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Henry v The King

Henry v The King

Case [2023] VSCA 100 1 May 2023

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0008

RAYMOND HENRY	Applicant
v
THE KING	Respondent

S EAPCR 2023 0002

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
RAYMOND HENRY	Respondent

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JUDGES:	PRIEST AP, T FORREST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2023
DATE OF JUDGMENT:	1 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 100
JUDGMENT APPEALED FROM:	DPP v Henry (County Court of Victoria, 9 December 2022, Judge Meredith)

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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether verdicts of the jury were unreasonable or could not be supported by the evidence – Leave to appeal refused.
CRIMINAL LAW – Crown Appeal – Sentence – Indecent assault – Whether individual sentences, orders for cumulation and total effective sentence manifestly inadequate – Whether sentencing judge erred in suspending sentence – Appeal dismissed.

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Counsel
Applicant/Respondent:		Mr DA Dann KC
Appellant/Respondent:		Mr RL Gibson KC with Mr L McAuliffe
Solicitors
Applicant/Respondent:	Belleli King & Associates
Appellant/Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
T FORREST JA
TAYLOR JA:

Following a trial, on 2 December 2022 a jury in the County Court found Raymond Henry guilty of four ‘course of conduct’ charges of indecent assault[1] (charges 1 to 4), all four charges relating to alleged offending against ‘AK’ between 1 January 1987 and 31 December 1988, when AK was aged 13 years. Subsequently, on 9 December 2022, the trial judge sentenced him to three years’ imprisonment, suspended for two years, in the manner set out below.[2]
[1]Crimes Act 1958 (as amended by the Crimes Act (Sexual Offences) Act 1980), s 44(1). The maximum sentence is five years’ imprisonment.
[2]At [72].
By a notice filed 6 January 2023, Mr Henry seeks leave to appeal against his conviction on the ground set out below.[3]
[3]At [7].
Further, by a notice filed the previous day, on 5 January 2023, pursuant to s 287 of the Criminal Procedure Act 2009 (‘CPA’), the Director of Public Prosecutions (‘DPP’) has appealed against the sentence on the grounds set out below.[4]
[4]At [73].
When dealing with the application for leave to appeal against conviction it will be convenient to refer to Mr Henry as ‘the applicant’, and as ‘the respondent’ when dealing with the DPP appeal.
For the reasons that follow, we would refuse the applicant leave to appeal against conviction. We would also dismiss the DPP’s appeal against sentence.

Application for leave to appeal against conviction

The applicant was convicted in the County Court of four charges of indecent assault. The alleged offences were said to have occurred in 1987 or 1988. At that time the maximum penalty for the offence of indecent assault was five years’ imprisonment. The applicant was sentenced to a total effective sentence of three years’ imprisonment, wholly suspended and with a purported operational period of two years.
He now seeks to appeal against his conviction on the following ground:
Ground 1 — The verdicts of the jury on all…

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 The King

Details

AGLC: Henry v The King [2023] VSCA 100
Case: [2023] VSCA 100
Decision Date: 1 May 2023

CaseChat Overview and Summary

The case of Henry v The King involved an appeal against a conviction and sentence for indecent assault. The appellant, Henry, was convicted of multiple counts of indecent assault and subsequently sentenced by the sentencing judge. The appellant sought leave to appeal the conviction on the basis that the verdicts were unreasonable or not supported by the evidence. Additionally, the Crown appealed the sentence, arguing that the individual sentences, the orders for cumulation, and the total effective sentence were manifestly inadequate. Furthermore, the Crown contended that the sentencing judge erred in suspending the sentence.

The court considered whether the verdicts were unreasonable or could not be supported by the evidence. It examined the evidence presented at trial and the reasoning of the jury to determine if the verdicts were justified. The court also examined the sentence imposed by the sentencing judge, assessing whether the individual sentences, orders for cumulation, and total effective sentence were manifestly inadequate. Furthermore, the court considered whether the sentencing judge erred in suspending the sentence.

The court found that the verdicts of the jury were not unreasonable and were supported by the evidence. The court concluded that the jury had followed the correct legal process and had considered the evidence properly. The court also found that the sentence imposed by the sentencing judge was not manifestly inadequate. The court held that the sentencing judge had exercised their discretion appropriately in imposing the sentence and had not erred in suspending the sentence. Consequently, the appeal against the conviction was dismissed, and the appeal against the sentence was also dismissed.

No further orders were made by the court. The conviction and sentence of the appellant remained unchanged.

Orders