Criminal division – sentencing

“I respectfully agree with what her Honour said in sentencing the appellant, about the need for a person to be free to bring a relationship to an end without the other party to the relationship reacting violently:

‘People in Ms Hogan’s position must be allowed to freely exercise their right to terminate a relationship, to have their wishes respected even if they do not accord with the wishes of the other party to the relationship, even if the other party feels hard done by. People in Ms Hogan’s circumstances must be able and feel free to terminate a relationship without fear of violence, actual or threatened, without violation of their sense of safety in their homes and without fear of suffering damage to or destruction of their property. Where a person, even if they feel they are a jilted lover, and even if they feel they have a justifiable sense of grievance over the circumstances in which the relationship came to an end, resorts to violence, threats and wanton destruction of property directed towards the person they were in a relationship with, they must understand that if they do so, they are committing serious criminal acts and will suffer punishment at the hands of the criminal justice system. They must also accept that it is their behaviour, not that of the other party, which has put them in a position where they face criminal charges and that they must not consider that they can pressure or threaten their victims into withdrawing the charges. If they do what you have done, they must understand that such conduct too is criminal and they will be punished for it. A failed relationship, or a prospect of facing criminal sanctions for the manner in which you conducted yourself with your former girlfriend and her friends is no justification for using threats, violence and causing wanton damage to property to attempt to deter her from proceeding or in retaliation for her proceeding with being a witness in criminal proceedings. They were of course, not her proceedings but proceedings taken by the police as a result of the complaints made by her and others.’”

In R v Kane [2010] VSCA 213 the accused had pleaded guilty to charges of intentionally causing serious injury, intentionally causing injury, assault, criminal damage and breach of intervention order, all of which were committed on his ex-partner after she had told him that she was ending their relationship. He received a total effective sentence 10y/7y, including 8y on the charge of intentionally causing serious injury. In allowing his appeal, Nettle JA (with whom Harper & Hansen JJA agreed) said:

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  At [17]: “In her sentencing remarks, the sentencing judge observed, correctly, that it is incumbent on a sentencing judge to impose condign punishment in a case like this in order to send a clear message to likeminded people that a civilised society does not condone people using physical violence to take the law in their own hands to settle disputes and deal with domestic partners in a violent way. Her Honour also observed, correctly, that inasmuch as these attacks were cowardly, unprovoked and unexpected attacks, there was a particular need for specific deterrence.”
  
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  At [23]:”Although a sentence of eight years' imprisonment imposed is high for a count of intentionally causing serious injury not involving the use of weapons [cf. R v Heary (2002) 22 VR 164, 202 [150] (9y imprisonment)] or resulting in the total and permanent incapacity of the victim [cf. DPP v Terrick, Marks and Stewart (2009) VSCA 220, [17] (8y imprisonment); Ashe v R [2010] VSCA 119 (recklessly causing serious injury, 10y imprisonment)], the nature and gravity of this offence was formidable and the effects on the victim were painful and lasting. It called for a sentence which reflected that.
  
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  At [24]: “The Crown, however, concedes that the sentence is excessive. It draws attention to the decision of this Court in R v Harvey [2007] VSCA 127 where the majority held that a sentence of nine years' imprisonment imposed on a serious violent offender on a count of intentionally causing serious injury was manifestly excessive, and varied the sentence to six years. Although I dissented in that case, I am bound to heed it. The Crown also makes mention of R v Pennell and Rankin [2007] VSCA 225 in which I joined, where the nature and gravity of the offending was more serious than here, albeit that the offenders were younger, and the sentence imposed was only six years' imprisonment.”
  
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  At [25]: “Sentencing cases are without precedential value. Each case is unique and dependent on its own circumstances. The most that can be derived from previous decisions is their exposition of sentencing principles. But in view of the Crown’s concession, and given the similarities and dissimilarities between this case and the cases to which the Crown has drawn attention, I am persuaded that a sentence of eight years’ imprisonment was, in this case, beyond the sentencing range. It may be that there is a need to revisit current sentencing practices in relation to offences of intentionally causing injury. But this is not the case in which to do that; if only because of the sentencing range of five to seven years’ imprisonment which was put by the Crown to the sentencing judge on the plea.”
  

The accused was re-sentenced to 6y imp on intentionally causing serious injury. The other sentences and cumulation were confirmed, resulting in 8y/6y.
11.2.24.6 Sentencing for reckless endangerment

In R v Hennessy [2010] VSCA 297 the applicant had been sentenced to IMP5y/3y after pleading guilty to one count of reckless conduct endangering life. The impugned conduct consisted of repeated acts of unprotected sexual intercourse between the applicant and his future wife for 4 months in 1996, the applicant being aware at all relevant times that he was HIV positive. Drawing a distinction between reckless endangerment on the one hand and intentional endangerment and intentionally causing serious injury on the other – and giving significant weight to the 12-13 year delay between offence and sentencing – the Court of Appeal allowed the appeal and re-sentenced the applicant to IMP4y/2y6m. See also The Queen v Neal [2011] VSCA 172 at [109]-[111]; R v Oakley [2012] VSC 392.