



Harsher penalties needed for aggravated burglary, court finds


Andrea Petrie

Sentencing practices for aggravated burglaries in Victoria are inadequate and do not reflect the seriousness of the crime, the Court of Appeal has ruled.

In a judgment handed down on Tuesday, the President of the Court of Appeal, Chris Maxwell, and justices Marcia Neave and Paul Coghlan have highlighted a need for harsher penalties to be given to offenders who enter the homes of others with the intent to steal, assault or cause damage while carrying a weapon or being aware that a person is present or is likely to be present.

The remarks were made in an appeal judgment involving an offender who pleaded guilty to participating in a home invasion to take revenge against the son of the victim who, he claimed, had caused his arrest and had prevented him attending his mother's funeral.

Adam Hogarth was in custody when his mother died and was not allowed to attend her funeral.

The case was unusual because Hogarth did not enter the premises during the aggravated burglary. While being deemed the "motivating force" and "instigator" of the crime, he remained in a car outside while his two co-offenders broke in, stole items to the value of $25,000 and tied up the occupant with electrical tape.

Hogarth was sentenced to 4½ years for a 2010 aggravated burglary charge for acting in concert. He was given a 3½ year non-parole period.

He appealed the sentence on the basis it was excessive. But the appeal judges dismissed his challenge and noted the case highlighted the "inadequacy of current sentencing practices for this egregious form of aggravated burglary".

They said if it had not been for Hogarth, who was primarily responsible for the offence, the aggravated burglary would not have taken place. They ruled his sentence was "entirely orthodox".

The judges said offending of this kind had led Parliament in 1997 to increase the maximum penalty for aggravated burglary from 15 to 25 years' jail after sentencing statistics revealed the median sentence was two years' imprisonment.

The judges said the former director of public prosecutions, Jeremy Rapke, had launched a global challenge to sentencing practices for aggravated burglary, arguing that sentencing practices had not changed to reflect the "significant increase" in the maximum penalty.

Despite prosecutors inviting several judges to hand down tougher penalties, no judges did.

While the director could have argued the point before the Court of Appeal, he did not. It was the present DPP, John Champion, who took the matter to the appeal court in Hogarth's case.

In submissions by the prosecution in Hogarth's appeal, the Court of Appeal was urged to provide authoritative guidance, as the court did in 2010 for the offence of recklessly causing serious injury cases caused by glassing.

"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," the judgment states.

A Sentencing Advisory Council report last year on sentencing practices for aggravated burglary categorised the offence in areas such as confrontational aggravated burglaries, invasions of the home of a former intimate partner, aggravated burglaries with the intent to commit sexual assault, intent to steal, rob or a spontaneous encounter.

The study, looking at sentencing practices in 2008-2009, found confrontational aggravated burglaries, which involves a person entering the home of someone they had a dispute with or grievance against as was the case with Hogarth, was the most common type of aggravated burglary.

But just under a quarter of confrontational aggravated burglaries (23.5 per cent) received a jail term of two years or more compared with more than half (52.6 per cent) of all other categories of aggravated burglary, the study found.

In its report the council said the increase in the maximum sentence was to send a message that "home-invasion style offences . . . will not be tolerated", yet sentencing practices had not met that objective.

The appeal judges agreed.

"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," the judges said.

"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.

"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."

They added that the director's submission to the sentencing judge was that, if the constraints of sentencing practice were removed, the applicable range for the sentencing of Hogarth would be a total effective sentence of six to eight years, with a non-parole period of four to six.

Featured advertisers

Special offers

Credit card, savings and loan rates by Mozo