Henderson v The King

Case [2024] ACTCA 3


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Henderson v The King

Citation: 

[2024] ACTCA 3

Hearing Date: 

7 November 2023

Decision Date: 

12 February 2024

Before:

Loukas-Karlsson, Baker and McWilliam JJ

Decision: 

See [73]

Catchwords: 

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  whether “exceptional circumstances” must exist before an Intensive Corrections Order could be imposed in respect of both offences – where appellant was sentenced on the basis that he possessed the child abuse material for more than one day contrary to particularised charge – errors conceded by the prosecution – resentencing – admission of fresh evidence regarding hardship in custody - interaction between childhood disadvantage and mental illness – appeal allowed – appellant resentenced

Legislation Cited: 

Crimes Act 1914 (Cth) s 16A, 20, 20AB, 232ZD

Criminal Code Act 1995 (Cth) s 474, 474A

Crimes (Sentencing) Act 2005 (ACT) s 11

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111

Cases Cited: 

Barbaro v The Queen [2014] HCA 2; 253 CLR 58

Betts v The Queen [2016] HCA 25; 258 CLR 420

Brierley v R [2022] NSWCCA 26

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477

Kentwell v The Queen [2014] HCA 37; 252 CLR 601

R v Burch [2020] ACTSC 192

R v De Simoni [1981] HCA 31; 147 CLR 383

R v Hagen [2022] ACTSC 362; 374 FLR 260

R v Hutchinson [2018] NSWCCA 152

R v Lian [2023] SASCA 122

R v MJ [2023] NSWCCA 306

R v Nguyen [2006] VSCA 184

R v Porte [2015] NSWCCA 174; 252 A Crim R 277

R v Verdins [2007] VSCA 102; 16 VR 240

The Queen v Ruwhiu [2023] ACTCA 18

Xiao v R [2018] NSWCCA 4; 96 NSWLR 1

York v The Queen [2005] HCA 60; 225 CLR 466

Texts Cited: 

Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth)

Parties: 

Peter Henderson ( Appellant)

Commonwealth Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

E Chen ( Appellant)

K Breckweg ( Respondent)

Solicitors

ACT Legal Aid ( Appellant)

Commonwealth Director of Public Prosecutions

File Number:

ACTCA 17 of 2023

Decision under appeal: 

Court/Tribunal:

ACT Supreme Court

Before:

Norrish AJ

Date of Decision:

11 May 2023

Case Title:

R v Henderson

Citation:          

[2023] ACTSC 110

THE COURT:

Introduction

1․On 11 May 2023, the appellant was convicted and sentenced by Norrish AJ (the sentencing judge) of the following two offences:

(a)Count 1 – On 2 April 2022, using a carriage service to possess child abuse material contrary to s 474.22A(1) of the Criminal Code 1995 (Cth) (CC2022/3204).

Imprisonment for 1 year and 10 months, with the offender to be released after four months’ imprisonment on entering a recognisance release order in the sum of $500 to be of good behaviour for two years…

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Henderson v The King [2024] ACTCA 3
Case
[2024] ACTCA 3
Decision Date

CaseChat Overview and Summary

Henderson appealed his conviction and sentence for possessing child abuse material. The appeal was heard by Loukas-Karlsson, Baker and McWilliam JJ. The prosecution conceded errors in the original sentencing process, including the basis on which the appellant was sentenced for possessing the material for more than one day, contrary to the particularised charge.

The central legal issues before the Court of Appeal were whether "exceptional circumstances" were a prerequisite for imposing an Intensive Corrections Order in respect of both offences, and whether the appellant should be resentenced. The appeal also involved the admission of fresh evidence concerning hardship in custody, the interplay between childhood disadvantage and mental illness, and the overall appropriateness of the original sentence.

The Court of Appeal allowed the appeal, finding that the original sentencing had proceeded on an erroneous basis. The Court considered the fresh evidence presented, which highlighted the appellant's significant childhood disadvantage and mental health issues, and how these factors contributed to hardship in custody. Applying these considerations, the Court determined that resentencing was warranted. The Court ultimately resentenced the appellant.

Orders

Orders of the court

See [73]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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