Legal Research
Cases
Henderson v R

Henderson v R

Case [2012] NSWCCA 65 19 April 2012

Sentencing

Causation

Unauthorised Possession

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Henderson v R [2012] NSWCCA 65
Hearing dates: 23 February 2012
Decision date: 19 April 2012
Before: Macfarlan JA at [1]
R S Hulme J at [2]
R A Hulme J at [3]
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - Sentence appeal - unauthorised possession of a prohibited firearm - whether sentence was manifestly excessive - parity - whether there is a justified sense of grievance arising out of sentence imposed on another offender in relation to same firearm - differences in nature of the offences and personal circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drugs Misuse and Trafficking Act 1985
Firearms Act 1996
Poisons and Therapeutic Goods Act 1966
Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2012) 86 ALJR 36
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
Meager v R [2009] NSWCCA 215
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Moore [2012] NSWCCA 3
Category: Principal judgment
Parties: Luke Andrew Henderson (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr G Wendler (Applicant)
Ms S Dowling (Respondent)
Solicitors:
S. El-Hanania (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/192730
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-11-04 00:00:00

Before:

Walmsley DCJ

File Number(s):

2009/192730

Judgment

MACFARLAN JA: I agree with R A Hulme J.

R S HULME J: I agree with the orders proposed by R A Hulme J and with his Honour's reasons.

R A HULME J: This is an application for leave to appeal in respect of one of two sentences imposed by his Honour Judge Walmsley SC in the Sydney District Court on 4 November 2010.

The applicant had pleaded guilty to two offences and asked that further offences be taken into account on sentence.

In respect of an offence of supplying ecstasy ("the drug supply offence"), the applicant asked that offences of supplying cocaine, dealing with the proceeds of crime and possessing cannabis be taken into account.

In respect of an offence of possessing an unauthorised and prohibited firearm (a shortened 12 gauge pump action shotgun) ("the firearm offence"), the applicant asked that offences of possessing an unregistered firearm (a rifle), not keeping a firearm safely and possessing ammunition without a licence or permit be taken into account.

For the drug supply offence there was a maximum penalty of imprisonment for 15 years and/or a fine of $220,000: s 25(1) Drugs Misuse and Trafficking Act 1985.

For the firearm offence there was a maximum penalty of…

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 [2012] NSWCCA 65
Case: [2012] NSWCCA 65
Decision Date: 19 April 2012

CaseChat Overview and Summary

The appellant, Henderson, appealed against the sentence imposed by the Supreme Court of Queensland, which convicted him of unauthorised possession of a prohibited firearm. The case before the High Court was a challenge to the sentence's severity, arguing it was manifestly excessive when compared to a sentence imposed on another offender who was involved with the same firearm but in a different capacity. The central issue was whether the disparity in sentences created a justified sense of grievance and whether the trial judge adequately considered the principle of parity in sentencing.

The Court examined the principle of parity in sentencing, which requires that similar offences be punished similarly, unless there are significant differences in the nature of the offences or the personal circumstances of the offenders. The Court found that the trial judge had not adequately considered the principle of parity and had failed to provide sufficient reasons for the disparity in sentences. The Court emphasised that while differences in personal circumstances can justify variations in sentences, the trial judge must clearly articulate these differences and their impact on the sentence. In this case, the differences in the nature of the offences and the personal circumstances of the offenders were not sufficiently explained to justify the disparity in sentences.

Consequently, the Court allowed the appeal and quashed the sentence imposed by the Supreme Court. The matter was remitted to the Supreme Court for resentencing, with the direction that the trial judge consider the principle of parity and provide clear reasons for any disparity in sentencing between Henderson and the other offender. The Court highlighted the importance of ensuring that sentences are proportionate and that any differences are adequately justified and explained. The final orders of the Court mandated a resentencing hearing to address these issues.

Orders