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Court of Criminal Appeal 20 March 2009

Henry v R

[2009] NSWCCA 69

Sexual offences
CRIMINAL LAW AND PROCEDURE SENTENCE

Citation: Henry v R [2009] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 20 March 2009
Judge(s): McColl JA, Grove J, Howie J

Background

The applicant pleaded guilty in the Taree District Court to five offences involving three eight-year-old female victims. The offences included two counts of indecent assault on a child under ten, two counts of procuring a child under fourteen for pornographic purposes, and one count of inciting a child under ten to commit an act of indecency. The sentencing judge also took into account two additional matters on a Form 1, including possession of child pornography.

The offences occurred in a single episode when the applicant approached the three girls near a public school, falsely presented himself as a photographer for a magazine, and used that pretence to photograph and sexually assault two of them. Significantly, the applicant was subject to a current recognizance at the time for offences of a not entirely dissimilar character.

Hulme DCJ sentenced the applicant to an overall effective non-parole period of four years with a two-year balance term. The applicant sought leave to appeal against the severity of those sentences, but his notice was filed well outside the prescribed time, necessitating an application for an extension.

  • Whether the applicant should be granted an extension of time to seek leave to appeal, given the substantial delay in filing his notice
  • Whether the sentencing judge erred in assessing the applicant's prospects of rehabilitation
  • Whether the individual sentences were manifestly excessive when compared with sentences imposed in comparable cases
  • Whether the total effective sentence was manifestly excessive

Decision

The Court granted the extension of time only with considerable reservation. Grove J noted that the circumstances "strained the limits of liberality" ordinarily applied to such applications. The Crown's opposition carried significant force, and the Court gave express notice that comparable lack of diligence in meeting time requirements may not receive the same treatment in future proceedings.

On the rehabilitation ground, the applicant challenged the sentencing judge's conclusion that his prospects of rehabilitation were not good. The Court found that this conclusion was open on the evidence and that no error had been demonstrated. The applicant had been subject to a current recognizance for prior offences of a similar character at the time of committing these offences, which was a significant aggravating factor.

On the grounds of manifest excess, the Court examined the structure of the sentences, including the sentencing judge's approach to cumulation across counts involving multiple victims. The Court found that the approach was consistent with binding High Court authority and that the sentences fell well within the range disclosed by the thirty-seven comparable cases placed before it. Grove J noted the significance of the victims' precise ages and the applicant's status on a recognizance as legitimate aggravating features.

The Court emphasised the principle that serious child sexual offending will be met with retribution, personal deterrence, and general deterrence. In the Court's view, the sentences and their structure represented a sound exercise of the sentencing discretion, and the appeal was dismissed.

Orders Made

  • Extension of time to file the notice of appeal granted
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that cumulative sentences are entirely appropriate where offences, though occurring on a single occasion, involve multiple victims.
  • A sentencing court's conclusion that an offender's prospects of rehabilitation were poor will not be disturbed on appeal where that conclusion was open on the available evidence.
  • Where an offence is defined by reference to a victim being below a specified age, the victim's actual age within that range remains a relevant and significant sentencing consideration.
  • The existence of a current recognizance for offences of a similar character at the time of the new offending was treated as a serious aggravating circumstance.
  • Procedural delay in pursuing a sentence appeal will not automatically be excused: the Court signalled that comparable dilatoriness may not attract the same leniency in future applications.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 91G(1)(a)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- The Queen v Olbrich (1999) 199 CLR 270
- R v AGR (unreported) NSWCCA, 24 July 1998
- R v Rich [2000] NSWCCA 448