Henderson v R

Legislation Cited: Crimes Act 1900 (NSW), ss 33, 33(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 21A(3)(l), 22A, 25D, 44
Evidence Act 1995 (NSW), s 191

Cases Cited: Abdallah v R [2025] NSWCCA 98
Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81
Farrugia v The King [2026] HCA 28; (2026) 100 ALJR 1060
Field v R [2020] NSWCCA 105
R v Henderson [2026] NSWDC 77
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Texts Cited: N/A

Category: Principal judgment

Parties: Kyle Ross Henderson (Applicant)
Rex (Respondent)

Representation: Counsel:
A Chhabra (Applicant)
S Coombes (Respondent)
Solicitors:
Legal Aid Commission of NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00200932

Publication restriction: N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal against the sentence imposed on him in the District Court on 6 March 2026. Following a jury trial, the applicant was found guilty of a single count of inflicting grievous bodily harm with intent to cause such harm. The applicant was sentenced to 7 years imprisonment with a non-parole period of 4 years.

The applicant was at his family home in Broken Hill when his older brother attacked him with a chair. During the altercation, the applicant stabbed his brother once in the thigh with a large kitchen knife, which resulted in the amputation of his brother’s left leg.

At trial, the applicant agreed to a statement of facts which contained significant admissions and considerably narrowed the issues for trial. On sentence, the applicant submitted that these admissions facilitated the administration of justice and entitled him to “a lesser penalty” under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”).

The applicant sought leave to appeal against the sentence imposed on two grounds:

1. The sentencing Judge erred by failing to determine the discrete claim for mitigation under s 22A and s 21A(3)(l) of the Sentencing Act, instead treating the applicant’s narrowing of the issues for trial, and his offer to plead guilty to the statutory alternative, only as matters bearing on remorse.
2. The sentence is manifestly excessive.

On the hearing of the appeal, the applicant abandoned reliance on the offer to plead guilty to the statutory alternative.

The Court held, granting leave to appeal, allowing the appeal and re-sentencing the applicant (Hamill J, Stern JA and Yehia J agreeing):

1. The sentencing Judge erred by not resolving whether “a lesser penalty” should be imposed on the applicant under s 22A of the Sentencing Act. It was not sufficient to take the relevant submissions and evidence into account in making a positive finding concerning remorse. Ground 1 is upheld and it is not necessary to consider ground 2: [21]-[24] per Hamill J (Stern JA agreeing at [1] and Yehia J agreeing at [43]).

Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81, Abdallah v R [2025] NSWCCA 98 and R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 applied. Farrugia v The King [2026] HCA 28; (2026) 100 ALJR 1060 referred to.

2. It is necessary to exercise the sentencing discretion afresh. The Court finds that the applicant’s facilitation of the administration of justice warrants the imposition of “a lesser penalty”: Sentencing Act, s 22A. Taking into account the additional evidence tendered on the appeal, the Court finds that the applicant’s prospects of rehabilitation are good. The Court otherwise largely adopts the findings made in the District Court: [37]-[39] per Hamill J (Stern JA agreeing at [1] and Yehia J agreeing at [43]).

Field v R [2020] NSWCCA 105 considered.

3. The applicant is re-sentenced to 5½ years imprisonment with a non-parole period of 3 years: [4], [40] per Hamill J (Stern JA agreeing at [1] and Yehia J agreeing at [43]).

JUDGMENT

1. STERN JA: I agree with Hamill J.

2. HAMILL J: On 20 June 2023 Kyle Henderson (the applicant) was attacked by his older and much larger brother Dwayne at their family home in Broken Hill. The applicant, who was in possession of a large kitchen knife, stabbed his brother once in the leg. This resulted in a catastrophic injury, namely the amputation of Dwayne’s left leg above the knee. The applicant was put to trial between 2 and 12 June 2025 before Judge Sutherland SC and a jury on a count of inflicting grievous bodily harm with intent to cause such harm (Crimes Act 1900 (NSW), s 33(1)(b)). The jury returned a verdict of guilty and on 6 March 2026 the applicant was sentenced to imprisonment for 7 years with a non-parole period of 4 years. This sentence was backdated to commence on 22 June 2023 when the applicant was arrested.

3. The applicant seeks leave to appeal against the sentence and raises two grounds of appeal:

4. The sentencing Judge erred by failing to determine the discrete claim for mitigation under s 22A and s 21A(3)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), instead treating the applicant’s narrowing of the issues for trial, and his offer to plead guilty to the statutory alternative, only as matters bearing on remorse.

5. The sentence is manifestly excessive.

6. The applicant has made good his contentions that there was material legal error under ground 1 and it is unnecessary to consider ground 2. I am satisfied that a different, less severe, sentence is warranted and ought to be imposed. In exercising the sentencing discretion afresh, I would sentence the applicant to 5½ years imprisonment with a non-parole period of 3 years. These are my reasons for those conclusions.

7. The sentencing Judge delivered a comprehensive sentencing judgment which is published on Caselaw NSW: R v Henderson [2026] NSWDC 77. For that reason, and because the arguments in this Court were so focused and confined, it is not necessary to set out in any real detail the facts of the offences or the evidence concerning the applicant’s personal circumstances. I will assume the reader is familiar with the sentencing judgment and any summaries of the evidence and submissions will be very brief. I will deal with the ground of appeal first and return to the facts when considering the question of re-sentence.

Ground 1: The sentencing Judge erred by failing to determine the discrete claim for mitigation under s 22A and s 21A(3)(l) of the Sentencing Act, instead treating the applicant’s narrowing of the issues for trial, and his offer to plead guilty to the statutory alternative, only as matters bearing on remorse.

6. In written submissions dated 11 December 2025, Ms Akthar, counsel then appearing for the applicant, [1] made the following submission concerning s 22A of the Sentencing Act:

“The offender is entitled to a lesser sentence on the basis that he facilitated the administration of justice: s 22A Crimes (Sentencing Procedure) Act 1999 (NSW).

The offender has never claimed otherwise than that he inflicted his brother’s injury. He accepted that the injury was Grievous Bodily Harm. He offered to plead guilty to Recklessly causing this injury since the matter was in the Local Court. The offender accepted, indeed proposed, 9 pages of Agreed Facts [at] trial (Exhibit 1). The offender has done all that was within his power to narrow the issues for trial. These efforts would be recognised by the court on sentence in accordance with the statutory provision, and that recognition would be significant.”

7. On the hearing of the application, the applicant abandoned reliance on the offer to plead guilty to the statutory alternative and that appropriate concession is reflected in the strike out in the above reproductions of the ground.

8. The Prosecutor did not make any submissions orally or in writing about s 22A. Ms Akthar did not expand on her written submissions at the sentencing hearing on 15 December 2025. The matter was adjourned until 6 March 2026 when his Honour imposed sentence and delivered the sentencing judgment.

9. The sentencing Judge set out the submissions that were made about facilitation and remorse at [121]-[122] of the judgment:

“It was submitted that the Court could impose a lesser penalty than it otherwise might given the degree to which the administration of justice has been facilitated by the defence through a concerted narrowing of the issues for trial and an offer to plead Guilty to the statutory alternative of recklessly causing grievous bodily harm.

In relation to remorse, the defence drew attention to the offender’s correspondence with his sister Alina in the immediate aftermath of the amputation, responding to the news with disbelief and a message stating ‘I’m going to hang myself.’ Those immediate expressions were said to be echoed in the offender’s psychological report, in which he described hating himself and knowing that the injury had changed his brother’s life and his brother’s children’s lives forever. It was argued that those expressions of remorse were genuine and not inconsistent with the case run at trial. In response to the Crown submission that these expressions, particularly in the text messages, were indicative of regret rather than remorse, the defence argued that the messages reflected a mixture of emotions by an offender using unsophisticated language who felt genuine surprise at the extent of the consequences of his actions.”

10. His Honour did not address the submission concerning s 22A but, in relation to remorse, concluded at [188]-[190]:

“I remind myself that pursuant to the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I must take into account remorse shown for an offence, if and only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

I am of the view that the offender’s immediate post-offence conduct was characterised by shock at the extent of the injury caused and the possibility of his brother’s death, and an attempt to flee or commit suicide to avoid the consequences, and that these actions do not necessarily reflect immediate remorse. I agree with the Crown’s categorisation of these actions as indicative of regret rather than remorse.

However, I am satisfied on the balance of probabilities that the offender has subsequently met the criteria for taking into account remorse given his expressions of remorse made to Dr Sidhu, the agreement to facts which effectively narrowed the issue at trial to self-defence, and his earlier offer to plead guilty to the offence of recklessly causing grievous bodily harm.”

11. While the full record of the trial was not before this Court, we were provided with the statement of agreed facts tendered as Ex 1A on the first or second day of the trial. This document set out the admissions made by the applicant which relieved the Prosecutor of the need to adduce evidence to prove the existence of those facts: Evidence Act 1995 (NSW), s 191.

12. The agreed facts included (i) the details of all family members and their partners, (ii) the living arrangements within the family home, (iii) that the applicant caused a single stab wound to his brother’s left thigh, (iv) the limited memory that the victim had of the incident, (v) the way the family members treated the injury, (vi) the details of the applicant and his father taking Dwayne to the Broken Hill Hospital, (vii) the details of the call to the Broken Hill police and the fact that the applicant’s mother declined to tell police who committed the stabbing, (viii) the medical treatment at Broken Hill Hospital and the decision made by doctors there to fly the victim to Royal Adelaide Hospital, (ix) the fact of “muscle death” and the consequent decision to amputate the left leg above the knee, and (x) the fact that Dwayne remained in the Royal Adelaide Hospital until 27 July 2023 and was then in Broken Hill Hospital undertaking rehabilitation until 1 September 2023.

13. The statement of facts then set out a series of messages sent from the telephone used by Meagan Bock (the applicant’s partner) to that of the applicant’s mother. There was then a series of Facebook Messenger messages between the applicant and his sister, Alina. The sender of the message was attributed by initials in each case and the point was made on appeal that the applicant shared the relevant ‘phone with two other people.

14. The statement then set out details of the applicant’s arrest, the fact that the knife (measuring 18 centimetres in length and 5 centimetres in width) was the largest in a set of kitchen knives, and the place where the knife was found (in a non-functioning sink or tub in a shed on the property). The statement concluded with the results of the forensic investigation including DNA results which linked the victim and the applicant to the scene, to the knife, and to the tub in which the knife was found.

15. These were significant admissions, and no doubt reduced the length, complexity and cost of the trial.

16. The applicant submitted that the sentencing Judge erred in conflating the issue of remorse with the extent to which the applicant had facilitated the administration of justice. He submitted that the basis of these two heads of mitigation are distinct and serve different purposes. Whereas remorse is a subjective matter which might influence findings concerning prospects of rehabilitation, the mitigation in sentence afforded under s 22A is utilitarian and assessed objectively by reference to the extent to which the facilitation reduced the complexity, duration and issues in dispute at the trial.

17. The respondent submitted that the evidence relied on in support of the submission under s 22A was taken into account on sentence, albeit to support a finding of remorse, and that this “demonstrates that the sentencing judge did consider the specific matters relied upon by the applicant in support of s 22A”. The submission continued:

“[a]lthough those matters were not relied upon by the applicant at the sentence hearing as evidence of remorse, significantly, his Honour treated them as supporting a finding of remorse.”

18. At the hearing of the appeal, counsel addressed the question of whether the sentencing judgment should be treated as having rejected the submission under s 22A, in which case questions of procedural fairness and adequacy of reasons would arise.

The applicant’s submissions under ground 1 should be accepted

19. As the applicant pointed out by reference to the cases of Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 at [15]-[19] and Abdallah v R [2025] NSWCCA 98 at [49], the Sentencing Act “differentiates the utilitarian discount (s 25D), facilitation (s 22A) and remorse (s 21A(3)(i))”. In Doyle v R, Bell CJ said at [19]:

“ … an offender’s acceptance of responsibility and willingness to facilitate the course of justice are conceptually distinct from, and require separate treatment to, the utilitarian value of a guilty plea. So much is reinforced by the language of the statute. The sentencing judge therefore erred in attributing the s 25D discount in part to the applicant’s ‘acceptance of responsibility and … willingness to facilitate the course of justice’. Rather, the utilitarian value of the applicant’s guilty plea alone entitled him to a sentencing discount of 25%, and his acceptance of responsibility and willingness to facilitate the course of justice ought to have formed part of the process of instinctive synthesis entailed in the sentencing process. Remorse was to be taken into account as a mitigating factor pursuant to s 21A(3)(i) of the Sentencing Act, and the degree to which the administration of justice had been facilitated by the defence authorised a ‘not … unreasonably disproportionate’ reduction of the penalty in accordance with s 22A.”

20. There was ample evidence in the present case justifying a finding that the applicant was remorseful despite the fact that the matter proceeded to trial. The manner in which the trial was conducted may have added force to that evidence but was, of itself, essentially neutral or equivocal as to that question: cf R v Thomson*; R v* Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [117]-[118]. The primary relevance of that evidence was “utilitarian” in terms of the saving in time and expense in the conduct of the trial.

21. While the sentencing Judge set out the submissions made on the subject, he did not resolve the question of whether “a lesser penalty” should be imposed due to the applicant’s facilitation of the administration of justice. I am unable to accept that taking the evidence and submissions into account in reaching a positive finding concerning remorse was sufficient.

22. It is unclear whether his Honour accepted or rejected the submission under s 22A. If it was rejected, no reasons were provided for not imposing “a lesser penalty” and an issue of procedural fairness arises. Trial counsel for the applicant made a submission in writing in advance of the hearing, the Prosecutor did not contest that submission orally or in writing, and the issue was not raised by the sentencing Judge at the hearing.

23. There is no question that the error was a material one in the sense that it might have impacted on the sentencing outcome: Farrugia v The King [2026] HCA 28; (2026) 100 ALJR 1060 at [6].

24. Ground 1 must be upheld and the Court must consider the question of sentence afresh.

Re-sentencing

The primary Judge’s findings

25. The facts of the offence are set out in the sentencing judgment, including at [157]-[180]. Neither party to the appeal challenged those findings.

26. This was a very serious offence, particularly because the use of a weapon “escalated” the violence and because of the extreme nature of the injury. However, the primary Judge made several significant factual findings which reduced the applicant’s objective criminality. These included:

27. The applicant believed his actions were necessary in self-defence, but the jury’s verdict established that his response was (objectively) disproportionate to the threat he faced.

28. The applicant’s belief was justified in the circumstances. The victim started the altercation and was a much bigger man; the victim was 95-100 kilograms while the applicant was just 58 kilograms. The applicant was calm before his brother arrived and it was the latter who started to act aggressively and instigated the violence. The victim ran at the applicant and attacked him with a chair and threatened the applicant’s pregnant partner.

29. The applicant did not arm himself with the premeditated purpose of using a weapon. The knife was already in the pocket of his hoodie where he had put it after he used it feeding his dog. He only produced the knife when he was physically attacked by the victim.

30. The offence was constituted by a single blow with the knife.

31. The extent of his brother’s injuries was “entirely unforeseen” by the applicant.

32. The sentencing Judge found at [195] that the applicant’s prospects of rehabilitation could be viewed “optimistically” and were “reasonable” despite some offences of violence on his criminal record. That record was described as “relatively brief” and is summarised at [97]-[102] of the sentencing judgment. He had a good employment record and the support of his partner and family. He now has the responsibility of a child who was born after he was taken into custody.

33. While the applicant came from a loving family, his father’s conduct changed after a work-related injury and his mother drank excessive amounts of alcohol. The applicant was exposed to volatility in the family home and his upbringing “had some dysfunctional aspects”. His Honour found that this may explain both brothers’ “resort to violence” and indicated, somewhat enigmatically, that the applicant’s “moral culpability is to be assessed in light of this background.”

34. His Honour found that the applicant would need an extended period of support on release and made an adjustment to the non-parole period to reflect his finding of special circumstances pursuant to s 44 of the Sentencing Act. The non-parole period (4 years) was around 57% of the total sentence (7 years).

Comparable cases

30. The sentencing Judge was taken to a number of sentencing cases for offences under s 33 of the Crimes Act and his Honour’s helpful analysis of those cases can be seen at [127]-[156] of the sentencing judgment.

31. I have considered the various comparable cases to ensure the sentence imposed on re-sentence is consistent with the pattern of sentences disclosed by past cases. I agree with the position of the parties that the closest case is Field v R [2020] NSWCCA 105 where a similar sentence to that settled by Judge Sutherland was imposed. However, there are features of Field v R which are different to the applicant’s case and the outcome of a single case cannot determine the appropriate sentence to be imposed on the applicant.

Evidence tendered on the appeal

32. The applicant read two affidavits on the usual basis, that is, in the event the Court moved to re-sentence.

33. That material showed that the applicant was isolated in the early period of his sentence because he was transferred through various gaols and spent “a fair bit of time” incarcerated at the Clarence Correctional Centre, more than 1,300 kilometres from his family in Broken Hill. He did not see his infant son “even once” during that period. He is presently held at Broken Hill Correctional Centre and gets to see his son once a week when his partner visits. He also now gets visits from his parents.

34. He had some disciplinary infractions during the early part of his sentence but has not had any internal charges since March 2025. He is now a C1 minimum security inmate and extracts from Corrective Services files show that he is considered to be polite and respectful and engages appropriately with staff. He is thought to demonstrate “a strong capacity to engage with community based supports”. Officers referred to his hearing impairment (a matter touched upon by the sentencing Judge) and noted this impacted the applicant’s ability “to fully engage in verbal instruction and group-based interventions”.

35. On release, the applicant plans to live with his partner and son in Broken Hill and is motivated to get work and be a good father. Reports within the Corrective Services files refer to the regular visits he receives from his “parents, sister, partner and child” and the author considered this to be a “[p]rosocial and protective factor” on the applicant’s release from prison.

Re-sentence

36. The maximum penalty for an offence under s 33 of the Crimes Act is 25 years imprisonment, a penalty which reflects the seriousness with which such offences of violence are treated by the legislature. There is a standard non-parole period of 7 years which applies to an offence which falls in the middle range taking into account only the objective features of the offending. The sentencing Judge at [180] assessed the offence to be “just below” this putative and broad mid-range. I do not disagree with that categorisation of the offence, but it remains clear from these statutory yardsticks that only a reasonably substantial period of full-time imprisonment can reflect the objective seriousness of the offence.

37. I agree with and largely adopt Judge Sutherland’s findings. The evidence of the applicant’s progress in custody, the support he has from his family, and the incentive to live a law-abiding life provided by his new responsibility arising out of the birth of his son leads me to find that his prospects of rehabilitation are good. This is a slightly more positive finding than that made by Judge Sutherland.

38. The evidence establishes that the applicant’s facilitation of the administration of justice should result in him receiving a shorter sentence than would otherwise be imposed: Sentencing Act, s 22A.

39. Like the sentencing Judge I find there are special circumstances in the need to foster the applicant’s ongoing rehabilitation and to ensure a smooth and supported transition back into the community.

40. I would impose a sentence of 5½ years with a non-parole period of 3 years. The sentence should be backdated to the date he went into custody (22 June 2023).

41. The backdating of the sentence means that the non-parole period expired on 21 June 2026. I would direct the Registrar to bring this judgment to the attention of the State Parole Authority in the hope that a quick decision can be made in relation to the applicant’s release to parole.

Orders

42. I would make the following orders and directions:

43. Leave to appeal against sentence granted.

44. Allow the appeal.

45. Quash the sentence imposed in the District Court on 6 March 2026 and in lieu thereof:

(a) The applicant is sentenced to a non-parole period of 3 years commencing on 22 June 2023 and expiring on 21 June 2026. (b) There will be a balance of term of 2½ years expiring on 21 December 2028.

4. Direct the Registrar to notify the State Parole Authority of this decision to facilitate urgent consideration of the applicant’s eligibility for release to parole.

5. YEHIA J: I agree with Hamill J.

**********

Endnote

Ms Akthar co-authored the written submissions to this Court with Mr Chhabra, but she was not available for the hearing and Mr Chhabra appeared with Ms Short on 23 October 2026.