Henry v The Queen

Case [2022] SASCA 60

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HENRY v THE QUEEN

[2022] SASCA 60

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

22 June 2022

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - POWER TO ACT CONTRARY TO SEPARATION OF POWERS DOCTRINE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The applicant was convicted by different juries of two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). While each count was particularised as constituted by various unlawful sexual acts, neither jury was asked which of the alleged unlawful sexual acts they had found proved.

The complainants at each trial, VS and HS, were the applicant’s step-daughters. Each alleged that the offending had occurred in the 1970s, when the complainants were between the ages of seven and 11 and 10 and 12 respectively.

The maximum penalty for each offence was life imprisonment. On 17 December 2018, the sentencing judge, having presided over both trials, identified starting points of 11 years and 12 years imprisonment for the two offences respectively. His Honour ordered that the second sentence be served concurrently as to six years, resulting in a total sentence of 17 years imprisonment, with non-parole fixed at the statutory minimum of 13 years, seven months and six days.

The applicant seeks permission to appeal out of time against his sentence on three grounds of appeal.

Ground 1 is a challenge to the validity of s 50(11) of the CLCA on the basis that it infringes the constitutional principle enunciated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. Section 50(11) requires that a judge, in sentencing a person convicted of an offence under s 50(1), sentence on a basis which is consistent with the verdict of the trier of fact but having regard to the unlawful sexual acts the judge has determined to be proved beyond reasonable doubt. The applicant submits that s 50(11) is invalid for the same reasons given by this Court in Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400 in that it permits a judge to sentence on a basis which may be inconsistent with the findings of the jury. He further submits that s 50(11) is invalid because it purports to withdraw the capacity of the Supreme Court to…

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Henry v The Queen [2022] SASCA 60
Case
[2022] SASCA 60
Decision Date

CaseChat Overview and Summary

The applicant was convicted and sentenced for two counts of maintaining an unlawful sexual relationship with his two step-daughters, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The applicant sought permission to appeal out of time on the grounds that the sentence imposed was manifestly excessive, that the sentencing judge failed to provide adequate reasons for the sentence, and that s 50(11) of the CLCA is invalid and the sentencing judge failed to sentence him on the most favourable factual basis. The court considered the nature of the offences, the impact on the victims, and the applicant's personal circumstances, including his age, health, and established rehabilitation.

The court rejected the applicant's contention that s 50(11) of the CLCA is invalid and that the sentencing judge failed to sentence him on the most favourable factual basis. The court found that the sentencing judge's reasons were adequate and that the sentence imposed was not manifestly excessive. The court noted that the sentencing judge had considered the applicant's personal circumstances, including his age, health, and established rehabilitation, and had imposed a sentence that reflected the standard in R v D. The court also noted that the applicant's personal circumstances did not warrant a significant departure from the sentencing principles applicable to the offences.

The court found that the applicant's challenge to the validity of s 50(11) of the CLCA based on Question of Law Reserved (No 1 of 2018) and Kable must be rejected. The court also rejected the applicant's contention that the Supreme Court is denied the capacity to exercise its jurisdiction to conduct a review of any sentence imposed. The court found that the sentencing judge's reasons were not inadequate and that the sentence imposed was not manifestly excessive. The court agreed with the orders proposed.

Orders

Orders of the court

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Background

Background to the litigation

Before addressing each of the three grounds directly, it is appropriate to commence by providing an overview of the two offences of which the applicant was convicted.Background The applicant was tried in January 2018 before a judge and jury on an Information charging one count of maintaining an unlawful sexual relationship (MUSR) with his step-daughter, VS. The offending was alleged to have occurred between 1 January 1976 and 31 December 1979, when VS was between seven and 11 years of age. The charge was particularised as including the following acts (each of which was alleged to have occurred on more than one occasion):(a) inserting his penis into her vagina;(b) inserting his finger into her vagina;(c) causing her to perform fellatio on him;(d) performing cunnilingus on her;(e) touching her breasts; and(f) touching her vagina. The jury returned a majority guilty verdict in respect of this count. The applicant was then tried in November 2018, before the same judge but a different jury, on an Information charging one count of MUSR with another of his step-daughters, HS, the sister of VS. The offending was alleged to have occurred between 1 January 1974 and 15 March 1976, when HS was between 10 and 12 years of age. The charge was particularised as including the following acts:(a) inserting his penis into her vagina on more than one occasion; and(b) inserting his finger into her vagina on more than one occasion. The jury returned a majority guilty verdict in respect of this count. In December 2018, the applicant was sentenced for both offences. The sentencing judge, who had presided over both trials, commenced his summary of the sexual abuse relevant to each offence by summarising the domestic context in which it occurred. His Honour accepted the prosecutor’s submission that the evidence established that the applicant’s offending occurred in the context of a household dominated and controlled by a violent and cruel man, which coloured how his step-daughters responded to the sexual abuse that he regularly perpetrated upon them. The sentencing judge then summarised the offending in the following terms:H was aged between 10 and 12 years when you sexually abused her while living at each of the towns the family lived in between 1974 and 1976 and before she returned to live with her grandparents in Victoria. You would have been aged between 23 and 25 years during that time. The sexual acts perpetrated upon H involved you inserting your penis into her vagina and inserting your finger into her vagina. You performed those sexual acts upon her on a regular basis over that period of time. The evidence also revealed that you had already sexually abused H while living in Victoria. You cannot be punished for that sexual abuse as it did not form part of the charge. It is, nevertheless, relevant to show when you first abused H and how it was that you continued to abuse her after she arrived in South Australia to live with the family.V was aged between seven and 11 years when you sexually abused her when the family was living in Whyalla between the middle of 1976 and up until the end of 1979 when V returned to live in Victoria. During that time you were aged between 26 and 29 years. V described a number of different sexual acts which you perpetrated upon her, including inserting your penis into her vagina; inserting your fingers into her vagina; causing her to suck your penis; of you licking her vagina and touching her breasts and vagina. Apart from detailing the regularity of those sexual acts, V was able to vividly recall a number of specific incidents of sexual abuse which she gave detailed and compelling evidence of.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This contention must be rejected. Because the sentencing court must provide sentencing remarks which record the factual findings made by the sentencing court beyond reasonable doubt, there is no reason to think that the Supreme Court is denied the capacity to exercise its jurisdiction to conduct a review of any sentence imposed that is said to be affected by error.Conclusions In my opinion, the applicant’s challenge to the validity of s 50(11) of the CLCA based on Question of Law Reserved (No 1 of 2018) and Kable must be rejected. Likewise, the applicant’s contention that the Supreme Court is denied the capacity to exercise its jurisdiction to conduct a review of any sentence imposed must also be rejected. As the reliance placed on Question of Law Reserved (No 1 of 2018) is misplaced, this case provides no occasion to consider whether that decision should be over-ruled. I agree with Doyle JA, for the reasons that he gives, that in the particular circumstances of this case, having regard to the way in which it was conducted and fought, the reasons of the sentencing court were not inadequate and the sentence imposed was not manifestly excessive. I agree with the orders proposed. DOYLE JA: The applicant was charged with two counts of maintaining an unlawful sexual relationship with his two step-daughters, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Each count was particularised as constituted by various unlawful acts. The trials in relation to the two counts were conducted separately before different juries. Both juries returned majority verdicts of guilty, but neither was asked which of the alleged unlawful sexual acts they had found proved. The applicant was sentenced by the Judge who had presided over both trials. Pursuant to s 50(11) of the CLCA, his Honour found that all of the unlawful sexual acts were proved beyond reasonable doubt. Having identified notional starting points of 11 years and 12 years imprisonment respectively for the two offences, the sentencing judge ordered that the second be served concurrently as to six years, resulting in an aggregate head sentence of 17 years imprisonment. His Honour fixed a non-parole period of 13 years, seven months and six days. The applicant seeks permission to appeal out of time on three grounds: ·first, that s 50(11) of the CLCA is invalid and the sentencing judge failed to sentence the applicant on the most favourable factual basis (as required by Chiro v The Queen[25] and R v De Simoni[26]);·secondly, that the sentencing judge erred in failing to provide adequate reasons for sentence; and·thirdly, that the sentence imposed was manifestly excessive, taking into account the applicant’s “established rehabilitation” and his old age and poor health. The applicant further contends that there ought to have been a greater degree of concurrency or allowance for totality in the sentence imposed.[25] Chiro v The Queen (2017) 260 CLR 425.[26] R v De Simoni (1981) 147 CLR 383.

Ratio Decidendi

Legal Principle Established

The applicant contends that the sentence imposed was manifestly excessive, taking into account his “established rehabilitation”, and his old age and poor health. He also contends that there ought to have been a greater degree of concurrency, or allowance for totality, in the sentence imposed.Relevant considerations The maximum penalty for each of the two MUSR offences of which the applicant was convicted was life imprisonment. The circumstances of the two offences committed by the applicant have been detailed earlier in these reasons, and need not be repeated. Each offence involved a sustained course of numerous unlawful sexual acts of a serious nature, occurring over a significant period of time. Each involved offending against a young step-daughter, with one being between the ages of seven and 11, and the other being between the ages of 10 and 12, when the offending occurred. The offending involved gross breaches of the relationship of trust and authority between the applicant and his step-daughters, with the applicant exploiting his advantages of age and life experience to take advantage of the young age and vulnerability of the complainants. The vulnerability of the complainants was no doubt exacerbated by the atmosphere of violence and fear created by the applicant’s behaviour towards his family, and the corresponding power and control that the applicant possessed and abused. As the sentencing judge correctly acknowledged, each offence called for a sentence reflecting the standard in R v D.[86] I note in this respect the recent application of this standard, with reference to the flexibility inherent in that application, to similar offending in Edmonds (a pseudonym) v The Queen.[87] [86] R v D (1997) 69 SASR 413.[87] Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [51]-[54] (Livesey P, Doyle and David JJA). The sentencing judge also acknowledged the devastating and profound impact the applicant’s prolonged sexual abuse had had, and continued to have, upon each of his step-daughters. He said that “[i]n short, their lives were ruined by what you chose to repeatedly do to them when they were young girls to gratify your sexual desires.” Turning to the applicant’s personal circumstances, the offending occurred in the 1970s when the applicant was in his twenties. By the time he was convicted and sentenced in 2018, he was 68 years of age. The applicant identifies as an Aboriginal person, having ancestry on his mother’s side. He was the youngest in a family of 10 children. He was raised on a farming property in Victoria and enjoyed a happy childhood. Unfortunately, however, his parents had both passed away by the time he was 18 years of age. After leaving school at the age of 13 years, he went to work to help support his family. He continued working until he retired in his mid-fifties. As at the date of sentencing, the applicant had been in a relationship for over 25 years with a woman who was by then 71 years of age. She was experiencing signs of cognitive decline, as well as other mental and physical health issues.