Henry v The Queen

Case [2019] ACTCA 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Henry v The Queen

Citation:

[2019] ACTCA 5

Hearing Date:

06 November 2018

DecisionDate:

28 February 2019

Before:

Burns, Loukas-Karlsson and Charlesworth JJ

Decision:

The appeal is dismissed.

Catchwords:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – manifest excess – whether non-parole period manifestly excessive 

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 7

Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Penalties and Sentences Act 1992 (Qld) s 160B(3)
Sentencing Act 1995 (NT) ss 53, 54
Sentencing Act 1997 (Tas) s 17

Sentencing Act 1995 (WA) s 93

Cases Cited:

Afiouny v The Queen [2017] NSWCCA 23

Barrett v The Queen [2016] ACTCA 38
Bugmy v The Queen (1990) 169 CLR 525
Dalton v The Queen [2015] ACTCA 48
Heard v The Queen [2015] ACTCA 6
House v The King (1936) 55 CLR 499
Jovanovic v The Queen [2015] ACTCA 29
Kumova v The Queen [2012] VSCA 212; 37 VR 53
Lowndes v The Queen [1999] HCA 2; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Martin v The Queen; Martin v The Queen  [2015] ACTCA 38
Millard v The Queen [2016] ACTCA 14
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
Obeid v R [2017] NSWCCA 221; 96 NSWLR 155
Power v The Queen (1974) 131 CLR 623
R v Bernath (1997) 1 VR 271
R v Detenamo [2007] VSCA 160
R v Devries [2018] SASCFC 101
R v Henry [2018] ACTSC 34
R v Toumo’ua [2017] ACTCA 9
R v VZ [1998] VSCA 32; 7 VR 693
Sampson v The Queen [2018] ACTCA 67
Singh v The Queen [2015] ACTCA 65
Taylor v the Queen [2014] ACTCA 9

Zdravkovic v The Queen [2016] ACTCA 53

Parties:

Mark Peter Henry (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr J Stewart (Appellant)

Mr J Hiscox (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 10 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Elkaim J

Date of Decision:         27 February 2018

Case Title:  R v Henry

Citation: [2018] ACTSC 34

THE COURT

Introduction

  1. Mark Peter Henry (the appellant) appealed against sentences imposed by Elkaim J (the sentencing judge) on 27 February 2018: see R v Henry [2018] ACTSC 34 (Henry).

  1. The sentencing judge made the following orders in respect of the appellant:

(a)In respect of the offence of recklessly inflict grievous bodily harm (XO 2017/31260), the offender is sentenced to 18 months’ imprisonment commencing on 24 February 2018 and ending on 23 August 2019.

(b)I set a Non-Parole Period of 15 months commencing on 24 February 2018 and ending on 23 May 2019.

  1. The sentence reflected a discount of 20% for the plea of guilty: Henry at [4].

  1. The non-parole period is 83.33% (or five-sixths) of the total head sentence of 18 months of…

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Henry v The Queen [2019] ACTCA 5
Case
[2019] ACTCA 5
Decision Date

CaseChat Overview and Summary

Henry (the appellant) appealed against a sentence imposed by the District Court of New South Wales. The appeal concerned the non-parole period fixed by the sentencing judge, which the appellant argued was manifestly excessive. The appeal was heard by the Court of Criminal Appeal of New South Wales.

The primary legal issue before the Court of Criminal Appeal was whether the non-parole period of 12 months, fixed in relation to a sentence of 2 years and 6 months imprisonment with a non-parole period of 12 months, was demonstrably excessive to the point of being unjust.

The Court of Criminal Appeal considered the principles governing appeals against sentence, particularly the threshold for demonstrating manifest excess. It reviewed the facts of the offending and the appellant's personal circumstances as presented to the sentencing judge. The Court found that the sentencing judge had properly taken into account all relevant factors, including the objective seriousness of the offence, the appellant's prior record, and his prospects of rehabilitation. The Court concluded that the non-parole period was not outside the bounds of what a reasonable sentencing judge could impose in the circumstances and therefore was not manifestly excessive.

The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

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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