Hennessey v The Queen [2010] VSCA 297

(a) head sentence; and

(b) non-parole period;

are manifestly excessive.

1. In fixing sentence, the sentencing judge failed to give adequate weight to -
   • (a) the maximum available penalty;
   • (b) the age of the Appellant;
   • (c) delay;
   • (d) evidence of, and prospects of, rehabilitation;
   • (e) the absence of prior or subsequent convictions;
   • (f) the Appellant's prior good character;
   • (g) the hardship of imprisonment;
   • (h) the Appellant's medical condition and need for specialised medical treatment;
   • (i) the fact that the Appellant will serve his sentence in protective custody;
   • (j) the early plea of guilty;
   • (k) remorse.

2 The appellant was eventually presented on a single count of conduct contrary to s 22, Crimes Act. I say 'eventually' because the appellant was initially charged, following his arrest in January 2008, with intentionally causing JH a very serious disease,[1] reckless conduct endangering life, and reckless conduct endangering persons.[2] It was only in September 2008 that the matter resolved into a plea of guilty on the single count on which the appellant was thereafter presented.

3 The conduct embraced by that count consisted of repeated acts of unprotected sexual intercourse between the appellant and JH between 1 January 1996 and 31 March 1996, the appellant being aware at all relevant times that he was HIV positive. The Crown alleged that in so acting the appellant recklessly placed, or may have placed JH, in danger of death.

4 At the time of offending, the appellant was aged between 26 and 27 years of age. JH was then aged about 28.

5 The appellant became involved with JH in December 1995.[3] They began a sexual relationship in January 1996, and over the next two months repeatedly had unprotected sexual intercourse.

6 In March 1996, JH became lethargic and lost considerable weight. She consulted a doctor, and was diagnosed as HIV positive. There followed a period in which she attempted to ascertain how she had become infected, during which period the appellant misled her. Eventually, in 1997, the appellant admitted to JH that he had become infected by HIV many years before when, as a haemophiliac, he had been administered a contaminated blood product.[4]

7 The appellant and JH married in 2001. Their marriage collapsed in 2007. Thereafter, it seems, JH made complaint to the police.

8 In addition to the circumstances already mentioned, the sentencing judge drew attention to -

(1) The content of victim impact statements. In one of them, JH said that her life had changed beyond recognition by reason of the offending. Her choices had been taken away, she could not have children, she was unemployable, she needed help with daily activities. Before being infected, she had been a prominent singer/pianist, with aspirations for her personal life and professional future.

(2) The fact that the infection had progressed to AIDS, with consequences including Progressive Multifocal Leukoencephalopathy,[5] and a generally poor prognosis.

(3) The appellant's failure to ever apologise to JH.

(4) The appellant's awareness, before he began his relationship with JH, that he needed to use protection if he was going to engage in sexual intercourse; and that he had done so with previous sexual partners.

(5) The appellant's failure, even assuming that the first instance of unprotected intercourse represented an occasion when the appellant became 'carried away', to desist from unprotected intercourse thereafter.

(6) The fact that both civil proceedings and Family Court proceedings had been brought by JH against the appellant, which proceedings had been settled. His Honour did not expand upon those circumstances, although counsel for the appellant had provided some details, without objection, in the course of the plea.

(7) The accepted fact that the appellant had pleaded guilty to the count on which he fell to be sentenced at the first available opportunity; this plea following upon the appellant becoming aware of the deterioration in the health of JH.

(8) The appellant's persistence in pursuing employment despite the difficulties imposed by haemophilia.

(9) The fact that the appellant suffered 8-12 bleeding episodes each year, which required hospital admission for pain relief and to stop the bleeding.

(10) The fact that the appellant suffered degenerative joint disease as a consequence of his haemophilia, his elbows, particularly, being affected.

(11) The fact that the appellant was currently receiving treatment for his Hepatitis C, this impairing his (fragile) immune system.

(12) The likelihood that the appellant was suffering from cirrhosis of the liver as a consequence of his Hepatitis C.

(13) The opinion of a Ms Michelle Gardner, Director of Justice Health, that the appellant's health concerns could be medically managed if he was a prisoner; albeit that, as his Honour concluded, 'in general terms' the standard of health services available would not be the same as those available in the community.

(14) The fact that a number of referees had spoken of the appellant as being willing to help others, diligent and hard-working - these estimations being 'reasonable', but not gainsaying that the appellant's treatment of JH had been 'callous, selfish and cruel'.

(15) His rejection of the explanation, advanced by the psychologist Mr Cummins for the appellant, that at time of offending the appellant had been suffering from 'an adjustment disorder with anxiety and depression against the background of a complicated medical situation and with a family reluctant to accept [his] medical status'. His Honour concluded that the explanation 'was too simplistic, and ... a forensic reconstruction'. The most likely explanation for the appellant's conduct, the judge opined, was that he 'put [his] own feelings and needs ahead of responsibility, decency and concern for [JH's] well-being'.

(16) The fact that the appellant had no prior and no subsequent convictions.

(17) The fact that there had been a long period of delay - it was of between 12 and 13 years - between offending and sentence.[6] The judge stated, without elaboration, that he was bound by principles stated by this court in R v Miceli,[7] R v Cockerell,[8] R v Tiburcy and ors,[9] and R v Merrett and ors.[10]

(18) The fact that it was likely that the appellant would serve any imprisonment in protective custody, this adding to the burden of imprisonment.

(19) His opinion that the appellant had 'reasonable potential for rehabilitation'. It all depended upon the appellant 'taking seriously the need to act responsibly to avoid the risk of infecting others with HIV or Hepatitis C'.

(20) His conclusion that this was a 'shocking example of a serious offence', such that immediate imprisonment was 'the only sentence that equates to the heinousness of [the appellant's] criminal conduct'.

(21) The fact that he would have sentenced the appellant to seven years' and six months imprisonment with a non-parole period of four years' and six months had the appellant pleaded not guilty and been convicted after trial.

9 By written outline of submissions, and in oral argument, counsel sought to call in aid the declaration made by the judge below that, but for the appellant's plea of guilty, and assuming conviction after trial, he would have imposed a head sentence of seven years and six months imprisonment with a non-parole period of four years and six months. Counsel submitted that the way in which he wished to make use of the declaration did not run foul of observations made by Maxwell ACJ, Redlich JA and Vickery AJA in R v Burke.[11]

10 It is unnecessary to consider and resolve that argument in order to dispose of this appeal. So to say does not deny that at some time, in another case, questions said to be outstanding as to the limits of use of a s 6AAA Sentencing Act declaration in the appellate context may need to be agitated.

11 So I turn to consider the two grounds of appeal. They can be considered together because appellant's counsel treated the circumstances set out in ground 2 as being particulars of, and being explanatory of, the complaint of manifest excess made by ground 1.

12 Counsel did not challenge the judge's characterisation of the offending, which in my opinion was generally apt. Whatever might be said about the circumstances of

12 the first instance of unprotected intercourse, the appellant's conduct in engaging in repeated acts of unprotected intercourse thereafter was very blameworthy.

13 Counsel for the Crown much relied upon the seriousness of the offending as an explanation why the sentence was not manifestly excessive. He submitted that, as a sentencing circumstance, it overwhelmed the matters upon which the appellant was entitled to rely in mitigation.

14 I accept that submission up to a point. In the instinctive synthesis in a particular case, one matter may weigh more heavily than others. But in the present case, if the judge was to apply such an approach, then for two reasons he needed to be very careful in doing so.

15 First, although as at early 1996 the appellant was cognisant that there was a risk of a sexual partner contracting HIV if he engaged in unprotected intercourse with that person, he had been HIV-positive for more than a decade but remained unaffected by AIDS. Further, although when interviewed by the police in 2008 he made statements as to his understanding that the risk of a sexual partner being infected with HIV was high, and he guessed that it increased with each act of unprotected sexual intercourse[12] - (a) it seems doubtful, despite the form of the questions, that his most adverse answers evidenced his understanding as at early 1996; and (b), his most adverse answers seem likely to have been informed by the 12 year elapse between 1996 and 2008 - during which time both he and JH had developed AIDS-related illnesses.

16 Second, it was necessary for the judge to keep steadily in mind the offence to which the appellant pleaded guilty, and for which he was being sentenced. It was not the offence of intentionally causing another person to be infected with a very serious disease,[13] for which the maximum penalty is 25 years' imprisonment. Nor was it the offence of intentionally causing serious injury- for which the maximum penalty is 20 years' imprisonment. Nor again was it the offence of recklessly causing serious injury, for which the maximum penalty is 15 years' imprisonment. Rather, it was the offence of reckless endangerment of life, for which the maximum penalty is 10 years' imprisonment. The offence may be committed even though the danger never translates itself into actual risk of death. Its gist is conduct that places, or may place, another person in danger of death. Of course, by reason of s 5(2)(daa) of the Sentencing Act, regard must have been had to the impact of the offence upon JH. Nonetheless, it is not the gist of the offence that the risk eventuated, and it would be wrong in principle to have sentenced the appellant - in fact, if not in form - as if he was to be punished for intentionally (or recklessly) causing JH terminal injury.

17 Counsel for the appellant submitted that the judge had identified all the relevant sentencing considerations, but that the sentence imposed showed that one or more of them must have been impermissibly underweighted. He argued that a head sentence of 50 per cent of the maximum penalty on a plea of guilty by a man who could call a constellation of mitigating factors into account showed that something had gone seriously wrong. Counsel for the Crown conceded that it was 'unusual' for a sentence 'to be fixed at such a high level in the presence of such mitigatory factors'; but he submitted, by reference to several sentences passed in respect of other offences, that it was not unprecedented.

18 I do not doubt that imposition of a head sentence of 50 per cent of the maximum penalty where - (a) there was an early plea of guilty which had more than mere utilitarian value, and (b) other substantial features of mitigation were unarguably present, is quite unusual. I am not prepared to say that such a sentence necessarily bespeaks manifest excess; but I do consider that it invites close scrutiny.

19 I have already referred to the circumstances - many and unarguable - which the appellant could legitimately call in mitigation. They are set out at [8] (6)-(14), (16)-(19) above, and I need not rehearse them. Looking at the way in which the judge treated them, to my mind two matters stand out. First, his Honour stated that the appellant had 'reasonable potential for rehabilitation'; and second, he said that he was bound by principles stated by this Court with respect to delay. He treated delay, I add, as encompassing the period between 1996 and 2008. That is the basis upon which submissions proceeded below, and in this Court.

20 There is - or should be - an interrelationship between those matters. It has often been emphasised that one significance of delay is that it affords an opportunity to gauge whether, and how far, the offender has progressed along the path to rehabilitation.

21 In the present case, it seems that the judge's estimation of the appellant's prospects of rehabilitation was based on the evidence of a psychologist, Mr Cummins, who opined that the appellant was at minimal risk of re-offending but would nonetheless benefit from treatment for what the witness regarded as repressed 'depressive symptomatology over many years'. In view of the fact that his Honour rejected the witness's evidence as to the presence of an adjustment disorder, anxiety and depression at time of offending - see [8] (15) above - it is at least unusual that he would have fastened upon a closely allied aspect of the witness's evidence to lead to a conclusion which minimised the appellant's prospects of rehabilitation. But beyond that, there was here a 13 year elapse between offending and sentence; and in that time there were not only no convictions, there was no evidence at all that the appellant had ever engaged in unprotected sexual intercourse. These were circumstances, in my opinion, which unequivocally told in favour of the appellant's prospects of rehabilitation being very good.

22 I agree with the submission of counsel for the Crown that this case presented a very difficult sentencing problem. There were important considerations pulling in different directions. For that reason, I have been loath to conclude that the judge's discretion miscarried. But I am persuaded that the sentence passed upon the appellant was manifestly excessive. Although it is not necessary to assign a reason why that came about, I think it very likely that it was because the delay, and its

relationship with prospects of rehabilitation, was not given due weight - albeit that 'due weight' fell for consideration in the context that this was serious offending.

23 I would allow the appeal, set aside the sentence passed below, and in lieu thereof sentence the appellant to be imprisoned for 4 years. I would fix a non-parole period of 2 years and 6 months.

24 I agree with Ashley JA that the appeal should be allowed. I wish only to add one comment.

25 But for the delay between commission of the offence and the imposition of sentence, I would not have been inclined to conclude that the sentence of five years' imprisonment was manifestly excessive. It is true that the appellant had been infected with the HIV virus for some time without becoming ill and may not have fully accepted the implications of his infection. However, his admissions to the police show that he was fully aware of the risk of infecting a sexual partner by unprotected intercourse[14] and that the risk of doing so would increase if that behaviour continued. Indeed, he had previously used protection when having intercourse with other sexual partners. His offending involved a serious breach of trust and has had appalling consequences for the victim.

26 In this case, however, the 12 to 13 year delay between commission of the offence and the imposition of sentence was a powerful mitigating factor. The delay was a very lengthy one (in R v Cockerell,[15] a five year delay was described by Chernov JA as 'inordinate') and the appellant did not re-offend in that period, which makes it less likely that he will do so in the future and bears favourably on his

prospects of rehabilitation.[16] Despite his Honour's reference to the relevant authorities,[17] and his statement that he 'must apply these principles to [the offender's] circumstances', I consider that the sentence imposed indicates that his Honour must have given insufficient weight to delay.

27 His Honour may also have given insufficient weight to the burden of imprisonment on the offender, who was infected with HIV and suffered from haemophilia and hepatitis C, and would have to serve his sentence in protective custody.

28 I agree with the sentencing disposition proposed by Ashley JA.

29 In my opinion, the appeal should be allowed for the reasons given by Ashley JA and by Neave JA. I also agree with the sentencing disposition proposed by Ashley JA.

[1] Crimes Act, s 19A. Maximum penalty, 25 years' imprisonment.

[2] Crimes Act, s 23. Maximum penalty, 5 years' imprisonment.

[3] According to the appellant's record of interview, years before they had been at school together.

[4] The diagnosis was made in September 1984. As a result of the contaminated blood product, the appellant also became infected with Hepatitis C.

[5] This causing unsteadiness of gait, speech disturbance and impaired co-ordination of the dominant right hand.

[6] Counsel for the appellant added that the delay was not of the appellant's own making, and the judge accepted that this was so. But, in any event, the significance of delay does not rest upon the appellant not having been responsible for it.

[7] [1997] VSC 22; [1998] 4 VR 588.

[8] [2001] VSCA 239; (2001) 126 A Crim R 444.

[9] (2006) 166 A Crim R 212.

[10] [2007] VSCA 1; (2007) 14 VR 392.

[11] [2009] VSCA 60.

[12] His statements conflicted. Compare his answers to questions 209 to 210 in his record of interview with his answer to question 243. In fact, the earlier answers much over-estimated the risk of transmission, as counsel for the Crown frankly informed the Court.

[13] Defined by s 19A(2) of the Crimes Act to mean HIV.

[14] Record of interview answers to Questions 126-128, 143, 198, 213, 214. This was the case even if in 1996 he did not consider the precise risk of infecting the victim, contrary to his apparent admission in answer to Questions 206-212.

[15] [2001] VSCA 239; (2001) 126 A Crim R 444.

[17] He referred to R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444; R v Miceli [1997] VSC 22; [1998] 4 VR 588, 591 (Tadgell JA); R v Tiburcy [2006] VSCA 244; (2006) 166 A Crim R 291, 294 (Maxwell P).