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BETWEEN: THE QUEEN

Appellant

AND: CHRISTOPHER JOHN HENDERSON

Respondent

ORDER

Judges: Crispin P, Gray and Gyles JJ

Date: 7 September 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The sentence for the offence of aggravated burglary charged in the first count in the indictment be set aside and, in lieu thereof, the respondent be sentenced to a term of 5 years imprisonment with such sentence to commence three years prior to the end of the sentence imposed in respect of the offence charged in the second count in the indictment.

3. The non-parole period be set aside and, in lieu thereof, there be a non-parole period of 5 years from 16 February 2006.

IN THE SUPREME COURT OF THE ) No. ACTCA 41 – 2005

) No. ACTCA 5 – 2006

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 240 of 2004

)

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHRISTOPHER JOHN HENDERSON

Appellant

AND: THE QUEEN

Respondent

BETWEEN: THE QUEEN

Appellant

AND: CHRISTOPHER JOHN HENDERSON

Respondent

Judges: Crispin P, Gray and Gyles JJ

Date: 7 September 2006

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 15 August 2005 the appellant was arraigned on four counts: the first alleging that he had committed a burglary whilst armed with an offensive weapon (“aggravated burglary”), the second alleging that he had engaged in sexual intercourse with a person (“the complainant”) without her consent (“sexual intercourse without consent”), and the third and fourth counts alleging that he had dishonestly appropriated various items of property. The jury subsequently found him guilty on all counts.

2. On 16 February 2006 Connolly J sentenced him to 3 years imprisonment on the offence charged in the first count, 7 years imprisonment on the offence charged in the second count and six months imprisonment in respect of each of the offences charged in the third and fourth counts. His Honour ordered that the sentence imposed for the offence charged in the first count be served concurrently with that charged in the second but that the latter be cumulative upon the sentencing applicable to the offence charged in count four which was to be served concurrently with that charged in count three. The sentences imposed for the offences charged in the third and fourth counts were backdated to 17 August 2005 and his Honour took into account the fact that the appellant had spent another 146 days in custody prior to that date. His Honour imposed an effective non-parole period of 4 years from 16 February 2006. These orders gave rise to a total effective sentence of nearly 7 years and 11 months and a non-parole period of nearly 4 years and 11 months.

3. The appellant has appealed against his convictions and the perceived severity of the sentences imposed. On the other hand, the respondent has appealed against the perceived leniency of the sentences.

4. The latter appeal was brought in separate proceedings, but, for the sake of convenience, Mr Henderson and the Director of Public Prosecutions will be referred to consistently as “the appellant” and “the respondent”.

5. All of the offences charged in the indictment allegedly occurred during the course of an incident in the early hours of 7 June 2004. The complainant was asleep in one bedroom of a unit in the Griffith Apartments in Kingston (“the apartments”) when the appellant climbed onto the balcony and entered the unit through a sliding glass door. He removed an ATM card from the pocket of her jacket in the lounge room and then entered the bedroom where the complainant was sleeping. He placed a knife against her throat and one hand across her mouth. He told her to be quiet, then removed his hand from her mouth, lifted her top and fondled her breast. He proceeded to roll the complainant on to her right side and initially touched and then penetrated her vagina with his fingers. After some time he opened his trousers and removed his penis. He took hold of her left hand and placed it onto his penis saying words to the effect of, “help me if you don’t want to get hurt”. He moved her hand backwards and forwards on his flaccid penis but, when it failed to become erect, said to the complainant “you’re a very lucky person”. He then demanded money. The complainant directed him to her purse from which he received $45 in Australian currency and US currency worth about $1,000. He also took two mobile phones and a laptop computer. When the complainant asked him not to take the computer he told her that if she didn’t tell anyone what had happened he would leave it downstairs for her. He then left. The complainant woke her mother to tell her what had occurred before going outside to see if the laptop had been left anywhere and to inform the hotel staff.

6. The only real issue at the trial was whether it was the appellant who had been the offender. It had been too dark in the bedroom for the complainant to have seen the offender’s face clearly and the case against the appellant was dependent upon circumstantial evidence.

7. Video surveillance from a camera mounted in the hotel business centre revealed images of a person outside the hotel at various times including 3.28, 3.52 and 4.23 am. Surveillance from a camera mounted in the arcade subsequently showed a person walking out of the arcade at 5.11 am and a person leaving the arcade at 5.32 am. It was subsequently admitted that the appellant had been the person recorded near the business centre at 3.28 am and the person shown leaving the arcade at 5.32 am. On the latter occasion he had a bag on his shoulder that appeared to be a laptop computer bag.

8. A partial shoe print on the top of the metal trellis directly below the balcony of the apartment that had been occupied by the complainant was compared with the appellant’s shoes but, whilst the appearance of the treads were generally consistent, the comparison proved inconclusive.

9. More importantly, a swab taken from the complainant’s left breast was subjected to DNA analysis and found to contain a similar DNA profile to that obtained from a biological sample provided by the appellant. A forensic scientist gave evidence that the chances of a person chosen at random from the ACT population having such a DNA profile was approximately 1:199 billion. The same DNA profile was found on a cigarette butt located in the courtyard beneath the balcony of the apartment that had been occupied by the complainant. The scientist was cross-examined by counsel for the appellant who asked some questions apparently for the purpose of casting doubt on the accuracy of her estimates as to the probability of such a profile being found within the general population. However, he did not challenge her methodology or suggest to her that the degree of probability would not have been extraordinarily low.

10. The accused gave evidence that he had gone to an area near the apartments on two or three occasions during that night to steal the water pump from a fountain but had been unable to disconnect it. At some point he met another man whom he had earlier met at a licensed premises and, after some conversation, the man asked him if he would give him a “leg up” onto his balcony. He said that he had been eager to help someone who had apparently locked himself out of his apartment but declined his offer to join him because he would not have been able to climb up onto the balcony due to his physical condition. He subsequently spotted a black bag on a bench and, “not to look a gift horse in the mouth”, put it over his shoulder and commenced to walk away. He claimed that someone had grabbed him from behind. He turned around and both spat at and then pushed that person. He was unable to say whether the person was a man or a woman but claimed that, when he or she persisted in trying to drag the bag from him, he “shoved again and spat again and then got the hell out of there”.

11. The complainant denied that she had been involved in any altercation of this nature. Her mother also gave evidence that, whilst she had remained in the apartment, she had been able to see her daughter searching for the computer and that she had not seen anyone else in the grounds outside the apartment. She also said that when her daughter returned she told her that she had been unable to find the laptop. Evidence was led to establish that the appellant had suffered from degeneration of discs in his neck and had previously been treated for lacerations and stabbings, but the medical practitioner called to give evidence on his behalf was not asked any questions with a view to demonstrating that the appellant might have been incapable of climbing onto the balcony as claimed.

12. Counsel for the appellant did not press some of the grounds that appeared to be foreshadowed in the notice of appeal, electing to rely solely upon the ground that the conviction was unsafe and unsatisfactory. The respondent did not take any point about the absence of any particulars of this ground, though such particulars should normally be provided to ensure that the relevant issues have been adequately identified, relevant material included in the appeal book and the respondent given a fair opportunity to meet the case upon which the appellant intends to rely.

13. Any uncertainty about the circumstances in which an appellant court should set aside a jury’s verdict on a ground of this nature were resolved by the decision of the High Court of Australia in M v R (1994) 181 CLR 487. In that case Mason CJ, Deane, Dawson and Toohey JJ explained at 494-5: In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence (Chamberlain v R [No 2] (1984) 153 CLR at 618-619; Chidiac v R (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting a trial by court of appeal for trial by jury, for the ultimate question must always be whether the Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v R (1991) 171 CLR 432 at 443, 458, 461-462). Although the proposition stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form which they are set out above.

14. See also Jones v R (1997) 191 CLR 439 at 450-451 and Gipp v R (1998) 194 CLR 106 at 114, 123, 150 and 162-4.

15. Ms Warwick, who appeared for the appellant, did not suggest that the offences had not been committed in the manner described by the complainant but submitted that the evidence had not excluded a reasonable possibility that they had been committed by someone other than the accused. She pointed out that other people had been moving around the hotel at about the relevant time. The appellant had claimed that he would have been physically unable to climb onto the balcony of the unit occupied by the complainant and, whilst he had consented to a search of his premises, no stolen property was found. She argued that the real offender may have been the man whom the appellant claimed he had assisted to climb onto the balcony. She maintained that the presence of the appellant’s DNA on the complainant’s left breast could have been attributable to spittle if, despite the complainant’s evidence to the contrary, she had been the person whom he claimed had attempted to wrest the computer bag from him outside the hotel. Ms Warwick also suggested that it may have been attributable to secondary transference from the hand of the man the appellant had allegedly assisted onto the balcony. She argued that the appellant’s presence at the hotel was adequately explained by his evidence that he had intended to steal the water pump. His DNA on the cigarette butt was explained by his evidence that he had admitted looking for discarded butts and his possession of the computer bag was explained by his evidence that he had merely found it, presumably where it had been left by the real offender.

16. On the other hand, as the Director pointed out in his submissions, the Crown case was compelling, the series of explanations proffered by the appellant had been implausible and the jury had had the opportunity of assessing his credibility by reference to his demeanour in the witness box.

17. Ms Warwick also argued that the verdict was unsafe and unsatisfactory by reason of the limited nature of the police investigation. She pointed out that the evidence revealed that the offender had touched a number of items and that he had not been wearing gloves. Yet, swabs had not been taken from the complainant’s purse and there had been no DNA analysis of swabs taken from the balcony railing, the sliding door, two black bags belonging to the complainant and a tissue found on the hotel grounds. The railing and sliding door had been examined for fingerprints but the black bags and purse had not been so examined. The appellant’s tracksuit pants, jacket and vest had been seized and subjected to some examination but neither the nature nor results of such examinations had been revealed in evidence. Not all of the video surveillance tapes had been provided to the defence. Furthermore, whilst there was evidence that two spermatozoa had been detected on a labial swab, subsequent DNA analysis had failed to reveal the relevant male profile and this failure had not been explained.

18. A number of points may be made in answer to these contentions. First, it cannot simply be assumed that an appellant’s trial must have been unfair because the antecedent investigation was not as exhaustive as his or her counsel might contend, in hindsight, that it ought to have been. Second, appellate courts do not overturn convictions merely because the conduct of the trial may have been attended by some degree of unfairness, but only when it may be concluded that “there was a miscarriage of justice” . . . such that (the appellant) has thereby lost “a chance which was fairly open to him of being acquitted” . . . or “a real chance of acquittal” . . ..”, per Mason CJ and McHugh JJ in Dietrich v The Queen (1992) 177 CLR 292 at 310-311. Third, there is no evidence to suggest that the further examination or investigation suggested by the appellant’s counsel would have revealed any relevant evidence, let alone evidence that might have given rise to a real chance of acquittal. Fourth, the complaints now made about the perceived inadequacy of the investigation were not raised prior to or at the trial and there is no reason to suppose that the failure to raise them was attributable to oversight on the part of the experienced counsel who then appeared for the appellant rather than to his considered judgment as to the course that seemed most likely to be in his client’s interests.

19. Whilst we have carefully considered the arguments put forward on the appellant’s behalf, they have not caused us to experience any reasonable doubt as to his guilt not capable of resolution by reference to the advantages which the jury undoubtedly enjoyed in assessing his credibility.

20. Accordingly, we turn to the competing appeals in relation to the sentences imposed upon of the appellant.

21. Sentences will be disturbed on appeal only if it can be shown that they were influenced by error. As Kirby J said in Dinsdale v The Queen (2000) 202 CLR 321 at 339 (in a passage with which Gummow and Gaudron JJ agreed): The necessity to show error . . . is fully accepted by courts deciding appeals against sentence . . . Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.

22. See also House v The King (1936) 55 CLR 499; Tait v Bartley (1979) 46 FLR 386, Lowndes v R (1999) 195 CLR 665; and Wong v The Queen (2001) 207 CLR 584.

23. The appellant’s appeal against the perceived severity of his sentences was based essentially upon the contention that his Honour failed to give adequate weight to the fact that the appellant had provided some assistance to police investigating an unrelated offence. This issue is not directly addressed in his Honour’s remarks on sentence, though he had adjourned the sentencing proceedings to give the appellant the opportunity of adducing further evidence concerning such assistance and it was clearly in his Honour’s contemplation. Since law enforcement is largely dependent upon the provisions of relevant information, offenders who have provided substantial assistance to the authorities may, as a matter of normal sentencing practice, expect a significant discount from otherwise appropriate sentences. In the present case, however, whilst his Honour may not have wholly disregarded the suggested co-operation, it is understandable that he did not give it any prominence or nominate a particular discount from the sentences that he otherwise considered warranted. The only assistance that the appellant apparently provided was an account of a conversation he had had with another person in custody whom, he suggested, might have valuable information about the offence in question. After pursuing further inquiries, the investigating officers concluded that the information had been non-specific in nature, factually incorrect in some respects and of no evidential value. Even if the most generous view is taken of the appellant’s motivation, there is no basis for concluding that any of the sentences were unduly severe.

24. In pressing the respondent’s appeal against the perceived leniency of the sentences, Mr Refshauge acknowledged the need for restraint in Crown appeals of this nature as confirmed in a series of decisions of this Court (R v Lappas (2003) 152 ACTR 7; (2003) 139 A Crim R 77 per Higgins CJ at [32]–[33], per Cooper and Weinberg JJ at [119]–[129]; R v Brewer [2004] ACTCA 10 at [3]–[5]; R v SP (2004) 149 A Crim R 48 per Gray J at [18]–[22], per Gyles J at [78]; R v Colin Booth [2004] ACTCA 21 at [23]).

25. Nonetheless, Mr Refshauge submitted that the overall effect of the sentences imposed upon the appellant had been manifestly too lenient and should be corrected.

26. It is true that the offence of engaging in sexual intercourse without consent is a very serious one. People such as the complainant are entitled to be protected from serious sexual assaults and those that perpetrate them must expect substantial sentences of imprisonment. In the present case the offence involved a gross personal violation inflicted at knife-point upon a person who had been asleep in bed. We do not accept that the gravity of the appellant’s conduct should be regarded as having been substantially diminished by his inability to effect the penile penetration that he obviously intended. Furthermore, the appellant can point to neither a previously unblemished character nor a plea of guilty as grounds for leniency.

27. In this jurisdiction, however, the maximum penalty for an offence of this nature is 12 years imprisonment. His Honour found that the appellant had committed the burglary only with the intention of stealing from the apartment and that the sexual assault was committed opportunistically. Furthermore, as serious as the assault was, it was not sustained for a lengthy period and was not accompanied by the gratuitous acts of violence or debasement of the kind sometimes recognised as justifying sentences near the maximum. In the present case the sentence of 7 years imprisonment was undoubtedly lenient but it was more than half of the maximum permitted by law and, in the circumstances mentioned, we are unable to find that it was manifestly inadequate.

28. We are, of course, mindful of the fact that the offence was committed only after the appellant had broken into the apartment where the complainant had been sleeping and that he had done so whilst armed with a knife. However, that conduct constituted the separate offence of aggravated burglary for which he received a separate sentence of imprisonment and it would be inappropriate to adopt a course that would, in effect, involve penalising the appellant twice for the same aspects of his conduct.

29. On the other hand, Mr Refshauge submitted that the sentence for the offence of aggravated burglary was itself inadequate and also submitted that it had been inappropriate for it to have been made concurrent with the offence of sexual assault without consent. In our opinion, these submissions should be accepted.

30. The maximum penalty for aggravated burglary is 20 years imprisonment and, whilst it may seem incongruous that this is substantially greater than the maximum sentence for sexual intercourse without consent, offences of this nature have also been long regarded as serious breaches of the criminal law. They are particularly serious when, as in this case, the burglar enters residential accommodation late at night, armed with a knife, and persists with the offence knowing that the premises are occupied by people likely to be terrified should they awaken during the intrusion. Such conduct is obviously fraught with danger. Even if the burglar intends only to use the knife to frighten the occupants if confronted, there is always the risk that someone attempting to resist or apprehend him will suffer serious injury or even death. As previously mentioned, the appellant was unable to rely upon a plea of guilty or any other mitigating factors and in our opinion the severity of this offence would have warranted a sentence of no less than five years imprisonment.

31. We also accept Mr Refshauge’s submission that this sentence should not have been permitted to run wholly concurrent with the sentence for sexual intercourse without consent, taking account of the principles discussed in Johnson v R (2004) 205 ALR 346; (2004) 78 ALJR 616 and applied in R v Colin Booth (above) at [28]–[31]. Whilst we accept that that offence was committed opportunistically, it should not be overlooked that the opportunity arose only because the appellant had entered the complainant’s bedroom in the early hours of the morning, armed with a knife. This intrusion should clearly have been taken into account in assessing the overall criminality of the appellant’s conduct and hence reflected to some extent in the overall effect of the sentences. Having regard to the principle of totality and the accepted need for restraint in Crown appeals on sentence, we consider it appropriate that three years of this sentence be served concurrently with the sentence for sexual intercourse without consent and that the balance be served cumulatively upon that sentence.

32. There was no challenge to the sentences imposed in respect of the third and fourth counts on the indictment.

33. These orders will have the effect of increasing the overall tem of imprisonment from about 7 years and 11 months to a term of about 9 years and 11 months (taking into account the period of 149 day spent in custody prior to the commencement of the sentences for offences charged in the third and fourth counts). We will also set aside the non-parole period of 4 years from 16 February 2006 (which was approximately 11 months after the appellant was first taken into custody) and, in lieu thereof, impose a non-parole period of 5 years from that date. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 7 September 2006

Counsel for the Appellant: Ms T Warwick

Solicitor for the Appellant: BCW Lawyers

Counsel for the Respondent: Mr R Refshauge SC

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 1 August 2006

Date of judgment: 7 September 2006

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