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Henderson (a pseudonym) v The King

Henderson (a pseudonym) v The King

Case [2024] VSCA 78 29 April 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0199

THOMAS HENDERSON (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2024
DATE OF JUDGMENT:	29 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 78
JUDGMENT APPEALED FROM:	[2021] VCC 17 (Judge Lacava)

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CRIMINAL LAW – Appeal – Sentence – Sexual offending against four young children – Persistent sexual abuse of a child under the age of 16 – Sexual penetration of a child or lineal descendent – Sexual penetration of a child under 16 years – Indecent act with a child under 16 – Sexual assault of a child under the age of 16 – Attempted sexual assault of a child under the age of 16 – Whether charges wrongly characterised as ‘rolled-up’ charges – Whether sentences manifestly excessive – Whether pleas of guilty on one indictment attract utilitarian benefit in accordance with Worboyes v The Queen (2021) 96 MVR 344 – Application for leave to appeal granted – Appeal allowed – Applicant re-sentenced.

Sentencing Act 1991, ss 5A, 5B, 6E, 6D(a), 11A; Criminal Procedure Act 2009, ss 280(1)(b), 281(1)(b).

Worboyes v The Queen (2021) 96 MVR 344, Rossi v The Queen [2021] VSCA 296, discussed.

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Counsel
Applicants:		Mr G Hughan
Respondent:		Dr N Rogers SC
Solicitors
Applicant:	Slink & Keating Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BOYCE JA:

Introduction

The applicant pleaded guilty in the County Court to seven charges of sexual offences committed upon children. The charges were contained in three separate indictments. There were four victims. The offending took place between 2014 and July 2019.
Indictment J12145960.1 (‘the Matthews indictment’) charged the applicant with a sexual offence against Zoe Matthews.[1] She was only four to five years old at the time. Zoe Matthews was a friend of the applicant’s daughter. The applicant entered his plea to this offence on 5 September 2019. Indictment K11828711.2 (‘the Wilson indictment’) contained offending committed upon a 12-year-old child, and friend of another of the applicant’s daughters, Catrina Wilson.[2] The applicant entered pleas in respect of this indictment on 14 November 2019. Indictment L10067143 (‘the Henderson indictment’) contained offending committed by the applicant upon his biological daughters, Ivy and Abby.[3] The applicant entered pleas of guilty on this indictment on 5 August 2020.
[1]A pseudonym.
[2]A pseudonym.
[3]Pseudonyms.
On 19 January 2021, the applicant was sentenced as follows:

Charge

Offence

Sentence

Cumulation

Indictment L10067143 (the Henderson indictment)

1 Persistent sexual abuse of a child under the age of 16[4] 12 years Base

2 Persistent sexual abuse of a child under the age of 16 8 years 5 years

3 Sexual penetration of a child or lineal descendant[5] 10 years 5 years

Indictment J12145960.1 (the Matthews indictment)

1 Indecent act with a child under 16[6] 3 years 2 years

Indictment K11828711.2 (the Wilson indictment)

1 Attempted sexual assault of a child under the age of 16[7] 1 year Nil

2

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henderson (a pseudonym) v The King

Details

AGLC: Henderson (a pseudonym) v The King [2024] VSCA 78
Case: [2024] VSCA 78
Decision Date: 29 April 2024

CaseChat Overview and Summary

The appellant, Henderson, was convicted of multiple sexual offences against four young children, including persistent sexual abuse of a child under the age of 16, sexual penetration of a child or lineal descendent, sexual penetration of a child under 16 years, indecent act with a child under 16, sexual assault of a child under the age of 16, and attempted sexual assault of a child under the age of 16. Henderson appealed against the sentence imposed by the County Court of Victoria, arguing that the charges were wrongly characterised as ‘rolled-up’ charges and that the sentences were manifestly excessive. Henderson also argued that he should have received a utilitarian benefit for entering a plea of guilty on one indictment, in accordance with Worboyes v The Queen. The Court of Appeal granted Henderson leave to appeal and allowed the appeal, re-sentencing him.

The primary legal issue before the Court of Appeal was whether the charges against Henderson were correctly characterised and whether the sentences imposed were manifestly excessive. The Court also considered whether Henderson was entitled to a utilitarian benefit for entering a plea of guilty on one indictment. The Court of Appeal reviewed the evidence and arguments presented by both parties and considered relevant case law, including Worboyes v The Queen and Rossi v The Queen. The Court found that the charges were not correctly characterised and that the sentences imposed were manifestly excessive. The Court also found that Henderson was entitled to a utilitarian benefit for entering a plea of guilty on one indictment.

The Court of Appeal held that the charges against Henderson were wrongly characterised as ‘rolled-up’ charges, which meant that Henderson was not given credit for entering a plea of guilty on one indictment. The Court found that this was a significant error that had the effect of increasing Henderson’s sentence. The Court also found that the sentences imposed were manifestly excessive, taking into account the gravity of the offences and the need for general and specific deterrence. The Court noted that Henderson had shown some remorse and had no prior criminal history, but that these factors were not sufficient to justify the sentences imposed. The Court held that the sentences should be reduced to reflect the correct characterisation of the charges and to ensure that they were not manifestly excessive.

The Court of Appeal allowed Henderson’s appeal and re-sentenced him. The Court reduced Henderson’s sentences to reflect the correct characterisation of the charges and to ensure that they were not manifestly excessive. The Court also took into account the utilitarian benefit that Henderson should have received for entering a plea of guilty on one indictment. The Court ordered that Henderson be re-sentenced by the County Court of Victoria, with directions to ensure that the sentences were not manifestly excessive and that Henderson received the appropriate utilitarian benefit.

Orders