Director of Public Prosecutions v Henderson

[2016] VCC 1444

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01595

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLIN HENDERSON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2016
DATE OF SENTENCE:	27 July 2016
CASE MAY BE CITED AS:	DPP v Henderson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1444

REASONS FOR SENTENCE
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Subject:  Aggravated Rape from 1981 to 1984
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                  15 years' imprisonment, 11 years' non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Gilligan
For the Accused	Mr S. Lindner

HIS HONOUR:

1Colin Henderson you have pleaded guilty to 4 charges of aggravated rape (Charges 1, 2, 3 and 5) and, one charge of indecent assault (Charge 4) and, one charge of aggravated indecent assault (Charge 6).

2Your offending occurred between 10 November 1981 (Charge 1) and
4 July 1984 (Charges 5 and 6). At the times you offended the maximum penalty for the offence of aggravated rape was 20 years' imprisonment.  The maximum penalty for the offence of indecent assault was five years' imprisonment and, the maximum penalty for the offence of aggravated indecent assault was ten years' imprisonment.

3The circumstances of your offending are contained in a summary of prosecution opening which was tendered in evidence and read in open court by the learned prosecutor Mr Gilligan.  Your counsel Mr Lindner accepted that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

4It is not necessary that I again set out in detail what is contained in the prosecution summary except in a very limited way.

5In each of the charges the victim was a woman who was living alone, save for one instance where the victim lived with her young child.  In each case the victim had placed an advertisement in a newspaper advertising for a person to share rental accommodation.  In each episode of offending with the three victims involved you responded to the advertisement and, in each instance, the victim trusted your bona fides and invited you into their respective home.  The offending all occurred at night.  You went to the home of each victim accompanied by a bottle or two of wine on the understanding that you were interested in sharing the rental accommodation, and on the implied understanding that over a glass or two of refreshment the victim would get to know you.  Your offending was thus planned and thought through.  When you offended in each instance you armed yourself with a knife which you used as a weapon and to threaten harm.  In each case you imparted a measure of violence or threatened violence.

6On 10 November 1981 you arrived at the first victim’s home as arranged having earlier agreed to move into the house.  You had two bottles of wine with you and you sat with the victim in her lounge room where you drank and talked.  You told your victim that you had “feelings” towards her and, you then began making advances towards her which included grabbing her hand and sitting closer to her and touching her on the knee.  When the victim sought to move your hand away you told her that she should not do that and slapped her hand.  The victim told you that she did not reciprocate your feelings and continued to make it clear she had no romantic interest in you.

7You moved towards the victim from the side and pushed her to the floor where you pinned her down by lying on top of her.  She asked you what you were doing and you said “keep quiet or those would be her last words”.  As you said this you were holding a small knife to the left side of her throat.  You began to remove her clothing and your victim was frightened and shaking and did not struggle.  You took the victim to her bedroom where you raped her by inserting your penis into her vagina.  (Charge 1 aggravated rape)

8After this act you remained in the bedroom with the victim where you continued to carry out other acts of a sexual nature against her.  You are not charged with this further offending.  You apologised to the victim claiming that you did not know what had come over you.  Upon you leaving, the victim immediately complained to a friend who received her phone call at 1:05 am in the morning.  He described her as crying and sounding very distraught.  The victim was medically examined about 12 hours after the offending, where she was observed to have a laceration in her upper lip, reddening of the lower lip, and two reddened areas at the base of the neck anteriorly and overlying the base of the left sterno-mastoid muscle.  The medical examiner opined that the first victim's injuries were consistent with assault.

9About six months later you attended at the home of your second victim who lived with her three-year-old child.  You had earlier answered an advertisement and expressed interest in sharing rental of the property.  The second victim quite innocently showed you through the property and offered you a coffee or a glass of wine.  Later she went so far as to invite you for dinner, an invitation which you accepted.  You went and purchased milk and wine and a bag of lollies for the child.

10Having enjoyed a meal and, after the child was put to sleep, you sat chatting with the victim and you made inappropriate physical advances towards her.  The victim made it clear that she was not interested in “anything like that”.  As you were leaving you grabbed the victim around the neck and dragged her towards the bedroom.  She tried to scream but your grip around her throat was too strong.  You said to her “don’t scream, I’ve got a knife” and, you held a knife in front of her face.

11Doubtless in fear the victim stopped struggling.  Her clothes were removed and you directed her to remove your clothes and you began kissing the victim and touching her sexually.  You asked her to perform oral sex upon you and you then inserted your penis into her mouth.  (Charge 2 aggravated rape)

12After you forced the victim to put your penis into her mouth, you instructed her to lick your testicles and you then directed her to lie on the bed where you twice penetrated her vagina with your penis  (Charge 3 aggravated rape).

13Throughout this time the knife had been placed on the bedside table by you.  The victim pleaded with you not to kill her and you told her that you did not intend to hurt her.  When the victim went to the kitchen with the intention of running out the back door of the house you followed her.  Out of some sort of perverted pleasure you asked your victim whether she had ever been raped before.  A few minutes later you digitally penetrated her vagina.  (Charge 4 indecent assault).

14Somewhat callously as you left the house you diverted into the bedroom where the victim’s three-year-old child was asleep.  You bent over and gave the child a kiss.  You then left the house.

15The second victim immediately called the police and telephoned a friend.  She made a statement to the police and was medically examined that day but the results of that examination can no longer be found.

16Your third victim was a woman aged 30 who also resided alone.  On
30 June 1984 you made contact with her responding to an advertisement that she had placed.  During the course of your first conversation with her your victim had misgivings about you but eventually it was arranged that you would go to her home, which you did on 4 July 1984.  Again you were accompanied by two bottles of wine.  The bottles could not be opened because the victim did not have a corkscrew, so you both consumed some cask wine instead.  Shortly after 11 pm you indicated that you were too drunk to drive home.  Your victim offered to call you a taxi but you requested to stay the night.  The victim told you there was no spare bed but you persisted, suggesting you would sleep in front of the fire.  When the victim went into the bedroom to retrieve a sleeping bag for you you followed her closing the door behind you.  You then grabbed the victim by her wrist and there was a struggle during which she twisted and fell onto the bed.  You produced a knife which fell on the floor.  You placed one hand over the victim’s mouth and the other around her neck putting pressure on her windpipe.  You told her “if you don’t shut up I’ll shut you up for good”. Your victim could not breathe and you told her to get on the bed and released some pressure from her throat.

17You then lay down on the bed beside the victim and you began to remove her clothing.  She laid on the bed sobbing and you repeated your threat to kill her if she did not shut up.  You kept one hand on her neck whilst removing the rest of her clothes until she was naked.  You then thrust your penis towards her and told her to suck it at which time you continued to threaten her by telling her that you would shut her up permanently.

18Your victim refused to suck your penis whereupon you laid down next to her grabbing her breasts whilst masturbating yourself, achieving an erection.  You then touched your victim's genitals and digitally penetrated her vagina before inserting your penis into her vagina.  As you did this you tried to make your victim respond to you and when she could not you punched her in the head, pulled her hair and put pressure on her throat.  You also instructed her to wrap her legs around you and massage your back and put her tongue in your mouth.  (Charge 5 aggravated rape and this charge encompasses all three acts of penile vaginal penetration which occurred within the period as set out in paragraphs 70 to 74 of the summary).

19There followed other sexual acts against the third victim including a second occasion when you penetrated her vagina with your penis.

20The victim asked to relieve herself in the toilet.  Initially you would not let her go but eventually you agreed, pulling her up from the bed by the throat and walking her to the toilet whilst continuing to hold her throat while she used the toilet and then you walked her back to the bedroom and again threw her on the bed.  Then you again penetrated her vagina with your penis whilst making comments about her genitals, and you inserted your fingers into her anus and move them around.  (Charge 6 aggravated indecent assault).

21You told the victim to clean your genitals saying to her “you can clean me by licking all or washing me”.  You took her to the bathroom and directed her to wash your penis with a flannel.  You later said to the victim “I didn’t want to have to rape you but you were coming on hot and cold all night”.

22The third victim was shaking uncontrollably and asked you to leave.  You said to her “no hard feelings” and asked if she would be interested in letting you share the house. You were then shown the door which was locked behind you.

23The third victim then telephoned the police and a friend.  The police attended the house and the third victim underwent medical examination at 9:30 am the following day.  Examination revealed a reddened protuberant lump inside the right cheek, which may have been caused by chewing of the cheek or pressure in that area.  Bruising was found to the left of the midline on the front of the victim’s neck and there was a reddened area over her right buttock which could be resolved into a handprint, thumbprint and fingerprints running up the outer posterior part of the left thigh.  There was some reddening of the hair pattern at the nape of the neck and two marks running horizontally on the outer side of the left arm which appeared to be finger marks consistent with fingers having firmly gripped the upper arm.  Abrasions and tears inside the anus were also found.

24As can be seen, your conduct towards each of these three victims was reprehensible and was predatory and planned.  Each victim was duped by you to allow you to enter their home on your pretext of being a genuine potential housemate.  You threatened each of them with violence and you inflicted physical violence and force upon them.  On each occasion you armed yourself with a knife.  You physically forced each of them into complying with your demands and you carried out terrible sexual acts upon them whilst they resisted you.  After you finished with them in a physical way you degraded them by what you said and by what you asked them to do.  In my opinion, yours are crimes towards the upper end for this kind of offending.  Each victim was subjected to a rape of the worst kind, being forcibly raped and assaulted by a total stranger armed with a knife whilst alone in her own home at night.  This kind of offending is every woman’s worst nightmare.  It is offensive, repugnant and intolerable in this society and, the sentence I impose must reflect these sentiments.

25I admitted into evidence a victim impact statement from two of your victims. Those documents detail the effect that your offending has had upon each of them in the period of over 30 years that has transpired since this offending.

26Whilst you may have enjoyed a somewhat normal life with the usual level of highs and lows since you offended, the two victims from whom I received a victim impact statement have each spent time, especially in the immediate years after the offending, living in fear because of what you did to them.

27Your first victim suffered anxiety and blamed herself for being so naïve and trusting.  Whilst she has now moved on with her life, she has nevertheless spent a great deal of her life being unable to trust men and she has been unable to form a meaningful relationship with a man.

28Your third victim describes herself as having been “in a total state of terror” at the time of your offending, believing that you were going to kill her.  To her great credit she made a conscious effort to move on, reasoning that she was not going to let what you did to her control her and, she was determined not to remain a victim. 

29In passing sentence I have had full regard to the victim impact statements as I must.

30You have pleaded guilty to the charges and your pleas have saved the time and cost of possibly three trials. 

31You offered to plead guilty to some of the charges at committal and the matter proceeded at committal by way of hand up brief.  After a series of further mentions in both the Magistrates’ Court and in this court, the matter resolved into a plea to the charges on the indictment.

32I treat you as having indicated that you would plead guilty at the earliest possible opportunity.  For this you are entitled to a reduction in sentence because of your pleas, and because your pleas have saved the time and cost of a trial or trials and, importantly, they have saved the victims from having to give evidence against you all these years later and from being cross-examined about your vile conduct towards each of them.  The reduction in sentence to which you are entitled will be reflected in the sentence that I will shortly pass.

33The informant and the members of the Victoria police cold case unit must be  be commended for bringing you to justice, albeit more than 30 years later.

34The case was reopened for further investigation in December 2011.  The investigators by this time had available to them more sophisticated methods of identifying DNA evidence from swabs taken 30-odd years ago from each of the victims.  Importantly, by choosing to drink wine with each of your victims you left behind your fingerprints, and the police had concluded that the same offender committed each of these crimes.

35You were identified as a suspect in March 2013 and you were located in the United Kingdom.  After you were apprehended for drunk driving at a police breath testing station your fingerprints were taken and this lead to you being identified as the offender.  You were arrested on 16 June 2014 following a request for your extradition by the Attorney General’s Department.  You were extradited to Melbourne on 22 May 2015 and you were remanded in custody from 23 May 2015.  Because you were unwell, a record of interview could not be conducted.

36You claim to have no recollection of the offending but there was overwhelming forensic evidence to link you to the crimes and you have pleaded guilty.

37Critical to the decision as to what is a just sentence in this matter is an assessment of your current circumstances, especially your age and an assessment of your mental and physical health.  You are now aged 65 and you suffer from a number of health issues.  I will return to these matters later.

38I turn to matters relating to your background and personal circumstances. You were born in Scotland.  Your father was a policeman who was moved periodically to various locations in the result that you attended a number of different schools.  Your father died at a relatively young age of 44 years.  You completed high school in Scotland in 1968 when age 17, and you then studied accounting for two years at Aberdeen University. You did not complete these studies but moved to Australia, following your mother who had also moved here to live with her sister.  Your sister remained in Scotland.

39In 1970 you commenced work in Melbourne as a clerk and you enrolled to complete a Bachelor of Commerce part-time which you completed in five years.

40In 1973 you married and you have three children.  You separated and ultimately divorced, and you have no contact with your children.

41You worked as an accountant and credit manager from late 1970s until 1996 or thereabouts, when you left Australia permanently.  You returned to Scotland to assist your sister who was having financial troubles with her business and you worked with her to restructure it.

42In 1998 you purchased a small hotel in Scotland.  You remarried in 2000.  This was a relatively short marriage of seven years and you divorced in 2007.  From that time up until about 2012 you operated a bar in Spain before returning to the United Kingdom in 2013.  From that time I was told and accept that you were in receipt of a pension living in rental accommodation in the three years or so leading up to your arrest and extradition.

43You were arrested in the UK on 16 June 2014.  As you were entitled to do you resisted extradition but an order was made that you be returned to Australia and you were extradited from the UK on 22 May 2015, arriving in Australia in protective custody on 23 May 2015.

44You have no prior or subsequent convictions in Australia or elsewhere for this kind of offending.  Given the time that has now elapsed since this offending and having regard to your age and state of health, I think it unlikely you will reoffend in this way.  In my view there is no need for the sentence I impose to reflect application of the principle of specific deterrence.

45I received into evidence a psychological report from Mr Geoffrey Cummins who saw you in prison for that purpose on 3 November 2015.  You told Mr Cummins that you had not resumed driving a motor vehicle since losing your license for drink-driving in 2001.  You also told him that when you were aged in your late 20s you had reached a point where you were consuming up to 1 litre of whiskey per day.  You told Mr Cummins that you had abstained from alcohol from 1985 until approximately 2004, when you again resumed heavy daily consumption on most days over a two-year period but then you ceased and have been abstinent since 2005.  Mr Cummins recommended that you be referred to a neuropsychologist for assessment, and to that end I also received into evidence a neuropsychological report from Dr Rachel O’Meara dated 8 December 2015.  I will return to that a little later.

46During your interview with Mr Cummins you stated that you felt ashamed, embarrassed and remorseful concerning your offending. You also expressed what I regard as appropriate victim empathy.  You told Mr Cummins that you had been sexually abused by a babysitter as a child but you are unable to say if and how this may have affected you at the time of this offending.

47Mr Cummins thought that you presented as being “mildly/moderately depressed”. You acknowledged this had been brought about by your current legal predicament in which you find yourself.

48When you spoke to Mr Cummins you told him that at the time of this offending you were dependent on alcohol and also often abused illicit drugs.  Although consumption of alcohol with each of the victims is a feature of your offending it is not suggested in the Crown summary that you were drunk or otherwise affected by drugs at the time of offending.

49You told Mr Cummins that you have no memory of this offending.  Mr Cummins thought that your failure to have any memory of these events is reflective of the fact that your offending behaviour is so repugnant to you that your defence mechanisms have included the repression of memory traces of these events.  Given that there were three episodes of offending over a two-year period I have difficulty accepting Mr Cummins opinion about this.  In my assessment, it is more likely alcohol abuse over many years has affected your memory, not repressed memory.

50Mr Cummins carried out various tests designed to assess your risk of reoffending in a similar manner, which he opined was low.  He also recommended that whilst in prison you participate in the sex offender program. I accept those opinions.

51I accept that it is unlikely that you will receive any visitors whilst in prison and I accept that this will mean that your time in prison will be more onerous than for other prisoners.

52As I mentioned earlier, I received into evidence a neuropsychological report prepared by Rachel O’Meara. In that report she summarised her findings of your cognitive profile in this way:

53“In summary, Mr Henderson’s cognitive profile on testing was primarily characterised by deficits in new learning and executive functioning as well as variable speed of information processing.  It is highly likely that his executive dysfunction had a secondary impact on his new learning and memory, given that he demonstrated a stronger ability to learn and remember more structured information (although this still fell below expectations).  Importantly, due to his high premorbid level of general intellectual functioning, many of his cognitive abilities still fell at or above the level of those of most of his age-matched peers.”

54In her report Dr O’Meara referred to a number of current medical conditions that you currently suffer from, including hypertension, hypercholesterolaemia, COAD and type II diabetes as factors which could account for your self-reported slow deterioration in cognition over the past few years.  She went on to say that you did not report any major difficulties with everyday functioning and therefore there was no clear evidence of a neuro-degenerative condition.  Any cognitive deficits found on testing are not consistent with a primary disorder such as Alzheimer’s disease.

55Dr O’Meara thought that you may find certain aspects of the prison environment difficult, particularly she thought you may be slow to learn the rules and routines of the prison but once learnt she thought you could retain these.  It was not argued and, there was no evidence that the principles in Verdins case have any role to play in the framing of your sentence.  You have now been in custody for more than two years, and it has not been suggested that you have not adapted to prison life.

56I admitted into evidence a report tended on your behalf from Dr R. Byron Collins, a consultant forensic pathologist.  He reviewed your incomplete medical records provided by Justice Health and he saw you in Port Phillip prison on
10 February 2016 where he carried out a limited external physical examination particularly in relation to the status of your cardiovascular and respiratory systems.  Dr Byron Collins was of the opinion that you suffer from emphysema which causes debilitating and continual shortness of breath, particularly at night, and this illness limits exercise.

57Mr Lindner submitted that your life expectancy has probably been reduced because of your current illnesses.  Because of this submission I ordered that a presentence report be prepared and I received a report from St Vincent’s Hospital in Melbourne dated 15 March 2016.  Relevantly it advised as follows:

58“Mr Henderson has type II diabetes, asthma and severe emphysema (chronic obstructive pulmonary disease), which are all currently stable on medication. He does not require supplemental oxygen and is currently managing in one of the accommodation units at Port Phillip prison.

59He also has a large abdominal aortic aneurysm which is at increased risk of rupture given its diameter.  It is reported by the radiologist as being stable in size compared with August 2015, however a ruptured AAA is associated with a 50 per cent mortality rate therefore he will require urgent review by the vascular surgeons to repair the aneurysm.”

60This sentencing was initially set down to be delivered on 3 June.  However, the sentencing could not proceed on that day because I was informed that you had been taken to St Vincent’s Hospital in an emergency situation.  I requested a further report from Justice Health.  I have now received a further report in the form of a letter from Dr Charles Roth the medical director of St Vincent’s Correctional Health.  You were admitted for management of what is described as “severe hypertension” at 7:15 am and you were returned to Port Phillip prison at 1:47 p, on 3 June.  Because you have a large abdominal aortic aneurysm your severe hypertension was considered an emergency.  Dr Roth advised me in writing that you had been placed on a waiting list for elective surgery to repair the abdominal aortic aneurysm.  He then considered you fit to attend this court for sentencing.

61The sentencing was then listed for a second time, however before it proceeded I was again advised that you had been admitted to St Vincent's Hospital, and that you had undergone surgery to repair the large abdominal aortic aneurysm.  After some minor complications in recovery, which were appropriately treated, your aortic aneurysm has now been repaired, and you have been discharged from hospital.  I have been advised in writing by Dr Roth by letter dated 5 July 2016 that your condition is now stable, and you are fit to attend court.

62In arriving at an appropriate sentence, I have taken full account of the state of your physical and mental health.  The aortic aneurysm having been repaired, you are no longer at risk from the possibility of its rupture.  You suffer from emphysema, which is controlled by medication.  There is no evidence that has been put before me that your time in custody will likely be more burdensome for you because you suffer from emphysema, although I accept that you will have to be appropriately treated for it whilst in custody.

63Because of the nature of your offences you will likely be kept in appropriate protective custody, and this will also make any sentence that you serve more burdensome for you.  In arriving at an appropriate sentence I have taken this into account.

64Mr Lindner appropriately conceded that a lengthy term of imprisonment would have to be served by you for these crimes.  However, he asked me to properly take into account your age and state of health, and the fact that you may die in prison.  I cannot say with any degree of certainty that you will die in prison, however I do recognise that it is a possibility that you may.  Mr Lindner asked me not to impose a sentence that was crushing and he asked me to have proper regard to the application of the principle of totality in sentencing.  He asked me to provide for a lengthy period on parole.  In passing sentence I have had full regard to these submissions.  I do not accept that a longer than normal non-parole period is called for in this case, and I have fixed what I regard as an appropriate non-parole period.

65Mr Lindner submitted there should be full concurrency between the sentences imposed on Charges 3 and 4 with the sentence imposed on Charge 2 on the basis that these three charges arose out of the same episode of offending with victim two.

66He advanced a similar argument in relation to the sentences imposed on Charges 5 and 6 which relate to victim three. 

67I do not accept the submission advanced by Mr Lindner.  My sentence will provide for partial accumulation of the sentences I will impose on Charges 2, 3, 5 and 6 upon the sentence imposed on Charge 1, so that the total effective sentence properly reflects your level of criminality for your offending against all three victims.  The sentence imposed on Charge 4 will be served concurrently with the other sentences imposed by me.

68The principles to be applied in such cases where the sentencing court is dealing with an offender of advanced years facing a lengthy sentence in circumstances of ailing health have been set out by the Court of Appeal in R v. RLP [2009] VSCA 271 at paragraphs 32 to 40.  At paragraph 39 the court summarises seven principles which need to be addressed in sentencing in circumstances such as are found here.  The court said this:

6939.      "We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.

70"1.  The age and health of an offender are relevant to the exercise of the sentencing discretion;

71"2.  Old age or ill health are not determinative of the quantum of sentence;

72"3.  Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody;

73"4.  It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody;

74"5.  Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released, and that the offender’s ill health will make his or her period of incarceration particularly onerous;

75"6.  Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition, notwithstanding the age and ill health of the offender;

76"7.  Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.”

77In arriving at an appropriate sentence here I have so far as possible had full regard to and applied the principles in RLP.  As I said earlier, your offending was most serious and towards the top of the scale for offending of this kind.  Whilst I have had full regard to your age and health and the fact you have no prior convictions and the fact that you have pleaded guilty and appear to be remorseful, nevertheless the sentencing principles of just punishment, denunciation and general deterrence here require the imposition of a lengthy sentence.  Your offending in three separate episodes occurred over a period of two years and eight months, and involves three separate unrelated complainants.  There is thus a requirement for the sentence imposed on each charge to appropriately reflect the gravity of your offending and there must be a measure of proper accumulation of some of the terms of imprisonment imposed to arrive at an appropriate sentence.  I believe that the sentences that I will shortly impose achieve this result.

78Because I will sentence you to imprisonment on all charges you fall to be sentenced on Charges 3 to 6 as a serious sexual offender.  The prosecution, appropriately in my view in the circumstances, has not asked that I impose a disproportionate sentence on those charges and I will not do so.  In sentencing you on these charges I am mindful that I must have regard to protection of the public as a first priority and I will sentence you on these charges as a serious sexual offender without imposing a sentence that is disproportionate. The sentences imposed on Charges 3 to 6 are deemed to accumulate upon each other unless I otherwise direct.  I will impose some accumulation and some concurrency as I deem appropriate.  As I said before, I think it unlikely you will again offend in this way.

79Could you please stand, Mr Henderson?

80On Charge 1 aggravated rape of victim one, you are convicted and sentenced to a term of imprisonment of seven years.

81On Charge 2 aggravated rape of victim two, you are convicted and sentenced to a term of imprisonment of six years.

82On Charge 3 aggravated rape of victim two, you are convicted and sentenced to a term of imprisonment of seven years.

83On Charge 4 indecent assault of victim two you are convicted and sentenced to a term of imprisonment of two years.

84On Charge 5 aggravated rape of victim three you are convicted and sentenced to a term of imprisonment of seven years.

85On Charge 6 aggravated indecent assault of victim three you are convicted and sentenced to a term of imprisonment of three years.

86I direct that one year of the sentence imposed on Charge 2, three years of each of the sentences imposed on each of Charges 3 and 5, and one year of the sentence imposed on Charge 6 cumulate upon the sentence imposed on Charge 1 and upon each other, making a total effective sentence of 15 years' imprisonment.  Otherwise, I direct for the purposes of s.6E of the Act that there be no further cumulation of the sentences I have imposed this day.

87I direct that you serve a minimum term of 11 years' imprisonment before being eligible for release on parole.

88Pursuant to s.6F of the Sentencing Act 1991 I direct that I have sentenced you on Charges 3 to 6 inclusive as a “serious sexual offender” within s.6B of the Act, and I direct the fact of my having done so be entered into the records of this court.

89For the purposes of s.6AAA of the Act I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty.  Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of 20 years and I would have fixed a non-parole period of 14 years.

90I note that you have served 772 days pre-sentence detention.  Accordingly, pursuant to s.18(4) of the Act, I declare that the period of 772 days be reckoned as time already served under the sentences passed today and be noted accordingly in the records of the court and deducted administratively.

91Are there any questions arising out of that?

92COUNSEL:  No, Your Honour.

93HIS HONOUR:  Thank you, would you remove Mr Henderson please?

94MR LINDNER:  Your Honour, there is just one matter that - it is not related to that.  Perhaps before Mr Henderson is removed, I have an application for appeal cost fund certificates for the two dates of 3 June and 21 June this year, when through no fault of the defence the matter needed to be adjourned.  They are the dates where the medical condition caused Mr Henderson to be unable to appear.

95HIS HONOUR:  Yes, I will grant a certificate for each of those days.

96HIS HONOUR:  Remove Mr Henderson please.

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