Henry v R - [2009] NSWCCA 69

New South Wales
Court of Criminal Appeal

CITATION: Henry v R [2009] NSWCCA 69

HEARING DATE(S): 13 March 2009

JUDGMENT DATE:
20 March 2009

JUDGMENT OF: McColl JA at 1; Grove J at 2; Howie J at 36

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Indecent assault and procuring children for pornographic purposes - Three female victims of various offences aged eight years - No error in approach or assessment by sentencing judge

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v AGR (unreported) NSWCCA 24 July 1998
R v Rich [2000] NSWCCA 448
The Queen v Olbrich (1999) 199 CLR 270

PARTIES: Christopher John HENRY - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2006/5262

COUNSEL: I Barker QC with P Kintominas - Applicant
P Miller - Respondent/Crown

SOLICITORS: Fox and Staniland - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0244

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 10 November 2006

CCA 2006/5262

McCOLL JA
GROVE J
HOWIE J
20 March 2009

Christopher John HENRY v REGINA

Judgment

1 McCOLL JA: I agree with Grove J.

2 GROVE J: This is an application to extend time for seeking leave to appeal against severity of sentence imposed by Hulme DCJ at Taree District Court on 10 November 2006. The applicant had pleaded guilty on the listed trial day to indicted offences but his Honour accepted that it had earlier been made clear that he was likely to so plead. He was convicted on two counts (counts 1 and 3) of indecent assault upon a child under the age of ten years contrary to s 61M (2) of the Crimes Act 1900 for which offence there is a maximum penalty of 10 years imprisonment and a standard non-parole period of 5 years; on two counts (counts 2 and 4) of procuring a child under fourteen years for pornographic purposes (each child was aged eight years) contrary to s 91G (1) (a) of that Act, which offence carries a maximum penalty of 14 years imprisonment and on one count (count 5) of inciting a child under the age of ten years (a child aged eight) to commit an act of indecency contrary to s 61O (2) of the Act for which a maximum penalty of 7 years imprisonment applies. His Honour was also asked to take into account on a Form 1 a further offence contrary to s 61O (2) and an offence of possessing child pornography.

3 His Honour sentenced the applicant as follows:

On count 1: to imprisonment consisting of a non-parole period of 3 years commencing on 28 October 2006 and expiring on 27 October 2009 with a balance term of 1 year;

On count 2: to imprisonment consisting of a non-parole period of 2 years commencing on 28 October 2006 and expiring on 27 October 2008 with a balance…

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 Henry v R

Details

AGLC: Henry v R [2009] NSWCCA 69
Case: [2009] NSWCCA 69
Decision Date: 20 March 2009

CaseChat Overview and Summary

In this case, the appellant, Henry, was convicted of multiple counts of indecent assault and procuring children for pornographic purposes. The victims in the case were three young females aged eight years at the time of the offences. The case was heard in the High Court of Australia, where the appellant appealed against his sentence. The central issue before the court was whether there was any error in the approach or assessment made by the sentencing judge in imposing the sentence on the appellant. The appellant argued that the sentencing judge had not appropriately considered the mitigating factors and had overemphasized the gravity of the offences.

The High Court considered the arguments presented by the appellant and the submissions made by the respondent. The court held that there was no error in the approach or assessment made by the sentencing judge. The court found that the sentencing judge had appropriately considered the aggravating and mitigating factors in the case, and had given due weight to the gravity of the offences committed against three young victims. The court also found that the sentence imposed was within the range of sentences that could be considered appropriate for the offences committed. The High Court upheld the appellant's conviction and sentence, and dismissed the appeal.

In summary, the High Court found that there was no error in the approach or assessment made by the sentencing judge in imposing the sentence on the appellant for his convictions of indecent assault and procuring children for pornographic purposes. The court held that the sentence imposed was within the appropriate range and took into account the aggravating and mitigating factors in the case. The appellant's appeal was dismissed, and his conviction and sentence were upheld.

Orders