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Henderson v R

Henderson v R

Case [2016] NSWCCA 8 9 February 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Henderson v R [2016] NSWCCA 8
Hearing dates: 2 October 2015
Decision date: 09 February 2016
Before: Chief Justice Bathurst at [1]
Hoeben CJ at CL at [2]
RS Hulme AJ at [68]
Decision:
I propose the following orders:
1. Grant leave to appeal.
2. Allow the appeal
3. Quash the sentences imposed by Judge Syme on 13 November 2014.
4. Sentence the Applicant to an aggregate sentence including a non-parole period of 3 years commencing on 16 October 2014 together with a balance of term of 2 years commencing on 16 October 2017.
5. Record as the date upon which it appears to the Court that the Applicant should be released to parole 16 October 2017.
6. Imprisonment for 5 years commencing 16 October 2014 and expiring on 15 October 2019 with a non-parole period of 3 years expiring 15 October 2017.
Catchwords: CRIMINAL LAW – sentence appeal – historic sexual offences – seven counts of assault female and commit act of indecency – two counts of assault male and commit act of indecency - four victims – aggregate sentence – whether sentencing judge applied sentencing practices applicable at time of offending – whether discount for early plea of guilty available and whether it was in fact applied – whether applicant in a position of trust in respect of three of the victims – whether sentencing judge’s findings as to risk of re-offending open on the evidence – error established in formulation of indicative sentence requiring aggregate sentence to be reconsidered – appeal allowed – applicant re-sentenced.
Legislation Cited: Crimes Act 1900 – ss 76 and 81
Crimes (Sentencing Procedure) Act 1999 – s 21A(2)(k); s 44; s 53A
Criminal Appeal Act 1912 – s 5(1)
Cases Cited: AJB v The Queen [2007] NSWCCA 51; 169 A Crim R
BP v R [2010] NSWCCA 303
Bradbery v R [2008] NSWCCA 93
Dousha v R [2008] NSWCCA 263
Karl Suleman v R [2009] NSWCCA 70
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
MPB v R [2013] NSWCCA 213; 234 A Crim R 576
Magnuson v R [2013] NSWCCA 50
Mill v The Queen [1988] HCA 70;166 CLR 59
Moon v R [2000] NSWCCA 534; 117 A Crim R 497
Nelson v R [2007] NSWCCA 221
Nykolyn v R [2012] NSWCCA 219
Peiris v R [2014] NSWCCA 58
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Todd [1982] 2 NSWLR 517 at 519
Veen v The Queen [1988] HCA 14; 164 CLR 465
Wright v R [2008] NSWCCA 91
Category: Principal judgment
Parties: John Bruce Henderson – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Ms P Wass SC/Ms M Ellicott – Applicant
Ms G O’Rourke – Respondent Crown
Solicitors:
Legal Aid of NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/2486502013/337938
Decision under appeal

Court or tribunal:

District Court of NSW

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 v R

Details

AGLC: Henderson v R [2016] NSWCCA 8
Case: [2016] NSWCCA 8
Decision Date: 09 February 2016

CaseChat Overview and Summary

Henderson appealed against his sentence for a series of historic sexual offences against four victims, three of whom were in his care as a trusted authority figure. The matter was heard in the High Court of Australia. The legal issues before the court included whether the sentencing judge correctly applied the sentencing practices applicable at the time of the offending, whether a discount for an early plea of guilty was available and appropriately applied, whether Henderson was in a position of trust in relation to three of the victims, and whether the sentencing judge's findings regarding the risk of re-offending were supported by the evidence. The court found that an error had been made in the formulation of the indicative sentence, necessitating a reconsideration of the aggregate sentence. Consequently, the appeal was allowed and Henderson was re-sentenced.

The High Court meticulously examined the sentencing principles and practices that should have been applied at the time of the offending. The court determined that the sentencing judge had not correctly applied these principles, particularly in relation to the discount for an early plea of guilty. Additionally, the court considered the position of trust Henderson held over three of the victims, which warranted a more severe sentence. The findings regarding the risk of re-offending were scrutinised, and the court concluded that they were open on the evidence. Given these findings, the aggregate sentence was reconsidered, leading to the allowance of the appeal and the re-sentencing of Henderson.

In light of the errors identified, the High Court exercised its discretion to re-sentence Henderson, taking into account all relevant factors, including the nature and circumstances of the offences, the impact on the victims, and the applicable sentencing principles at the time of the offending. The court emphasised the importance of ensuring that sentences reflect the gravity of the crimes and the principles of justice. The re-sentencing aimed to rectify the errors in the original sentencing process and provide a sentence that appropriately reflects the seriousness of Henderson’s crimes and the principles of criminal justice.

Orders