Where an offender pleads guilty to home invasion (Crimes Act 1958 (Vic), s 77A) based on entry as a trespasser with intent to steal while carrying an offensive weapon, uncharged criminal conduct committed inside the premises after entry — such as threats to inflict serious injury, threats to rape, and criminal damage — cannot be taken into account in aggravation of the home invasion where that conduct is distinct from the elements of the charged offence and is of equal or greater seriousness. The offence of home invasion is complete upon entry as a trespasser with the requisite intent. However, uncharged conduct may still be used to negate mitigation (e.g., to disentitle the offender from claiming desistance) and to inform assessment of rehabilitation prospects. Section 5(2)(daa) of the Sentencing Act 1991 (Vic) requires regard to the impact of the offence of which the offender was convicted, not uncharged offences. The judges disagreed on whether the Newman ground was made out: Croucher AJA found it was; Emerton JA declined to decide it, finding the parity ground alone sufficient.
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