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Hennessy, Michael John v The Queen

Hennessy, Michael John v The Queen

Case [2012] NSWCCA 241 21 November 2012

Appeal

Sentencing

Manifest Excess and Totality

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HENNESSY, Michael John v R [2012] NSWCCA 241
Hearing dates: 02/10/2012
Decision date: 21 November 2012
Before: McClellan CJ at CL at [1]
Rothman J at [2]
Adamson J at [55]
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - sentence - requirement to fix appropriate sentence for each offence and then consider questions of accumulation or concurrence - accumulation and concurrence - relevance of capacity to deal with charge summarily - manifest excess and totality - appeal dismissed
Legislation Cited: Australian Passports Act 1938 (Cth)
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
House v R [1936] HCA 40; (1936) 55 CLR 499
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Grenfell [2009] NSWCCA 162
R v Leighton [2010] NSWCCA 280
R v Vuni [2006] NSWCCA 171
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Michael John Hennessy (Appellant)
Regina (Respondent)
Representation: Counsel:
A Cook (Appellant)
A N Williams (Respondent)
Solicitors:
Legal Aid Commission of NSW (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2010/90370
Decision under appeal

Date of Decision:

2011-04-21 00:00:00

Before:

Cogswell DCJ

File Number(s):

2010/90370

Judgment

McCLELLAN CJ at CL: I agree with Rothman J.

ROTHMAN J: Michael John Hennessy seeks leave to appeal the sentence imposed upon him by the District Court on 21 April 2011. Mr Hennessy pleaded guilty to 3 counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth), each relating to a particular and different time period, and to 4 counts of obtain financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth). He also pleaded guilty to one count of making a false statement contrary to s 10(1)(a) of the Australian Passports Act 1938 (Cth).

Mr Hennessy was sentenced as follows: in relation to each of the three offences under s 29D of the Crimes Act to 3 years' imprisonment in respect of each offence, to be served concurrently and to commence on 21 April 2011 and expire on 20 April 2014; in relation to each of the four offences under s 134.2(1) of the Criminal Code to 3 years' imprisonment in respect of each offence, to be served concurrently and to commence on 21 April 2012 and expire on 20 April 2015; and in relation to the offence under s 10(1)(a) of the Australian Passports Act to 12 months' imprisonment to…

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 Hennessy, Michael John v The Queen

Details

AGLC: Hennessy, Michael John v The Queen [2012] NSWCCA 241
Case: [2012] NSWCCA 241
Decision Date: 21 November 2012

CaseChat Overview and Summary

In the High Court of Australia, the case of Hennessy, Michael John v The Queen was heard. The appellant, Michael John Hennessy, sought to appeal his sentence which had been imposed following his conviction for multiple criminal offences. The central issue in the case was whether the sentence imposed by the trial judge was manifestly excessive and, if so, whether the totality principle should apply in order to adjust the sentence. The appeal raised questions about the correct approach to determining the appropriate sentence for each offence and then considering the issues of accumulation and concurrence.

The legal issues before the court included the appropriate method for fixing the sentence for each offence, the principles governing the accumulation and concurrence of sentences, and the application of the totality principle in the context of a manifestly excessive sentence. The court was required to consider whether the trial judge had erred in his approach to sentencing, particularly in relation to the relevance of the capacity to deal with the charges summarily and the totality of the sentence imposed. The appellant argued that the sentence was manifestly excessive and that the totality principle should be applied to reduce the overall sentence.

The court held that the trial judge had not erred in his approach to sentencing. The judges found that the sentence imposed was not manifestly excessive and, therefore, the totality principle did not apply. The court emphasised the importance of fixing the appropriate sentence for each offence before considering the issues of accumulation or concurrence. The court also noted that the capacity to deal with charges summarily was not a relevant factor in determining the appropriate sentence. The appeal was dismissed, and the sentence imposed by the trial judge was upheld.

Orders