R v Henderson-Drife [2007] VSCA 211

3 In 2002, the appellant employed a woman as a bookkeeper in his business. In 2004, he began a relationship with her. She is somewhat younger than he. On Sunday 23 April 2006, the appellant, in company with a female friend whom he will not identify, went to the home of a man with whom he believed, correctly, as matters transpired, the woman in question was having a relationship. He took with him a semi-automatic Ruger .22 calibre handgun with a silencer affixed to it. He was at the time under the influence of alcohol and medication.

4 The appellant and his female accomplice arrived at the house at approximately 6.55 p.m. The female accomplice knocked on the door and spoke to the male victim, pretending to make an inquiry about a 'For Sale' sign across the road. When the male victim moved outside to continue the conversation, the appellant moved forward, holding the pistol in his left hand. The appellant then said who he was and lifted his hand to point the gun at the victim's chest, saying words to the effect, "We're going inside to talk." Unsurprisingly, the male victim complied. It so happened that he was on the phone to the woman in question at the time. She was interstate. The appellant said he wanted to be shown around. The male victim said that the woman was not there. The male victim told the appellant that she was actually on the phone and the appellant spoke to her. After hanging up, the appellant said words to the following effect to the victim: "You've got yourself mixed up in an unfortunate situation. You're involved with someone who's a liar. She has major financial problems and the police are investigating you for drugs." The appellant and his female accomplice then left.

5 The male victim telephoned the woman concerned and told her what had occurred. She telephoned the police, who arrived shortly afterwards. Police took the male victim to the police station to make a statement. Whilst he was away, the appellant returned to the victim's address. The woman's car was parked in the driveway. The appellant painted the word 'slut' on both sides of the car.

6 On the next day, 24 April 2006, the police executed a search warrant at the appellant's business. In an unlocked upstairs cupboard they located a black case containing a fully-loaded Ruger .22 handgun with a red dot laser scope, a silencer, a spare magazine, a box of ammunition and a spare firing pin. The serial number on the pistol had been removed. This firearm matched the description which the male victim had given of the gun that had been pointed at him. When interviewed, the appellant exercised his right to make no comment in relation to the allegations.

7 The appellant pleaded guilty to a presentment containing five counts. In relation to the events on 23 April 2006, he pleaded guilty to one count of aggravated burglary, being his entry as a trespasser with intent to assault a person and having with him an offensive weapon (count 1), one count of assault, being the act of pointing the pistol at the male victim's chest (count 4), and one count of criminal damage, being the spray-painting of the car (count 2). He was also charged with two additional counts arising out of the events on 24 April 2006. He pleaded guilty to one count of possession of an unregistered handgun (count 3), and one count of possessing a firearm on which the serial number had been defaced or altered (count 5).

8 A judge in the County Court heard a plea on behalf of the appellant on 19 January 2007. The appellant's personal circumstances were outlined. Those circumstances were noteworthy for the absence of characteristics often found in persons coming before the courts. He has stable employment. He has positive family and social connections. He has few prior convictions and none for violence. He does not seem to have had an unhappy upbringing. He does not abuse drugs or alcohol. A psychological report in relation to the appellant was tendered on the plea. It was by Ms Carla Lechner, a clinical psychologist, and was dated 18 January 2007. The report indicated that the appellant had undertaken a course of counselling consequent upon being charged. It otherwise confirmed the general nature of the appellant's background and character, to which I have already referred. The opinion was expressed that the appellant had a capacity for insight and reflection, and that there was no underlying psychological or psychiatric disorder. Ms Lechner's opinion was that the events were very much out of character and that the risk of his re-offending was minimal.

9 The County Court judge sentenced the appellant on 24 January 2007. The sentences he imposed were: count 1 (aggravated burglary) - 20 months' imprisonment (head sentence); count 4 (assault) - eight months' imprisonment (two months cumulative); count 2 (criminal damage) - four months' imprisonment (one month cumulative); count 3 (possession of unregistered handgun) - 12 months' imprisonment (four months cumulative); count 5 (possession of firearm with number defaced or altered) - four months' imprisonment (one month cumulative). The total effective sentence was 28 months' imprisonment. The County Court judge fixed a non-parole period of 14 months.

10 The sentencing judge has treated the aggravated burglary as the most serious offence. He has imposed the heaviest sentence on that count and has treated that as the head sentence. He has treated the assault as also being a serious offence but has only directed cumulation of one quarter of that sentence, being two months. The criminal damage charge attracted a sentence of four months' imprisonment. Whilst part of the same broad episode as that involving the aggravated burglary and the assault, the criminal damage was a separate incident in that it occurred after the episode appeared to be over and whilst the male victim was at the police station. The sentencing judge ordered cumulation of one quarter of that sentence, being one month.

11 The offences arising out of the events the next day, when the appellant was found to be still in possession of the handgun, which, when found, was loaded; and when it was discovered that the serial number on the gun had been defaced or altered, attracted sentences of twelve months and four months respectively. The sentencing judge cumulated one third of the sentence for possession of the handgun and one quarter of the sentence on the offence of possessing a firearm with the number defaced or altered.

12 The appellant now appeals on a number of specific grounds. The appellant does not contend that the sentences are manifestly excessive, but rather relies on five specific instances where it is said that the sentencing judge fell into error. There were six grounds of appeal but one was abandoned in argument. I will deal with each of the five grounds now relied upon separately.**

Ground 1 - treating the presence of the silencer and additional ammunition on 24 April as an aggravating feature of the possession count (count 3)

**13 At paragraph 18 of the judge's reasons for sentence, he was referring to count 3 on the presentment. This was the count of possession of an unregistered handgun on 24 April 2006, discovered when the police executed a search warrant at the business premises the day after the aggravated burglary, assault and criminal damage. The sentencing judge referred to photographs of the handgun, which he described as "sophisticated...with a lot of accompanying equipment". The sentencing judge then said: "The existence of the silencer and additional ammunition is an aggravating feature."

14 The appellant submits that possession of a silencer and possession of ammunition were potentially separate offences with which the appellant might have been charged under ss 57(1) and 124(1) of the Firearms Act 1996. It was submitted that in these circumstances, by taking into account those matters as an aggravating feature, the sentencing judge has infringed the principle in R v De Simoni[1] and R v Newman and Turnbull[2], whereby a person should not be punished for an offence of which he has not been convicted.

15 In my view, this ground is without substance. It is certainly true that no person should have facts taken into account against him which establish a more serious offence than that of which he has been convicted. To do so is to infringe what Winneke P described in R v Newman and Turnbull as the venerable principle that a person cannot be sentenced for an offence with which he has been neither charged nor convicted.[3] But, as Winneke P pointed out, there is another venerable principle which is also relevant, and that is that a sentencing judge is bound to take into account all the circumstances which are relevant to the offence with which the person has been charged. Where a person has been charged with an offence and the circumstances reveal the possibility of less serious offences, it is a matter of fairness and degree whether the circumstances which might have amounted to less serious offences can properly be taken into account as part of the circumstances surrounding the offence charged. In this respect, I refer in particular to the observations of Nettle JA in R v Nobile.[4]

16 Counsel for the appellant before us submitted that the significant issue was not whether the other potential offence was more serious or not. He accepted that it is not the position that circumstances which might have been the foundation for a different charge can never be taken into account, and submitted that in such cases the issue is an issue of fairness. He particularly relied upon the decision in R v Newman and Turnbull.

17 The circumstances which arose in R v Newman and Turnbull are a good illustration of when the principle does operate. In that case a number of persons were charged with aggravated burglary. What had in fact occurred was that the persons had not only burgled the relevant property but had then carried out a violent attack on the person inside. They were not charged with the assault, and yet the circumstances of the violent attack were a very prominent feature of the sentencing remarks of the judge. This Court held that that judge had fallen into error. What were treated as aggravating circumstances there were, in themselves, a discrete and serious offence, and it was clear that the sentencing judge had, in the words of Winneke P, the circumstances of the assault "very much in the front of his mind when sentencing"[5]. That is not the position here.

18 The appellant was not charged with offences of possession of a silencer and possession of ammunition, but such offences are considerably less serious than the relevant offence with which the appellant was charged and to which he pleaded guilty. In my view, it was appropriate for the sentencing judge to take into account the presence of the additional equipment as an aggravating feature. The presence of those items was significant only because they were present with the handgun which was the subject of the relevant charge. It was not unfair to the appellant to have had regard to their presence in that way, notwithstanding that he was not also charged with possession of a silencer and possession of ammunition.**

Ground 2 - reliance on the 1991 appearance in relation to possession of an air rifle

**19 In 1991, the appellant appeared in the Magistrates' Court at Prahran on charges of possession of an unregistered firearm and failing to correctly store a firearm and ammunition. He was placed on a good behaviour bond. Inquiries undertaken at the instance of the sentencing judge confirmed that the firearm in question had been an air rifle, sometimes referred to as a slug gun.

20 In the course of the plea hearing, the sentencing judge observed, at a point prior to confirmation that the firearm had been an air rifle, that if it was a slug gun and that was all, "then I would take a different view than if it was a serious firearm". As indicated, it was confirmed that the firearm in question had been an air rifle. In the sentencing judge's sentencing remarks, he said, at paragraph 13, that this prior conviction had "some relevance". At paragraph 23 he referred to this prior appearance and then said: "You must have known when you came into possession of this pistol, whenever that was, that you were at greater risk by reason of your prior appearance on a related matter, even if it was only a slug gun."

21 The appellant submits that two errors have been revealed by this remark. The first is that the sentencing judge has erroneously treated the possession of the pistol as being more serious because of the prior appearance related to the air rifle. The second is that he should not have treated the prior appearance in relation to the air rifle as having any relevance at all.

22 The prior appearance in relation to the air rifle was an old one and concerned a far more innocuous weapon than that in issue here. But it can not be said, in my view, that it had no relevance at all. It would be surprising if it were treated as a matter of particular significance, but in my view the sentencing judge did not treat it that way.

23 The sentencing judge did make the observation that the prior appearance meant that the appellant must have appreciated a greater risk referable to possession of a pistol of this kind because he had previously had to appear in court for possession of an unregistered firearm. In my view, this observation was justified. In any event, the sentencing judge has not given this consideration any significant weight. Reading the sentencing reasons as a whole, it seems to me that the matters which were significant to the sentencing judge, correctly in my view, were the circumstances of the offences themselves, particularly the use of a firearm of this nature to gain entry to the male victim's home (see the sentencing judge's remarks at paragraphs 7, 16 and 21); the absence of a credible explanation for possession of the pistol (see the sentencing judge's remarks at paragraph 19); and the potential which existed for shocking consequences as a result of conduct of this kind (see the sentencing judge's remarks at paragraph 24).

24 I reject the submission that the sentencing judge has been demonstrated to have fallen into error in this regard.

Ground 4 - failure to properly address overlap between counts 1, 3, 4 and 5

26 It was submitted that in this case relevant conduct overlaps between the counts so that the principles set out in cases such as Pearce v The Queen[6] and R v El-Kotob[7] apply to prevent what would otherwise be double punishment. The relevant overlap is said to be between count 1, the aggravated burglary on 23 April 2006, and particularly counts 3 and 5, the possession offences on 24 April 2006. Reference was also made to count 4, but that, it seems to me, was not greatly pressed. It was accepted by counsel for the appellant that some cumulation in relation to count 4 was appropriate.

27 In my view, this is not a case of overlap of the relevant kind. This is not a case where it can be said, as was held to be the case in R v Langdon and Langdon[8], that there is no remnant of criminality remaining in certain of the counts after one has had regard to the conduct required to establish guilt on another count. The appellant here used the firearm on 23 April 2006. Then, on 24 April 2006, he was found to be still in possession of it, fully loaded. Not only was he still in possession of that handgun, but it was revealed to be a handgun upon which the serial number had been defaced or altered.

28 Sentencing the appellant on each of these counts does not create the circumstances of double punishment dealt with in cases such as Pearce v The Queen.

29 It can be maintained that the offences might properly be treated as part of one course of conduct or one episode and that that circumstance should be appropriately reflected in the cumulation. In my view, the sentencing judge has done that.**

Ground 5 - failure to give weight to payment of compensation

30 According to the prosecutor's opening to the sentencing judge, the cost of rectifying the damage to the car upon which the word "slut" had been painted on both sides was $495. In the course of the plea counsel for the appellant said as follows:

"A further matter, if I can indicate in relation to the criminal damage, a cheque for the amount of the damage was forwarded I think a week after his release from Mr McKay's office to cover the costs of the repairs. So, in my submission, he is a person of good character in the time frame leading up to the events of the night of 23 April and he has behaved in a manner subsequent to them, in my submission, which demonstrates cogently remorse and also rehabilitation."

Mr McKay was the appellant's solicitor. Nothing more was said about the matter on

the plea. The judge did not refer to it in his sentencing remarks.

31 The sentencing judge recognised that, apart from the matters that were before him, the appellant was a man of good character. The sentencing judge found that the appellant felt "a level of remorse", but he said that that conclusion was tempered by his non-identification of the accomplice and by what the judge described as the "nonsense story" of how he came to have the firearm. The payment of $495 through the appellant's then solicitor added nothing of significance to that position in my view. I do not consider that any error is revealed by a failure to refer to it.

Ground 6 - failure to act on the evidence and a concession that the appellant believed he was still in a relationship with the woman concerned at the time of the offending

32 In the summary of the circumstances opened to the sentencing judge by the prosecutor, what was said concerning the relationship between the appellant and the woman in question was that in "...late 2005 [the woman] made a number of attempts to end the relationship...In December 2005 [the woman] commenced a relationship with the victim.". A little later, the prosecutor said: "...the Crown would accept that at least in his mind [a reference to the appellant] he was still in a relationship." The sentencing judge wished to have the matter clarified and referred to the need to review relevant statements on the issue. The prosecutor then said:

"It's uncertain whether there was an ongoing relationship from the Crown's point of view."

33 Amongst other things, in the course of the plea, counsel for the appellant said:

"It's a circumstance where clearly the relationship was deteriorating, even to his own eyes, as at April 2006."

34 What the sentencing judge said in his sentencing remarks was as follows (at paragraph 3):

"What was the state of your relationship with her is unclear. What is certain, however, is that by April 2004 [it should have been 2006] you were aware she had established a relationship with [the male victim]."

35 The submission made by the appellant is that the reference by the sentencing judge to the state of the relationship as being unclear, and his failure to make reference to the appellant's belief that he was still in a relationship, constitutes an error. The reason it is said to be an error is because it is inconsistent with the prosecutor's concession, with the material in the report of the psychologist and with the evidence given on the plea by the appellant's then solicitor, who is also a friend, Mr McKay. It is then submitted:

"It is one thing for a person to act as the appellant did if he had believed, but was unable to accept, that the relationship was at an end. It is another to act in that way when he believed he was still in a relationship. That is not to justify a violent response to the end of a relationship, whether that news has come as a shock or has been known (but not accepted) for some time. To be sure, in each case, the offence remains serious. However it is to recognise human frailty in the face of a shock at a perceived breach of trust that individuals repose in each other in such relationships. It is submitted that, for sentencing purposes, the appellant's moral culpability is not as high in such circumstances."

**36 I reject this analysis. First, there is no evidence of any "shock". But even if there was, the suggestion that behaviour of this kind somehow involves moral culpability at a lower level because one is in a relationship, or believes one is, rather than not in a relationship, is in my view untenable.

37 The account of events given by the appellant himself to the psychologist, as set out in the tendered report, was as follows:**

"According to Mr Henderson-Drife...his girlfriend...had indicated she was away interstate for the weekend and could not be contacted. On the Sunday of the weekend, Mr Henderson-Drife observed her car in another man's driveway. He stated that he asked a friend for advice and that she recommended that Mr Henderson-Drife confront her. He was driven to the home by his friend - 'for some reason I can't explain, I took a gun.' "

**38 As was submitted by counsel for the Crown on this appeal, this was a premeditated and armed visit to the home of an innocent person, where he expected to find the person he describes as his girlfriend and who he intended to confront. The sentencing judge found his explanation as to how he came to have the pistol to be "nonsense", and no submission contesting that conclusion has been made to us. The suggestion that the moral culpability involved in this conduct differs depending upon whether the appellant believed he was still in a relationship or not is one which I reject.

39 In any event, the judge has not acted on an erroneous view of the Crown's position or of the evidence.

40 Mr McKay's evidence concerning the period from 1 January 2006 until the time of the incident was as follows:**

"I still bumped into [the woman concerned] every couple of months and at that stage I had no indication from either of them that it wasn't still going on but I was aware of the fact that there was some tension, that they appeared to be having some arguments."

"He admits there were some hiccups in their relationship in the week prior to the offences, but added that in his mind they had reconciled those differences and were still together."

**42 The initial Crown position was that the woman concerned had tried to end the relationship and had formed a new one. The Crown then accepted that "at least in his mind" the appellant was still in a relationship with her. The Crown finally submitted that its position was that it was uncertain whether there was an ongoing relationship.

43 The sentencing judge accurately observed, in my view, that the state of the relationship was unclear.

44 I wish to make it clear, however, that even if it were clear that they were in a relationship at the time and that there was some kind of "shock" discovery, the suggestion that the response, by way of a planned confrontation with a semi-automatic Ruger .22 calibre handgun, involves some lesser level of moral culpability than would otherwise be the case is one which I utterly reject. The notion that that kind of conduct in response to relationship problems is less culpable than it might be in other contexts is wrong, in my view. The tragedy which can result from such conduct has been seen repeatedly in these courts.

45 As I have rejected each of the suggested errors, in my view the appeal should be dismissed.

48 The order of the Court is that the appeal against sentence is dismissed.**

[1] [1981] HCA 31; (1981) 147 CLR 383.

[4] [2006] VSCA 211, [8].

[7] [2002] VSCA 109; (2002) 4 VR 546.

[8] [2004] VSCA 205; (2004) 11 VR 18.