The Queen v Hennessy, Patrick Michael - [1996] FCA 380

CATCHWORDS

CRIMINAL LAW - sentencing - Crown appeal on ground that sentences imposed individually and in total in respect of a number of offences manifestly inadequate - accused pleaded guilty to charges of offences of possession of heroin for purpose of supply, entering a building as a trespasser with intent to steal and theft, and armed robbery followed by an assault - offences committed over a period of 18 months - consideration of relevant facts and circumstances - no question of principle.

Crimes Act 1900 (ACT), ss.26, 99, 101, 102, 164, 429A, 449
Drugs of Dependence Act 1989 (ACT), s.164
Parole Act 1976 (ACT), s.1

THE QUEEN v PATRICK MICHAEL HENNESSY
No. ACT G 13 of 1996

CORAM:    GALLOP, SHEPPARD, and R.D. NICHOLSON JJ
PLACE:    CANBERRA
DATE:     23 MAY 1996

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY         )    No. ACT G 13 of 1996
DISTRICT REGISTRY                )
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:PATRICK MICHAEL HENNESSY
Respondent

MINUTES OF ORDER

CORAM: GALLOP, SHEPPARD, R.D. NICHOLSON JJ
PLACE: CANBERRA

DATE: 23 MAY 1996

THE COURT ORDERS THAT:

the appeal be allowed;

in substitution for the sentences imposed by the Supreme Court of the Australian Capital Territory, we impose the following sentences:

(a)in relation to the offence of armed robbery, a sentence of 2 years' imprisonment;

(b)in relation to the offence of common assault, a sentence of 3 months' imprisonment to be served concurrently with the sentence for armed robbery;

(c)in relation to the offence of entering a building as a trespasser with intent to steal, a sentence of 12 months' imprisonment to be served cumulatively upon the sentence for armed robbery;

2.

(d)in relation to the offence of theft, we deem it inexpedient to impose any penalty;

(e)in relation to the offence of possessing heroin for the purpose of supply, a sentence of 12 months' imprisonment to be served cumulatively upon the sentence for entering a building as a trespasser with intent to steal;

(d)we fix a non-parole period of 2 years;

(e)the head sentences and non-parole period will date from 21 January 1996.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )    No. ACT G 13 of 1996
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:PATRICK MICHAEL HENNESSY
Respondent

CORAM: GALLOP, SHEPPARD, R.D. NICHOLSON JJ

PLACE: CANBERRA

DATE: 23 MAY 1996

REASONS FOR JUDGMENT

THE COURT: This appeal was heard on 19 April 1996. At the conclusion of the argument we announced that the appeal would be upheld and that the sentence of imprisonment imposed upon the respondent for one of a number of crimes would be increased as would the total period of imprisonment which the respondent would be required to serve before being…

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 The Queen v Hennessy, Patrick Michael

Details

AGLC: The Queen v Hennessy, Patrick Michael [1996] FCA 380
Case: [1996] FCA 380
Decision Date: 23 MAY 1996

CaseChat Overview and Summary

The appeal was from a judgment of Higgins J of the Supreme Court of the Australian Capital Territory (the ACT). The appeal was brought by the Crown which claimed that sentences imposed by his Honour for a number of crimes were individually and in total manifestly inadequate. The respondent was convicted of armed robbery, common assault, entering a building as a trespasser with intent to steal, theft, and possession of heroin for the purpose of supply. The appeal court found that the sentences for the drug offence and for the trespass with intent to steal and the theft were too low. The court decided that the sentence for the drug offence should be served cumulatively and not concurrently. The court substituted the sentences imposed by his Honour with a sentence of two years' imprisonment for armed robbery, three months' imprisonment for common assault, 12 months' imprisonment for entering a building as a trespasser with intent to steal and theft, and 12 months' imprisonment for possession of heroin for the purpose of supply. The court fixed a non-parole period of two years. The head sentences and non-parole period would date from 21 January 1996.

Orders