1 These reasons should be read in conjunction with those given by Buchanan JA in Hayes v The Queen.[1]

2 On 21 January 2008 Benjamin Jorgensen appeared with Dona Hayes before the County Court at Melbourne where he pleaded guilty to two offences; armed robbery and negligently causing serious injury. Dona Hayes was his accomplice in respect of the first count and the victim of the second.

3 In one sense the events of 1 April 2007 which gave rise to these counts were bizarre. Late that evening Jorgensen and Hayes held up a restaurant in the Dandenongs, expecting a plastic garbage bag which they took from an employee to contain a large amount of money; perhaps as much as $30,000.00. In fact, it contained bread rolls. In the course of the robbery a sawn-off shot gun which Jorgensen carried was unintentionally discharged, severely injuring Hayes in the buttocks and leg area. At the time of the robbery Jorgensen and Hayes were disguised by a balaclava and a very large hat respectively.

4 In fact, those events were seriously criminal. The robbery must have been terrifying for the restaurant staff who were confronted by the sawn-off shot gun and even more so when it discharged, and they realised it had been loaded. That terror would not have been diminished by seeing Jorgensen reload the weapon after it discharged, with ammunition he had brought with him should it be required.

5 Jorgensen and Hayes have known each other for a long time. They were in a de facto marriage for some time about ten years before the robbery and had two children. They were not in that relationship at the time of the robbery and had not been for some years, but they remained friends, if not close friends. The robbery was not committed on the spur of the moment. Jorgensen had cut down the barrel of the gun two days before. He obtained a balaclava and they both had a belief, or at least a hope, of substantial financial gain. Hayes had some knowledge of the restaurant's procedures in respect of its takings. In the immediate aftermath of the robbery Jorgensen threatened to 'blow the head off' one of the restaurant employees in the course of forcing him to hand over his car keys.

6 That the robbery was amateurish in its execution and its perpetrators quickly arrested does not diminish its criminality. Any armed robbery involving the use of a loaded firearm is a serious armed robbery, particularly one where the firearm is discharged, even if accidentally.

7 On 22 January 2008, Jorgensen was sentenced to six years' imprisonment for the count of armed robbery and two years' imprisonment for the count of negligently causing serious injury to Hayes. Those offences carry 25 and ten year maximum sentences respectively. With one year of cumulation, Jorgensen received a total effective sentence of seven years' imprisonment and the judge fixed a non-parole period of four and a half years. Hayes, who pleaded guilty to the armed robbery count, received a head sentence of four years' imprisonment, but taking account sentences imposed upon her for other offences including a sentence for culpable driving causing death in October the previous year, she had a non-parole period fixed at five and a half years.

8 Jorgensen was granted leave to appeal his sentence by a single judge of this Court on 3 April 2009. The substance of his grounds of appeal as they were argued concerned an alleged error by the sentencing judge in having regard to material concerning him tendered in respect of Hayes' plea, an alleged failure by the sentencing judge to apply the principle of parity properly in fixing his sentence as compared to that of Hayes, and a ground which alleged manifest excess simpliciter.

9 In the course of his sentencing remarks, the sentencing judge referred to a number of testimonials supportive of Jorgensen from family members and others. He said he was prepared to accept what they had said, but then went on:

...but I have information that they do not have.

I have read reports from the psychologist engaged on behalf of your co-offender and I have heard evidence from her mother that indicate that you have a significant anger problem and that this is displayed from time to time in the form of domestic violence, or has been, and that you have certainly not always been gentle within that relationship.

10 A little later he referred to Jorgensen's lack of serious prior convictions, his good work attitude and his care for his children. He said:

You have been well liked in your community circle, but I repeat, on a less obvious basis you do have, or you have had, drug and alcohol problems and an anger problem with a level of domestic violence.

11 During the plea hearing, the judge had raised this matter with a witness, Jorgensen's sister. After she finished her evidence, this short exchange took place:

HIS HONOUR: You, you won't know that. I have reports that arise from the co-accused, Ms Hayes, speaking to her psychological advisers. You understand?

WITNESS: Yes.

HIS HONOUR: Do you know much about the years that Ms Hayes and your brother were together?

WITNESS: Yes, I know some of those years. I've visited them on a number of occasions.

HIS HONOUR: She describes your brother as violent and aggressive, extremely violent and aggressive. Numerous examples of violence; cuts to the throat and facial injuries; attempted to suffocate her with a pillow; requiring police to intervene and wanted to charge with attempted murder; kicked her downstairs; she lost her baby. Heard any of those things?

WITNESS: I was not aware of those things, Your Honour, at all.

12 The matters referred to by his Honour were derived from a history given by Ms Hayes to a forensic psychologist, Ian Joblin, whose report, dated 12 December 2006, was before the Court on her plea to the culpable driving charge. It contained a history given by Ms Hayes to Mr Joblin which includes the following:

In 1993 she met her de facto, Benjamin. At that time she had a daughter 12 months old. Benjamin was two years older. She reported that 12 months into their relationship she became aware that he could be an extremely violent and aggressive man. Ms Hayes gave me numerous examples of the violence to which she was subjected. She had cuts to her throat, and facial injuries from his assaults. On one occasion he was suffocating her with a pillow stopped only by the intervention of the police who wanted to charge him with attempted murder.

It seems that she had a six year history of violent assaults. On two occasions she was pregnant and lost the babies. On one occasion she miscarried. On another occasion he kicked her down the stairs and she lost the baby. She reported that he had problems with alcohol and marijuana. She subsequently learned that he had also been using heroin.

As indicated, she had a daughter born 1992, a son was born in 1995 and another daughter in 1996. She reported that when she was living with Benjamin her father who had received some type of payout bought Ms Hayes and her sister a property at Taggerty. Ms Hayes and Benjamin lived there with the children. They separated in 1999.

13 When she gave evidence on her daughter's behalf, Ms Hayes's mother, Dianne Hayes, was questioned by Ms Hayes's counsel as to violent relationships she had been in. After eliciting evidence of alcohol problems which a previous partner had had, the following exchange took place.

COUNSEL: Indeed Dona has suffered through various relationships very much to do with violence in those relationships?

WITNESS: Yes, yes. She's - Shae's first stepfather until she was two, had alcohol problems and that was a violent end to that relationship.

COUNSEL: And indeed over a lengthy period of time the same problems occurred with Mr Jorgensen.

WITNESS: Yes, there occasions when I've had to pick Dona up from the police station after various assaults of one kind or another and Shae's has told me she's witnessed several - - -

HIS HONOUR: In any event certainly you were able to see injuries?

WITNESS: Yes, I was.

14 Mr Ryan of Senior Counsel for the Crown sought to minimise the importance of these matters in the sentencing judge's consideration of an appropriate sentence for Jorgensen. Alternatively, he argued that sufficient notice of them had been given to Jorgensen's counsel by the primary judge by his having raised Joblin's report with Jorgensen's sister and of Mrs Hayes having given the evidence which she did. He also referred to a report of a psychologist, Pamela Matthews, which was tendered on Jorgensen's behalf, which referred to his 'acting out behaviour' and anger likely to lead to physical violence.

15 But this is a far cry from the specific matters raised by Ms Hayes with Mr Joblin. In the context of his Honour's sentencing remarks, his finding - and that is what it was - that Jorgensen had been violent to Hayes had the effect of diminishing such good character as he was able to rely upon as testified to by those gave evidence on his behalf. It diminished his credit for sentencing purposes. It deprived him of a mitigating factor he could legitimately have relied upon in his favour. In fact, it seems that the sentencing judge used the material from the psychologist's report against Jorgensen without giving him any real opportunity to contest its veracity.

16 For the judge to make the finding he did on the material he did constituted an error. Even if Joblin's report had been properly before the Court on Jorgensen's plea, which it was not, it contained unexaminable hearsay as did Mrs Hayes's evidence. It was not incumbent on Jorgensen's counsel in the circumstances to seek to explore the matter further or to try to meet its gravamen. It should have played no part in the sentencing process. That it clearly did so was an error which vitiated that process. Jorgensen must be re-sentenced on both counts, even though it is unlikely that this material had any effect on the sentence for Count 1 and it is likely that its effect on Count 2 was not great.

17 The trial judge explained his reason for differentiating between the sentences he imposed on Hayes and Jorgensen. Hayes' horrific injuries, which are still disabling her provided ample enough reason for imposing a significantly lesser sentence on her for the armed robbery from that imposed on Jorgensen. Also, of course, his Honour was required to consider the principle of totality having regard to Hayes' other sentences already imposed. There is nothing in this ground.

18 A sentence of six years with a four year minimum for armed robbery, using a fire arm which was discharged and was reloaded, in the circumstances of this case could not be said to be manifestly excessive. Nor could the sentence of two years in respect of negligently causing serious injuries, having regard to their seriousness and the circumstances of their inflection. Even having regard to the positive matters which were and could be put on Jorgensen's behalf, the ground of manifest excess is not made out.

19 It is likely that the domestic violence material, which ought not to have been used by the trial judge in sentencing Jorgensen, had some, but not much, effect on the sentence imposed on him for the armed robbery. The head sentence in respect of that offence should be reduced by six months to five and a half years. The sentence for negligently causing serious injury should remain at two years, of which one year should continue to be cumulated on the sentence for the armed robbery, making a total effective sentence of six and a half years. A new non-parole period of four years should be fixed.

1. That the appeal against sentence be upheld and sentences imposed on Benjamin Jorgenson by the County Court on 22 January 2008 be quashed.

On Count 1 he be convicted and sentenced to five and a half years' imprisonment.

On Count 2 he be convicted and sentenced to two years' imprisonment.

3. That it be ordered that one year of the sentence of imprisonment on Count 2 be cumulated on that in respect of Count 1, resulting in a total effective sentence of six and a half years.

4. It should be further ordered that he serve a minimum of four years before being eligible for parole.

3. In lieu thereof the appellant is sentenced to be imprisoned for a term of five years and six months on Count 1 and for a term of two years on Count 2. One year of the sentence on Count 2 is to be cumulated on the sentence on Count 1. The total effective sentence is six years and six months' imprisonment. A minimum term of four years' imprisonment is fixed before the appellant is to be eligible for parole.

4. The order made below for the taking of a forensic sample is confirmed.

5. It is declared that a period 1,187 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

[1] [2010] VSCA 170.