DPP v Hinton, Petersen & Hamment [2008] VSCA 34

3 The respondent Hinton was sentenced as follows:**

**4 The sentencing judge ordered that three months of the sentence imposed on count 3 and four months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 25 months. He ordered a non-parole period of 16 months.

5 The respondent Petersen was sentenced as follows:**

6 The sentencing judge ordered that six months of the sentence imposed on count 3 and six months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 30 months. He ordered a non-parole period of 20 months' imprisonment.

7 The respondent Hamment was sentenced as follows:

**8 In addition, Hamment was fined the sum of $200 in respect of count 5 (possession of cannabis) and he was fined $500 in respect of count 6 (handling stolen goods). The sentencing judge ordered that six months of the sentence imposed on count 3 and six months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 30 months. He ordered a non-parole period of 20 months' imprisonment.

9 The Director of Public Prosecutions has appealed the sentence imposed in the case of each respondent. He does so on the ground that the individual sentences imposed, the total effective sentence and the non-parole period fixed are in each case manifestly inadequate.

10 The factual basis upon which the prosecution had accepted the pleas of guilty of each respondent were set out in an agreed statement of facts, which was tendered before his Honour. It is apparent that his Honour sentenced each respondent on the basis of the agreed statement of facts. The agreed statement of facts is brief in the extreme and describes in the barest of detail the circumstances in which each offence was committed.

11 The facts upon which his Honour sentenced each of the respondents may be stated briefly. Those facts were based upon the agreed statement of facts. In the late evening of 24 June 2005 Brendan Schievella attended at the Ivanhoe Hotel where he met some friends in a bar area of the hotel. Soon after midnight each of the respondents entered the hotel and went to the bar. At the time there were present in excess of 150 patrons together with hotel staff and security staff. Within a very short time of their entry into the bar, Petersen and Hinton engaged in assaulting Mr Schievella. The nature of the assault was not specified in the agreed statement of facts. Although there was no evidence of Hamment coming into physical contact with the victim, it was common ground that he acted in concert with the other respondents. This assault caused serious alarm to the hotel patrons. There was a continuing assault outside the hotel which also caused fear to nearby observers. These circumstances form the agreed factual basis of count 1, the count of riot.

12 The three respondents and Mr Schievella were removed from the hotel by security staff. As stated above, outside the hotel the three respondents continued to assault Mr Schievella. Those assaults continued for an unspecified period of time. The assaults included kicking and stomping upon Mr Schievella although no detail as to the part of his body that was so assaulted, appears in the agreed statement of facts. It would appear that Mr Schievella suffered injuries which caused him 'to bleed from the nose and face area generally'. The agreed statement provides no detail of any further injury other than this. These injuries and these circumstances are the subject of count 2, a count of intentionally causing injury.

13 In the course of the events which followed the departure of the three respondents and Mr Schievella from the hotel premises, Hamment and Petersen lifted Mr Schievella by the feet and hung his body over a safety railing of a walkway leading from the hotel to a rear car park. His body was hung head down at a distance of approximately eight metres above ground level. The respondent Hinton took no direct part in holding Schievella over the railing, but he threatened security staff by telling them not to intervene. These circumstances are the agreed factual background to count 3, a count of conduct endangering life.

14 Subsequently a Nissan twin-cab utility arrived in the car park at the rear of the hotel. It would appear that it was driven there by an unknown associate of the respondents. Against his consent, Mr Schievella was placed in the rear seat of the vehicle which was then driven from the area. Some hours later, Mr Schievella was found in the street and transported to the emergency section of the Austin Hospital, arriving there at approximately 6 am. These events form the basis of count 4, a count of false imprisonment. It was agreed that the factual basis of the respondent's liability on this count was the placing of the victim in the vehicle against his will and by the respondents each getting into the vehicle. It was not agreed that the respondents bore any liability for any period of false imprisonment thereafter.

15 On 12 August 2005 police arrested the respondent Hamment and, during a search of his residential premises, located a small quantity of cannabis and a car stereo suspected of being stolen property. These matters form the subject of count 5, possession of a drug of dependence, and count 6, handling stolen goods, to which Hamment pleaded guilty.

16 The appellant contends that in each case the objective seriousness of the offending, the effect of the offences upon Mr Schievella and the need for general and specific deterrence, denunciation and community protection called for significantly greater sentences of imprisonment to be imposed. It is submitted that there were substantial aggravating features present in this case. It is submitted that the circumstances of each offence are such that they are serious examples of serious offences. It is argued that the charge of riot took place inside a hotel and the conduct of the respondents caused 'serious alarm' to hotel patrons. It is said that the assault was severe and involved a continuing offence of kicking and stomping of the victim during an extended period of time. It is argued that clearly the offence of reckless conduct endangering life was designed to and would have succeeded in terrifying Mr Schievella. It is said that the offence of false imprisonment was aggravated by the removal of registration plates from the motor vehicle used to transport Mr Schievella from the hotel. In addition, in the case of the respondent Hinton the appellant points to the fact that the offences were committed by him whilst he was on bail for offences of attempted aggravated burglary and attempted arson. It is submitted that there was an absence of mitigating circumstances in that the respondents failed at any time to disclose any motive for their offending or to explain what had happened to Mr Schievella after his removal from the vicinity of the hotel on the night in question. It is submitted, and the judge accepted, that this demonstrates an absence of remorse. It is submitted that each of the respondents has relevant prior convictions and that the sentencing judge was entitled to adopt a cautious approach to the respondent Petersen's prospects of rehabilitation. It is argued that the offences called for denunciation and deterrence and that the sentences imposed demonstrate clear and egregious error, and that the sentences are so disproportionate to the seriousness of the crimes that they would shock the public conscience.

17 The appellant contends that in each case significantly greater sentences were called for to reflect the objective seriousness of the offending, the effect of the offences upon Mr Schievella and the need for general and specific deterrence and denunciation and community protection. Furthermore it is submitted that in each case the sentence imposed on count 2 should have been partially cumulative.

18 I turn now to consider matters relevant to each respondent.**

**19 Hinton was 37 years of age at the time of sentence. He had 40 prior convictions from 18 court appearances, although the majority of those prior convictions related to driving and dishonesty offences. The driving offences included three .05 offences and one refusal to take a breath test. There was a total of ten offences of either driving whilst unlicensed or driving whilst suspended or disqualified. His previous convictions for assaults were in 1988 and 1989. However, at the time of the commission of the offences with which we are concerned, he was on bail awaiting trial on charges of aggravated burglary, cultivation of marijuana, handling stolen goods and arson. On 16 December 2005 he was sentenced in the County Court to a total effective sentence of 40 months' imprisonment with a non-parole period of 21 months in respect of those offences. He became eligible for parole on 31 December 2006, but was not paroled. In sentencing Hinton for the matters with which we are concerned, the sentencing judge accepted that he had 'effectively been denied nine months' parole' by reason of his awaiting trial upon those matters. The sentencing judge accepted that such period of time should be taken into account in sentencing Hinton. Furthermore, he observed that by reason of s 16(3)(c) of the Sentencing Act 1991, the sentence to be imposed by him was to be cumulative upon the uncompleted portion of the sentence imposed on 16 December 2005. His Honour stated specifically that by reason of those matters and the application of principles of totality, he had moderated the cumulation of sentences and set a lower non-parole period than for the other respondents.

20 His Honour took into account in Hinton's favour the facts that he had had a good employment record, good family support and had pleaded guilty. His Honour noted that whilst Hinton had been in prison he had undertaken a course of study at Murdoch University, as a preliminary course to undertaking a psychology course.**

**21 Petersen was aged 31 years at the time of sentencing. He had 52 prior convictions from ten previous court appearances. Like Hinton, those convictions included numerous driving offences including .05 offences and 11 offences of driving whilst either unlicensed, disqualified or suspended. Moreover, in July 1997, he had been convicted at Melbourne Magistrates' Court of recklessly causing injury and unlawful assault and sentenced to a term of imprisonment for three months which was wholly suspended for a period of 12 months. In October 1997 he was convicted of assault with a weapon and three charges of unlawful assault at the Magistrates' Court at Heidelberg and was sentenced to a total effective sentence of seven months' imprisonment. In December 1997 he was convicted of recklessly causing injury and was sentenced to a term of imprisonment for three months.

22 His Honour noted that Petersen was arrested on 12 August 2005 in respect of the offences the subject of this appeal, and that on 21 October 2005 in relation to other offending, he was sentenced to a term of imprisonment of 12 months with a non-parole period of six months. He was not paroled until 11 May 2006 when a bail application was granted. His Honour took into account the fact that there was a period of 'dead time' by reason thereof. His Honour found that Petersen had lived a 'shiftless life' but had found employment since being granted bail on the matters before his Honour. He had also established a 'stable relationship' over the six year period prior to the date of sentence. That said, not surprisingly, his Honour had some doubt as to whether Petersen had good prospects of rehabilitation.**

**23 Hamment was aged 39 years at the time of sentencing. His prior convictions were more limited than those of the other respondents, he having seven prior convictions from four previous court appearances. His only convictions for matters of violence were two charges of assaulting a police officer, of which he was convicted at the Magistrates' Court at Ferntree Gully in May 1990 and fined $200.

24 His Honour accepted that Hamment had had a nomadic and disrupted childhood, attending 14 separate schools in Victoria and Western Australia. From the age of 17 he had lived with his father who was a member of the Hell's Angels Motor Cycle Club and who was sentenced to a lengthy term of imprisonment when Hamment was aged approximately 20 years. Notwithstanding this background, Hamment had a 'substantially solid work history' working as a bricklaying labourer, as an automobile wrecker, a worker on the docks and as a plasterer's labourer in a monumental headstone masonry. He had been in a stable relationship. He was employed as a welder at the time of sentencing. Evidence was given before his Honour that Hamment had been 'well behaved and a significant leader in prison'. He had mentored youthful offenders and had engaged in drug counselling for young offenders.

25 It is apposite to observe, however, that in the case of all three respondents, although his Honour took their pleas of guilty into account and reduced each of their sentences by reason of the benefits to the community, to witnesses, by reason of the avoidance of a lengthy trial, nevertheless he concluded that there was an absence of remorse on the part of all the respondents. His Honour stated that he regarded the behaviour of each of the respondents as arrogant and brazen. He described their behaviour as outrageous and, correctly in my view, he observed that the principle of general deterrence loomed large in offences such as those to which the respondents had pleaded guilty.

26 The principles that apply in the disposition of an appeal by the Director of Public Prosecutions are not in doubt. First, it is not the role of a Court of Appeal on a Director's appeal to substitute its discretion for that of sentencing judges.[1] Secondly, in order to succeed, the Director must establish that the judge committed an error of law in exercising his discretion. Thirdly, in circumstances such as in this case, where manifest inadequacy is the only ground relied upon, the Director must demonstrate that the sentence is so unreasonable or unjust that an appellate court can conclude that the trial judge failed to exercise his discretion properly.[2]

27 In the light of those principles I turn to consider the sentences imposed by his Honour.

28 The agreed facts as to count 1 are brief in the extreme. The facts set out are that the three respondents entered the bar of the hotel and Mr Schievella was assaulted by Petersen and Hinton with whom Hamment was acting in concert. The agreed facts are that the assault 'caused serious alarm to the hotel patrons of reasonable fairness (sic). There was a continuing assault outside the hotel which also caused fear to nearby observers'. On any view of the agreed facts, the riot was one of relatively limited compass compared with many such offences. What is apparent from the statement of agreed facts is that the period of time over which the riot took place was from the commencement of the assault upon the victim in the hotel until such time or shortly before such time as he was placed in the vehicle. The fear which was said to have been instilled in members of the public was caused by the very activity that is the basis of count 2. In my view, in all the circumstances the sentence of 18 months' imprisonment imposed on each respondent in relation to this offence cannot be said to be manifestly inadequate.

29 In relation to the count of intentionally causing injury, the injuries asserted in the agreed statement of facts were said to be 'bleeding from the nose and face area generally'. Certainly the agreed statement of facts refers to what may be described as a savage assault, including kicking and stomping of the victim. Nevertheless, taking into account the fact that the prosecution agreed that the injuries in question were so limited, it does not appear to me that the sentence imposed upon each respondent of 15 months' imprisonment on a count of intentionally causing injury can be said to be obviously manifestly inadequate in all the circumstances.

30 In relation to count 3, the conduct said to endanger life was the hanging of the victim's body over a safety railing some eight metres above the ground. In this regard the respondents Petersen and Hamment who held the victim over the railing were both sentenced to 12 months' imprisonment. Hinton who acted in concert by telling security staff that they must not intervene was sentenced to ten months' imprisonment. The prosecution conceded that Hinton's role was less serious than that of the other two respondents. Without any doubt the victim had cause to have grave fear for his life. No doubt it was, for him, a most terrifying experience. That said, however, and although opinion might differ as to whether or not the sentences imposed reflect the seriousness of the conduct of the respondents adequately, it does not appear to me that in all the circumstances the sentences imposed can be said to be clearly manifestly inadequate.

31 As to the sentence of 12 months' imprisonment imposed upon each respondent on count 4, the count of false imprisonment, the facts upon which the prosecution relied were that, against his will, the victim was placed into the rear seat of a car by the respondents and that each respondent got into the vehicle. Although the facts relied upon assert that the victim was found in the street subsequently and transported to the Austin Hospital, the agreed facts do not refer to any period of time during which the victim was falsely imprisoned. In particular, it was agreed that the false imprisonment of the victim by the respondents did not continue past the time that the vehicle left the hotel premises. Once again I have no doubt that in all the**

circumstances of the case it can be accepted that the victim was terrified by being placed in the rear of the car and removed from the hotel. However, in my view taking into account the statement of agreed facts upon which the judge relied, a sentence of 12 months' imprisonment on this count cannot be said to be clearly and egregiously inadequate.

**32 The conduct of the respondents giving rise to counts 2 and 3 formed part of the behaviour giving rise to count 1. In the cases of Petersen and Hamment his Honour directed that six months of the sentence imposed on count 3 and six months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 1 in each case. In the case of Hinton, and for reasons of totality, which his Honour explained, he directed that three months of the sentence imposed on count 3 and four months of the sentence imposed on count 4 be served cumulatively upon each other, and upon the sentence imposed on count 1. His Honour did not order any cumulation of the sentence imposed on count 2. In circumstances whereby the conduct of the respondents in relation to count 1 was the same activity as the conduct relied upon in relation to count 2 it does not seem to me that his Honour was necessarily bound to make part of the sentence imposed on count 2 cumulative upon Count 1.[3] Clearly the overall conduct of the respondents called for a degree of cumulation but in my view the orders made by the sentencing judge in respect of cumulation cannot be said to be clearly manifestly inadequate.

34 It is appropriate to add that even had I concluded that the sentences imposed upon the respondents were manifestly inadequate it would be my view that the appeal should be dismissed taking into account the issue of double jeopardy. Furthermore in the case of the respondent Hamment the fact that he has been released and has served almost the whole of his parole period would be a relevant factor to be considered in relation to the exercise of discretion as to whether this**

37 The order of the Court in each case is that each appeal is dismissed.

38 A certificate will be granted to each of the respondents.**

[1] DPP v Fevaleaki [2006] VSCA 212, [25].

[2] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10]; DPP v Mirik [2007] VSCA 150, [37].

[3] See Pearce v The Queen (1998) 194 CLR 610 at 621-624