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R v Hennen

R v Hennen

Case [2004] VSCA 42 2 April 2004

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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…

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 R v Hennen

Details

AGLC: R v Hennen [2004] VSCA 42
Case: [2004] VSCA 42
Decision Date: 2 April 2004

CaseChat Overview and Summary

In the case of R v Hennen, the appellant faced sentencing following his conviction on two charges of robbery and one of assault occasioning actual bodily harm. The case was heard in the Supreme Court of Queensland. The appellant, a young individual with a substantial criminal history, committed the offences while on bail for an earlier charge. This was his second presentment, having been charged previously. The sentencing judge ordered that the sentences for the new offences be cumulative with those of the earlier charges. This decision was subsequently challenged by the appellant.

The central legal issue revolved around whether the sentencing judge correctly ordered the periods of cumulation for the offences charged in the second presentment. The appellant argued that the judge erred by not considering the appropriate sentencing principles for a youthful offender and by not giving adequate weight to the circumstances under which the new offences were committed. The court had to determine whether the judge's decision was in accordance with the relevant statutory provisions and sentencing principles.

The court found that the sentencing judge had erred in ordering the periods of cumulation for the offences charged in the second presentment. The judge did not adequately consider the principles outlined in the Sentencing Act 1991, particularly sections 16(1), 16(1A(e)), and 16(3C), which emphasize the importance of proportionality, deterrence, and the offender's capacity for rehabilitation. Given the appellant's youth and the unique circumstances of the case, the court concluded that the judge's decision did not reflect a balanced and principled approach to sentencing. Consequently, the court ordered a re-sentencing of the appellant, ensuring that the new sentences would be determined with proper regard to the statutory guidelines and the principles of justice.

The final orders of the court mandated a re-sentencing hearing for the appellant. The court instructed that the new sentences be determined in accordance with the principles and objectives of sentencing as set out in the relevant legislation. The court also emphasised that the re-sentencing should consider the appellant's age, criminal history, and the specific circumstances of the new offences. The case underscores the importance of adhering to statutory directives and judicial principles when determining sentences for youthful offenders with extensive criminal records.

Orders