R v Heenan [2006] VSC 123

1 Peter Alan Heenan, you have pleaded guilty to one count of assaulting Steven Ignatiadis (Count 1); one count of aggravated burglary (Count 2); one count of making a threat to kill Helen Heenan (Count 3); one count of intentionally causing serious injury to Helen Heenan (Count 4); and one count of making a threat to kill Steven Ignatiadis (Count 5).

The facts

2 The offences arose out of the breakdown of your marriage to Helen Heenan and your jealousy of Steven Ignatiadis.

3 You first met Ms Heenan some 17 years ago and in the years which followed you married and you had four children together: Peta, born on 10 May 1991, Brittany, born on 9 August 1992, Evelyna, born on 14 January 1994 and Rion, born on 24 July 1995. Over time, however, the relationship deteriorated and, in or about March 2003, Ms Heenan asked you to leave the family home, which you did. For the next five or six months you lived apart, although you visited the children at every chance and you told Ms Heenan that you still loved her and wished to be reunited.

4 In October 2003 you left the place in which you were then living and moved back to the family home and in March 2004 you and Ms Heenan and the children moved together to premises in Beaconsfield Parade, Middle Park. But the relationship continued to deteriorate and at the end of July 2004 Ms Heenan purchased a residential unit some distance away in Middle Park and with the assistance of her family moved out to the unit with the children.

5 At first, she did not tell you where she had gone, but a week or so later she telephoned and gave you a contact telephone number. Later still, she told you where she was living with the children, so that you would know their whereabouts, and then over a period of time you and she developed a pattern whereby the children stayed with you each weekend.

6 At the start of that arrangement, Ms Heenan used to bring the children to your house. Over time that changed such that you would go to her house to collect them. But your access to her house remained limited. On occasion she invited you in for a drink, and once or twice you were permitted to go upstairs to the children's bedrooms to see things of interest to them. But that is as far as it seems to have gone. You wished to be reunited with Ms Heenan, and you told her that was your wish. She preferred to live apart.

7 Prior to New Year's eve 2004, you arranged with Ms Heenan that you would have the care of the children on New Year's eve and take them to a fireworks display at Southbank. You also invited Ms Heenan to join you for that occasion. She declined the invitation. She brought the children to you at about 5.00 pm on New Year's eve and left them with you and she told you then, again, that she did not wish to accompany you that night.

8 As arranged, you took the children to the fireworks display and later you took them home to your house. But still later, at about midnight, you went out to Southbank again, by yourself, and you spent the next several hours there drinking with friends. In the end you did not return home to the children until about 3.30 am next morning.

9 Meanwhile, Ms Heenan had been out for the evening and had invited Mr Ignatiadis home for a drink. He arrived at her house at about 8.30 pm and they spent the next six or seven hours together, talking and sharing two or three bottles of wine, and then finally retired to Ms Heenan's bed together at about 3.00 am.

10 Between about 5.00 am and 6.00 am you went around to Ms Heenan's house, you say because you were missing her and you wanted to be with her and, upon ascertaining that the front door was unlocked, you let yourself in and walked upstairs to her bedroom.

11 Steven Ignatiadis woke almost immediately and, on seeing you, he sought to leave the room. But you attempted to block his passage and threw a number of punches at him, yelling at him: "Fucking bastard what are you doing with my fucking wife, I am going to fucking kill you and break your fucking neck." They are the acts which comprise the count of assaulting Steven Ignatiadis (Count 1).

12 Mr Ignatiadis shielded his head and face with his arms and fled down the stairs. You followed behind him, yelling at him, and chased him out of the house into the street. He there escaped to a nearby 7 Eleven store where he sought assistance. But, regrettably, it was not forthcoming. The console operator refused as a matter of "policy" even to call the police.

13 You meanwhile had returned to Ms Heenan's house, with the intention of assaulting her and, on finding her just inside the front door, you locked the door behind you. Those are the acts which comprise the count of aggravated burglary (Count 2).

14 She pleaded with you to be let out of the house but you refused her request and then you began to beat her.

15 You first slapped her face so hard as to knock her to the ground. You then demanded that she get up and, when she attempted to do so, you hit her across the face again. She lifted her head off the floor once more and you then hit her with both hands across both sides of her face. Then, while she remained on the floor, you kicked her to the lower back, forcing the wind from her.

16 By that stage Ms Heenan was in fear for her life and she begged you not to kill her. But you responded by saying to her: "You have no idea the things that I am going to do to you and I promise you that you won't live". Then you kicked her left hip and dragged her upstairs by the hair, saying as you went: "Your nothing but a whore and a bitch and a slut and you are going to die." She resisted by grabbing onto the balustrade and, fortunately, you lost your footing on the stairs and let her go before falling down them.

17 Ms Heenan then attempted to run to the front door but you caught up with her and grabbed her by the hair from behind. You then turned her around so that she faced you and you repeatedly slapped the left side of her face until her ears began to ring and bleed. Once more she pleaded with you that she did not want to die. But once again you replied that she was going to die. By that point she was so dazed that she could hardly stand up. Those are the acts which comprise the count of threat to kill (Count 3).

18 Ms Heenan then attempted to run to the front door again, screaming as she went, but on that occasion you threw her to the floor near the front door and, picking up a heavy stone statue above your head, you dropped it to the floor close to her head.

19 She rose to her feet once more and ran behind the dining table. But you followed her again and pulled her by the hair back to the centre of the room. There you slapped her continuously to the left side of her face until she broke free. Your acts of beating Ms Heenan comprise the count of intentionally causing serious injury (Count 4).

20 At that point Steven Ignatiadis returned and sounded the front gate buzzer in an attempt to attract you away from Ms Heenan. On hearing the buzzer, you ran out of the house towards him and he saw that you had blood on your hands and that Ms Heenan's face was covered with blood. He ran from you, yelling abuse at you to draw your attention away from Ms Heenan, as she escaped to the 7 Eleven store, crying and screaming.

21 Ultimately, you gave up the chase and went back to your own house. But before you departed, you yelled at Steven Ignatiadis: "I know where you live, I'm gonna kill you." And he feared that you would carry out that threat because he had left his wallet containing his identification inside Ms Heenan's home. Those are the acts which comprise the count of making a threat to kill Mr Ignatiadis (Count 5).

22 On arriving home you told the children that you had found their mother in bed with another man and that you had hit her 30, 40 times (according to Evelyna); that you gave 50 punches (according to Rion); and that you hit mum 50 times (according to Peta and Brittany). You told them that if you had not stopped you would have killed their mother.

23 Ambulance paramedics attended at the 7 Eleven store and conveyed Ms Heenan to the Alfred Hospital. She remained there for the next five days. Her head was so swollen by the assault that her eyes were almost completely closed and, upon examination, she was found to have sustained numerous bruises and abrasions to the head, neck, forearms, hands, shoulders, chest, abdomen, back, buttocks and knees; swelling of the face and eyes; swollen and deformed nose with a deviated nasal septum; and broken ribs. She reported having lost consciousness. It is recorded in her Victim Impact Statement that she still has ringing in her ears, has difficulty eating and speaking because of the trauma inflicted on her jaw and face and she remains concerned that her appearance will never be the same again.

24 Each of the children has also made a Victim Impact Statement and each of them in different ways expresses a profound sense of dismay and disbelief over your actions and great unhappiness over the consequences of those actions for their mother and themselves.

Nature and gravity of the offences

25 The maximum penalty for an offence of aggravated burglary is 25 years' imprisonment and the offence of aggravated burglary to which you have pleaded guilty is a serious case of the offence.[1] Upon your own admission, you went back into Ms Heenan's home knowing that you did not have permission to do so or at least being reckless as to whether or not you had permission to do so; knowing that she was inside; and with the intention of assaulting her. I allow in your favour that you may not have had intended at the outset to be as violent as you were. It may be that it was not until the assault began that you allowed the full force of your rage to take over. Nevertheless, it is enough to make your offence a serious case of aggravated burglary that you entered Ms Heenan's home as you did with the intention, as you admit, of assaulting her.

26 The maximum penalty for the offence of intentionally causing serious injury is 20 years' imprisonment and, while your offence is not as serious as some,[2] most offences of intentionally causing serious injury result in a significant term of imprisonment. In most cases, the Court is bound to impose a penalty on behalf of society which makes clear that society cannot tolerate the intentional use of unlawful violence by one person against another.[3] In my judgment, that is so in your case. Whatever your motivation, and whatever you may have thought to be the rights and wrongs of the situation, you were a large and powerful man and you savagely beat a woman who was only a fraction of your size and plainly incapable of defending herself against you.[4] By any reasonable standard, your attack on her was brutal and, therefore, it necessitates condign punishment.

27 When you were first interviewed after being arrested, you told police, falsely, that you were allowed to come and go from Ms Heenan's home as you pleased and you stated, falsely, that Steven Ignatiadis had attacked you and that Ms Heenan had assisted him in assaulting you. You admitted that you had hit Ms Heenan but you claimed, falsely, that you were acting in self defence. It took until the day appointed for trial for you to admit to your offences. In the circumstances I treat you false allegations against Ms Heenan and Mr Ignatiadis as aggravating the gravity of your offending.

28 I accept that your offending may have been driven by frustration over the breakdown of your marriage, and it is evident that it was intensified by your sense of grievance at Ms Heenan's apparent willingness to sleep with another man while you thought there to be some chance of reconciliation. Plainly, you were also disinhibited by the alcohol you had consumed during the early hours of New Year's eve, and I assume in your favour that you are unlikely to have behaved as you did if you had been sober. But none of that amounts to any sort of excuse or justification. Maybe there had been some moves towards reconciliation and maybe you were still in love with Ms Heenan. But to my way of thinking that only makes your offending worse. Whatever the circumstances, however, you had no right to visit her supposed infidelity with violence, and the fact that you were affected by drink does not diminish your responsibility.

29 The offences of threat to kill of which you have been convicted are less serious, in that each of those offences carries a maximum sentence of 10 year's imprisonment.[5] I do not doubt that Ms Heenan and Mr Ignatiadis believed that you meant the threats and were genuinely scared that you would carry them out. The offences therefore warrant a sentence of imprisonment. But as I see it, the threats were more in the nature of spontaneous outpourings of rage than calculated or premeditated utterances and, consequently, I regard them as being towards the lower end of the scale.

30 I treat the offence of assault of which you have been convicted in similar manner. The offence carries a maximum penalty of 5 years. But in the range of assaults I do not regard your assault against Mr Ignatiadis as being very serious. On the material before me, Mr Ignatiadis did not suffer any injuries as a result of the blows that you directed towards him and I doubt that it would have been so if you had really intended to hurt him.

Culpability and degree of responsibility

31 It was submitted on your behalf that your offending was provoked by seeing another man in bed with your wife and that the fact that you were so provoked is something which should weigh in the balance in mitigation of penalty. Reference was made to the observations of Starke, J. in Unal Okutgen,[6] with which Crockett and O'Bryan, JJ. agreed. In that case, which was one of unlawful wounding, Starke, J. observed that the prisoner had been considerably provoked by an insult and ensuing argument and fight in what might now be termed a road rage incident. As his Honour put it:

"Now, I think it is clear enough that the applicant was subjected to considerable provocation. I am using the word 'provocation' in the general meaning of that word as it is understood in the English language and not with the special and technical meaning given to it in the law of homicide. Of course, it is well established now that provocation is not a defence to this particular charge. It may be that he was the first to indulge in provocative conduct in that it was quite open, I think, for the jury to come to the conclusion that he had deliberately blocked the end of Anchor Place on the second occasion, but if he did, he had probably been provoked into doing so by the abuse he received earlier at the other end of Anchor Place. Once he got out and the argument and fight developed, there was, of course, considerable provocation and I think it could not be suggested that he acted otherwise than in anger and in passion and this, I think, to some extent mitigates the offence of which he has been convicted."

32 With respect, I take leave to doubt that what was there described as provocation should any longer be treated as a mitigatory consideration in the sentencing of road rage offenders. But even if it is, it does not avail you. The prosecutor described your conduct as cowardly, and so it was. Mr Morrissey replied that whether or not it was cowardly is an irrelevant sentencing consideration. But in my view it is relevant. Ordinary persons of ordinary powers of self control[7] do not inflict cowardly savage beatings on defenceless women, even when and if they are unfaithful. Thus, assuming that provocation is a relevant sentencing consideration, the cowardice of your attack is relevant to the legal conception of provocation and thus to the question of whether you were so provoked as to warrant a degree of leniency. In my judgment, you do not.

33 Given the facts and circumstances of your offences of aggravated burglary and intentionally causing serious injury, I consider that your culpability and degree of responsibility is high.

Personal circumstances

34 Turning then to your personal circumstances, you were born on 29 October 1953 and, therefore, are now 52 years of age.

35 It is said that you come from a dislocated family situation in which your parents never separated but your father, who was an alcoholic and worked on the wharves, died of throat cancer at age 69 some 10 years ago. Your mother is thought to be still alive and aged around 78 years, but you have been estranged from your parents for the last 20 years and have not seen your mother in that time. You have two sisters and a brother but you have had no contact with any of them for a very long time. You attended Glenroy North Primary School and then Glenroy High School but you left there after failing to achieve your Leaving Certificate. You then joined the work force at the age of 17 years and worked with the Department of Defence for the next 10 years, while simultaneously studying naval architecture. During that time you also trained with the Essendon Football Club and played in its under 19 team and later for Preston. Then, after leaving the Department of Defence, you spent the next four years preparing operations manuals for ANL and the Port of Melbourne Authority and, after that, you sold real estate for a time, worked as a national sales manager for a shop and exhibition centre fit-out company, worked as a property developer and, finally, became involved in the financial services industry, developing computer based financial packages, where you have achieved a degree of success.

36 You first married when you were 20 years of age to a woman of your own age, and that marriage lasted for some 10 years before ending in divorce. You have three children from that marriage, of whom the eldest, Mr Alan Heenan, is an estate agent and has marketing and business qualifications. He is involved in your software development business. The other children of your first marriage have also gone on to achieve tertiary qualifications. You married a second time when you were 33 years of age, to another woman of similar age, and although that marriage lasted only 18 months it produced one child who is now aged 20. But you have had no contact with that child for the last 18 years. You married for a third time, to Helen Heenan, in about 1993 and you have the four children from that marriage to whom I have referred. That marriage too has since ended in divorce. The decree nisi was granted on your application on 30 October 2005 and you have established a relationship with another woman.

37 According to a report of Mr Jeffrey Cummins, consulting psychologist, of 23 March 2006, you describe yourself as a social drinker of alcohol but admit that there have been occasions when you have been a binge drinker. You also admit that you were under the influence of alcohol at the time of the offences. Not surprisingly, in Mr Cummins' opinion, you have a problem with alcohol which is consistent with your history of binge drinking. Mr Cummins reports that you present as being of significantly above average intelligence but as assertive and headstrong and, in Mr Cummins' opinion, you would benefit from an anger management course. Mr Cummins is also of opinion that, although you are not psychotic or schizophrenic and do not present as having an anti-social personality disorder, at the time of the offences you were experiencing symptoms of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (DSM-IV-TR, code 309.4) and that you still report some symptoms of Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-IV-TR, code 309.28), albeit that the symptoms are now controlled and relatively minor. He suggests that the primary trigger for the development of the Adjustment Disorder was the ongoing turbulence of your marriage to Helen Heenan and that a secondary trigger was stress associated with business dealings. I take leave to add to the list of primary triggers the excessive consumption of alcohol. As Mr Cummins said in oral evidence, he considers that you do have a drinking problem which needs to be modified and he emphasised that in his opinion you would benefit from an anger management programme.

38 Mr Cummins stated in oral evidence that your attitude to your offending and Ms Heenan has changed since he first saw you after you were arrested. Whereas previously he found you unable or unwilling to come to grips with your offending, and that you were not candid about what had happened, he says that you now speak with remorse in the sense that you are genuinely embarrassed and ashamed of what you did and wish that you were not in the position that you now find yourself.

39 Your son, Mr Alan Heenan, gave evidence to similar effect. He too said that your attitude has changed since you were arrested. To begin with, he said, it was that Helen Heenan was asking for the beating which you gave her. But, he said, you now wish that it had not happened; you wish that Ms Heenan had been "up front" and "not gone down the reconciliation path", in which case there would have been no assault; and you now accept that you committed the crimes and did the wrong thing. But Alan Heenan also disclosed in cross examination that your attitude remains that Ms Heenan is in part responsible for bringing the beating on herself To my way of thinking that is hardly a resounding manifestation of genuine remorse.

40 Mr Morrissey submitted on your behalf that I should regard you as having made significant progress along the path to remorse and rehabilitation. I accept that submission. But insofar as you continue to regard Ms Heenan as having brought the beating on herself, you still have a long way to go.

Previous character and convictions

41 You have a number of prior convictions relating to the abuse of alcohol and traffic infringements, stretching back over thirty years. On 16 March 1973 your were convicted before the Magistrates' Court at Moonee Ponds of driving a motor vehicle whilst exceeding the prescribed blood alcohol concentration limit and sentenced to pay a fine of $50 and your driver's licence was cancelled for a period of 12 months. On 8 October 1973, you were convicted before the Magistrates' Court at Footscray of exceeding the speed limit in a 35 mph zone and driving a motor vehicle whilst exceeding the prescribed blood alcohol concentration limit and sentenced to pay a fine of $40 on the first charge and $50 on the second charge and you were disqualified from obtaining a drivers' licence for a period of 18 months. On 1 August 1985 you were convicted before the Magistrates' Court at Cheltenham of being an unlicensed driver and fined $100. On 22 July 1986 were convicted before the Magistrates' Court at Bairnsdale of exceeding the speed limit in a 100 kph zone and sentenced to pay a fine of $130 and disqualified from obtaining a drivers' licence for a period of one month. On 14 August 1991 you were convicted before the Magistrates' Court at Prahran of driving a motor vehicle whilst exceeding the prescribed blood alcohol concentration limit and fined $250 and disqualified from obtaining a driver's licence for a period of 24 months. On 22 October 1993 you were convicted before the Magistrates' Court at Heidelberg of attempting to obtain property by deception and driving a motor vehicle whilst disqualified and sentenced to a fine of $2,500 on the first charge and $500 on the second. On 21 February 1994 you were convicted before the Magistrates' Court at Frankston of driving a motor vehicle whilst disqualified and disobeying a traffic control signal and fined $500 on the first charge and $150 on the second. On 9 December 1998 you were convicted before the Magistrates' Court at Ringwood of being an unlicensed driver and using a telephone whilst your vehicle was in motion and fined $600. On 22 May 2001 you were convicted before the Magistrates' Court at Ringwood of driving a motor vehicle whilst exceeding the prescribed blood alcohol concentration limit and being an unlicensed driver and fined $2,000 and disqualified from obtaining a driver's licence for 30 months. And on 30 July 1997 you were found guilty before the Magistrates' Court at Melbourne of unlawful assault, being drunk in a public place and assaulting a police officer in the lawful execution of duty and fined in the sum of $100.

42 I do not think that any of those offences is directly relevant to the sentence now to be imposed upon you. They are, however, further evidence that you have for a very long time had a problem with alcohol, with which you have been unable or unwilling to deal, and they demonstrate an alarming degree of indifference towards the road traffic laws; particularly the prohibition on drink driving.

43 Significantly, however, on 30 August 2004 you were convicted before the Magistrates' Court at Ringwood of charged of failing to undergo a further breath test; refusing to remain at a breath testing station for the breath test; exceeding the prescribed blood alcohol content after 3 hours; failing to provide name and address to an injured person at a motor vehicle accident; failing to render assistance after an accident; failing to stop your motor vehicle after an accident; being an unlicensed driver (3 charges); driving a motor vehicle in a careless manner; failing to comply with traffic control signal; and failing to answer bail. You were in respect of the first four of those charges sentenced to a total effective sentence of 6 months' imprisonment to be served by way of an intensive correction order and on the remainder of the charges to several fines. Consequently, you committed the offences for which you now stand to be sentenced while subject to the intensive correction order and in plain breach of its conditions. Your offending in those circumstances implies a degree of contempt for the law - an attitude that it is open to you to disregard its requirements whenever you choose - and therefore need of a longer period in which to achieve rehabilitation.

Mitigatory considerations

44 There are several factors in your favour which I take into account. Despite your initial denials and false assertions that you acted in self-defence, you have now pleaded guilty to the offences with which you are charged and I consider that you are entitled to a substantial discount on the sentence to be imposed in respect of those offences. Although the plea came late, the situation was complicated by allegations that you had committed other serious offences against Ms Heenan, and it is notable that the Crown did not proceed with those other allegations. By your plea you have saved the court and the community a considerable amount of time and resources and that stands to be rewarded, and your willingness to plead saved Ms Heenan and your children from the ordeal of a trial, which I consider is worthy of a further discount. Unfortunately, I am unable to treat your plea as demonstrating complete empathy and remorse. It is not possible to do so long as you continue to think of Ms Heenan as having in some way brought the attack on herself.

45 It counts in your favour that you are without significant prior convictions for offences of violence . I have noted that on 30 July 1997 you pleaded guilty before the Magistrates' Court at Melbourne to one charge of being drunk in a public place and to charges of unlawful assault and assaulting police in the lawful execution of duty. But in that case you were fined without conviction because of the particular circumstances of the offending. In the result, I treat that conviction as another example of your inability or unwillingness to deal with your drinking problem, and to that extent as reflecting upon your prospects of rehabilitation, but not as involving the sort of gratuitous violence and viciousness which informed the present offences.

46 According to evidence presented on the plea by your solicitor and friend Mr Effron, you have been moderately successful in the industry in which you now work and you stand a fair chance of being more successful after being released. Understandably, he said, you are anxious to return to your business and resume control in order to steer it through the next phase of its development. Subject to your difficulties with alcohol and resultant behavioural problems, I gather that you are relatively well adjusted and well received in your business dealings with others. Unfortunately, it detracts from that impression that you have a conviction for obtaining property by deception, an offence which Mr Morrissey characterised as constituted of an optimistic insurance claim, although it is to be noted that the offence is now more than 10 years in the past.

47 Evidently, you have worked hard at being a good father to the four children of your marriage to Ms Heenan and have provided well for them. Given the difficult circumstances of your early life, and the emotional set-backs and trials which no doubt have attended your three failed marriages, it counts in your favour that you have come so far.

Conclusion

48 Balancing the competing considerations to which I have referred, including in particular the need for denunciation and punishment of your form of offending, I have determined to sentence you on the count of assaulting Steven Ignatiadis (Count1): to six months' imprisonment; on the count of aggravated burglary, (Count 2): to three years' imprisonment; on the count of making a threat to kill Helen Heenan (Count 3): to 12 months' imprisonment; on the count of intentionally causing serious injury to Helen Heenan (Count 4): to four years' imprisonment; and on the count of making a threat to kill Steven Ignatiadis, (Count 5): to 12 months' imprisonment.

49 The offence of threatening to kill Ms Heenan (Count 3) is a serious violent offence within the meaning of s. 6B of the Sentencing Act 1991, and the offences of intentionally causing Ms Heenan serious injury (Count 4) and threatening to kill Mr Ignatiadis (Count 5) are relevant offences with the meaning of that section. It follows, by reason of s.6D, that in sentencing you on Counts 4 and 5 I must regard the protection of the community as the principal purpose for which the sentence is to be imposed. I do not consider that it is necessary in order to achieve that purpose to impose a sentence longer than is proportionate to the gravity of either offence considered in light of the objective circumstances. I am of the view, however, that the sentences to be imposed on Counts 4 and 5 should be served cumulatively on part of the sentence to be imposed on Count 3.

50 In the particular circumstances of this case, I regard your offence of intentionally causing serious injury as the most serious of the offences which you committed on 1 January 2005,[8] and I propose, therefore, to treat the sentence to be imposed on Count 4 as the base sentence. I am also of the view that it should be served cumulatively on the sentence of six months' imprisonment which was imposed on you in the Magistrates' Court on 30 August 2004, and that one year of the sentence imposed on Count 3 should be served cumulatively upon the sentence to be imposed on Count 4,[9] and on the sentence of six months' imprisonment imposed on 30 August 2004, with the whole of the sentences imposed on Counts 1, 3 and 5 to be served concurrently with the sentence to be imposed on Count 4. The total effective sentence, therefore, will be five years' imprisonment, to be served cumulatively on the sentence of six months' imprisonment which was imposed on you in the Magistrates' Court on 30 August 2004.

51 For the reasons which I have expressed, I consider that your chances of rehabilitation are fair, especially if you are able to curb your anger and consumption of alcohol, and, given the kind of assistance that is available to you in the prison system and in light of Mr Cummins' evidence and what was said by Mr Alan Heenan, I think that there is a fair possibility of that being achieved in the medium term. In the result, I propose to set a new non-parole period of thirty months in respect of all the sentences that you are to serve or complete.

Sentence

52 Peter Alan Heenan, you are convicted of one count of assaulting Steven Ignatiadis (Count 1); one count of aggravated burglary (Count 2); one count of making a threat to kill Helen Heenan (Count 3); one count of intentionally causing serious injury to Helen Heenan (Count 4); and one count of making a threat to kill Steven Ignatiadis (Count 5). I now sentence you in respect of those offences as follows:

• On the count of assaulting Steven Ignatiadis (Count 1): to six months' imprisonment;

• On the count of aggravated burglary (Count 2): to three years' imprisonment;

• On the count of making a threat to kill Helen Heenan (Count 3): to 12 months' imprisonment.

• On the count of intentionally causing serious injury to Helen Heenan (Count 4): to four years' imprisonment.

• On the count of making a threat to kill Steven Ignatiadis (Count 5): to six months' imprisonment.

53 I order that one year of the sentence imposed on Count 2 and the whole of the sentence imposed on Count 4 be served cumulatively on the sentence of six months' imprisonment which was imposed on you by the Magistrates' Court on 30 August 2004 and on each other, and that the whole of the sentences imposed on Counts 1, 3 and 5 to be served concurrently with the sentence to be imposed on Count 4; making for a total effective sentence of five years' imprisonment to be served cumulatively on the sentence of six months' imprisonment which was imposed on you by the Magistrates' Court on 30 August 2004.

54 I declare that you have been sentenced in respect of Counts 4 and 5 as a serious violent offender and, pursuant to s.6F of the Sentencing Act 1991, I direct that there be noted in the Court's record the fact that you have been so sentenced in respect of those Counts.

55 Pursuant to s.14 of the Sentencing Act 1991, I set a non-parole period of thirty months beginning this day in respect of all the sentences that you are to serve or complete.

56 I declare that the period to be reckoned as already served under the sentence I have imposed on you is four hundred and fifty eight (458) days inclusive of today's date and I direct that there be noted in the Court's records the fact that the declaration has been made and its details.

57 I order pursuant to s.465ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping from the mouth and/or blood sample in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958 until a sufficient sample is obtained for placement on the database.

58 I further order pursuant to s.78(1) of the Confiscation Act 1997, the forfeiture to the State of the broken statue and its leg.

[1] Because it is one of a number of violent offences committed at the one time, albeit comprised in part of the same acts: see R v Revell unreported VSCA 19/2/96 at 7, per Callaway, J.A.; cf. R v Villis unreported VCCA 27/11/89 at 11 per Murphy, J; and R v Chau unreported VCCA, 31/7/91, in which the sentence imposed on the count of aggravated burglary was treated as the base sentence. See also Fox & Freiberg, Sentencing at [12.612].

[2] See, for example, DPP v Zullo [2004] VSCA 153; R v Mafula Tafa Sa [2004] VSCA 182.

[3] R v Chisholm, unreported, VCCA, 4/11/88 at 3, per Young, C.J.

[4] cf. DPP v Muliaina [2005] VSCA 13.

[5] Although it is unusual for a sentence of that order to be imposed: see, for example: R v Thuok and Khay [2002] VSCA 124 (12 months); R v Connolly [2004] VSCA 24 (6 months); R v R J R [2005] VSCA 315 (3 years); R v Davis [2006] VSCA 8 (6 months); DPP v Muliaina [2005] VSCA 13 (6 months).

[6] (1982) 8 A. Crim. R 262 at 264.

[7] Stingel v The Queen [1990] HCA 61; (1990) 171 C.L.R. 312 at 326-7 and 329; Mosciantonio v The Queen [1995] HCA 67; (1995) 183 C.L.R. 58 at 67.

[8] Despite that it carries a lesser maximum penalty than intentionally causing serious injury: cf. R v El-Kotob and Hijazi [2002] VSCA 109 at [5]- [8].

[9] See R v Henderson [1998] VSCA 83; [1999] 1 V.R. 830 at [21].