R v Hennen
[2004] VSCA 42
•2 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 80 of 2003
| THE QUEEN |
| v. |
| PAUL ANDREW HENNEN |
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JUDGES: | WINNEKE, P., COLDREY and BONGIORNO, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 February, 2004 | |
DATE OF JUDGMENT: | 2 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 42 | |
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Criminal law – Sentencing – Youthful offender with lengthy criminal history – Offences charged on second presentment committed when appellant on bail for offence charged on first presentment – Judge erring in ordering periods of cumulation for offences charged in second presentment – Appellant re-sentenced. S.16(1), (1A(e)) and (3C) Sentencing Act 1991.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. R.A. Elston | K. Robertson, Solicitor for Public Prosecutions |
For the Appellant | Mr. L.C. Carter | Erskine Roden & Associates |
WINNEKE, P.:
I agree with the reasons of Bongiorno, A.J.A. and with the orders he proposes.
COLDREY, A.J.A.:
I agree in the reasons of Bongiorno, A.J.A. and with the orders his Honour proposes.
BONGIORNO , A.J.A.:
On 18 March 2003 Paul Andrew Hennen was arraigned before the County Court at Melbourne on two presentments containing a total of five counts. He pleaded guilty to one count of intentionally causing injury on the first presentment and guilty to two counts of armed robbery, one count of recklessly causing injury and one count of attempted armed robbery on the second presentment. He was sentenced to imprisonment for three years on the count of intentionally causing injury on the first presentment, imprisonment for two years on the first count of armed robbery, imprisonment for two years on the second count of armed robbery (one year of which sentence was cumulated on that for the first count of armed robbery), imprisonment for one year on the count of recklessly causing injury (six months of which was cumulated on the previous sentences) and imprisonment for one year on the count of attempted armed robbery (three months of which was cumulated on the previously imposed sentence) on the second presentment. As the offences charged on the second presentment were committed whilst Hennen was on bail in respect of that offence charged on the first presentment, the sentencing judge cumulated the whole of those sentences on the three years imprisonment imposed in respect of the count of intentionally causing injury on the first presentment. He did so by reference to s 16(3C) of the Sentencing Act 1991. Thus, the total effective
sentence imposed was six years and nine months. The sentencing judge ordered Hennen to serve a minimum of five years before being eligible for parole.
By notice of application for leave to appeal dated 28 March 2003 Hennen sought leave to appeal in respect of his sentence on grounds that the sentencing judge failed to give sufficient weight to his youth, his prospects of rehabilitation, his psychiatric/psychological condition and its improvement since the commission of the offences and that he gave too much weight to general and specific deterrence and ought to have ordered greater concurrency between the sentences imposed in respect of the various counts. Finally, the applicant complained that the head sentence, the individual sentences and the non-parole period were all manifestly excessive.
On 7 November 2003 Eames JA granted the applicant leave to appeal pursuant to s 582 of the Crimes Act 1958. In doing so his Honour referred to a fairly made concession by the Crown that the sentencing judge’s order for cumulation as between the sentences imposed in respect of the two presentments raised an arguable ground of appeal.
The events which gave rise to the charges to which the appellant pleaded guilty occurred on 25 May 2002 and 9 August 2002.
On 25 May 2002 at about 11.00 pm Hennen was travelling in a tram along Riversdale Road Hawthorn, proceeding towards Camberwell. He was affected by alcohol and drugs which he had taken earlier, with friends. Without provocation or any other apparent reason he took a fire extinguisher from the rear driver’s compartment of the tram and activated it. Fumes from the fire extinguisher caused a number of the many passengers on the tram to choke and gag such that the driver stopped the tram to enable them to alight.
Shortly afterward, a young male passenger expressed his view of Hennen’s actions in abusive terms. Hennen’s response was to take a beer bottle, smash it on the kerb and attack this passenger with the jagged glass. Hennen jabbed him to the left side of the face just below his eye and then in the back of his head. The victim suffered a six centimetre laceration to the left cheek about half a centimetre deep which required nine sutures. He also had one suture further down on the left side of his face.
In the course of this vicious assault Hennen was, himself, injured such that friends took him to Box Hill hospital whence he was transferred to St Vincents for a psychiatric assessment. He was arrested at St Vincents, at which time he denied the attack on the male victim and told the police that he had been at home and that he had injured himself when he fell on a glass.
The sentencing judge described Hennen’s behaviour on the tram as being “stupid and dangerous” as indeed it was. His behaviour towards the unarmed young man who reprimanded him was vicious.
All of the counts on the second presentment to which Hennen pleaded guilty related to events which occurred on 9 August 2002 in the course of a party at the home of a female friend of his in Balwyn. Again, Hennen was affected by alcohol when, at about 10.30 pm, he entered a bungalow at the rear of the premises and began to punch his first victim of that night. This young man covered his head with his arms at which point Hennen produced a screwdriver and said words to the effect “give me your fucking watch, you cunt”. The victim handed over his watch which was valued at about $540.
Hennen then turned his attention to another male sitting beside his first victim and said words to the effect “where’s your wallet?” Hennen again produced the screwdriver and slashed this young man on the left side of the face. The laceration ran from his ear to the front of his face below the cheek bone although it did not require medical attention. He handed Hennen a mobile phone and his wallet containing about $4. Hennen then attempted to slash him again.
Hennen’s third victim on that night was also a young male. Hennen held a screwdriver to his throat and shouted “give me your fucking wallet”. Upon being reproached for this behaviour by some other guests Hennen stopped his attack and left the premises. Thus the count of attempted armed robbery.
Hennen’s detection for these events was effected by the police phoning the mobile phone which he had stolen. He was soon arrested and although he initially invoked his right to silence he indicated his intention to plead guilty to all of these matters at a case conference on 4 December 2002.
The appellant was born on 1 March 1982 and was 21 at the time he was sentenced. In the four years between 12 December 1997 and 19 December 2001 he was before the courts on some 11 occasions, six of which were in the Children’s Court. He was dealt with for 62 offences which included five robberies, an attempted robbery, four counts of intentionally causing injury, two counts of recklessly causing injury and other assault and property offences. They were dealt with with dispositions ranging from youth supervision orders to community based orders but his offending continued nevertheless.
The sentencing judge in the present case had before him a psychiatric report from Dr Lester Walton dated 25 November 2002 and a report from Mr Bernard Healy, forensic psychologist, dated 15 February 2003.
Hennen was born in London and grew up with his mother and his stepfather. They migrated to Australia when he was about 14 years of age shortly after which he commenced using alcohol, prescription drugs, marijuana, amphetamines and cocaine when he could get it. He told Dr Walton that although he had used LSD on occasions he had never used heroin.
Not surprisingly, Hennen had difficulties with his schooling which he completed only to year 8. Since leaving school he has worked labouring and factory work on a spasmodic basis. He began offending when he was about 15. Most of his offences were directed towards people younger than himself.
In January 2002 Hennen’s family left the house where they had all been living whilst he was not at home and have refused to make contact with him since. This extreme reaction on the part of Hennen’s family was brought about by his anti-social behaviour which Dr Walton described as due to a drug induced psychosis. However the doctor considered that, by reason of his having been detoxified and treated with anti-psychotic medication he had been restored, at the date of the report, to a state of relative mental normality. He did not require specific treatment although Dr Walton thought that drug and alcohol counselling would be advantageous.
Mr Healy’s report echoed that of Dr Walton. At the time he tested Hennen he found no evidence of major psychological or emotional disturbance but noted that his IQ was at the lower end of the average range. He considered that Hennen had made positive gains over the time that he had been in custody and that he was remorseful of his behaviour and mindful of the seriousness of it.
The judge’s sentencing remarks refer to a number of persons and organisations which his Honour noted were prepared to support Hennen upon his release from prison. Nevertheless he made a finding that Hennen’s prospects for rehabilitation were minimal. The judge referred to a number of aggravating factors pertinent to the crimes Hennen committed and concluded that he regarded the protection of the community as the most significant factor he had to take into account in fixing an appropriate sentence. He also referred to specific and general deterrence.
The total effective sentence in this case was very long, both as to the head sentence and as to the non-parole period fixed by the sentencing judge. It was particularly long having regard to the offender’s age and the fact that he had never been sentenced to adult prison in the past. The length of the total effective sentence itself raises a question as to whether the sentencing judge might have erred in his application of appropriate sentencing principles to the circumstances of the offender and his offending in this case.
Mr Carter of counsel for the appellant argued that the sentencing judge fell into error in a number of specific ways. He submitted that his failure to refer, in other than a passing manner, to the youth of the appellant indicated that he had given insufficient weight to that factor despite his having been directed to cases such as R v Mills[1] and the principles expounded therein.Mr Carter submitted that the judge’s reference to community protection being more significant than the youth of the offender in the circumstances of this case indicated that his Honour had failed to give sufficient weight to the offender’s youth.
[1][1998] 4 VR 235.
I am unable to accept this submission. The primacy given to questions of rehabilitation in the case of youthful offenders by cases such as Mills must give way, in appropriate cases, to other sentencing considerations. In this case the appellant’s shocking criminal history which included prior convictions for robbery would have entitled the sentencing judge to displace the appellant’s prospects of rehabilitation from the prime position they might have held had the offences under consideration been committed by someone in the position of the appellant without such a history. The expression by the judge of his being more concerned with community protection than the appellant’s prospect of rehabilitation does not, per se, bespeak error. It would only do so if the comment was not justified by the facts.
Nor am I able to accept the appellant’s argument that the sentencing judge’s finding that his “prospects for rehabilitation are minimal” was not open. True it is that the sentencing judge referred only in passing to a number of matters upon which Mr Carter placed emphasis such as offers of support from within the community, his conduct in custody and the probable stabilisation of his mental condition. However, having regard, again, to the appellant’s history and to the fact that he committed the offences charged on the second presentment whilst awaiting court appearances in respect of that charged on the first presentment justify the judge in reaching the conclusion that he did, to the degree of satisfaction required by the decision of this Court in R v Storey[2]. The decision was his Honour’s to make and there was evidence to support it to which I have referred.
[2][1998] 1 VR 359 at 371. See also R. v. Pickard [1998] VSCA 50 per Winneke, P. and Charles, J.A. at para 3.
Mr Carter also argued, on behalf of the appellant, that the sentencing judge had committed “weighting” errors with respect to the appellant’s psychiatric/psychological condition and that he gave excessive weight to questions of general and specific deterrence. I reject these submissions. In my opinion the sentencing judge was entitled to reach the conclusions that he did on these issues and reflect them in the sentences which he imposed in respect of the individual counts on each of the presentments.
With the exception of an assertion that the total effective sentence was manifestly excessive, both in respect of the head sentence and the non-parole period, the only other ground argued by Mr Carter was that the sentencing judge had offended the principle of totality by failing to order greater concurrency between counts.
As has already been noted the sentencing judge ordered total cumulation of the total sentence on the second presentment upon the sentence imposed on the sole count on the first presentment. He also ordered cumulation of some periods imposed in respect of some offences on the second presentment with the sentence imposed upon the first count on that presentment, namely two years. Such cumulation had the effect of almost doubling the term of actual imprisonment imposed for the offences charged on the second presentment from two years to three years and nine months.
Sections 16(1A)(e) and (3C) of the Sentencing Act 1991 override the general principle of concurrency set out in s 16(1) of that Act in cases where offences are committed whilst a prisoner is on bail. But those provisions displace a presumption, they do not direct that a judge take any particular course in a particular case. They draw the sentencing judge’s attention to the Parliamentary intention expressed by them. That is to say that consideration must be given to the question as to whether the discretion to order some concurrency in such a case ought be exercised or whether the appropriate objects of sentencing can only be achieved by permitting total cumulation to occur by operation of the statute. In the absence of an order for concurrency, cumulation will occur in the circumstances prescribed by s 16(3C).
All the counts on the second presentment in this case related to conduct by the appellant which occurred within a relatively short time frame at a single location. These offences were appropriately joined in the one presentment; they could be properly described as constituting a continuing episode of offending involving criminality of an aggressive and acquisitive nature against a number of people in the same place at the same time. Ordinarily, such an episode would warrant concurrency, either total or partial, in respect of sentences imposed for individual offences.
In this case the intention of Parliament as to prima facie cumulation of sentences where offences are committed whilst an offender is on bail was appropriately addressed by the sentencing judge by his making an order for cumulation of the total sentence imposed in respect of the second presentment upon that imposed in respect of the first. By ordering further cumulation, as he did in respect of some of the sentences imposed on the offences charged in the second presentment, a total effective sentence has been imposed which offends the principle of totality.[3] That is to say, when viewed as a whole, the aggregate of the sentences imposed, is, by reason of the orders for cumulation made by the sentencing judge, greater than that properly required to fulfill all the appropriate aims of sentencing in this case. An evaluation of the overall criminality involved in Hennen’s conduct on the two occasions concerned, heinous and anti-social as it was, does not merit a head sentence of almost seven years or a non-parole period of five. Thus, the appellant has demonstrated sentencing error. I would uphold ground 7 of his notice of appeal accordingly.
[3]R v Loc Tan Nguyen (unreported, Crockett, J. 24 Oct. 1991) quoted: Fox & Freiberg: Sentencing, State and Federal Law in Victoria. 2nd Ed (1999) O.U.P. p 725; Postiglione v R (1997) 189 CLR 295 esp per McHugh, J. at 308; R v Holder& Johnston [1983] 3 NSWLR 245 esp per Street, C.J. at 260.
The sentencing error thus exposed reopens the sentencing discretion. However, in this particular case, the error in totality, leading to a disproportionately high total effective sentence can be corrected without the need to adjust the individual sentences passed in respect of each individual count. In the circumstances of that offending, to which I have already referred an order for total concurrency in respect of the sentences imposed on the counts in the second presentment will effect the appropriate result. As has already been determined, none of them appears excessive and, individually, they reflect the gravity of the offences to which the appellant pleaded guilty and are appropriate sentences having regard to that criminality and his personal circumstances, including his appalling criminal record. Further, to achieve the appropriate result in this case there is no need to alter the order for cumulation made by the sentencing judge in respect of the sentences imposed on each of the two presentments. It is sufficient if the orders for cumulation in respect of the sentences imposed for the offences charged in the second presentment were set aside and in lieu thereof there be an order that each of the sentences imposed on counts 1, 2, 3 and 4 in the second presentment be served concurrently. This would produce a total effective head sentence of imprisonment for five years. The non-parole period should be reduced to three years.
I propose the following order:-
That the appellant’s appeal against sentence be upheld and that the orders for cumulation made by the County Court on 18 March 2003 in respect of sentences imposed on counts 2, 3 and 4 in presentment number Q01774732 be set aside and that in lieu thereof there be an order that each of the sentences imposed in respect of each of the counts charged on that presentment be served concurrently; that otherwise the sentences imposed and the order for cumulation made in respect of the offences charged in presentments Nos. Q01120246 and Q01774732 be confirmed, making a total effective sentence of imprisonment for five years of which the appellant is required to serve three years before being eligible for parole.
It is further declared that the period of 601 days be reckoned as the period of pre-sentence detention served under this sentence up to 2 April 2004 and it is ordered that this declaration and its effect be entered in the records of the Court pursuant to s 18(4) of the Sentencing Act 1991.
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