Hennessey v The Queen

[2010] VSCA 297

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0558 

SHANE PATRICK HENNESSEY
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, NEAVE and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2010
DATE OF JUDGMENT:	10 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 297
JUDGMENT APPEALED FROM:	R v Hennessey (Unreported, County Court of Victoria, Judge Wodak, 13 March 2009)

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Criminal law – Sentence – Reckless conduct endangering life – Whether sentence of five years’ imprisonment with non-parole period of three years manifestly excessive – Delay – Prospects of rehabilitation – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P G Priest QC with Ms R Shann	Leanne Warren & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. The appellant pleaded guilty on 12 September 2008 to one count of recklessly engaging in conduct that places, or may place, another person in danger of death, contrary to s 22, Crimes Act1958 (Vic). The maximum penalty is 10 years’ imprisonment. On 13 March 2009 he was sentenced by a County Court judge to five years’ imprisonment, with a non-parole period of three years. He now appeals, by leave, against that sentence. He does so on the following grounds:

1.        In all the circumstances, the –

(a)       head sentence;  and

(b)       non-parole period;

are manifestly excessive.

2.In fixing sentence, the sentencing judge failed to give adequate weight to –

(a)the maximum available penalty;

(b)the age of the Appellant;

(c)delay;

(d)evidence of, and prospects of, rehabilitation;

(e)the absence of prior or subsequent convictions;

(f)the Appellant’s prior good character;

(g)the hardship of imprisonment;

(h)the Appellant’s medical condition and need for specialised medical treatment;

(i)the fact that the Appellant will serve his sentence in protective custody;

(j)the early plea of guilty;

(k)remorse.

Circumstances of the offending

1. The appellant was eventually presented on a single count of conduct contrary to s 22, Crimes Act.  I say ‘eventually’ because the appellant was initially charged, following his arrest in January 2008, with intentionally causing JH a very serious disease,[1] reckless conduct endangering life, and reckless conduct endangering persons.[2]  It was only in September 2008 that the matter resolved into a plea of guilty on the single count on which the appellant was thereafter presented. 

   [1]Crimes Act, s 19A. Maximum penalty, 25 years’ imprisonment.

   [2]Crimes Act, s 23. Maximum penalty, 5 years’ imprisonment.

1. The conduct embraced by that count consisted of repeated acts of unprotected sexual intercourse between the appellant and JH between 1 January 1996 and 31 March 1996, the appellant being aware at all relevant times that he was HIV positive.  The Crown alleged that in so acting the appellant recklessly placed, or may have placed JH, in danger of death. 

1. At the time of offending, the appellant was aged between 26 and 27 years of age.  JH was then aged about 28.

1. The appellant became involved with JH in December 1995.[3]  They…