R v Lennon
[2001] VSC 74
•14 February 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1401 of 2000
| THE QUEEN |
| v. |
| NORMAN DAVID LENNON |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 14 FEBRUARY 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 74 | |
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CATCHWORDS: Manslaughter – Extensive criminal history – Propensity to engage in violent behaviour – Ingestion of drugs and alcohol.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C. Ryan | Office of Public Prosecutions |
| For the Accused | Mr. P. Morrissey | Haines & Polites |
Norman David Lennon, the jury empanelled upon the trial at which you were presented on a count that, at Footscray in the State of Victoria on 5 September 1999 you murdered a young man named Shane Moodie, returned a verdict of not guilty of that offence, but guilty of the alternative charge of manslaughter.
What that means in the context of this matter is that they were not satisfied beyond reasonable doubt that you intended to kill or to cause really serious injury to your victim but they were satisfied that your actions were both unlawful and objectively dangerous in the circumstances.
Against that background, you have admitted that you have appeared before the courts on 17 occasions between 1 June 1977 and 2 December 1994 in relation to a large number of offences. In summary, you have been convicted of four counts of causing wilful damage, burglary, escaping from a Youth Training Centre, two counts of assault, two counts of theft of a motor car, conspiracy, attempted burglary, attempted theft of a motor car with intent to commit a felony, assault occasioning actual bodily harm, being a felon found in possession of a pistol, shortening a firearm, two counts of being a prohibited person found in possession of a firearm, handling stolen goods, two counts of handling stolen property, 10 counts of drug related offences, being found in possession of a prohibited article, to wit, a silencer, being found in possession of property suspected of having been stolen or unlawfully obtained, two counts of assaulting a member of the police force in the lawful execution of duty, assault by kicking, failing to answer bail, and discharging a missile to the danger of a person.
It is a sorry record involving the commission of a large number of serious criminal acts over many years. Of particular relevance in the circumstances of this case, I observe that you have also been convicted of recklessly causing injury, recklessly causing serious injury and two counts of intentionally causing injury.
Noteworthy with respect to these matters is the fact that you were convicted at the Magistrates' Court at Broadmeadows on 25 June 1992 of recklessly causing injury. The police summary as read to the court on that occasion reads as follows:
"At about 9 p.m. On Saturday, 5th October 1991, the complainant and the defendant were involved in an argument and scuffle over a minor motor car accident with the result that the police were called. Police attended but were called away shortly after, intending to return. In the intervening time, the complainant has waited for the police in a nearby bottle shop and, when the defendant has shown up, the complainant has punched him several times. The defendant (that is you) has then left the scene and armed himself with a two foot long piece of wood and a large kitchen knife, returning to the bottle shop, where the complainant has grabbed a steel rod in defence. The defendant has then struck the complainant on the right shoulder with the wood. In the following scuffle, the complainant received a cut to his right hand and a puncture wound to the inside of his right forearm, the latter requiring hospital treatment. Several punches were exchanged during this time resulting in both persons receiving minor bruising to various areas of the body."
Then in November 1994 you were convicted at the County Court at Melbourne of recklessly causing serious injury. That offence arose out of an incident at a hotel where you were participating in a game of darts. You became involved in an altercation with another male and consequently you stabbed him a number of times in the neck with a knife that you had in your possession.
The significance of the two offences to which I have made special reference is that on both occasions you armed yourself with a knife and inflicted serious injuries upon your victim while acting in a violent and aggressive manner.
I should add in this context that you were further convicted in December 1994 at the Magistrates' Court at Sunshine of intentionally causing injury and discharging a missile to the danger of a person. I understand in relation to that matter that, following a domestic dispute with your former wife, Mary-Anne, you became aggressive and threw a carburettor at her.
The background to, and circumstances surrounding, the commission of the crimes for which I must now impose sentence upon you have been canvassed in the course of the trial and need only be set out in a relatively brief form at this stage. On Saturday, 4 September, your victim was celebrating his 21st birthday with his family and friends at the RSL Hall in Geelong Road, Footscray. The party concluded at midnight and a number of people then went to a house in Gordon Street to continue the celebrations.
After a few hours, your victim, Shane Moodie, and his girlfriend, Julie Hafoka, decided to leave. They called for a taxi and waited outside the premises with a friend, Vicky Apelu. Whilst waiting, an argument broke out between the two young people who, it seems, were both affected by the alcohol that they had consumed during the evening. They began to slap and grab at each other and had to be separated by Miss Apelu and Helen Kire, the occupant of the Gordon Street house. Eventually both parties calmed down to some extent and the taxi arrived. However the driver would not take the deceased, as Mr Moodie had earlier removed his shirt for some reason. Ms Hafoka got into the vehicle but, after travelling only a short distance, she decided that she would remain with Mr Moodie. She approached him but the argument recommenced and she decided that she would walk with Miss Apelu to an Ampol Service Station in Barkly Street where they would purchase some cigarettes. The deceased followed them at a short distance.
It appears that the journey took them past your residence in Eleanor Street. As they made their way to the service station, the argument between Mr Moodie, who it appears was becoming frustrated and upset, and Ms Hafoka, flared up again and your attention was attracted by the noise.
When they reached the service station the young women entered whilst Mr Moodie crossed to the other side of Barkly Street and commenced to walk in a westerly direction. According to your version, whilst you were at your home in Eleanor Street, you heard loud yelling and screaming in the street outside. You noted a male who you described as "big, had no shirt on, he was abusive" approach two females. You assert that you perceived that these two women could be attacked and possibly raped by the man. So you ran into your house looking for an iron bar but, being unable to locate anything suitable for your purpose, you grabbed a kitchen knife. You claimed that you thought it necessary to take a weapon with you when you left the house because, as you stated in this court, "With rapists and things, they usually use knives or guns. My fear was that he could have had something with him, so I grabbed something just in case he had something with him. I just took something for me own protection in case the girls were getting attacked." I note that, despite your express concerns for the welfare of the young women, you did not call for police assistance or make any attempt to ascertain whether they needed help or even approach them at any stage.
I accept that you formed the view that the person you saw was aggressive, and it seems that he was banging or kicking at cars as he passed, as you assert. However, I reject your claim that you perceived him as a potential rapist or attacker of the young women. I am satisfied that for several reasons, including difficulties occasioned to you as a consequence of your underlying personality, and another incident in the street on the previous night, and probably in part by reason of your earlier ingestion of Valium, alcohol and heroin, you became very angry and decided to confront the person who you regarded as disturbing the street.
Upon leaving your home, you took the kitchen knife with you, got into your car and drove down Eleanor Street. You saw the two females at the service station and satisfied yourself that the incident was finished. I do not accept your claim that you then decided to return home and came upon the deceased accidentally. I have no doubt that you were looking for him when you turned into Barkly Street and, when you observed him on the left-hand side footpath, you stopped your car.
Precisely what occurred from that point is unclear. You claimed in your evidence that you simply offered what could be described as the sensible advice to the deceased that he go home before he got himself into trouble and that he then launched a savage attack upon you, requiring you to defend yourself.
It is apparent, I consider in the circumstances, that the jury rejected this version of events. The jury has rejected the reasonable possibility that you were acting in lawful self-defence, but were not satisfied that you intended to kill or cause really serious bodily injury to your victim. I am satisfied that you were angry at the time you took up the knife and left your home, and that you were still in a state of agitation when you stopped your vehicle for the purpose of confronting the person whose actions had precipitated your agitation. There would seem to be little doubt that a confrontation between the deceased and you did take place, in the course of which blows were struck by each of you, and in the course of which you resorted, as you had done in the past, to the use of your knife.
As a consequence of your unlawful assault upon him, a young man is dead. At worst, on the basis of the evidence given in the trial, he was behaving foolishly on that night as he proceeded down Eleanor Street involved in a dispute with his girlfriend. You may well have experienced some irritation as a consequence of his conduct. But your reaction in setting off after him, whilst armed with a knife, was not only grossly excessive, but unlawful and extremely dangerous.
The crime of manslaughter which you committed can arise in a wide variety of circumstances and there are different formulations of its elements. However, it must be borne in mind that each of these formulations identifies the circumstances in which a human life is unlawfully taken or lost. The commission of this crime is, accordingly, regarded as a matter of the utmost seriousness. You are clearly a dangerous individual, with a strong predisposition to the employment of unlawful violence and a propensity to resort to the use of knives when inflamed. You have not been deterred in engaging in aggressive conduct by the sentences which to this point have been imposed upon you nor, it seems, by the development of any sense of appreciation of the seriousness of such behaviour.
It is partly as a consequence of the possibility of the kind of harm that you caused that, through the sentences that they impose, the courts must endeavour to deter those who may be minded to act as you have done. They must also express the denunciation of the community, which they represent, of the employment of unlawful violence.
As earlier indicated, you have a long criminal history and have demonstrated little ability over the years to modify your lifestyle, or control your criminal propensities. Your prospects of rehabilitation must be regarded as poor and specific deterrence and the protection of the public must be accorded significance as sentencing considerations in your case, in my opinion.
I have read the victim impact statements provided to the court. Once again, family members and friends have described their feelings of anguish as they endeavour to cope with the fact that the life of someone for whom they cared deeply has been senselessly taken from him. Whilst it is customary for a sentencing judge to refer to the victim of an offence, the judges who sit in the criminal division of this court well appreciate that there are often many persons whose lives can be tragically and irrevocably affected. There are a number of persons who can be properly described as the victims of your offence.
Obviously it is necessary in the determination of an appropriate sentence to have regard also to a range of factors relevant to the individual offender.
Turning to your background. You are now aged 41 years. You were one of three children. It appears that your mother became permanently incapacitated after being assaulted by your father when she was pregnant with you. Following this incident your mother began to drink heavily and, whilst in her company, your younger brother was knocked over by a car and killed. Your family blamed her for his death and this led to their separation. Your mother then left the family and went to live in a boarding house. You were aged nine years at the time.
Between the ages of nine and fourteen you attended a number of schools and lived in a variety of homes. You were cared for by your grandparents. Not surprisingly, you record your early years as a period of unhappiness for you and I have little doubt that the subsequent direction of your life was influenced significantly by the personal damage that you sustained in a grossly dysfunctional environment.
You left school after Form 3, and at the age of 15 commenced an apprenticeship as a mechanic. However, you only managed to complete your first year. Thereafter, you were engaged in a variety of jobs. At the age of 16 you commenced living in a boarding house with your mother before you were sentenced to a period in Malmsbury in August 1976. Following an escape from that institution, you were placed in Pentridge. You were aged 17 at the time.
Through the 1980s you engaged in a great deal of criminal activity for which you received a number of sentences of imprisonment. In 1991, as a result of a continuing drug problem that you had developed, you went to Odyssey House where you completed a program. During the same year you married your wife, Mary-Anne, and you both went on to the IVF programme. A number of pregnancies failed but eventually your wife gave birth to twin girls who are now aged six. Throughout this period you managed to avoid using drugs but you continued to drink heavily. It seems that alcohol played a part in your most recent offences for violence.
Consequently, you spent a number of years in prison and eventually you were divorced from your wife. Whilst in custody during those periods you undertook a number of programs including anger management courses. Following your release on parole on the last occasion, which you managed to complete, I might add, you renewed your relationship with your former wife and took an active role in the upbringing of your two daughters.
I accept that you were sincere in your desire to develop a more satisfactory lifestyle but found yourself trapped, as it were, by your underlying personality and deeply entrenched behaviour patterns. I note that, whilst in custody for this offence, you have been involved in the prisoner listener scheme, providing support and advice for other prisoners who were experiencing difficulties.
I am familiar with, and have had regard to, the range of sentences handed down in this court over recent years for the commission of the crime of manslaughter, bearing in mind that the sentences in other cases can provide only limited assistance, as each matter must be considered in the light cast by the circumstances relevant to the offence and offender involved.
Ultimately, I have arrived at the view that the offence which you committed constitutes a very serious example in the circumstances of the crime of manslaughter and that a sentence of imprisonment for a period of 10 years should be imposed, in relation to which I fix a non-parole period of eight years.
I declare that the period of pre-sentence detention, which I understand to be 529 days, be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be entered in the records of the court.
I think that is all I need to say in relation to that matter.
When I was part of the way through delivering that sentence, the idea occurred to me that it would be desirable to provide a copy of the video-recording which might exist. But, because I only got this clever idea half-way through the sentence, it is unlikely that in fact a video-recording has in fact been made.
MR NIKAKIS: I think the transcript - - -
HIS HONOUR: Well, I have directed that the whole transcript be provided. And inquiries will be made in relation to it. If VGRS have a video-recording, then I will direct that a copy of that recording be provided also to Mr Lennon.
MR NIKAKIS: I don't know whether the authorities at Port Phillip will allow him to watch it and whether those facilities exist but - - -
HIS HONOUR: I will tell you what - let me assure you, they had better let him watch it or there will be a great deal of irritation. But, there is not a lot of point in becoming agitated about that, for it may not even exist in the first place, and then, of course, they may not even have a problem about him watching it. It is not exactly X-rated.
MR RYAN: Just one matter of administration, Your Honour - Your Honour indicated, I think, at the end of the part heard plea last year, that you would make an order under s.464ZF.
HIS HONOUR: Yes, I did.
MR RYAN: I hand up two copies of a draft order. I apologise, Your Honour, it is dated December of last year and not today's date.
HIS HONOUR: Here we go. Now, this may constitute - - -
MR RYAN: A problem.
HIS HONOUR: A problem.
MR RYAN: Yes.
MR NIKAKIS: I personally have not spoken to Mr Lennon about this particular question.
HIS HONOUR: Well, can I deal with the matter this way. I have not heard argument on Mr Lennon's behalf with respect to the provision of a forensic sample. I will not make an order until I am satisfied that there is no argument to be advanced in relation to it. So, what I suggest might - it seems to me, in view of Mr Lennon's history to date, that it is a case in which it is, on its face, appropriate to make such an order, but if it is desired to put some further submissions to me in relation to that matter, then that can be achieved. Can I leave it then with you to let me know what the situation is?
MR NIKAKIS: Yes, Your Honour, I will, absolutely.
HIS HONOUR: And if it is desired that submissions should be advanced, then that can be addressed.
MR RYAN: Just pardon me, Your Honour - my recollection - - -
HIS HONOUR: I do know that it was raised at the plea and I am not - I don't recall any - my associate has pointed out there was no issue raised by Mr Morrissey.
MR RYAN: Indeed, I am trying to find in the transcript - Your Honour, my recollection of events is that it was mentioned and he indicated it was not opposed, but I will find that reference in the transcript for Your Honour. In any event, that is my recollection of it and my instructor's note and I will just search through the transcript to find it.
HIS HONOUR: All right.
MR NIKAKIS: Your Honour, just as a suggestion, that I will obviously be in touch with Mr Morrissey at some stage today.
HIS HONOUR: Just confirm that.
MR NIKAKIS: If I could confirm that issue with him, I could then let your associate know and the order can be signed.
HIS HONOUR: Yes, OK.
MR RYAN: If Your Honour pleases.
HIS HONOUR: Well, all right, I will do that then.
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