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8
Court of Criminal Appeal 9 February 2016

Henderson v R

[2016] NSWCCA 8

Also reported as (2016) 256 A Crim R 519
Sexual offences
CRIMINAL LAW SENTENCE APPEAL HISTORIC SEXUAL OFFENCES FOUR VICTIMS AGGREGATE SENTENCE OFFENDING OPEN ON THE EVIDENCE

Citation: Henderson v R [2016] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 09 February 2016
Judges: Bathurst CJ at [1]; Hoeben CJ at CL at [2]; RS Hulme AJ at [68]

Background

The applicant, a man born in 1940, pleaded guilty to nine counts of indecent assault against four child complainants. The offences occurred between 1961 and the late 1970s, when the victims were aged between approximately 3 and 10. Two further counts of indecent assault were taken into account on a Form 1 document (a mechanism allowing additional offences to be considered in sentencing without separate convictions being recorded).

The offences fell under ss 76 and 81 of the Crimes Act 1900, each carrying a maximum penalty of 5 years imprisonment. In November 2014, the applicant was sentenced in the District Court to an aggregate term of 6 years imprisonment, comprising a non-parole period of 3 years and 10 months followed by an additional term of 2 years and 2 months.

The applicant appealed to the Court of Criminal Appeal on six grounds, contending that the sentencing judge had erred in several respects, including the application of sentencing principles applicable at the time of the offending, the failure to discount for the utilitarian value of the guilty plea, findings about the applicant's position of trust, and findings about the risk of re-offending.

  • Whether the sentencing judge correctly applied the sentencing practices that prevailed at the time of the historic offending, rather than contemporary practices
  • Whether the applicant received a discount for the utilitarian value of his early guilty plea
  • Whether the applicant was properly found to have been in a position of trust in relation to each of the four victims
  • Whether the finding that the applicant was "not unlikely to re-offend" was open on the evidence, given his lengthy period without reoffending
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court found error in the formulation of the indicative sentences by the sentencing judge. In particular, the indicative sentence for count 5 (digital penetration of victim LB) was set at 4 years, which the Court of Criminal Appeal regarded as excessive when measured against sentences that would have been appropriate at the time of the offending. This error infected the aggregate sentence and required resentencing.

On the question of the guilty plea discount, the Court accepted that there was genuine uncertainty as to whether the sentencing judge had applied a discount for the utilitarian value of the plea. Given that error, and the error in the indicative sentences, the Court proceeded to resentence the applicant.

Regarding the position of trust, the Court accepted that the applicant was in a position of trust in relation to victims CC, LB, and RB, who were family members. The Court did not accept that a position of trust was established in relation to GB, who was not a relative and had only a brief acquaintance with the applicant through their shared church connection.

On the question of re-offending risk, the Court acknowledged the applicant's lengthy period of approximately 35 to 40 years without further offending. The Court noted this was strong evidence of rehabilitation and was relevant to the risk finding. The Court also emphasised the principle established in cases such as R v Todd that, for historic offences where an offender is rehabilitated, the fact of imprisonment itself carries the greatest weight in punishment and denunciation, rather than the length of the sentence. Applying these principles, the Court imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 2 years and 6 months, with the reduced non-parole period justified by the sentencing practices of the period and the applicant's rehabilitation.

Orders Made

  • Appeal allowed
  • The sentence imposed in the District Court was quashed
  • The applicant was resentenced to an aggregate term of 5 years imprisonment
  • Non-parole period of 2 years and 6 months

Key Takeaways

  • When sentencing for historic offences, courts are required to apply the sentencing practices that prevailed at the time of the offending, not contemporary practices. This can materially affect both indicative and aggregate sentences.
  • A failure to apply, or uncertainty about whether a court applied, a discount for the utilitarian value of a guilty plea constitutes a sentencing error capable of grounding a successful appeal.
  • The Court of Criminal Appeal confirmed that a position of trust for sentencing purposes requires a genuine relationship of trust or reliance, not merely a casual or community-based acquaintance. Family relationships satisfied this requirement; a brief church connection did not.
  • A substantial period without reoffending (here, several decades) constitutes significant evidence of rehabilitation, and the sentencing court must give it proper weight when assessing re-offending risk.
  • In cases of historic sexual offending where an offender is rehabilitated, the principle articulated in R v Todd recognises that the fact of imprisonment, rather than its duration, is the primary vehicle for punishment and denunciation, subject always to proportionality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 76 and 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(k), 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- AJB v The Queen [2007] NSWCCA 51; 169 A Crim R
- BP v R [2010] NSWCCA 303
- Bradbery v R [2008] NSWCCA 93
- Dousha v R [2008] NSWCCA 263
- Karl Suleman v R [2009] NSWCCA 70
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- Magnuson v R [2013] NSWCCA 50
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Moon v R [2000] NSWCCA 534; 117 A Crim R 497
- Nelson v R [2007] NSWCCA 221
- Nykolyn v R [2012] NSWCCA 219
- Peiris v R [2014] NSWCCA 58
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v Todd [1982] 2 NSWLR 517
- Veen v The Queen [1988] HCA 14; 164 CLR 465
- Wright v R [2008] NSWCCA 91