Henley v The King - [2024] SASCA 52

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HENLEY v THE KING
[2024] SASCA 52
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Stein)
2 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Appeal against sentence.
The appellant pleaded guilty to manslaughter and to leaving the scene of an accident after causing death by careless driving. The circumstances of the offending involved the appellant pursing another vehicle and culminated in the appellant repeatedly ramming his vehicle into the other vehicle causing it to roll three times. Mr Nicholas Darling died due to injuries suffered in the collision. The appellant left the scene, abandoned his vehicle and later set it on fire.
The appellant was sentenced to a single sentence of 13 years and six months. A non-parole period of 11 years was imposed in respect of both counts.
The appellant sought permission to appeal against sentence on two grounds; namely that the sentence imposed was manifestly excessive; and that the sentencing Judge erred in utilising s 26 of the Sentencing Act 2017 (SA) to impose a single sentence for the offending.
Held, per the Court, granting permission to appeal, allowing the appeal, and resentencing the appellant:
1.The sentencing Judge erred in utilising s 26 of the Sentencing Act 2017 to impose a single sentence in circumstances where manslaughter was a designated prescribed offence under s 26 of the Sentencing Act 2017.
2.This Court cannot in the exercise of a separate and independent discretion conclude that no different sentence should be passed in a case involving multiple offences when one offence is manslaughter. Accordingly, the appropriate course is to re-sentence the appellant.
3.The appellant is to be re-sentenced to 10 years, five months and 13 days for the offence of manslaughter; and two years, 10 months and seven days for the offence of leaving the scene of an accident after causing death by careless driving with a period of concurrency of nine months and 20 days resulting in a combined period of imprisonment for both offences of 12 years and six months. A non-parole period of nine years, being at least four-fifths of the sentence for manslaughter, is imposed. The appellant is disqualified from holding a driver’s licence for 15 years to commence upon his release from custody.

Sentencing Act 2017 (SA) ss 5, 26; Road Traffic Act 1961 (SA) s 43, referred to.
House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; R v Lavender (2005) 222 CLR 67; R v Forbes (2005) 160 A Crim R 1; Hassan v The Queen [2022] SASCA 56; Lees v The Queen [2022] SASCA 93; Teagle v The King [2023] SASCA 108; Bugmy v The Queen (2013) 249 CLR 571; R v McGaffin (2010) 206 A Crim R 188; R v Williams [2018] SASCFC 14; DPP v SJK; DPP v GAS [2002] VSCA 131; DPP v Lawrence (2004) 10 VR 125; Azzopardi v The Queen (2011) 35 VR 43; R v Verdins (2007) 16 VR 269; Veen v The Queen (No 2) (1988) 164 CLR 465; White (A Pseudonym) v The Queen (2022) 141 SASR 398, applied.

HENLEY v THE KING
[2024] SASCA 52
Court of Appeal – Criminal: Bleby and David JJA and Stein AJA

THE COURT: On 20 July 2021, Mr Michael Charles Henley was involved in a car chase which resulted in the loss of a life. Mr Henley pursued another vehicle driven by Mr Lewis Bennett with Mr Nicholas Darling in the passenger seat. The pursuit culminated in Mr Henley repeatedly ramming his vehicle into Mr Bennett’s vehicle causing it to roll three times. Mr Darling died from the injuries he suffered in the collision. Mr Henley left the scene, abandoned his vehicle and later set it on fire. He turned himself into police three days later.
Mr Henley pleaded guilty to manslaughter and to leaving the scene of an accident after causing death by careless driving.
For the two offences, the sentencing Judge imposed a single sentence of imprisonment of 14 years. This was reduced by five per cent to 13 years and six months on account of Mr Henley’s guilty plea on the first day of trial. Her Honour imposed a non-parole period of 11 years in respect of both the counts.
The sentencing Judge also disqualified Mr Henley from holding a driver’s licence for 10 years, to commence upon his release from custody.
Mr Henley sought permission to appeal against the sentence on the basis the head sentence was manifestly excessive. He also sought leave to add a further ground of appeal, that the sentencing Judge erred in utilising s 26 of the Sentencing Act 2017 (SA) (“Sentencing Act”) to impose one sentence for the offending. The respondent did not oppose the application for leave to amend, and the application was granted by the Court.
For the reasons that follow, we grant permission to appeal, allow the appeal, and resentence Mr Henley on the basis we set out below.
Factual basis of offending
Prior to 20 July 2021, Mr Henley had been in a relationship with Ms Short. They had a daughter and had lived together, but they were separated and living apart at the date of the offence.
On 20 July 2021, the State commenced a Covid-19 lockdown. Ms Short went to Mr Henley’s house to talk with him about arrangements for their daughter. An argument ensued during which Ms Short told Mr Henley she had been sexually intimate with Mr Bennett, who had been a friend of Mr Henley. Mr Henley flew into a rage and he then damaged Ms Short’s and Mr Bennett’s cars.
When Mr Bennett found out his car had been damaged, he and Mr Darling went to Mr Henley’s house to confront him. They parked Mr Bennett’s Toyota a few streets away and walked to Mr Henley’s house. When Mr Bennett and Mr Darling got to Mr Henley’s house, they overheard Mr Henley talking with Mr Parsons and Mr Rossborough and laughing about having damaged Mr Bennett’s car.
Mr Henley then left his house driving a Ford vehicle with Mr Rossborough and Mr Parsons as passengers. Mr Darling threw a stick and Mr Bennett threw an object at the Ford, damaging the windscreen. Mr Bennett and Mr Darling then ran back to Mr Bennett’s Toyota and drove off, neither wearing seatbelts.
Mr Henley pursued them in his vehicle.
Mr Henley chased the Toyota at speed through streets in Morphett Vale, which at times resulted in Mr Bennett being forced to drive across a bike track, a reserve, and a war memorial in his attempt to evade Mr Henley. Mr Henley drove at such speed that in closed circuit television (“CCTV”) footage, sparks could be seen as he drove over speed humps.
At some point, Mr Henley lost sight of Mr Bennett. The sentencing Judge observed that this was an opportunity for Mr Henley to desist from continuing the pursuit, but he did not. The two vehicles then came across each other going in opposite directions, whereupon Mr Henley turned around and pursued Mr Bennett again.
When Mr Bennett turned into a shopping centre carpark, his vehicle stalled after the battery cables disconnected. After reattaching the battery cables, Mr Bennett drove away with Mr Henley again in pursuit.
The Toyota then stopped on Flaxmill Road because the battery cables had again disconnected. Mr Bennett and Mr Darling got out to attempt to get the Toyota started. CCTV footage captured Mr Henley driving up Flaxmill Road and doing a U-turn to give himself an extended run up to ram into the Toyota at speed. The sentencing Judge described Mr Henley as ramming the Toyota multiple times with his vehicle in repeated, deliberate acts, including while Mr Bennett and/or Mr Darling were outside the car.
Mr Henley continued to chase Mr Bennett’s car after Mr Bennett managed to re-attach the battery cables and drive off. At times, Mr Henley drove his vehicle so it hit Mr Bennett’s vehicle.
As Mr Bennett approached an intersection, he drove through a gap in the median strip onto the wrong side of the road. Mr Henley followed. Mr Bennett then endeavoured to get back to the correct side of the road by attempting to cross through a gap in the median strip. At this point, Mr Henley rammed the side of the Toyota, causing it to flip and roll three times before it skidded to a halt.
By the time this event occurred, the chase had continued for about 15 minutes.
Mr Henley saw what happened to the Toyota. The sentencing Judge remarked that Mr Henley could have been under no misapprehension that someone inside was, at the very least, seriously injured.
Mr Henley did not stop but drove past the Toyota.
When Mr Parsons told Mr Henley to stop because he thought the occupants could have been killed, Mr Henley responded by saying “I don’t want you to make feel like a cunt, but from what they did to me in my life, I don’t really give a fuck. They ruined my life. I don’t really care if one of them died”. The sentencing Judge described Mr Henley’s response of fleeing the scene and leaving the occupants of the Toyota dead or injured as reprehensible.
Mr Henley and his passengers then abandoned the car and obtained a lift home. Mr Henley later returned and set the Ford alight.
On 23 January 2021, Mr Henley surrendered to police.
Mr Henley was sentenced on the basis that he did not intend the consequences of his conduct, that is, he did not intend to cause the death of Mr Darling. He entered a guilty plea to manslaughter by unlawful and dangerous act. The unlawful and dangerous act was deliberately ramming his vehicle into the Toyota in which Mr Darling was a passenger. In accepting a guilty plea on this basis, the prosecution accepted that Mr Henley did not intend the Toyota to roll when contact was made, and that Mr Henley did not intend to inflict grievous bodily harm on the deceased, Mr Darling.
Personal circumstances of Mr Henley
Mr Henley was 22 years of age at the time of the offending and is now 25 years of age.
Mr Henley was born in Western Australia and raised by his mother. Mr Henley’s mother was 18 years old when he was born and he had two younger half-brothers. His mother often relocated, at times as a result of her involvement in domestically violent relationships. Mr Henley’s mother was a heavy drug user, using methamphetamine, benzodiazepines, cannabis and sometimes heroin. She was an emotionally neglectful and abusive parent. Mr Henley’s mother suffered from volatile moods and she would hit him, verbally abuse him and punish him, including by driving him to remote locations, forcing him to get out and telling him to remain there until she returned. There was rarely enough food in the house. Some of Mr Henley’s mother’s partners were abusive towards him.
Mr Henley reported having been sexually abused by a maternal uncle when he was about nine or 10 years old with that sexual trauma remaining a cause of deep distress.
Mr Henley was bullied at school. At a young age he developed behavioural issues, which resulted in criminal behaviour such as stealing food. He suffered uncontrollable temper tantrums and meltdowns and had a significant mistrust of authority figures. He recognised he had an inappropriate and abnormal way of thinking, including having violent fantasies. He experienced “black outs” in the context of intense anger episodes, which still occur.
Mr Henley was removed by child protection services from his mother’s care on numerous occasions. He repeatedly absconded because he was worried about his brothers.
Mr Henley was detained at age 13, the youngest person to be charged with cultivating cannabis in Western Australia. At that time, his father who resided in South Australia recognised him from a news report, contacted his mother and supported Mr Henley to move to South Australia. The aim was to allow Mr Henley to have a fresh start away from antisocial associates, dysfunction and the drug scene. However, Mr Henley continued to lead an antisocial lifestyle and to abuse drugs.
His father did his best to support him in relation to education, employment and his mental and emotional difficulties. Nevertheless, Mr Henley remained an angry teenager. He would suffer regular emotional outbursts, often characterised by causing property damage to his father’s house, followed by bouts of uncontrollable crying. He abused cannabis on a regular basis. He gravitated towards a group of antisocial peers. He struggled to make friends. Mr Henley enrolled at a flexible learning centre after he came to South Australia and eventually completed his SACE.
Mr Henley lived with his father until he was about 18 or 19 years old when he commenced his relationship with Ms Short. Their relationship had a cyclical pattern of separation and reconciliation. Mr Henley’s relationship with Ms Short ended shortly before the offending.
Mr Henley had a spasmodic employment history. His difficulties with emotional regulation contributed to his inability to keep employment.
Mr Henley started smoking cannabis at 12 years old and became a chronic smoker of cannabis. Mr Henley experimented with heroin and used to binge drink alcohol at least once a week. He smoked up to 40 cigarettes a day when in the community. Between about 17 and 18 years old, he regularly abused LSD, MDMA, cocaine and ecstasy. He ceased using those drugs after he met Ms Short. He smoked methamphetamine recreationally from his late teens and early 20s.
Mr Henley stopped smoking cannabis and methamphetamine, going “cold turkey” about a week before the offending. As a consequence, Mr Henley experienced drug withdrawal symptoms which he reported as including headaches and mood swings, agitation, fearfulness and black outs.
Mr Henley said he was not under the influence of drugs or alcohol at the time of the offending.
Mr Henley currently receives treatment for substance abuse through an opioid replacement therapy.
Report of Dr Lim
The report of Dr Lim, forensic psychologist, assessed Mr Henley as meeting the diagnostic criteria for:
·complex post-traumatic stress disorder (“PTSD”);
·borderline personality disorder with some antisocial features;
·intermittent explosive disorder; and
·cannabis use disorder.
Dr Lim did not consider Mr Henley suffered from an organic bipolar type disorder.
Dr Lim referred to Mr Henley’s reported state of mind leading up to the offences. Mr Henley had described himself as starting to black out and being in and out of rage when Mr Bennett and Mr Darling approached his house and then as completely spiralling out of control once Mr Darling threw something at his car window. In Mr Henley’s mind, he thought it was tit-for-tat and he was angry, scared, targeted, and felt betrayed. Mr Henley told Dr Lim he did not expect anyone to die and wished he could take it all back. Mr Henley told Dr Lim that he was inconsolable for a long time after viewing of the footage of the events in Court. He described being horrified by the footage and that he was scared of himself, remorseful, and disgusted that he could do what he had done.
Dr Lim considered Mr Henley developed a reactive attachment disorder before he reached the age of five years which was a developmental precursor to Mr Henley’s later difficulties with emotional dysregulation and his intense anger episodes. His complex post-traumatic stress disorder and borderline personality disorder with mixed antisocial features developed in his late teens and early 20s. The core features of his personality disorder were considered to be poor impulse control, propensity to reckless and self-destructive behaviours, transient stress induced paranoid-self harm ideation; an unstable personal identity; a higher tolerance threshold for risk taking and/or dysfunctional behaviours relative to the standards of ordinary people; and chronic affective instability from a marked reactivity of mood.
Dr Lim thought Mr Henley’s chronic addiction to cannabis would have compounded his pre-existing emotional issues, especially when withdrawing from drugs. She considered Mr Henley was likely to have been significantly reliant on cannabis and his propensity to react in an excessively aggressive and disinhibited way would have become amplified when he did not have immediate access to it.
Dr Lim opined that the offending was directly precipitated by Mr Henley’s chaotic psychosocial circumstances and interpersonal conflicts, his cannabis withdrawal, and his longstanding intermittent explosive disorder with poor adaptive coping skills and emotional dysregulation resulting from his personality disordered traits.
Dr Lim reported this formulation would suggest Mr Henley’s risk of committing future violence, especially violence leading to either catastrophic or fatal consequences, would most likely be realised if Mr Henley’s poor impulse control, anger, and innate predisposition to reckless behaviour were triggered by a combination of drug withdrawal symptoms and psychosocial/interpersonal crises.
Dr Lim assessed Mr Henley as being moderate to high risk of general re-offending and high risk of future violence because his psychological difficulties had yet to be appropriately mitigated. He also had very few protective factors in place to militate against risk of violent re-offending.
The majority of Mr Henley’s dynamic risk factors had not been mitigated by any treatment or intervention. Dr Lim observed that the only one which had been partially mitigated was substance abuse through the opioid substitution therapy.
Dr Lim thought that Mr Henley appeared to have developed remorse, although belatedly, after he saw the video footage of his offending behaviour in court. He appeared to develop some insight into his risk factors and was reportedly motivated to address them through psychological intervention. Dr Lim said Mr Henley’s prospects for rehabilitation and prognosis would remain guarded until he made a concerted effort to engage with therapy. Dr Lim noted Mr Henley was reportedly amenable and highly motivated to engage with supports.
Dr Lim said in custody Mr Henley was still experiencing intermittent labile mood swings and difficulties with emotional dysregulation. Dr Lim thought Mr Henley’s challenges with anger management remained a significant criminogenic risk factor that would predispose Mr Henley to episodes of violence. If so, that may precipitate another unintended catastrophic or fatal event. Dr Lim said if Mr Henley’s emotional state and his capacity for impulse control and decision making were compromised by substances, this would increase his propensity for acts of aggression.
Sentencing remarks
The sentencing Judge commenced her consideration of the sentence to be imposed with a reference to the factual basis upon which Mr Henley pleaded guilty to manslaughter.
Before turning to the factual circumstances of the offending, the sentencing Judge provided examples from the evidence relied upon to establish Mr Henley’s extreme volatility and inability to navigate common everyday frustrations and social interactions.
In referring to the circumstances in which Mr Henley left the scene, the sentencing Judge characterised the conduct as reprehensible by reason of his actions in leaving the occupants of the Toyota dead or injured and by Mr Henley’s response to Mr Parson’s suggestion that he stop.
While acknowledging that Mr Henley was to be sentenced on the basis he did not intend to cause the death of Mr Darling, the sentencing Judge described the factual basis as Mr Henley driving intentionally into the Toyota and using his vehicle as a weapon to attack the occupants of the other car. Mr Henley thus exposed them to great risk and his conduct posed a considerable risk to the public. The sentencing Judge observed that it may only be because a lockdown commenced that night that there were no further fatalities in consequence of Mr Henley’s conduct.

The sentencing Judge paid express regard to the victim impact statements and the devastating and profound impact of Mr Darling’s death on many people, including because Mr Darling’s partner was pregnant at the time of the incident and later gave birth to their daughter.
The matters which were raised by Mr Henley in mitigation were referred to by the sentencing Judge. Her Honour acknowledged Mr Henley’s bleak childhood, specifically referencing Mr Henley’s neglect and abuse at the hands of his mother, his behavioural issues and addiction to cannabis, and the positive influence of his father, which was not sufficient to undo the damage caused to Mr Henley in his formative years. The sentencing Judge paid regard to Dr Lim’s diagnoses and opinions and referred to Mr Henley’s drug abuse and withdrawal from drugs at the time of the offending.
The sentencing Judge considered that Mr Henley displayed no contrition at the time he left the scene and his remorse did not manifest immediately. However, her Honour accepted that in the courtroom she saw him experience raw and genuine emotion that was not based on his own plight and she accepted he had begun to appreciate the impact of his behaviour.
The sentencing Judge considered the offending to involve a very serious offence of manslaughter made all the worse by his subsequent conduct, with the associated need to not only deter Mr Henley, but to deter others from engaging in such dangerous behaviour.
The sentencing Judge did not accept the submission that exceptional circumstances existed to justify departing from the mandatory minimum non-parole period for serious offences of four fifths of the length of the sentence.
Appeal grounds
As manslaughter is a prescribed designated offence, by reason of the operation of s 26(2) of the Sentencing Act, the sentencing Judge could not utilise s 26 of the Sentencing Act to impose a single penalty.
The respondent concedes there was a specific process error of the kind referred to in House v The King.[1] However, the respondent contended this Court appropriately could dismiss the appeal if, in the separate and independent exercise of discretion, it concluded that no different sentence should be passed.[2] The respondent’s argument proceeded on the basis that the Court may still arrive at the same sentence as the sentence imposed by the sentencing Judge while imposing two penalties in compliance with s 26. This was said to be because s 26 refers to a sentence and a sentence can be comprised of a number of penalties.
[1] [1936] HCA 40; (1936) 55 CLR 499.
[2] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell and Keane JJ).
The Sentencing Act refers to concepts of penalty and sentence and uses the notion of sentence both as a noun and a verb. “Sentence” is defined in s 5 of the Sentencing Act as including the imposition of a penalty. In the case of a person to be sentenced for a number of offences, s 26(1) of the Sentencing Act enables the Court to sentence the person to one penalty for all or some of the offences the subject of the proceedings. If one of the offences for which the person is being sentenced is a prescribed designated offence, such as manslaughter, s 26(2) of the Sentencing Act provides that s 26(1) does not apply to the sentencing of the person for that offence. In such a case, the Court is obliged to fix a separate penalty in respect of that offence.
It follows from the provisions of the Sentencing Act that where one of the offences is manslaughter, a sentencing which results in the imposition of a sentence comprising one penalty is not a sentence fixed in accordance with the Sentencing Act. At the end of a sentencing process for multiple offences resulting in a period of imprisonment, the sentence may be stated as a single period of imprisonment. However, it does not follow that a sentence determined by the Court sentencing a person to one penalty for more than one offence is the same as a sentence determined by the Court sentencing a person to separate penalties for separate offences, even if both are ultimately expressed as a sentence of a period of imprisonment.
This Court therefore cannot, in the exercise of a separate and independent discretion, conclude that no different sentence should be passed in a case involving multiple offences when one offence is manslaughter.
It follows that the appropriate course is for this Court to re-sentence Mr Henley.
It is therefore not necessary for the Court to address the appeal ground based on manifest excess.
Re-sentencing
Turning first to the offence of manslaughter, it is well recognised that manslaughter attracts the widest range of possible sentences given the broad range of objective gravity of offences and culpability of offenders.[3]
[3] R v Lavender [2005] HCA 37; (2005) 222 CLR 67 at [2] (Gleeson CJ, McHugh, Gummow and Hayne JJ); R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]-[134] (Spiegelman CJ).
As set out above, the basis on which the plea of manslaughter was entered was that Mr Henley deliberately rammed his vehicle into the Toyota but did not intend it to roll or for Mr Darling to die. A number of factors contributed to the rolling, including the relative speeds of the vehicle, the slope of the road, and the placement of the two vehicles when the Ford hit the Toyota.
While accepting that his conduct in the pursuit that led to the collision put the offending in context and was relevant to the objective seriousness of the offending, Mr Henley submitted that he was not to be sentenced for the lead up to the offending or the risk he thereby posed to the public.
The respondent contended that this was a particularly serious example of manslaughter by unlawful and dangerous act and the circumstances of the pursuit informed what any reasonable person ought to have realised at the point at which the pursuit culminated in ramming the Toyota.
Mr Henley is not to be sentenced for the pursuit itself or the danger which was posed to the public by his deplorable conduct in the course of the car chase. However, the 15 minute pursuit provides relevant context and surrounding circumstances to the offending which should not be ignored and which are relevant in assessing the objective seriousness of the manslaughter offence.[4] That context included travelling at speed, through public areas, on the wrong side of the road, and continuing the chase after opportunities to desist presented themselves.
[4] Hassan v The Queen [2022] SASCA 56 at [64]-[65] (Doyle JA; Livesey P agreeing); Lees v The Queen [2022] SASCA 93 at [42]-[43] (Doyle, Bleby and David JJ).
The outcome which ensued was not intended. Therefore, in the spectrum of seriousness, this case falls below cases involving excessive self-defence or provocation in which the offender had murderous intent. Nevertheless, Mr Henley’s offending was objectively very serious. He used the car he was driving to intentionally ram the Toyota, posing significant risks not only to the occupants of the Toyota but also the occupants of Mr Henley’s car. Mr Henley was fuelled by rage and the chase provides context to demonstrate that Mr Henley’s act of ramming the Toyota was not the result of momentary impulse.
The inherent danger in using a motor vehicle to deliberately hit another vehicle calls for a significant sentence for the protection of the safety of the community. It also calls for a significant sentence to deter Mr Henley and others from such deplorable behaviour, to hold Mr Henley to account for his conduct and to recognise the loss of life which resulted from his actions.
Mr Henley’s conduct in leaving the scene of an accident after causing death by careless driving was abhorrent. Given the deliberate ramming of the Toyota, Mr Henley witnessing the rolling of the Toyota, the callousness of his reaction when Mr Parsons said they should stop and his choice to drive away, it constituted a particularly egregious example of the offence. Among other things, the requirement to stop after causing injury by careless driving is to facilitate assistance to those who may be injured. Mr Henley not only failed to give aid to the occupants of the Toyota, he failed to report to the police, which precluded drug and alcohol testing, and he took steps to hide his involvement.[5] Mr Henley’s failures call for a substantial sentence to reflect the importance to public safety in offenders complying with their obligations and to reflect the need for both specific and general deterrence.
[5] Road Traffic Act 1961 (SA), s 43.
The two offences were separate offences. However, there are overlapping elements between them and the offence of leaving the scene arose out of, and followed on from, the course of conduct which culminated in the manslaughter offence. We therefore consider there is a basis to order that part of the sentence for the leaving the scene offence be served concurrently with the manslaughter offence. We return to address the extent of concurrency below.
We now address Mr Henley’s personal circumstances.
Mr Henley pointed to his youth, his deprived upbringing, and his mental conditions in mitigation.
The respondent submitted that none of those factors were capable of significantly mitigating Mr Henley’s offending. The respondent’s position was that the usual approach in relation to youth should be given little weight given Mr Henley had been living independently and was a father. While accepting Mr Henley’s personal circumstances were a matter for sympathy, the respondent observed the consequences of his upbringing give rise to significant cause for concern as to his future risk. The respondent contended that there was not a sufficiently significant connection between Mr Henley’s mental condition and the offending to significantly diminish his moral culpability, pointing out that aspects of his mental condition informed his willingness to expose others to catastrophic risk with associated danger to the community. This was particularly said to be the case in circumstances where the offending was not simply the result of temporary impulse and Mr Henley had the time to consider and cease his actions.
It is well recognised that that an offender’s capacity to mature, learn and reform may be impaired by the undiminished effects of an offender’s profound childhood deprivation.[6] The effects of profound childhood deprivation do not diminish with time and must be given full weight in sentencing decisions.[7] Nevertheless, when considering relevant sentencing factors, the effects of profound childhood deprivation may point in different directions. While the effects may reduce moral culpability, they may increase the importance of protecting the public from the offender’s criminal behaviour.[8]
[6]     Teagle v The King [2023] SASCA 108 at [51] (Livesey P, Lovell and Bleby JJA).
[7]     Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[8]     Teagle v The King [2023] SASCA 108 at [52] (Livesey P, Lovell and Bleby JJA).
A young offender may be prone to ill-considered decisions,[9] and young offenders may not fully appreciate the seriousness in nature and consequences of their conduct.[10] There is a potential for young offenders to be rehabilitated,[11] and such rehabilitation of young offenders is an important objective. However, as the seriousness of the offending increases, the significance of youth and the potential rehabilitation of the offender may diminish.[12] Thus, where the degree of criminality of the offending requires deterrence, denunciation, protection of the community and appropriate punishment to become more prominent, the weight to be attached to youth will correspondingly reduce.[13]
[9] Rv McGaffin [2010] SASCFC 22; (2010) 206 A Crim R 188 at [69] (White J).
[10] R v Williams [2018] SASCFC 14 at [41] (Hinton J).
[11] Rv McGaffin [2010] SASCFC 22; (2010) 206 A Crim R 188 at [69] (White J).
[12] DPPv SJK; DPP v GAS [2002] VSCA 131 at [66] (Phillips, CJ, Chernov and Vincent, JJA); DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125 at [22]-[23] (Batt JA).
[13] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43 at [44] (Redlich JA).
Impairment of mental functioning, whether permanent or temporary, may reduce the moral culpability of the offending conduct and impact upon what is just punishment in all the circumstances.[14] The nature and severity and the effect of the condition on the mental capacity of the offender may impact upon whether general and specific deterrence should be moderated.[15]
[14] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [32] (Maxwell P, Buchanan and Vincent JJA).
[15] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [32] (Maxwell P, Buchanan and Vincent JJA).
While potential danger to society cannot result in a more severe penalty than would have been imposed if the offender had not been suffering from a mental condition,[16] any reduction in moral culpability must be balanced against the need to protect the community.
[16] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.
Mr Henley’s personal circumstances promote sympathy. He experienced significant childhood adversity and trauma which contributed to the development of a reactive attachment disorder which was a developmental precursor to his difficulties with emotional regulation and intense episodes of anger.
The problems Mr Henley experienced in consequence of his deprived childhood contributed to his mental condition and to his offending. Dr Lim opined that Mr Henley’s chaotic psychosocial circumstances, inter-personal conflicts, his cannabis withdrawal, his intermittent explosive disorder, poor coping skills and poor emotional dysregulation directly occasioned Mr Henley’s offending. It is implicit in Dr Lim’s opinion that those difficulties would have impacted on the extent to which Mr Henley was capable of reflecting on his actions as the incident unfolded.
While those matters provide an explanation for his offending and to some extent impact on his degree of culpability, those matters also resulted in Dr Lim’s assessment of Mr Henley as at risk of committing future violence, including with potentially catastrophic or fatal consequences. The sentence to be imposed by this Court must therefore reflect a balancing exercise recognising the tension between the protection of the community and the impact of Mr Henley’s unfortunate upbringing, and his mental condition, on his offending.
Mr Henley is still a young man. While Mr Henley has to some extent made his way in the world, it is apparent from the matters addressed in Dr Lim’s report that his ability successfully to do so was adversely impacted.
While this was not his first occasion of offending, Mr Henley does not have a significant history of violent offending. While recognising that Dr Lim qualified her assessment of his prospects of rehabilitation, promoting his rehabilitation remains a consideration. He will be in his thirties when released from custody. Dr Lim observed that Mr Henley had not yet had the opportunity to address his risk factors, other than drug dependence, but was reportedly motivated to do so.
While Mr Henley’s contrition and appreciation of the impact of his behaviour was delayed, the sentencing Judge accepted he demonstrated genuine remorse and his interview with Dr Lim supports that position.
Taking into account all of Mr Henley’s circumstances and those of the manslaughter offence, for that offence we would impose a sentence of imprisonment of 11 years.
Mr Henley is entitled to a discount of five per cent on account of his plea of guilty and accordingly we would reduce the sentence to 10 years, five months and 13 days.
We would also disqualify Mr Henley from holding a driver’s licence for 15 years to commence upon his release from custody.
We would impose a sentence of three years’ imprisonment for the offence of leaving the scene which we would reduce by five per cent to two years, 10 months and seven days on account of the plea of guilty.
As set out above, some concurrency is warranted and a partially concurrent sentence will ensure the overall sentence is proportionate to Mr Henley and the circumstances of his offending. Accordingly, we would allow a period of concurrency of nine months and 20 days. This will result in a combined period of imprisonment for both offences of 12 years and six months.
We would fix a non-parole period of nine years, which is at least four-fifths of the sentence for manslaughter.
We consider the combination of the two penalties results in a sentence which is proportionate to the overall criminality of Mr Henley’s offending, viewed in its entirety, and having regard to all relevant facts and circumstances, including those referable to Mr Henley personally.[17]
[17] White (A Pseudonym) v The Queen [2022] SASCA 78; (2022) 141 SASR 398 at [53] (Lovell, Bleby and David JJA).
Conclusion and orders
Permission to appeal is granted and the appeal is allowed.
Mr Henley is re-sentenced to a period of imprisonment of 12 years and six months with a non-parole period of nine years, to be backdated to 23 July 2021.