R v Lennon [2001] VSCA 233

"1. His Honour erred in failing to have regard to the following matters: (a) the evident remorse of the appellant; (b) the payment of compensation by the appellant; (c) the early offer of a plea of guilty to the proved offence by the appellant; (d) the matters suggesting some prospect for the appellant's rehabilitation. 2. His Honour erred in finding the proved offence to be 'a very serious example in the circumstances of the crime of manslaughter'. 3. The sentence was manifestly excessive."

11. The offence took place in the early hours of 5 September 1999. The deceased celebrated his 21st birthday at a party at the RSL premises in Footscray. When the party ended at midnight the deceased and a number of others went to a house in Gordon Street, Footscray. After a few hours the deceased left the premises with his girlfriend, and while they were waiting for a taxi the deceased and his girlfriend began to argue, yelling, slapping and pushing each other. The deceased's girlfriend

and another girl walked to a service station at the corner of Eleanor and Barkly Streets to buy cigarettes. They were accompanied by the deceased. The argument broke out again. The deceased's girlfriend and the other girl entered the service station while the deceased walked off down Barkly Street.

15. On the way to the service station the two women and the deceased passed the house where the appellant lived. The appellant, who had earlier consumed Valium, alcohol and heroin, said that he could hear yelling and screaming in the street and went outside to investigate. He saw a male, whom he described as "big, had no shirt on, he was abusive", approaching two females. According to the appellant's evidence he thought that the girls might be attacked or raped by the deceased, so he ran back into the house, armed himself with a kitchen knife, and drove off in his car to investigate. The appellant drove into Barkly Street, saw the two women at the service station and satisfied himself that they were safe, and then decided to drive home. As he did so he saw the deceased "staggering" along the footpath and stopped. The sentencing judge accepted that the appellant formed the view that the deceased was aggressive, banging and kicking at cars as he passed. The judge said that he was satisfied that the appellant became very angry and decided to confront the deceased, whom he regarded as disturbing the street. His Honour was unable to find precisely what occurred when the appellant met the deceased. He said:

"I am satisfied that you were angry at the time you took out the knife and left your home, and that you were still in a state of agitation when you stopped your vehicle for the purpose of confronting the person whose actions had precipitated your agitation. There would seem to be little doubt that a confrontation between the deceased and you did take place, in the course of which blows were struck by each of you, and in the course of which you resorted, as you had done in the past, to the use of your knife."

In the course of the fight the appellant inflicted 13 wounds upon the deceased with his knife.

20. The appellant is now 42 years of age. Shortly before his birth his father assaulted his mother, and as a result she was permanently incapacitated. She began to drink heavily, and when the appellant was nine years of age, his younger brother was knocked over by a car and killed when he was in the company of his mother. The family then fell apart. The mother left and went to live in a series of boarding houses. The appellant lived in a variety of houses and went to several schools. His formal education ended in Form 3. He was apprenticed at the age of 15 years as a motor mechanic, but completed only one year of his apprenticeship when his employer killed his wife and committed suicide in prison. The appellant worked in various jobs and at the age of 16 years went to live with his mother in a boarding house in Richmond.

23. In 1976 the appellant was convicted of a charge of causing wilful damage and fined $40. In the next year he was convicted of burglary and causing wilful damage and sentenced to be detained in a youth training centre. In the following year he was convicted of escaping from the youth training centre and assault. Over the ensuing years the appellant committed a large number of crimes. He had some 43 previous convictions from 17 court appearances. The prior convictions included causing wilful damage, burglary, assault, theft, shortening a firearm, being in possession of a firearm, handling stolen goods, assault by kicking and discharging a missile to the danger of another person. The appellant was also convicted of recklessly causing injury, recklessly causing serious injury and two counts of intentionally causing injury. His last conviction was in 1994, when he was sentenced to be imprisoned for four years and eight months on a charge of recklessly causing serious injury. The offence arose from an incident at a hotel, when the appellant became involved in an argument with another man whom he stabbed a number of times in the neck.

26. In the 1980s the appellant became addicted to drugs, and in 1991 completed a program at Odyssey House. He married in that year and his wife bore him twin girls. For some time he managed to avoid using drugs, but continued to drink heavily. He also continued in his criminal career, resulting in years spent in prison, and eventually was divorced from his wife. It would appear that the appellant has not been entirely successful in giving up drugs, as his ingestion of heroin on the night on which he killed the deceased shows.

29. Counsel for the appellant has placed some emphasis on the fact that in the course of his sentencing remarks the sentencing judge did not refer to the appellant's remorse, his payment of compensation to the parents of the deceased and his early offer to plead guilty to manslaughter. Each of those matters, however, played a prominent part in the plea made on behalf of the appellant, and I would not conclude that his Honour did not give them due weight. When each of those mitigating factors and the facts said to disclose the potential of the appellant to be rehabilitated is examined, I do not consider that either separately or in combination they lead to the conclusion that the length of the sentence shows that they were not accorded proper weight.

32. The offer to plead guilty to manslaughter could not be described as a generous concession. It was not contested that it was the appellant who initially confronted the deceased and that the deceased died after being stabbed or slashed 13 times. The appellant in my view was in grave jeopardy of a conviction of murder and hardly likely to avoid conviction for manslaughter. Accordingly, I doubt the offer was to be taken to disclose remorse. The payment of compensation to the parents of the deceased was expressed to be in settlement of any claim which they might have under s.86 of the Sentencing Act 1991 and was preceded by an order made pursuant to s.18 of the Confiscation Act 1997 restraining any disposition of the appellant's interest in his house in West Footscray for the purpose of satisfying any order for restitution or compensation that might be made under the Sentencing Act. Eventually the appellant and the deceased's parents agreed upon payment of the sum of $30,000 in compensation from the proceeds of the sale of the house. The transaction bears the appearance of the settlement of a legal claim, although that cannot render it irrelevant. As to remorse, the appellant's counsel told the sentencing judge that "He tells me that he is very remorseful". His Honour commented that "I don't have any difficulty in accepting that ... he may well have an appreciation of the significance of what he has done and a regret at more than one level for it." In the end, the evidence of remorse consisted of the appellant's statements to his counsel and others, and the sentencing judge said that he accepted the fact of his regret.

35. The matters said to suggest that there was some prospect of the appellant's rehabilitation were the remorse, compensation and early offer to plead guilty to which I have referred, insight into his offending and the part he had played in the "prisoner listener" scheme. In the course of his sentencing remarks the judge noted that the appellant had been involved in the prisoner listener scheme, providing support and advice to other prisoners who were experiencing difficulties. Otherwise, I do not think that the matters said to disclose prospects for rehabilitation were out of the ordinary. In the course of the plea the appellant's counsel himself said:

"The options are a bit limited for Mr Lennon to show good faith and to show improvement. What he could do, I submit, hopefully he has, he has embarked on the prisoner listener program, he says he is very sorry about what has happened."

39. In considering whether the sentence is manifestly excessive, in my opinion it is significant that the second ground of appeal, that the sentencing judge erred in finding that the offence was a very serious example of the crime of manslaughter, has not been pursued. I regard his Honour's description as accurate. The appellant sought out and attacked with a knife a defenceless man. His victim may have been boorish, even offensive, but he did not deserve to die by being repeatedly stabbed. The appellant's offending is to be seen in the light of the fact that, apart from his extensive criminal record, he had on other occasions, without good cause, attacked and wounded people with knives. The crime was grave; the appellant's record showed that it was in character, and the factors relied on in mitigation, in my view, for the reasons I have stated, were of limited significance. In my opinion the sentence imposed upon the appellant was well within the range available to the sentencing judge. I would dismiss the appeal.

43. I will invite Brooking, J.A. to give the next judgment.

47. I agree with what has been said by Buchanan, J.A. It is clear that this appeal must fail, whatever view should be taken of the fact of the appellant's offer to plead guilty to manslaughter. I therefore say nothing about that point, beyond indicating my view that, had it become necessary to decide the point, I would have wished to consider whether, notwithstanding earlier decisions of this Court, there is, or should be, an inflexible rule that credit must always be given for an offer to plead guilty to the lesser offence of which the accused is in fact convicted, regardless of the circumstances, and even in cases in which it would have been quite wrong for the Crown to accept the plea of guilty of the lesser offence.

51. I agree, for the reasons given by Buchanan, J.A., that this appeal should be dismissed. I also agree that the question whether there is or should be an inflexible rule that a person, who has offered to plead guilty to the offence of which he is ultimately convicted, is entitled to receive a sentencing discount is a matter which should be reserved for future consideration. In this case it is unnecessary to determine it.

54. The formal order of the Court is that the appeal is dismissed.