisonment is quite exceptional. Table B is a compilation prepared by the Director of all sentences for aggravated burglary in the superior courts in 2011, which makes the same point even more forcefully.

Conclusion

58 We do not consider that current sentencing for confrontational aggravated burglary reflects the objective seriousness of this form of the offence. The clustering of sentences around a median of two years shows how far current sentencing has departed from the parameters set by the maximum penalty of 25 years.

59 It cannot have been Parliament’s intention that, with a few isolated exceptions, sentencing for the full range of such offences should be bounded by an upper limit of six (or at most seven) years’ imprisonment. As the Court said in Director of Public Prosecutions v C P D:[55]

The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.^[56]

60 While the maximum itself is reserved for ‘the worst example of an offence likely to be encountered in practice’,[57] it is to be expected that there would be a spread of cases across the statistical range. As Vincent J said in Mallinder:

[I]n circumstances where a maximum penalty is fixed by statute, and accordingly the relative seriousness with which proscribed behaviour may be viewed by the courts has been determined by the legislature, the sentence which is imposed in any given case must bear some relationship to the seriousness with which the class of offences is to be viewed generally, and to the relative seriousness of the actual conduct engaged in by the offender within the context of the kinds of behaviour encompassed by that class.^[58]

61 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 Markarian v The Queen.[59] 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.[60]

62 It follows, in our view, that current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practice. The necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases. The Director will play an important role in this process, by assisting judges through the making of submissions on sentencing range.[61]

63 By way of general guidance, we would add the following. As stated earlier,[62] the Director’s submission to the sentencing judge was that, if the constraints of current sentencing practice were removed, the applicable range for the sentencing of AH would be a total effective sentence of six to eight years, with a nonparole period of four to six years. Having regard to the circumstances of this offence and this offender, we consider that that was an appropriate identification of the indicative range.[63]

- - -

TABLE A

Hogarth v The Queen — Confrontational aggravated burglary — sentencing table

TABLE B

Sentencing decisions for aggravated burglary in superior courts in 2011

^[1] For further discussion of the terror which this offence often causes its victims, see Bonacci v The Queen [2012] VSCA 170, [1] (‘Bonacci’).

^[2] The abbreviation is used for ease of reference not anonymity.

^[3] Crimes Act 1958 (Vic) s 76(1).

^[4] Ibid s 77(1).

^[5] See, eg, Bonacci [2012] VSCA 170, [9], [19].

^[6] Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices (June 2011), 30. See, further, [52]–[54] below.

^[7] The sentences on the other counts were as follows: theft 15 months (four months cumulative); theft — four months (one month cumulative); handling stolen goods — four months (one month cumulative).

^[8] See [42], [44]–[45] below.

^[9] The Director of Public Prosecution’s former Director’s Policy No 32: Challenging current sentencing practices was suspended on 5 October 2012.

^[10] See [51]–[63] below.

^[11] At the time of sentence Geoffrey Hogarth was awaiting trial and Carl Frost had been nominated by AH as the third man. They are described as T and S because this corresponds with the victim’s descriptions of them. For the purposes for this appeal, nothing turns on which co-offender is T and which is S.

^[12] DPP v Hogarth (Unreported, County Court of Victoria, Judge Tinney, 2 September 2011), [23]–[24] (emphasis added), (‘Reasons’).

^[13] Reasons, [27]–[28] (emphasis added).

^[14] See Ristevski v The Queen (2011) 32 VR 193, [9]–[10].

^[15] Reasons, [23].

^[16] See Ashdown v The Queen  [2011] VSCA 408 , [209]–[212] (‘Ashdown’).

^[17] [2009] VSCA 160, [32].

^[18] See also Denman v The Queen [2012] VSCA 261.

^[19] See, eg, R v Schneider [2007] VSCA 103, [21], [33]; R v Bloomfield [2009] VSCA 302, [15], [17]. See also Hayley Bennett and G A (Tony) Broe, ‘Brains, biology and socio-economic disadvantage in sentencing: Implications for the politics of moral culpability’ (2008) 32 Criminal Law Journal 167.

^[20] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

^[21] DPP v Patterson [2009] VSCA 222; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.

^[22] The Director’s submission cited DPP v Brown [2004] VSCA 133; (2004) 10 VR 328.

^[23] R v Siggins [2002] VSCA 97, [19] (Eames JA).

^[24] DPP v Brown [2004] VSCA 133; (2004) 10 VR 328, 336 [43] (Vincent JA).

^[25] DPP v El-Hajje [2009] VSCA 160, [35] (Maxwell P, Vincent JA and Coghlan AJA) (‘El-Hajje’).

^[26] See R v A B (No 2) [2008] VSCA 39; (2008) 18 VR 391 (‘A B (No 2)’).

^[27] El-Hajje [2009] VSCA 160, [34]; Van Hung Le v The Queen [2010] VSCA 199, [35] (‘Van Hung Le’).

^[28] Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873 (Jan Wade, Attorney-General).

^[29] El-Hajje [2009] VSCA 160, [32].

^[30] Ibid [33].

^[31] See also Van Hung Le [2010] VSCA 199, [34]–[39]; Saltalamacchia v The Queen [2010] VSCA 83, [26].

^[32] DPP v Avci [2008] VSCA 256; (2008) 21 VR 310, 318 [29]; Nguyen v The Queen (2010) 208 A Crim R 464, 474–5.

^[33] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677 (‘MacNeil-Brown’).

^[34] On the hearing of the present appeal, the Court was told that notice of the kind provided to AH’s solicitors had been given in as many as 400 cases.

^[35] Since the appeal hearing, the current Director, Mr John Champion SC, has decided to withdraw the ‘global challenge’ to current sentencing practices for aggravated burglary.

^[36] (2010) 27 VR 658.

^[37] Reasons, [45]–[46] (emphasis added).

^[38] Ibid [47].

^[39] (2010) 27 VR 658 (‘Winch’).

^[40] See Ashdown  [2011] VSCA 408 , [41] and the cases there cited.

^[41] (2010) 27 VR 658, 664–5 [32]–[34], 669 [53]–[55] (citations omitted).

^[42] Ashdown  [2011] VSCA 408 ; DPP v Werry [2012] VSCA 208, [63].

^[43]  [2011] VSCA 408 , [180].

^[44] A B (No 2) [2008] VSCA 39; (2008) 18 VR 391, 403–4 [40] and the cases there cited.

^[45]  [2011] VSCA 408 , [30].

^[46] Sentencing Act 1991 (Vic) ss 5(2)(a), (b).

^[47] [2008] VSCA 39; (2008) 18 VR 391.

^[48] Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices (June 2011).

^[49] Ibid ix.

^[50] Ibid 30.

^[51] Ibid x.

^[52] Ibid.

^[53] Ibid 31.

^[54] See [36] above.

^[55] [2009] VSCA 114; (2009) 22 VR 533 (‘C P D’).

^[56] Ibid 554, [81].

^[57] Mallinder (1986) 23 A Crim R 179, 180 (Murray J), 187 (Vincent J).

^[58] Ibid 186.

^[59] [2005] HCA 25; (2005) 228 CLR 357, 372 [31].

^[60] C P D [2009] VSCA 114; (2009) 22 VR 533, 550–1 [74]; DPP v D D J [2009] VSCA 115; (2009) 22 VR 444, 461 [70]; A B (No 2) [2008] VSCA 39; (2008) 18 VR 391, 405–6 [47]–[49].

^[61] MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.

^[62] See [40] above.

^[63] MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 681 [12], 697–8 [68]–[69].