R v Henderson, Corey

[2010] NSWDC 226

CITATION:	R v Henderson, Corey [2010] NSWDC 226
JUDGMENT DATE:	2 July 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence to a non-parole period of 8 months to date from the 2nd July 2010 and expiring on the 1st March 2011. Balance of term of 11 months and 23 days to expire on the 24th February 2012. Pursuant to Section 51 of the Crime (Sentencing Procedure) Act 1999, His Honour orders the offender be supervised by Probation and Parole and accept all reasonable direction from his case manager.
CATCHWORDS:	Criminal Law - Sentence - kidnapping/detain with intent to obtain advantage occasioning ABH - co-offender sex worker - motive alleged non-payment for sexual favours - victim captured, assaulted and pulled from car - detained in suburban home - treatened and ill treated - conveyed to remote park and threatened - five hours duration - offender abandons common purpose - criteria for assessing objective seriousness of detaining - injuries primarily facial - single male aged 23 at time of offending - disturbed upbringing - serious mental health issues - drug abuse.
PARTIES:	Regina Corey Henderson
FILE NUMBER(S):	2008/00011167
COUNSEL:	Defence: M King
SOLICITORS:	Crown: Ms J Duncalf

JUDGMENT
1. On 24 June 2009 I sentenced three co-offenders for various offences arising out of the kidnapping and ill treatment of M.E. I shall come to the circumstances of that kidnapping shortly. A fourth co-offender, Corey Henderson, was not dealt with at that time because he had been found unfit to be tried. In the intervening year he did become fit to be tried and on 26 March 2010 he pleaded guilty to a charge that he on 3 November 2007 at Penrith and elsewhere, whilst in the company of others, did detain M. E. without his consent with the intention of obtaining an advantage.
2. I pause there to indicate that at the time it was clear to me that the advantage was not the obtaining of money, that appears to have been an idea that occurred late in the piece to Hall, one of the other co-offenders. And I invited the Crown to reconsider the indictment that it was pressing against Corey Henderson.
3. Today he pleaded guilty to an intention to obtain an advantage, namely to intimidate the said M. E. to fear physical or mental harm and at the time of the detention actual bodily harm was occasioned to M. E.
4. Today Corey Henderson is to be held accountable for his role in this serious criminal conduct. My task is to determine the sentence appropriate for his role in the kidnapping and ill treatment of M.E. Sentencing for criminal conduct is a judicial exercise requiring consideration of the objective seriousness of the offending conduct. That task can only be assessed against the facts as I find them to be of Henderson’s role in the events of 3 and 4 November 2007.
5. Other issues need consideration including the subjective matters, the offender’s rehabilitation prospects, his plea, a discount for his plea, parity with the other offenders and of course the ultimate sentence to be imposed. None of those issues can be finalised until the primary facts have been determined. Because the offender has been dealt with in proceedings separate and distinct from the proceedings in June last year, it is only the evidence currently before me in these proceedings that can be acted upon when determining the sentence for Corey Henderson.
Facts
6. An example of what I mean is evident in the first sentence of the agreed facts. In the agreed facts before me, M. E. is described as a “regular” client of Rachel Ersman. In the trial there was evidence that he had only been with her on one occasion, she being a prostitute, before a second sexual encounter which assumes some significance in this case. I am required, however, to sentence on the facts before me. Nonetheless, I suspect that should M. E. become aware of the facts asserted in these sentencing proceedings, he may well feel puzzled and aggrieved that his sworn evidence in the trial of Johnson has been so quickly discarded by the prosecution.
Agreed Facts
7. The victim M. E, aged thirty-four, was a regular client of the co-offender, Rachel Ersman, “Ersman”, at the “Stairway to Heaven” brothel at St Marys. Ersman provided M.E. with her two mobile phone numbers so that he could meet with her privately. A co-offender Timothy Leigh Hall was the son of the man who owned the brothel and was well known to Ersman.
8. A second co-offender, Ian Johnson, is described here as the half brother of the offender. Truth be known he is no relation at all but rather, if anything, a foster brother on the basis that he regarded Mr Hall senior as fulfilling a father image. In the last sentencing proceedings I noted that it was not a relationship that Hall acknowledged. Nonetheless, in these proceedings, notwithstanding the reality, I am required to regard him as a half brother to Hall. The offender, Corey Henderson, was a close friend of Hall.
9. On Sunday 28 October 2007 M.E. contacted Ersman to “hook up for some fun”. Ersman at that time placed an order with the victim for fifty dollars worth of cannabis. They arranged to meet at the Sportsman Hotel at Blacktown. M.E. delivered the cannabis to Ersman. She told him she was with friends and asked him to return in the half hour. Shortly she contacted him for a lift from the hotel. When he arrived she invited him into her hotel room. Inside that room he was introduced to two men “Tim” (Hall) and “Hendo” (Henderson). M.E. left the room and waited for Ersman in his vehicle. She sat and talked with the victim. How that can be, I do not know.
KING: I think Mr Henderson sat and spoke with M.E. in the room, that’s as I understand it.

HIS HONOUR: My understanding of the original facts was both of them were there. But as I said, I am bound by the material before me and there is nothing else.

HIS HONOUR: Ersman ultimately left the room and approached M.E.’s car. I am sorry, it does say what you said. Henderson sat and talked with M.E. Eventually Ersman approached the car. Henderson left and M.E. drove Ersman to a reserve at Doonside. While there she spoke to M.E. about her fighting with Hall and said she wanted to leave the sex industry.

10. She then suggested they get a room at Colyton Hotel. The two drove to Colyton Hotel but no rooms were available. She then suggested they go somewhere else to have sex. They drove to a grassy area off Carlisle Avenue in Mount Druitt and engaged in sexual intercourse in his vehicle. He did not pay for the sex nor did she request payment. He dropped her off at the 7-Eleven service station in Riverstone.

The Circumstances Of This Aggravated Kidnapping

11. A few days later, around 6pm on 3 November, a Saturday, M.E. contacted Ersman. She told him she was at the Penrith Centro Shopping Centre. She placed another order for cannabis and he drove from his house in Glenmore Park to make the delivery. He was unable to locate or contact Ersman at the shopping centre and decided to leave and did so.

12. About 9 o’clock she contacted him and asked him to return to the shopping centre. He returned, saw her standing near the car park. She rang him and said she was going inside to get some condoms. She went into a fibro house across the road, situated at 120 Station Street, Penrith.

13. As she walked through the fence, Hall and Corey Henderson walked out of the fence. They approached M.E.’s car. Hall entered the passenger seat and shook the victim’s hand before punching him in the face. Corey Henderson began punching him to his face from the driver’s side of the car. Hall and Henderson pulled him out of the vehicle and marched him across the road into the house at 120 Station Street.

14. It must be that they pulled him from the right-hand side, that is the driver’s side of the vehicle. So it must be that Henderson would have been the one who opened the door and grabbed the offender and it must be that Hall either pushed from inside or came around and assisted.

15. Once inside the premises, Hall directed the victim to go wash up. M.E. went into the bathroom whereupon Hall kicked him in the arm, causing him to fall into the wall. M.E. wiped his nose with toilet paper, blood was pouring out of the nose, down the front of the shirt and dropping onto the bathroom floor and basin.

16. In the house was Ersman who had not returned, of course, and Johnson. Two others Kay Aurisch and Melika Watts were at home. Aurisch told Hall, “Get out and take it outside.” She gave M.E. a bag of frozen peas to place over his swollen right eye.

17. After M.E. had emerged from the bathroom, Hall forced him to sit on a stool in a kitchen corner. There he was held against his will, threatened and assaulted at this location for a four-hour period. Hall threatened him with an orange pair of scissors, cutting one of this “sleeper” earrings from his left ear. Hall put the scissors up to this eyes saying, “I should gouge your eye out.” Hall retrieved an axe and said, “I should cut one of your limbs off.” Hall threw a knife in the direction of M.E., narrowly missing him, and then accused him of raping “Ersman”.

18. At one point Hall left the house, leaving M.E. in the custody of Henderson and Johnson, saying to them, “Watch him and if he moves, stab him.” Whilst being detained, the victim asked to leave and be let go but was told, “We haven't finished with you yet.” At one point a Mark Glover entered the house and saw the victim being held against his will. So that that may be better understood, in the last proceedings Glover was described by me as Ersman’s pimp.

19. At about 1am on Sunday 4 November, Hall, Henderson, Ersman and Johnson all self injected speed in front of M.E.. Hall threatened to inject M.E. but stated he did not want to share. When they finished, Hall, Henderson, Johnson and Ersman made M.E. get up from his stool and walk to the back door. Hall said, “If you run, we’ll get you and kill you.” Hall, the offender, Johnson and Ersman walked the victim across the road to his blue Commodore. The victim was placed into the rear middle seat with the offender and Johnson on either side and driven for some twenty minutes to the Yarramundi Bridge on Springwood Road, Castlereagh, Penrith.

20. Hall got out of the car and went through the contents of the victim’s boot taking out a sledgehammer. Hall made a comment to M.E.saying, “Have you seen ‘Misery’?” The movie Misery has a scene during which one of the character’s ankles is broken with a sledgehammer. The party remained at Yarramundi for about ten minutes before Hall drove the group back to Penrith. On the return journey they stopped at the Woolworth’s Petrol Station on Parker Street. Ersman purchased a packet of cigarettes. Hall alighted and spoke to someone he knew at the service station. Shortly after that Henderson was dropped off at 120 Station Street, Penrith. Meanwhile Hall, Johnson and Ersman then drove off with the victim.

21. On the afternoon of Thursday 22 November 2007 Constable Mark Jackson and Constable Peter Roberts attended 60-64 Martin Street, Regentville where Henderson was cautioned and arrested. He was transported to Penrith Police Station and interviewed by police in the presence of his father, Jim Henderson.

Objective Criminality

22. From the facts, as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence before the court as an essential step in assessing the seriousness of this offender’s criminal behaviour, that is done by comparing objectively the criminality exhibited in the case before the court, that is this one, with criminality of offences of a similar kind that had been before the court in the past. It is in this way that the objective seriousness of the criminality of this offence can be evaluated.

23. It is the objective criminality which has a very important, if not the most important, impact in the overall sentencing outcome. It is true to say in this case it does.

24. When sentencing the co-offenders in June 2009 in respect of offending conduct of this kind before me, I said the following in paras 41 and 42:

“I should stress that the starting point for recognising the criminality of the kidnapping or detaining type offences and the reason why it is so serious as to merit a maximum penalty of twenty-five years, is that the right of freedom and liberty is fundamental in a democratic country such as ours. Restriction of and even total loss of liberty is permitted to government and government authorities such as police and Corrective Services. No other authority is generally permitted to tamper with the rights of residents and citizens to be free, unless they have an order of the court. Even government cannot interfere with the liberty of citizens unless it does so pursuant to some order of a court or by reliance upon some particular legislative provision of the parliament.

Insofar as kidnapping and detaining offences are concerned, it is useful to assess the objective criminality of the offence against the following criteria:

• the number of persons involved in the detention;
• the relationship of the offender, if any, to the victim;
• the mechanism by which the detention was achieved;
• the purpose for which the victim was detained;
• the harm or injury done to the victim;
• the circumstances in which the harm was inflicted, (a) in the course of detaining, and/or (b) in pursuance of the purpose of the detention;
• the period or duration of the detention;
• the holding place where the detention was effected.”
  

I indicated on that occasion that the detention came about as a consequence of a common purpose which included Hall, Ersman and Johnson. The agreed facts before me make clear that Henderson was also a party to that common purpose. Henderson’s participation in the common purpose is demonstrated by his use of violence with Hall when capturing and overbearing M.E.; when remaining with Johnson in continuing the detention of M.E. in Hall and Ersman’s absence and in accompanying the three co-offenders on the journey to Yarramundi Bridge seated strategically beside M.E.

25. Identifying the purpose of the detention has been difficult. That is because the purpose of the detention was not made clear to M.E. and perhaps shifted at Hall’s whim. While I am satisfied beyond reasonable doubt the offender’s punching M.E. in the face was directed to extinguishing his will for the purpose of detaining him, I cannot be sure that his purpose at the time was anything deeper than following Hall’s orders.

26. A man willing to conduct a serious crime against an unknown person on the whim and at the direction of another without knowing the cause or reason for such offending, presents as a man without morality or empathy for his fellow man. If I was satisfied beyond reasonable doubt this was so, I would regard this criminality as gratuitous criminality of a high order.

27. Whilst the purpose is not declared by Hall until well into the detention, and there is other evidence in the psychological reports suggesting such a possibility is open on the evidence, I am reluctant to make such a finding. Hall’s allegation that M.E. had “raped” Ersman is presumed, as it seems to me, at least by the Crown, to be a reference by Hall to the specific sexual encounter referred to in some detail in the agreed facts. As I remarked in June, it provides some motive for the detention of M.E., whether it was in fact the motive is another matter.

28. The allegation of rape is entirely without foundation on the evidence before me. There is nothing in the agreed facts that suggests Henderson knew that this allegation was to be made or that he was motivated by it. Hall’s threats and threatening actions smack of vigilantism if he, Hall, believed the allegation he made and/or gratuitous and sadistic violence if he did not. Either way his conduct was nakedly and obviously reprehensible. Henderson for his part did nothing to dissociate himself from the common purpose he was then subscribing to.

29. By this time he is not the proactive party but his presence would have been significant from M.E.’s point of view. Corey Henderson is a solidly built and apparently physically fit young man, then of twenty-three or twenty-four years of age. By this time M.E. had been detained for hours in a place he did not know, with six people present, five of whom he did not know, although had perhaps met on a couple of occasions, and the sixth, who had obviously betrayed him.

30. The purpose of his detention could not have been clear to him. But he must have assumed it related to some perceived grievance on the part of Ersman and Hall towards him. It is at about this point that he is walked across the road in the face of another threat and placed in the rear seat of the vehicle, driven to what must have seemed to him a remote and potentially extreme trauma site. Again the real purpose of the trip remains unexplained.

31. The implied threat reference to the film Misery is likely to have been a spontaneous response by Hall to finding the sledgehammer, an item I cannot assume he knew was in the boot. I am unable to determine whether further harm was intended and there was a late changing of heart, whether Hall decided to go there simply for something to do or whether there was an intent to threaten and menace M.E. in a cruel and voyeuristic way.

32. What becomes apparent from an overview is that harm and violence was inflicted upon M.E. both in the course of capturing and as part of the purpose of the detention. The violence continued past the point of capture and throughout the detention. Corey Henderson by his plea today, accepts that he was there or his part in it was to intimidate M.E. to fear physical and mental harm.

33. By the time Henderson abandoned involvement in the common purpose, M.E. had been unlawfully detained for about five hours. Henderson was the only one to leave. His criminality ceases from the moment of his departure. There are photographs showing the physical injuries sustained by M.E.. His right eye has been blackened. There is blood on his shirt, short and shoes. He appears to have abrasions on the bridge of his nose. Henderson was punching M.E. through the driver’s side window as he, M.E., sat in the driver’s seat.

34. The injury to M.E.’s right eye is consistent with it being inflicted by Henderson. I am satisfied blood came from M.E.’s nose as a result of some blunt force trauma inflicted to it, again that injury is consistent with being contributed to, at very least, by Henderson’s striking of M.E.. I cannot rule out that Hall also contributed to that injury. I am satisfied beyond reasonable doubt Henderson delivered three or more blows in his punching when seeking to overpower M.E.. I have already referred to Hall’s role in removing M.E. from the car.

35. Neither side disputes the objective gravity of this offence calls for the most serious form of punishment known to the law, namely imprisonment.

36. Corey Henderson is a single man now aged twenty-seven; twenty-three at the time of offending. He was adopted when he was four days old. His elder brother, by nine years, may also have been adopted at the same time. His parents separated when the offender was aged eight. There are numerous forensic expert reports that have been tendered in the defence case.

37. As is his right the offender has not given evidence, but evidence from his father has been called in the defence case. I am satisfied the offender is a poor historian and on occasions deliberately sought to mislead when giving his history. I shall make clear one area in particular where I am satisfied he has been less than frank. Doing the best I can, I note he claims his mother was a drug addict. There were many occasions in the absence of his father where she was brutal towards him.

38. There is no doubt the most significant person in Corey Henderson’s life is his father. He is heavily reliant upon him for support. On the other hand he has lost meaningful contact with his mother. His recollections of her is that she physically and verbally abused him. Instances occurred, he says, of being hit, punched and kicked by her for no apparent reason. He told one psychologist she hit his brother with such force she broke her wrist. He claims to have been subject to derogatory abuse from her, she telling the eight year old he was “good for nothing” and “worthless”.

39. There was a four month or so relationship during 2008. There is also a relationship in early 2010. Whether with the same or a different person is unknown, and whether it continues at present is unknown. Whether he has maintained meaningful contact with his brother is also unclear. One of the psychologists was of a view there may be closer contact with the brother than the offender was claiming.

40. For reasons which will become apparent shortly, the offender’s education history is compromised and marked by frequent behavioural difficulties. While the behavioural difficulties may have many explanations, one contributing factor could well be treatment from the mother as claimed by him. Significantly, the nature of his behavioural difficulties including anger, aggression, assaulting and bullying of other children- some of those qualities appear to have come out on the night of 3 November 2007.

41. He reached, but did not complete, Year 9. He did some work as a brickies’ labourer. He worked in a job described as Eco-Civil Construction and, I imagine, as an unskilled labourer.

42. He has an interest in music, I think production, and its production or perhaps reproduction. This is something he does at night and is said to be able to focus on it for extended periods of time. It appears to be the strongest skill he has.

43. So far as one can tell from his physical appearance, as I have already mentioned, he appears to be in reasonable physical health.

44. When aged about ten or eleven he sustained a serious traumatic head injury in circumstances where he was seeking to play Tarzan and swing on a rope. It appears to have resulted in significant acquired brain injury. He claims short and long term memory problems, difficulty concentrating, difficulty in managing emotions, rapid mood swings, including intense feelings of anger and frustration. He claims to become aggressive towards others, a feature which he experienced during schooling.

45. All professionals who interviewed him noted difficulties of mood and behaviour during the interview. He was noted in one to giggle inappropriately in the interview; in another, irrationally angry when asked to wait; overly familiar in another, displaying belligerent and generally passive/aggressive mood, and finally he quickly became argumentative and uncooperative.

46. Of particular concern is a passage in Cherise Cieplucha’s report of 17 November, para 21:

“During the interview it became apparent that Mr Henderson was amused by the thought of hurting others. He described thoughts of a violent and psychotic nature. Moreover, Mr Henderson noted potential opportunities for inflicting harm on others in relation to future career options. For instance, when discussing his desire to be a soldier he reported that he would legitimately be able to kill people without consequence. Further to this he added that if he were a park ranger he would be able to catch snakes, milk them for their venom and inject it into people. While Mr Henderson evinced signs of consequential thinking without regard to the likely outcomes associated with acting on his desire to harm people he noted that he is finding it increasingly difficult to restrain himself. On more than one occasion he reported a fear of seriously hurting someone in the future. This thinking appears to be part of a psychotic condition and he would benefit from a comprehensive psychiatric assessment.”

47. Concerning as this is, I should note, in fairness to the offender, that he was still at that time expressing a fear of offending. It is when he is no longer concerned by the proposition that one has to truly worry.

48. In November 2008 Dr Olav Nielssen diagnosed traumatic brain injury and emerging psychotic illness. In support of these diagnoses he offered this opinion:

“The diagnosis of traumatic brain injury is made on the basis of a history of a serious head injury at the age of nine and Mr Henderson’s presentation during that recent interview when he was labile in his mood and showed impaired judgment in a way that was typical of people who had sustained an injury to the frontal lobes of the brain. Mr Henderson was also thought to have an emergent psychotic illness, either schizophrenia or schizoid effective disorder (an illness with features of both schizophrenia and bi polar disorder). He reported typical symptoms of schizophrenia, like psychosis, confirmed by his father and a psychologist and there were aspects of his pattern of communication and behaviour that were thought to be consistent with emerging psychosis. Moreover, his father reported deterioration in his mental state and social performance in the last year which suggest the advent of another disorder rather than the enduring effects of his earlier head injury. There is no known family history of mental illness, however psychotic illness is a known complication of serious head injuries. He did not report significant substance abuse.”

49. In 2010 Dr Nielssen reviewed the offender. On that occasion he noted by comparison with their previous encounter that Henderson was clean shaven and neatly dressed. He was outwardly cheerful, a little over familiar, but not irritable and no use of profanity. Dr Nielssen’s diagnosis confirmed the traumatic brain injury. There was also a diagnosis of schizophrenia in remission. Dr Nielssen noted, in his opinion:

“On the basis of the history of typical symptoms and course of illness and the good response to treatment without his psychotic medication I believe Mr Henderson’s psychiatric diagnosis is the chronic and relapsing mental illness schizophrenia. The condition is described as being in remission as the acute symptoms of hallucination, persecutory delusions and disorganised thinking have largely abated as a result of consistent treatment with an adequate dose of antipsychotic medication.

There is also some residual impairment in intellectual functioning from the head injury at the age of nine.”

50. Professor Stephen Wood assessed the offender’s level for IQ scores as falling within a range of borderline to low average in most categories but average so far as performance IQ and perceptual organisation were concerned.

51. Laura Durkin, a psychologist associated with LSC Psychology, noted in para 27 of her report of 10 March 2010:

“Since his last (psychological) assessment Mr Henderson’s function has seemingly stabilised to some degree. With the support of his father he appears to have made a concerted effort to maintain a stable and pro-social lifestyle while he still impresses as lacking insight generally into his behaviour. It appears that his aggressive and violent tendencies have moderated somewhat which has likely significantly impacted by his reported compliance with medication.

While Mr Henderson remains sceptical regarding the utility of medication it appears to have been effective in managing the hallucinations identified in the previous reports. Nevertheless I still have some concerns about residual symptoms of psychosis that affect Mr Henderson’s functioning.

That assessment should be modified by some other observations of the same practitioner that the offender sleeps through the day and remains active at night in an attempt to avoid social contact ands his apparent dislike of people.

52. Corey Henderson reports minimal drug and alcohol abuse. Professor Stephen Wood significantly notes that he was unconvinced by the offender’s claim to have only used an illicit drug on the occasion of the alleged offence. I am satisfied this is a serious underreporting. It is to be remembered he injected that drug on the night. In the material before me I have seen reference to cannabis use that suggested low levels of abuse and sporadic amphetamine abuse.

53. However, given the mental health symptoms, the earlier episode of given an injection, the inconsistencies between accounts and the mental health symptoms and levels of aggression displayed, I cannot rule out a more serious drug problem is one of Henderson’s problems. The symptoms which he discloses including hearing voices are symptoms frequently associated with, although not exclusively associated with, drug abuse and particularly drug abuse of cannabis and amphetamines. I express my finding only as an underreporting of his drug use. I cannot on the information before me quantify it with any confidence and I am not prepared to quantify it as moderate or minor.

54. There appears to be an absence of contrition. In 2008 Cherise Cieplucha was left with the distinct impression there was an absence of contrition, no doubt as I recall it, by words that he had spoken. That finding was expressed in a report tendered by the defence. He told Probation and Parole he was “hanging around with the wrong crowd”. The father told Probation and Parole he had removed himself from adverse associates. Neither of those things nor anything else in the Probation and Parole report changes my view there is an absence of contrition. There does not appear to me to be any expression of remorse in any of the forensic professionals suggesting this offender is not at all troubled by his conduct on the night.

55. This offender is a young man, but for his association with Hall and his associates, otherwise socially isolated, who has harboured disturbing thoughts relating to the harming of others. He suffers a traumatic brain injury, he has schizophrenia in remission. My sense is he is a concrete thinker and his range of cognitive capacity including reasoning and judgment are comprised. That may arise from his intellectual capacity as impacted by the acquired brain damage. He is vocationally unskilled but may have some capacity, as yet the quality of which is undetermined, in music, playing, production or reproduction. He has not been to prison before.

56. In 2002 he was before the Local Court for property damage by fire and unlawful possession of explosives. The following year for enter enclosed lands. Two years later assault occasioning actual bodily harm upon a school student. There was a further entry enclosed lands. In 2008 he was before the court for knowingly contravene a prohibited/restriction in an order. These various court appearances, all in the Local Court at Penrith, have amounted to a total of $2,800 in fines. He also received fifty hours CSO for possessing a prohibited weapon in 2006. All of the matters I have referred to are what are called summary matters and this is his first appearance in what is called a superior court.

57. He was committed for sentence on 26 March 2010 after a fitness hearing. He is entitled to the benefit of a plea early entered. I give a discount of seventeen and a half per cent for the plea. This I acknowledge is less than the maximum which I have always understood to include a component for contrition. Something that I have not found present in this case.

58. In the absence of medication compliance there are real concerns about his rehabilitation prospects. He has disturbed upbringing, a past history of aggression and bullying, serious mental health issues, anti social sentiments and feelings and limited support and limited work experience and ethic. All are predictors of impaired rehabilitation progress.

59. While the defence counsel, Mr King, did not move from the proposition that a sentence of imprisonment was called for, he sought to persuade me that that sentence should be two years or less and should be suspended. He sought to rely upon Henderson’s mental health to mitigate his criminality, his moral culpability and his being a vehicle for general deterrence. The existence of mental health issues at a time of trial does not require the trial judge to transfer that mental health situation to the time of offending, that is to assume its existence at the time of offending.

60. None of the forensic professionals really sought to address the issue of the offender’s mental wellbeing at the time the offence was committed. Dr Nielssen asked a question of the accused, would he be relying upon a mental illness defence in the event of a plea of not guilty and was told by the offender, I was not thinking clearly, it would be there “to some extent”. Given that is the totality of evidence relating to the night that has been scrutinised, indeed it was not even scrutinised by Nielssen, even if I was prepared to accept what the offender says and remember he has not given a detailed account of how his thinking was impaired, there has been no expression of professional opinion in the light of specific evidence of the offender’s thinking on the night.

61. I cannot come to a finding in the absence of evidence of any causal link between the offender’s mental health situation and his involvement in the offence. I reject an assessment that he is functioning worse than as, I think it was, ninety-eight per cent of the population. Cognitively I prefer Stephen Woods’ assessment. I accept his functioning is compromised as indicated by Dr Nielssen but not to the extent postulated by the forensic professional who put it at the bottom two per cent. Nonetheless I do regard his mental health situation as rendering him compromised to an extent or level where he does not present as a good vehicle for general deterrence. That is a factor which is taken into account significantly on the question of parity.

62. He comes before the court as the only offender charged with a single offence but Johnson who was charged with this offence was also charged with the breaking and entering offence. Johnson was found by a jury to be not guilty of that and must of course therefore be presumed to be innocent. But Johnson's situation is, on the question of parity, that he was with M.E. for a further period over and above that which this offender was. On the question of parity I should also note that Hall was clearly the ringleader and instigator. Ersman’s role appears to have been that of either a manipulator in falsely accounting for the sexual encounter as rape or as at least the source of information about the second encounter and as the bait used to attract M.E. to the scene. She supports Hall throughout and never seeks to intercede on M.E.’s behalf.

63. This offender is, if I can describe him, I hope not crudely but effectively as the muscle for the capture of M.E. and is involved in his capture and injuring him at that time. He is consigned to watch over M.E. with Johnson for a short period of time and he is a strategically placed passenger to continue the theme of intimidation of M.E.

64. For his part in this sentence Hall was sentenced to a non-parole period of two years and three months with a further balance of term of two years. My memory, and I stand to be corrected, is that his overall sentence was one of four years and eight months with a two year, eight month effective non-parole period, I may be wrong on that. Johnson for this single offence, after trial and in circumstances where there was some contrition found, was sentenced to a non-parole period of two years and a balance of term of one year.

65. Ersman’s sentence is yet to be determined. She is currently on a s 11 bail. She has served some months in gaol, on my memory it was about five but I stand to be corrected. We have sought to investigate that and really the issue of parity for her is still yet to be determined.

66. This offender seems to me to be as culpable, perhaps slightly more culpable than Johnson. Johnson for his part was not involved in the capture but was involved in his further presence in the detention as they drove to M.E.’s mother’s place. Ersman, as I say, was the bait. She was not involved in violence but she was involved in the continual support of Hall and the continued detention of M.E. beyond a point where this offender was involved.

67. In all the circumstances, but for the plea of guilty I would have set an overall sentence of two years imprisonment. When that is discounted by seventeen and half per cent it reduces the overall term of imprisonment to one year, seven months and twenty-six days. In the case of both Hall and Johnson special circumstances were found. This offender’s claim to special circumstances is perhaps stronger than either because of his precarious mental health condition and I make that finding.

68. To that finding I also add that he is a young man, that I regard prison as a place that is counterproductive to rehabilitation and rehabilitation is a factor. That his rehabilitation is best achieved in the community and that he had not previously been to prison. Apparently a more accurate accounting is one year, seven months and twenty-three days; every day counts. I draw to the attention of the authorities the recommendations based in the report of Laura Durkin at para 29, which I will annexe to the remarks on sentence which I will have published and forwarded to Corrective Services in the hope that they pass them on to Probation and Parole.

69. Corey Henderson, you are convicted, that you on 3 November 2007 at Penrith in State of New South Wales, whilst in company of Timothy Hall, Ian Johnson and Rachel Ersman, did detain M, E. without his consent with intention of obtaining an advantage, namely to intimidate the said M. E. to fear physical or mental harm and at the time of that detention actual bodily harm was occasioned to M. E. In respect of that offence I sentence you to a non-parole period of eight months to commence today and to expire on 1 March 2011. I set a balance of term to expire on 24 February 2012.