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Henson (a pseudonym) v The Queen

Henson (a pseudonym) v The Queen

Case [2018] VSCA 283 7 November 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0231
EMYR HENSON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH, HARGRAVE JJA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2018
DATE OF JUDGMENT:	7 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 283
JUDGMENT APPEALED FROM:	DPP v [Henson] [2017] VCC 1568

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CRIMINAL LAW – Conviction – Application for leave to appeal – Prosecutor’s closing address – Whether prosecutor’s closing address reversed onus of proof – Whether prosecutor’s address undermined stature of defence counsel – Whether prosecutor’s address encouraged emotive or speculative reasoning – Whether prosecutor’s address contained submissions not supported by evidence – Whether prosecutor’s address otherwise impermissible – Proposed ground of appeal not reasonably arguable – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Application for leave to appeal – Rape (3 counts), threat to kill and common assault – Total effective sentence 8 years and 6 months, with non-parole period of 6 years and 3 months – Whether sentences, orders for cumulation or non-parole period manifestly excessive – Complaints of manifest excess not reasonably arguable – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue + George
For the Respondent	Ms E H Ruddle	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
HARGRAVE JA
ALMOND AJA:

In June 2017, the applicant was tried in the County Court on eight charges involving the one complainant. On 16 June, the applicant was convicted on five of the charges: making a threat to kill, common assault and three charges of rape (charges 3, 4, 5, 6 and 7). The applicant was acquitted on the three other charges on the indictment: making a threat to kill, aggravated burglary and rape (charges 1, 2 and 8).

On 21 August 2017, following a plea hearing, the applicant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

3 Make threat to kill
[Crimes Act 1958 s 20] 10 years’ imprisonment 2 years 4 months

4 Common assault
[common law] 5 years’ imprisonment 1 year 2 months

5 Rape
[Crimes Act 1958 s 38(1)] 25 years’ imprisonment 6 years 12 months

6 Rape
[Crimes Act 1958 s 38(1)] 25 years’ imprisonment 6 years 12 months

7 Rape
[Crimes Act 1958 s 38(1)] 25 years’ imprisonment 6 years Base

Total Effective Sentence: 8 years 6 months’ imprisonment

Non-Parole Period: 6 years 3 months

The applicant now seeks leave to appeal against his conviction and sentence. The sole proposed ground of appeal against conviction is:

A substantial miscarriage of justice has occurred because of the intemperate, inflammatory and prejudicial closing address by the prosecutor.

The sole proposed ground of appeal against sentence is that:
The individual sentences…

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 Henson (a pseudonym) v The Queen

Details

AGLC: and Emyr Henson (a pseudonym)[1] v The Queen [2018] VSCA 283
Case: [2018] VSCA 283
Decision Date: 7 November 2018

CaseChat Overview and Summary

The appellant, identified as Henson, appealed against his conviction and sentence for multiple criminal offences, including rape, threat to kill, and common assault. The appeal was brought before the court seeking leave to appeal against both the conviction and the sentence. The central issues revolved around whether the prosecutor's closing address had any improper influence on the jury, which might have affected the fairness of the trial, and whether the sentence was manifestly excessive.

The court examined the prosecutor's closing address to determine if it had any elements that improperly influenced the jury, such as reversing the onus of proof, undermining the defence counsel's stature, encouraging emotive or speculative reasoning, or containing submissions not supported by evidence. The court concluded that none of these elements were present, and thus, the prosecutor's address was permissible. Furthermore, the court found that the grounds proposed for the appeal against the conviction were not reasonably arguable.

In relation to the sentence, the court considered whether the total effective sentence of 8 years and 6 months, with a non-parole period of 6 years and 3 months, was manifestly excessive. The court found that the sentence was within the range of appropriate penalties for the offences committed and that the complaints of manifest excess were not reasonably arguable. Consequently, the application for leave to appeal against both the conviction and the sentence was refused.

Orders