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Hennessey v The King

Hennessey v The King

Case [2024] VSCA 2 1 February 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0152

CHRISTOPHER HENNESSEY	Appellant
v
THE KING	Respondent

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JUDGES:	EMERTON P and WHELAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2023
DATE OF JUDGMENT:	1 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 2
JUDGMENT APPEALED FROM:	[2022] VCC 1600 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Sentence of 12 years’ imprisonment on charge of culpable driving causing death – Total cumulation of three years’ imprisonment on seven charges of conduct endangering life and one charge of conduct endangering persons – Whether sentence on culpable driving, the cumulations, and the total effective sentence are manifestly excessive – Whether judge erred in finding appellant must have known he was not fit to drive – Appeal dismissed.

Sentencing Act 1991 ss 5A, 5B.

Worboyes v The Queen [2021] VSCA 169; R v Singh [2021] VSC 182; Singh v The Queen [2022] VSCA 178; DPP v OJA (2007) 172 A Crim R 181; Leimonitis v The Queen [2018] VSCA 198; Lowndes v The Queen (1999) 195 CLR 66; Saab v The Queen [2012] VSCA 165.

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Counsel
Appellant:		Ms A Brennan with Ms J McColl
Respondent:		Ms D Piekusis KC
Solicitors
Appellant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P

WHELAN JA:

On 14 September 2022, the appellant pleaded guilty to one charge of culpable driving causing death, seven charges of conduct endangering life, one charge of conduct endangering persons and a related summary offence.
Following a plea that same day in the County Court, the appellant was sentenced on 19 September 2022 as follows:

Charge Offence Maximum Sentence Cumulation

1 Culpable driving causing death[1] 20 years 12 years Base

2 Conduct endangering life[2] 10 years 4 years 6 months[3] 17 months

3 Conduct endangering life 10 years 3 years 6 months 3 months

4 Conduct endangering life 10 years 3 years 3 months

5 Conduct endangering life 10 years 3 years 3 months

6 Conduct endangering persons[4] 5 years 12 months 1 month

7 Conduct endangering life 10 years 3 years 3 months

8 Conduct endangering life 10 years 3 years 6 months 3 months

9 Conduct endangering life 10 years 3 years 3 months

Related Summary Offence

17 Drive without a licence[5] 60 penalty units or 6 months’ imprisonment 7 days

Total Effective Sentence: 15 years’ imprisonment

Non-Parole Period: 11 years

Section 6AAA Statement: 17 years and 6 months’ imprisonment
[1]Contrary to s 318(1) of the Crimes Act 1958.
[2]Contrary to s 22 of the Crimes Act 1958.
[3]In the judge’s orders, the sentence was to 54 months’ imprisonment. For ease of reference, we have converted this to 4 years 6 months. We have similarly converted the sentences on charges 3 and 8.
[4]Contrary to s 23 of the Crimes Act 1958.
[5]Contrary to s 18(1) of the Road Safety Act 1986.

On 8 May 2023, Kyrou JA granted the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hennessey v The King

Details

AGLC: Hennessey v The King [2024] VSCA 2
Case: [2024] VSCA 2
Decision Date: 1 February 2024

CaseChat Overview and Summary

The appellant, Hennessey, appealed against his sentence of 12 years’ imprisonment for culpable driving causing death, along with cumulative sentences of three years for seven charges of conduct endangering life and one charge of conduct endangering persons. The Supreme Court of Victoria heard the appeal, with the respondent being the King. The appellant contested the sentence, arguing it was manifestly excessive, and questioned the judge’s finding that he must have known he was not fit to drive.

The central legal issues the court had to address were whether the sentence for culpable driving, the cumulative sentences, and the total effective sentence were manifestly excessive. Additionally, the court had to determine if the judge erred in concluding that the appellant must have known he was unfit to drive. The court needed to examine these issues in the context of the principles of sentencing and the relevant legislative framework, including the Sentencing Act 1991.

The court found that the sentence imposed was not manifestly excessive, considering the gravity of the offence and the appellant’s previous history of similar offending. The court upheld the judge’s assessment that the appellant must have known he was unfit to drive, based on his actions and previous conduct. The appeal was dismissed, with the court affirming that the judge correctly applied the law and sentencing principles. The total effective sentence of 14 years was upheld as appropriate given the circumstances.

The final orders of the court were that the appeal was dismissed, and the original sentence was affirmed. The court did not alter the sentence or the findings of the trial judge, maintaining the total effective sentence of 14 years’ imprisonment.

Orders