Henderson v R [2016] NSWCCA 8

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Henderson v R [2016] NSWCCA 8 Hearing dates: 2 October 2015 Decision date: 09 February 2016 Before: Chief Justice Bathurst at [1] Hoeben CJ at CL at [2] RS Hulme AJ at [68] Decision: I propose the following orders:

1. Grant leave to appeal. 2. Allow the appeal 3. Quash the sentences imposed by Judge Syme on 13 November 2014. 4. Sentence the Applicant to an aggregate sentence including a non-parole period of 3 years commencing on 16 October 2014 together with a balance of term of 2 years commencing on 16 October 2017. 5. Record as the date upon which it appears to the Court that the Applicant should be released to parole 16 October 2017. 6. Imprisonment for 5 years commencing 16 October 2014 and expiring on 15 October 2019 with a non-parole period of 3 years expiring 15 October 2017. Catchwords: CRIMINAL LAW – sentence appeal – historic sexual offences – seven counts of assault female and commit act of indecency – two counts of assault male and commit act of indecency - four victims – aggregate sentence – whether sentencing judge applied sentencing practices applicable at time of offending – whether discount for early plea of guilty available and whether it was in fact applied – whether applicant in a position of trust in respect of three of the victims – whether sentencing judge's findings as to risk of re-offending open on the evidence – error established in formulation of indicative sentence requiring aggregate sentence to be reconsidered – appeal allowed – applicant re-sentenced. Legislation Cited: Crimes Act 1900 – ss 76 and 81 Crimes (Sentencing Procedure) Act 1999 – s 21A(2)(k); s 44; s 53A Criminal Appeal Act 1912 – s 5(1) Cases Cited: 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 at 519 Veen v The Queen [1988] HCA 14; 164 CLR 465 Wright v R [2008] NSWCCA 91 Category: Principal judgment Parties: John Bruce Henderson – Applicant Regina – Respondent Crown Representation: Counsel: Ms P Wass SC/Ms M Ellicott – Applicant Ms G O'Rourke – Respondent Crown