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[2026] NSWDC 77
General information, not legal advice.
District Court of NSW
2026-03-06
Sutherland SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Henderson [2026] NSWDC 77
Hearing dates: 15 December 2025
Date of orders: 6 March 2026
Decision date: 06 March 2026
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision: The offender is convicted and sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years: at [201]
Catchwords: CRIME – Sentencing – Guilty verdict following jury trial in Broken Hill – Inflict grievous bodily harm with intent to cause grievous bodily harm – Altercation between two brothers – History of violence by and between brothers – Excessive self-defence – Stabbing – Life threatening injury – Tourniquet applied in course of medical evacuation to Adelaide – Left leg ultimately amputated above the knee
Legislation Cited: Crimes Act 1900 (NSW) s 33
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A
Cases Cited: Aitchison v R [2012] NSWCCA 82
Aldous v R (2012) 227 A Crim R 184; [2012] NSWCCA 153
Bhatt v R [2024] NSWCCA 214
Binnie v R [2010] NSWCCA 14
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 387
DG v R [2025] NSWCCA 137
Field v R [2020] NSWCCA 105
Heron v R [2006] NSWCCA 215
Markarian v The Queen (2005) 228 CLR 357
R v Baquayee [2003] NSWCCA 401
R v Bloomfield (1998) 44 NSWLR 734
R v Bourke (2010) 199 A Crim R 38; [2010] NSWCCA 22
R v Cuthbert [2023] NSWDC 594
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Ferguson & Williams [1999] NSWCCA 214
R v Fernando (1992) 76 A Crim R 58
R v Gersbach [2009] NSWCCA 132
R v Hoskins [2004] NSWCCA 236
R v Mitchell [2007] NSWCCA 296
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Smith [2016] NSWCCA 75
R v Trevenna [2004] NSWCCA 43
R v Tristan LEE [2019] NSWDC 59
R v Wilson (NSWCCA, 18 December 1997, unrep)
R v Zamagias [2002] NSWCCA 17
Roff v R [2017] NSWCCA 208
Soars v R [2024] NSWCCA 218
Testalamuta v R [2007] NSWCCA 258
Category: Sentence
Parties: Rex (Crown)
Kyle Ross Henderson (Offender)
Representation: Counsel:
S Drumgold SC (Crown)
C Akthar (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)
File Number(s): 2023/00200932
Publication restriction: N/A
Kyle Ross Henderson was convicted following the verdict of Guilty returned by a jury in Broken Hill on 12 June 2025. The single count on the indictment alleged the infliction of grievous bodily harm by the offender upon his brother, Dwayne Henderson, on 20 June 2023, with intent to cause grievous bodily harm. This is an offence contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.
The offender had entered a plea of Not Guilty at the commencement of the trial on 2 June 2025. The evidence and addresses were completed on 11 June 2025. As I have already indicated, the verdict of Guilty was returned on 12 June 2025.
The offence occurred on 20 June 2023 in the course of an altercation between the two siblings. The altercation, which I will describe in more detail later in these Remarks, culminated in the inflicting of a single stab wound by the offender to the thigh of his older brother, ultimately leading to the amputation of his brother’s leg. The evidence led at trial touched on the nature of the relationship between the two siblings and had a specific focus on the events of that night leading up to the actual incident itself.
I am required to determine the facts relevant to the imposition of a sentence. In the course of determining those facts, I am obliged to find facts which are not inconsistent with the jury’s verdict. Further, I must not take into account any facts which are adverse to the offender unless I am satisfied of those facts beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
Any reference in these Remarks to a person by their first name is not intended to cause any disrespect, but rather to avoid confusion in the circumstance where several of the witnesses and persons involved in this matter share the same surname.
The parents of the offender and also of the victim are Mark and Jennifer Henderson who I will refer to as Mr and Mrs Henderson. They have 3 children, all of whom were adults at the time of the incident. The eldest child, who was not present that night, was a daughter, Alina Henderson. The two protagonists in the event were the victim, Dwayne Henderson, and the offender, his younger brother Kyle. On 20 June 2023 Dwayne was 37 years of age and Kyle was 27.
Kyle and his father Mr Mark Henderson both have hearing impairments.
The Henderson family home was located on Wolfram Street in Broken Hill and is a substantial 4-bedroom house. A diagram setting out the layout of the home was tendered during the trial as Exhibit 1B, a copy of which is annexed to this judgment. That exhibit was supplemented by photographs of the home taken by police after the incident. As I will discuss later in this judgment, the location of various persons at different times and their movements throughout the house during that night were key issues at the trial.
Dwayne Henderson had formerly been in a relationship with Bianca Davey. She and Dwayne had two children together who were, of course, the grandchildren of Mr and Mrs Henderson. Bianca Davey, following the breakdown of her relationship with Dwayne Henderson, had maintained a close friendship with her children’s grandparents and was at the Henderson home in Wolfram Street on the evening of 20 June 2023. She had gone to those premises in the early evening together with her sister Amanda Davey to spend time with Mrs Henderson.
As at 20 June 2023 Dwayne Henderson resided at different premises in Broken Hill with his current partner, Amy Perry.
Kyle Henderson, together with his partner Meagan Bock, resided in the Henderson family home in Wolfram Street. They occupied a bedroom described as bedroom 3 in Exhibit 1B, and utilised the converted garage, or as it was described throughout the trial, the “g**ames r**oom”, as their general living area. It included a pool table. Meagan also used the “games room” as a kitchen area for herself and Kyle. Consequently the “games room” contained, amongst other kitchen utensils, an electric frypan, a refrigerator, various pots and pans, and a set of kitchen knives.
The “games room” had direct access into the rest of the house via a storage room connected to the main kitchen and a formal living room. The “games room” was also connected to an enclosed swimming pool room through which one could access the back yard.
Kyle and his partner Meagan had resided at the Henderson family home for almost the entirety of their relationship, which was a period of approximately 9 years. Meagan was approximately 6 months pregnant with their first child on 20 June 2023.
The evidence at trial regarding precisely who was where in the home at various times on the evening of 20 June 2023 was neither completely clear nor consistent.
Bianca Davey, the former partner of the victim Dwayne Henderson, was called early in the trial and gave detailed evidence with respect to her perception of the attitude and demonstrated anger of the offender in the lead up to the incident. She described having gone to the Henderson home with her sister to essentially “hang out” with Mrs Henderson and to have a “couple of drinks” with her. She thought that she and her sister had arrived at around 6pm or a bit later. She said that she saw both Kyle Henderson and his partner Meagan after she arrived.
She said that she had a general chat with both of them about the fact that Meagan was pregnant and that Kyle and Meagan were getting ready to go out for dinner. She said that they had left for dinner at about 7pm.
Bianca’s description of Kyle’s demeanour before they left for dinner was relied on by the Crown in contrast with her asserted observations of the offender after he returned from dinner around 9pm. She said that he seemed different to when he had left and was “more hyper”. She said he had a weird laugh and that he grabbed her bottle of rum and had a mouthful of rum straight from the bottle.
Of some significance, Bianca Davey said nothing about a third person walking into the kitchen with Kyle and Meagan after they returned from dinner. As will become clear, they had in fact been driven back to the Henderson home by the friend with whom they had had dinner, Amy Bloomfield. On all accounts in evidence other than the evidence from Bianca Davey, after coming in the front door of the premises the three people had gone directly to the games room via the formal loungeroom and had bypassed the kitchen entirely.
This appeared ultimately to be a point of some significance in the trial which, although occurring at least an hour before the subsequent altercation between Kyle Henderson and his brother Dwayne, was potentially a relevant issue in an assessment of the credibility and reliability of the observations of Bianca Davey which, in broad terms, were unfavourable to the offender.
Kyle, in his evidence, said that after going to the games room with Meagan and Amy Bloomfield, he then went to his bedroom to change his shoes. He said that he saw Bianca, Amanda, and his mother in the kitchen/living area and spoke to them briefly.
The proposition that the incident relating to difference in his demeanour and the taking a swig of neat rum in the kitchen, as opposed to progression to the games room bypassing the kitchen, was not the subject of any specific cross-examination in the trial.
Bianca Davey gave detailed evidence upon which the Crown heavily relied regarding the demeanour of Kyle Henderson during the period following his return from dinner.
With respect to Bianca Davey’s description of the difference of the demeanour of Kyle Henderson before and after dinner, it was of some significance that she was the only person who gave evidence of having seen Kyle and Meagan before they went to dinner. Her sister Amanda Davey did not recall seeing Kyle and Meagan when they first arrived at the premises. She said she didn’t think she had seen him and thought he was already out when she and Bianca arrived. She similarly gave no evidence regarding him coming back into the house on his return from dinner and said nothing about him taking a swig of rum. Her evidence was that she thought her sister Bianca was drinking Jim Beam or Jack Daniels, being bourbon or American whiskey, rather than rum.
Mrs Jennifer Henderson, the mother of both Kyle and Dwayne, gave no detailed evidence regarding the arrival of Bianca and Amanda before Kyle and Meagan’s departure, nor any evidence regarding him coming into the kitchen on his return, except that she said that she had not realised that Kyle had returned.
Mr Mark Henderson, the father, gave focused and reasonably succinct evidence, and was not specifically asked about the way in which Kyle, Meagan, and Amy Bloomfield entered into the house on their return from dinner.
Each of the accused, his partner Meagan Bock, and Amy Bloomfield gave consistent evidence that as a consequence of some previous apparent difficulty in the relationship between Amy Bloomfield and Mrs Henderson, Kyle Henderson had actually gone into the house alone on their return to ask his father if it was alright for Amy Bloomfield to come into the house.
Upon his father apparently giving approval, Kyle informed Meagan and Amy that she was allowed to come into the house and the three of them entered the house, walking directly through the formal lounge room and into the games room without going into the kitchen, implicitly in an endeavour to avoid Mrs Henderson seeing Amy Bloomfield. The nature of the past relationship was not revealed in the evidence (other than an assertion by Bianca Davey that Amy had been involved in a three-way sexual relationship with Kyle and Meagan) but the evidence was clear that Mrs Henderson had a strong desire that Amy Bloomfield not be in her house.
While it is impossible to know precisely what the jury did or did not accept from the evidence of Bianca Davey, I should make it clear that I viewed her evidence with a degree of reserve with respect to some of these particular details.
Ultimately the evidence from the various witnesses led to an irresistible conclusion that Mrs Henderson, when she in due course realised who Amy Bloomfield was and the circumstance that she was in the house, made it clear that she wanted her out of the house. Mrs Henderson expressed a desire for Amy to leave the premises, and after Mrs Henderson went from the games room to the living room, continued those expressions at sufficient volume for the people in the games room to hear.
I have no difficulty in coming to a view, as I am certain the jury did, that Kyle Henderson became increasingly angry with respect to his mother’s attitude and her repeatedly expressed desire for Amy Bloomfield to leave the house. Whether or not the jury accepted the detail given by Bianca Davey, I am satisfied that Kyle Henderson, in remonstrating with his mother, was angry and aggressive. I am similarly satisfied that Mrs Henderson was increasingly upset, and that Bianca repeatedly endeavoured to intervene in the argument despite Kyle’s requests to be left alone.
By this stage the argument was shifting from its initial phase, where Mrs Henderson repeatedly asked that Amy leave and Kyle asserted that he had his father’s permission and that it was his home as well, to a further phase where Bianca reproached Kyle for his behaviour towards his mother while Kyle grew increasingly agitated and continually asked to be left alone. I accept that Kyle and at times Bianca were going back and forth between the games room and the living room throughout the argument, and that voices were progressively raised as the argument between Kyle, Mrs Henderson, and Bianca, continued.
In the course of what I would describe as the increased temperature emotionally in the house, Mr Mark Henderson tried to diffuse the situation, telling Bianca and Amanda Davey to leave and offering to drive them home. There was, in that respect, conflicting evidence as to whether Bianca had actually got into Mr Henderson’s vehicle before going back inside when she heard a noise.
However, I am satisfied that as a consequence of his anger, the offender punched a hole through the door leading from the games room into the storage area. He certainly threw a number of punches at what would appear from the photographs to be a comparatively flimsy hollow-core door, but it demonstrated to the jury his level of anger at the situation which had unfolded.
According to Meagan Bock, the offender’s partner, he had said words to the effect of “I*’*ll show you angry” immediately before punching his fist through the door. While the Crown submitted that the jury would reject the various accounts given by Meagan Bock on the basis that she was giving false or exaggerated statements to support her partner, various aspects of her evidence, in my view, had the ring of truth and accuracy.
Kyle’s raised temper was further exemplified when he deliberately flipped and overturned a wooden table in the games room, scattering its contents. This included, among other items, an electric frypan with a glass lid which shattered on the floor. Meagan and Kyle described this as effectively being a response to Bianca’s repeated badgering.
Shortly after these events, which were described somewhat differently by those immediately present, Bianca Davey and her sister did leave the premises and were driven to their home by Mark Henderson. Amy Bloomfield also left the premises and Mrs Henderson said that she herself retreated to her bedroom.
After Mr Henderson dropped Bianca and Amanda Davey to their home, Bianca telephoned her ex-partner Dwayne Henderson to ask him to go around to the Henderson house. She said she was fearful for his mother on account of Kyle’s anger. Dwayne Henderson was at his own home with his current partner Amy Perry and was somewhat reluctant to attend his parents’ home at that late hour. There were suggestions in the evidence that he had gone around to his parents’ home to settle things down on prior occasions. Following the phone call, Dwayne did go to his parents’ home in Wolfram Street. By the time he arrived at Wolfram Street, his father, Mr Henderson, had returned home from dropping off Bianca and Amanda, and was seated on a veranda at the front of the premises.
I note at this stage that the front of the premises was under surveillance from home CCTV security cameras.
Shortly after the incident, the officer in charge of the investigation viewed the CCTV footage from the evening and made some attempt to preserve the footage in evidence. However, some months later, on seeking to review the footage a second time, the officer in charge discovered that the footage was no longer accessible. There were no suggestions that this footage was deliberately deleted. At trial the officer gave evidence of his recollections from his initial viewing of the footage before it was lost. I accept those recollections as accurate.
After Mr Henderson returned home from dropping Bianca and Amanda off, he sat on the veranda at the front of the premises in view of the CCTV cameras. He said in his evidence that this was to calm down. After Mr Henderson’s return, the CCTV footage depicted Kyle Henderson coming outside from the house and sitting and talking with his father on the veranda in what appeared to be a calm manner.
This was somewhat contradictory to the Crown’s subsequent submission to the jury that the offender had remained in an escalating “white-hot rage” throughout the period leading up to the altercation with his brother Dwayne.
The offender and his father appeared to converse for approximately 2 minutes. Mr Henderson and Kyle each described that conversation as relating to Kyle explaining what had happened inside and offering to fix or replace the door which he had punched. Kyle then went back into the premises and a short while later his brother Dwayne arrived. Dwayne Henderson similarly sat outside with his father on the veranda and also had a conversation for approximately 2 minutes. The police officer’s observation of the CCTV was that Dwayne Henderson similarly appeared to be calm during that conversation. Dwayne Henderson then entered the premises followed by his father.
What happened thereafter was the subject of conflicting evidence from the various witnesses who were in the house at the time.
At the outset I note that although the victim, Dwayne Henderson, gave evidence during the trial, his evidence did not detail the actual events of the evening. As became apparent, he was said to have suffered post-traumatic amnesia, although there was no specific expert evidence called in that regard. He remembered receiving a distressed call from Bianca, driving to his parents’ house, and speaking with his father on the veranda. From that point onwards his only recollections were of calling his partner Amy Perry while he was on the way to the hospital after being stabbed to tell her to meet him there, and subsequently waking up in Adelaide sometime later with his leg already amputated. No attempt was made either in-Chief or during cross-examination to ask him any questions, or put any propositions to him, regarding events inside the house.
Mr Henderson, in his evidence in-chief, described Dwayne Henderson entering the house from the front door, with Dwayne saying that he wanted to go to the toilet, and then going down the hallway towards the bathroom and toilet.
The hallway began just to the right of the home’s entry and ended near doors to the laundry and two of the four bedrooms in the house. On the right side of this hallway were doors to a further bedroom and a bathroom. The left side of the hallway was simply a dividing wall separating the living/dining/kitchen area from those doorways. Near both the beginning and the end of the hallway, there were archways through which one could enter or exit the living/dining room and kitchen area. For abundant clarity I will refer to the first as the “beginning archway”, being near the front of the house, and the second as the “end archway”, being near the back of the house and adjacent to Kyle and Meagan’s bedroom.
Mr Henderson said in his evidence in-Chief that he followed Dwayne from the entry and then partway towards the toilet. He said that he stayed in the kitchen/living room area and gazed at the television which is near the end archway. He said in-Chief that he then saw Kyle come out of his bedroom (bedroom 3) and enter the end archway in the direction of the toilet. Mr Henderson presumed Kyle was also going to the toilet.
Mr Henderson then described the altercation between the two siblings effectively just inside the end archway. He described rushing to them and putting himself between his two adult children and endeavouring to stop the fighting between them. He claimed he had not seen a knife at any stage although he ultimately conceded that at some stage he was hit on the head by a chair in the course of endeavouring to separate his two boys. I will come to the significance of the chair’s presence shortly.
Mr Henderson, whose hearing impairment appears worse than Kyle’s, did not hear any words exchanged between his sons. Of significance in determining what actually happened, Mr Henderson was taken in the course of cross-examination to notes which he had made shortly after the events. Significantly, in those notes he had described Dwayne saying that he was going inside to speak with his mother and that Dwayne had been standing in the kitchen area with Mr Henderson after coming into the house. This was in marked contradistinction to his recollection in his evidence in-Chief.
Also of significance in those earlier recorded notes he had said that he saw Kyle coming from the games room and not from his bedroom. He ultimately appeared to agree in the course of the cross-examination that Kyle had gone down the hallway and was in the vicinity of his bedroom door near the end archway when the altercation occurred.
It is appropriate to note in passing that Mr Henderson was a reluctant witness. He had been brought to court only after the issue of a bench warrant and was clearly reluctant to give evidence which might be construed as unfavourable to either of his sons.
Mrs Henderson gave evidence that when she came out of her bedroom after Dwayne had come into the house, she initially saw him standing in the kitchen leaning against the breakfast bar. She had been going back to the bedroom before the altercation occurred. Her evidence was somewhat confused. She variously agreed with the Crown on a number of occasions that she had gone to the bathroom and was going back to the bedroom when the altercation took place. She made a point of indicating that she did not see anything until she heard Dwayne scream “Dad” after the altercation. Later in her evidence to the Crown, she said she had in fact used the en-suite which was contained within her bedroom. After hearing Dwayne scream “Dad” and coming out of the room, she then called police.
On all accounts other than Mrs Henderson’s herself, she was in fact in the living room/kitchen area when the altercation occurred. Mrs Henderson, like her husband, was reluctant to give evidence against either of her sons. It is not clear whether she said she had been in the bedroom so as not to be an eye-witness as to what occurred between her sons. However she was not cross-examined about this aspect of her evidence.
Meagan Bock stated that when she came out of the games room and entered the living room/kitchen area, she saw Dwayne Henderson sitting at the dining table with his mother. That table is immediately beside the beginning archway. She described that as Kyle reached his bedroom which is adjacent to the end archway and to the right of the television, he made a comment to the effect that he was going to bed and wanted to be left alone. Kyle said that Dwayne had done similar things to their parents in the past. Dwayne responded in an angry tone but Meagan did not recall what he said.
Kyle Henderson, in his evidence in the trial, described that after the conversation with his father on the veranda, he went to the games room to retrieve dog food and a kitchen knife. He said that he took the knife in order to puncture the back of the dog food tin so that the contents could readily be removed without a vacuum stopping the dog food from coming out of the tin. He went from the games room through the enclosed swimming pool room and out to the backyard where his dog lived. He described feeding the dog and sitting with him and smoking a cigarette while the dog ate his food. He said that he put the knife in the pocket of his hoodie to stop the dog from licking the blade. He then re-entered the house and headed towards the kitchen in order to wash the knife. As Kyle entered the kitchen/living area he saw his brother Dwayne, who said to him words to the effect: “You’ve been a big man huh”**.
Kyle said that he did not want to stay in the same room with his brother, so he walked past the dining table and through the beginning archway. He then walked along the hallway and back into the living room area through the end archway. The door into his and Meagan’s bedroom was then immediately adjacent to his right.
As I have already said, Kyle’s evidence was that he entered the kitchen area with a view to washing the knife, but on seeing Dwayne, walked instead directly towards the beginning archway to go towards his bedroom. Kyle thought his mother was sitting on the couch in the living room.
After Dwayne had called him “a big man” Kyle said that as he walked down the hallway he called his brother a hypocrite who had done much worse things in the past. Kyle Henderson in his evidence said that when he got to the door of his bedroom, Dwayne tried to run at him across the room. He said that at that time he produced the knife from his front pocket and said “I do not want to fight you bro. I*’*m just trying to go to bed”.
Both the offender and Meagan Bock gave broadly similar accounts that Dwayne then picked up one of the dining table chairs, went through the beginning archway and charged down the hallway towards Kyle, holding the chair with the legs protruding forwards as he went.
Meagan described Kyle bracing himself in the corner near the end archway before Dwayne reached him and the altercation began. She recalled the chair making contact with Kyle, being dropped at some stage, and then punches being thrown.
In a text message sent to his sister sometime on 22 June 2023, the offender also gave a similar although much more vague version, stating “I didn*’t want Dwayne to run at me at all… I didn’*t wanna fucking get hurt on my way to bed, yeah I called him a hypocrite for starting on me …”
The case advanced by the Crown at trial was that the claim that a chair was picked up by Dwayne Henderson was a piece of fabricated evidence by the offender and his partner to support a false claim of acting in self-defence. The Crown suggested that Meagan Bock did not witness the event at all but had remained in the games room.
Of critical significance with respect to the issue of self-defence, which was raised on behalf of the offender, was the question as to whether or not a chair had been present and utilised or not. There was a photograph of an upturned chair which was tendered. That chair was in the living area, a short distance from the end archway. Ultimately Mr Mark Henderson appeared to concede that a chair had some part to play in the altercation, although he said he did not see who picked it up.
In the Crown’s submissions to the jury, the initial account by Mr Henderson of Dwayne having gone down the hallway towards the toilet was relied upon, as was his initial evidence of Kyle having come out of his bedroom. The contrary account in Mr Henderson’s earlier notes, which had been conceded in cross-examination, was effectively disregarded.
As I have already indicated, Mr Henderson in fact had ultimately agreed that Dwayne Henderson had gone from the kitchen area through the beginning archway and along the hallway. He then described Dwayne coming through the end archway at the opposite end of the living area and the altercation between his two sons then taking place in the vicinity of Kyle’s bedroom door and the end archway.
It is clear from this detailed narrative that the amended account by Mr Henderson as to the route taken by Dwayne from the kitchen area to where the altercation took place was entirely consistent with the description given by Meagan Bock and by Kyle Henderson himself, with the exception of Mr Henderson not having seen a chair.
Of some significance in assessing the description by Mr Henderson that he was, in effect, in the middle of the altercation from its commencement, is a consideration that he was in the kitchen area and would have needed to cross the living area, or go along the hallway, after the fight had started. This is entirely consistent with the evidence by Meagan Bock that Mr Henderson endeavoured to break up the fight after it was already underway.
In the course of the struggle, the only detailed description of which came from Kyle and Meagan, Dwayne restrained Kyle in a headlock and began punching him in the face repeatedly.
Meagan said she made pleas for it to stop but then went back to the games room to calm down.
Kyle described that while in the headlock and as Dwayne punched him, Dwayne began threatening Meagan, saying “I know what will teach you a lesson, cunt. I*’**ll kick your missus in the guts.*” Kyle, still holding the large kitchen knife from earlier, stabbed Dwayne once in the leg. Dwayne Henderson immediately began to bleed profusely and was taken by his father from the house and conveyed to hospital. For present purposes it suffices to observe that he suffered an arterial bleed, most likely from the femoral profunda artery which is behind the femur.
It was a significant part of the Crown case that such a deep wound would require a degree of considerable force in stabbing the thigh. There was no expert evidence as to the degree of force required to insert a knife of that size in the circumstances of the altercation, nor of how sharp the knife was. In the course of endeavouring to save the life of the victim, who was only semi-conscious by the time he arrived at the hospital, the surgeons applied a tourniquet which ultimately had the effect of causing loss of blood flow to the muscles in the lower leg which, by the time Dwayne Henderson was conveyed by air ambulance to Adelaide, culminated in the necessary amputation of his left leg above the knee.
The bloodied knife was later located in a sink in the detached shed on the property, covered by a wicker basket and other various items.
There is no doubt that there was a history of antipathy and on occasion aggression between Dwayne and Kyle Henderson. The details of those previous interactions are not necessary to recount, except to say that they included instances of violence perpetrated by both parties. They did, however, contribute to the raising of the issue of self-defence which likely became necessary for the jury to consider as to whether it had been negatived by the Crown beyond reasonable doubt.
To that end photographs were tendered which were taken of the offender shortly after his arrest on 21 June 2023, the morning after the altercation. The photographs depicted injuries to the offender, specifically a black eye and a large “J” shaped bruise on his back. The black eye is consistent with his account of having been held in a headlock and punched by his brother, although I acknowledge the officer in charge’s evidence that the offender was put to the ground in the course of his arrest, which may be an alternative explanation for the injuries. The large “J” shaped bruise could similarly have resulted from the altercation, such as Kyle’s back hitting the door handle of bedroom 3, or from the arrest.
I note in passing that Dwayne was almost 10 years older, taller, and larger than Kyle who might best be described as of slight build. The evidence was that Dwayne at the time was about 95 – 100 kg and 185 cm tall while his younger brother, the offender, was 58 kg and 173 cm tall.
To the extent that the issue of self-defence required consideration, in my view the level and manner of the use of force purportedly in self-defence could certainly have been found by the jury to have been excessive.
I do note that the Crown’s submissions invited the jury to reject that self-defence was properly raised at all on the evidence. In the Crown’s submission, the jury could “accept what came from Mark Henderson*’s mouth as gospel.” The Crown reminded the jury of the specific evidence that “Kyle came out of his bedroom at the time” and said to the jury: “if you accept the evidence of Mr Mark Henderson, that’*s the end of self-defence.”
Whilst the surrounding circumstances could well have led to a finding that the infliction of grievous bodily harm was reckless, the verdict of the jury that the offender was guilty of inflicting grievous bodily harm with intent to do so binds the Court in this present sentencing exercise.
In accordance with their verdict, I find that the jury must have accepted the Crown’s submission that the force with which the knife wound was occasioned led to a conclusion that the offender had the specific intent to inflict grievous bodily harm upon Dwayne Henderson.
For reasons to which I will refer in due course, in my view self-defence was properly raised although the use of a knife in the circumstances was clearly excessive.
The offender’s subjective circumstances were provided by way of a psychological report under the hand of Dr Matma Sidhu, as well as a letter from his partner Meagan Bock, an Affidavit from his solicitor, Toni Mudditt, and a Remand Domestic Violence Intervention Program Completion Certificate.
In providing his background to Dr Sidhu the offender described his upbringing. He said he was the youngest of three siblings. His sister was 12 years older than him while his older brother Dwayne was almost 10 years older. Kyle was born with hearing impairments which are shared by his father, sister, and paternal grandmother. His father’s hearing impairment is compounded by industrial deafness. The offender grew up with financial stability in a safe neighbourhood.
When the offender was young, his father suffered a workplace head injury which resulted in increased aggression and violence in the home, which the offender believed he received the worst of given the significant age difference between him and his siblings. He described the aggression reducing over time, and that by the time the offender was in high school, his father was significantly calmer. They initially had a difficult relationship due to his fear of his father’s outbursts but developed a closer relationship during the offender’s teenage years.
The offender described an initially close relationship with his mother that shifted following his father’s workplace accident. He described his mother relying on alcohol to cope which made it difficult for him to connect with her. He described his older sister taking on a caretaking role as a result, and said he had a close connection to both older siblings as a child despite the age difference.
The offender completed Year 12 and a Certificate III in Engineering Pathways. At 20 he began working as a concreter, although not consistently. He worked as a bartender for 3 years and later at a Woolworths from 2018-2021 which he enjoyed and at which he was promoted and progressed well.
The offender described drinking socially from 13 years of age at the weekend at parties. He began using cannabis from 18, which he said was not problematic until he began using it daily around 21 years of age. He began using methamphetamine from 22 years of age and used it consistently until his partner fell pregnant some months before the offending. He denied being methamphetamine affected at the time of offending but described himself as “a bit drunk” on the night. The offender said that he had not used cannabis since entering custody and was motivated to continue his abstinence. The offender stated that he had abstained from methamphetamine use since Meagan became pregnant, but reported use of some illicit buprenorphine whilst in custody. He expressed a desire to commence opioid treatment through the buvidal depot.
In relation to his mental health, the offender described an initially happy childhood, followed by a period of being more withdrawn and quiet in his early-mid teens. He described struggling with his emotions during adolescence and being moved easily to anger over small inconveniences such as responding to losing video games by punching walls, and having high intensity emotions which dissipated quickly after such outbursts. The offender struggled with depressive symptoms from 2021, exacerbated by his drug use. He described his overall mental state around the time of the offending as comparatively good given his abstinence from methamphetamine and his excitement at the prospect of becoming a father. The offender noted that he has engaged in psychology sessions in custody, and is motivated to continue that engagement in the community.
The offender’s son was ultimately born whilst he has been in custody. He described only having met his son three times in person and having difficulties building a connection over weekly video calls. He remains in a relationship with the child’s mother Meagan Bock and has maintained a close relationship with his parents and sister, although he no longer has any contact with his brother or any of his brother’s children.
The offender reported positive peer supports in his life but expressed a desire to relocate on his release from custody for a fresh start and due to his fear of crossing paths with his brother. He expressed a desire to live a pro-social life and be a good father.
The offender provided Dr Sidhu with some background to the relevant offending. He explained some context of his relationship with his brother, noting his brother’s previous domestic violence firearms offence for which Dwayne had received a term of imprisonment. The offender described that Dwayne Henderson was making threats to hurt Meagan Bock at the time of the stabbing, and that given the previous difficulties between the brothers and Dwayne’s firearms offence, the offender believed the threats to be credible. He stated that he was attempting to protect Meagan and instinctively stabbed his brother in the leg, having been armed with the knife after feeding his dog.
He expressed remorse and regret for the offending, recognising the harm which had been caused and saying that he hated himself for his actions. He reflected that his brother’s life had changed forever, as had the lives of his brother’s young children.
The psychologist noted that while Kyle had a history of being employed, he had been unemployed after serving a 3-month prison term and subsequently his drug use had increased. Dr Sidhu expressed the opinion that a rehabilitation treatment program would be beneficial when the offender is ultimately released.
With respect to his past pattern of domestic violence offences and his apparent reliance on aggression and violence to manage conflicts, Dr Sidhu thought that a referral to the EQUIPS Aggression program would be of benefit.
In the letter from Meagan Bock, she provides some background to their relationship of 9 years and describes fatherhood as something the offender had always dreamed of. She described her difficulties in becoming a single mother and struggling with her own mental health and with raising their young son in the absence of the offender.
The “Hands in Pockets” Remand Domestic Violence Intervention Program Completion Certificate reflects that the offender participated in 7 sessions during his incarceration in the Violence-Free unit.
The Affidavit of Toni Mudditt, solicitor, indicates that the offender had completed additional courses in custody. However, there had been difficulties obtaining certificates for those programs.
The offender has a relatively brief criminal history. In 2016 he was charged with possessing a prohibited drug for which he received a 12-month bond. In 2019 he was charged with a number of domestic violence offences, including destroying/damaging property, common assault, and entering enclosed lands, for which he received fines, a s 10 dismissal, and a 12-month Community Correction Order.
In 2020 the offender was charged with cultivating a prohibited plant, reckless wounding in a domestic violence context, and possessing a prohibited drug. The previous Community Correction Order was also called up and the offender received a further 18-month Community Correction Order with supervision. However, in relation to the reckless wounding he was sentenced to 13 months imprisonment to be served by way of an Intensive Correction Order.
The Court had the benefit of the Police Facts on sentence for that matter. Those facts reflect that the offender, Meagan Bock, Amy Bloomfield, and a Timothy Monk, being Amy’s then partner, were residing together in early 2020. The victim Monk asked the offender to help with some home repairs and the offender declined before leaving to run an errand. The victim made a threat about breaking the offender’s nose out of the offender’s earshot which Meagan Bock relayed to Kyle by phone. The offender returned home and confronted the victim, punching him in the face several times. The offender was originally said to have then removed a knife from a knife block and followed the victim around the home. The offender is said to have “waved the knife around” which ultimately came into contact with the victim’s forearm, causing a laceration. The tendered facts include an addendum which states “upon further investigation the police conclude that the accused used a knife sharpener in the incident & not a knife. The knife sharpener is a blunt instrument used to sharpen knives.” The facts indicate that the offender gave a version wherein the victim cut himself on broken glassware while on the ground.
Notwithstanding the “addendum” to the Facts, and in the absence of the Local Court judgment on sentence, the imposition of a term of imprisonment for 13 months, albeit to be served by way of an ICO, would tend to suggest that the addendum to the Facts was ignored or given little weight.
In 2021 the offender was charged with further domestic violence offences of common assault and intentional choking. The Community Correction Order was called up and the offender received an aggregate sentence of 8 months imprisonment with a non-parole period of 3 months.
In 2023 the offender was charged with possessing and cultivating a prohibited plant and received both a s 10A dismissal and a 15-month CCO with supervision and abstention conditions. In 2025 the offender was charged with possessing a prohibited drug and he again received a s 10A dismissal. I note that the 2023 offence was charged on the date of arrest for the present matters, and the 2025 offence was charged whilst he was in custody.
The offender’s custodial history also reflects a number of infractions for possessing drugs and related offences whilst in custody.
A Victim Impact Statement was tendered from Dwayne Henderson. It would be trite to say that the immediate consequences of this incident were enormous. His left leg was amputated above the knee. The physical pain was instantaneous and overwhelming. Dwayne’s statement also conveys the long-term consequences of the incident. He describes chronic pain, phantom limb sensations, limited mobility, and complete dependence on prosthetics, crutches, or a wheelchair to be able to move around. He describes struggles with PTSD, anxiety, and depression, a loss of independence and self-identity associated with his disability, financial difficulties associated with the ongoing cost of continuing medical care, surgeries, prosthetics, rehabilitation, therapy, and accessibility accommodations, in addition to having to leave his job and give up activities he once loved.
I acknowledge the severe impact this incident has had on Dwayne Henderson’s life and will take it into account in my assessment of the appropriate sentence.
In relation to factual findings, the Crown effectively submitted that the offender’s attack on Dwayne was unprovoked. The Crown’s written submissions, somewhat contrary to how the Crown closed to the jury, concede that there was in fact a chair involved in the fight which would appear to have hit Mr Mark Henderson’s head. However, the Crown noted that Mr Henderson was unable to recall who picked it up. In oral submissions in the sentence proceedings the Crown conceded that Dwayne must have had the chair, but submitted that the only logical conclusion, in the absence of Dwayne’s recollection, was that the chair was introduced in a defensive capacity.
The Crown relied heavily on the evidence of Bianca Davey in relation to Kyle Henderson’s escalating anger over the course of the evening. As I have already said, I have a degree of reserve with respect to some parts of her evidence. Her evidence portrayed herself in a positive light in contrast to other descriptions of her consistently reproaching Kyle, which appears to have exacerbated his anger or extended its duration, even after Mrs Henderson had removed herself to the bedroom. While I am satisfied that the offender was extremely angry, as demonstrated by his punching the door and flipping the table in the games room, I am mindful of the various descriptions to the effect that this anger dissipated and re-emerged several times, and in particular of the police officer’s observations of the offender calmly speaking to his father only moments before Dwayne’s arrival.
In written submissions, the Crown said “noting that the jury convicted the offender of causing the grievous bodily harm with intent, it is submitted that the Court would not place any weight on the evidence given by the offender”, and that in those circumstances, there must have been some degree of pre-meditation for the offender to arm himself with a knife before approaching the victim.
I should indicate that I do not accept that submission.
It is of significance that there was no evidence in the trial to support a finding that Kyle Henderson knew that his brother had arrived in the house before he himself went into the kitchen area and saw him there. A conclusion that he had armed himself with the knife in an act of premeditation is simply not available in the absence of any evidence that he knew his brother was already in the house. Indeed, such a specific proposition, namely that he knew that his brother was already in the house, was never put to the accused in the course of his cross-examination.
In relation to the sentencing exercise, the Crown reminded the Court of the general principles for sentencing for this type of offence, including the need to consider the nature and extent of the injuries caused, the degree of violence used, and the intention with which harm was inflicted. In that respect the Crown submitted that the extent of the injury caused, resulting in permanent disability and long-term consequences requiring ongoing rehabilitation and care, increases the objective seriousness of the offence. The Crown submitted that although the offence involved a single stab wound, the significant force required to make the blade penetrate through the thigh and around or past the femur escalates the degree of violence.
In relation to the element of intention, the Crown submitted that the offence was committed against a backdrop of previous incidents of family violence by the offender, including the argument earlier that evening which resulted in Bianca calling Dwayne to attend for the purpose of ensuring his mother’s welfare. In the Crown’s submission, the offence was unprovoked and the offender was aggressive whereas the victim was conciliatory, and the offender’s lack of concern over the victim’s welfare afterwards and his attempts to blame Dwayne and indeed other family members for aggravating him, also increased the objective seriousness. I will come to that latter submission later in these Remarks.
The Crown noted that the offender’s criminal history was not particularly lengthy but ultimately disentitled him to leniency. In relation to remorse, the Crown noted that the offender had offered a plea to the statutory alternative of recklessness, but had consistently denied intending to cause the victim serious harm and minimised his responsibility, having fled after the offence and corresponded with his sister Alina over the possible deletion of CCTV and disposal of the knife. The Crown further submitted that this lack of remorse and insight into his offending has a negative bearing on his prospects of rehabilitation. I remind myself of the principle in Roff v R [2017] NSWCCA 208 at [25] that even if I find that the offender was not remorseful, regard cannot be had to that absence in imposing a heavier sentence.
In relation to s 21A(2) aggravating factors, the Crown submitted that the following were applicable; that the offending involved the use of a weapon, that the offender has a record of previous convictions for personal violence offences, and that the offence was committed in the Henderson family home. I note that I intend to take the use of the weapon into account in relation to objective seriousness and will not double count it as an aggravating feature pursuant to s 21A(2). I accept the other aspects are correctly identified as aggravating factors.
In the Crown’s submission, the objective seriousness of the offence is to be assessed as “a serious example of a serious offence”. The Crown submitted that the offence was committed without provocation and without justification, and that there was some degree of pre-meditation in taking the knife from the games room with him when he approached the victim and got into the altercation. For the reasons I have already noted, I do not accept that aspect of the Crown’s submissions.
The Crown’s written submissions included the detail of a number of so-called comparative cases. I will deal with those later in these Remarks under that heading.
In relation to factual findings, the defence written submissions correctly state that the jury’s verdict does not mean that the offender’s evidence concerning self-defence was rejected, but rather that the jury likely found that his actions in self-defence were excessive.
In relation to sentencing, the defence reminded the Court of some general principles, namely that both maximum penalties and standard non-parole periods constitute yardsticks for an appropriate sentence, with maximum penalties representing a worst possible case and standard-non parole periods representing a middle of the range of seriousness: Markarian v The Queen (2005) 228 CLR 357 at [31]; s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The defence conceded that the injury was severe, permanent, and has had significant impacts on the victim’s life. However, the defence implicitly suggested that it must be contrasted with examples of grievous bodily harm that result in a permanent vegetative state which fall towards the worst category. The defence submissions reminded the Court of the evidence that, although Dr Suppiah treated Dwayne’s injury the best he could, Dr Sud would have approached treatment differently and in such a way that the tourniquet could have been removed sooner, potentially saving the leg. In that respect it was submitted that although the offender is ultimately responsible for the amputation, that it was not something intended or contemplated by him. It was also argued that the brevity of the assault and its confinement to a single stab in the context of excessive self-defence lowered the objective seriousness.
Balancing those competing factors, the defence ultimately submitted that the offending fell below the mid-range of objective seriousness.
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.
The defence submitted that the offender required a greater proportional period on parole that the statutory ratio would typically allow by virtue of his drug reliance and poor coping ability, which in turn influenced his reliance on aggression and violence.
The defence written submissions included a submission that the period of time served in custody to date would adequately reflect an appropriate non-parole period.
I acknowledge that comparative cases have limited utility in determining a sentence given that individual cases turn on their own specific facts and vary greatly in their subjective and objective circumstances. However, it suffices to say that reference to comparative cases in an overall way can provide some measure of the types of sentences passed in similar matters and act as a touchstone for comparison of a contemplated sentence (see R v Smith [2016] NSWCCA 75 at [73]).
I will first briefly summarise the cases relied upon by the Crown and the defence as comparatives.
The first case described as a comparative was R v Wilson (NSWCCA, 18 December 1997, unrep). The appellant had been found Guilty after trial of one count of malicious wounding with intent. He had attacked a female in her home with a pinch bar. The attack was unprovoked and vicious, and left the victim scarred for life. She suffered several fractures and bruising. A sentence of 18 years and 8 months with a non-parole period of 14 years was imposed. An appeal against sentence was dismissed.
In R v Ferguson & Williams [1999] NSWCCA 214 the offenders pleaded Guilty to one count of inflicting grievous bodily harm with intent. In the course of a violent pub brawl, there was a prolonged and frenzied attack which involved stomping and kicking the victim who suffered serious internal injuries. These included a ruptured spleen and bowel, and the victim remained crippled and unable to care for himself. Ferguson was sentenced to 8 years with a 4 year and 6-month non-parole period. Williams was sentenced to 7 years with a 4-year non-parole period. Crown appeals against inadequacy were dismissed.
The next case referred to by the Crown as a comparative was R v Baquayee [2003] NSWCCA 401. The offender was convicted after trial of two counts of malicious wounding with intent. He had discharged a firearm intending to inflict grievous bodily harm on two victims. One of the victims suffered life threatening injuries. At first instance he was sentenced to concurrent terms of 6 years imprisonment with a non-parole period of 2 years and 9 months. Following a Crown appeal, the sentence on the first count was increased to 10 years with a non-parole period of 6 years, and 8 years with a non-parole period of 4 years and 9 months with respect to the second count, with both sentences to be served concurrently.
In R v Hoskins [2004] NSWCCA 236 the Crown appealed against the inadequacy of a sentence of 6 years with a non-parole period of 4 years. The offender was an inmate at Grafton gaol and he had stabbed another prisoner in the kidney area and punched him several times around the face. A 25% discount had been allowed following a plea of Guilty, and a further 15% for assistance to the authorities. The Court of Criminal Appeal held that the discount for assistance was an error and the effective non-parole period in light of a sentence already being served was only 2 years. Following the Crown appeal and the error at first instance, the non-parole period was increased to an effective 3 years.
The next chronological case advanced by the Crown as a comparative was R v Gersbach [2009] NSWCCA 132. The offender was convicted after trial of one count of maliciously inflicting grievous bodily harm with intent. The victim had been assaulted while walking down the street. He had been struck with a cricket bat and suffered very serious head injuries. He suffered a left frontal brain injury, a left maxillary sinus fracture, and post-traumatic amnesia. A standard non-parole period of 7 years had been introduced. He was sentenced to 9 years and 4 months with a non-parole period of 6 years and 6 months. An appeal against severity and conviction was dismissed.
In R v Bourke (2010) 199 A Crim R 38; [2010] NSWCCA 22 the offender had pleaded Guilty to one count of malicious wounding with intent. The offender had attacked the victim at a party to which he returned in the early hours of the morning following an earlier incident with a girl. The offender returned with an axe and a pole and began hitting the victim with both implements. The victim suffered fractures to his skull and fingers, a 10cm wound to his forehead, as well as numerous lacerations. He suffered restricted movement of his fingers, recurring headaches, and a significant scar. A sentence of 12 years with a non-parole period of 8 years was upheld on appeal and the severity appeal was dismissed.
The Crown next referred to Binnie v R [2010] NSWCCA 14. A plea of Guilty had been entered with respect to one count of maliciously inflicting grievous bodily harm with intent. He had attacked a former girlfriend and a male friend of hers with a knife. He stabbed the male friend in the torso and also in the side of the neck. The offender had no prior convictions and was accepted as a person of good character who was unlikely to re-offend. A discount of 25% had followed the plea of Guilty. At first instance Sorby DCJ had found that the objective seriousness was “towards the mid-range of objective seriousness but below it”. The offender was sentenced to 6 years and 6 months with a non-parole period of 4 years. On appeal, the sentence was reduced to 6 years with a non-parole period of 3 years and 6 months.
The next case relied upon by the Crown as a comparative was Aitchison v R [2012] NSWCCA 82. The offender and another man had gone to the home of the victim where he asked for marijuana. In the course of an exchange, he stabbed the victim under his armpit. He was convicted after trial of wounding with intent to cause grievous bodily harm. He had prior convictions for offences of violence and was sentenced to 9 years imprisonment with a non-parole period of 6 years. An appeal against severity was successful and he was re-sentenced to 7 years imprisonment with a non-parole period of 4 years and 6 months.
The last case provided by the Crown as a comparative was Aldous v R (2012) 227 A Crim R 184; [2012] NSWCCA 153. The offender was similarly convicted after trial of wounding with intent. The case involved what was described as a “glassing” in a pub. The victim had been struck in the back of the head with a schooner glass, occasioning a 10cm cut. The victim had also been punched. The prevalence of such cases was said to call for particular emphasis on general deterrence. He was sentenced to 6 years with a 3-year non-parole period. An appeal against severity was dismissed.
As would be apparent, the cases referred to as comparatives by the Crown embrace an extremely wide range of sentences from 6 years with a 3-year non-parole period up to 18 years and 8 months with a 14-year non-parole period. The utility of some of these cases as comparatives may be viewed as questionable, although they are demonstrative of a very wide range.
The defence comparative sentences were provided in support of a submission that the offender has already served an adequate non-parole period for the offence and that he ought to be eligible to be immediately released to parole. The defence submissions make particular reference to the Judicial Commission statistics and note that head sentences of 7 years or less were imposed in 83% of the published statistics for such offending, while sentences of 6 years or less were imposed in 62% of cases. It was submitted that the most common head sentence following a plea of Not Guilty was 5 and 6 years, whilst the most common non-parole period was 3 years. I remind myself of the repeated observations in the Court of Criminal Appeal that Judicial Commission statistics are a blunt instrument.
Three comparative cases were referred to in the written submissions on behalf of the offender.
The first, DG v R [2025] NSWCCA 137, related to life-threatening injuries inflicted on the offender’s 10-week-old daughter. These included multiple skull factures, severe traumatic brain injury from blunt force trauma, and cervical spine injury, amongst other injuries. The ongoing effect of the injuries included cerebral palsy. A discount was allowed for the plea of Guilty. The injuries were not the first caused by the offender to the child, who had healing fractures to her ribs, arm, hands, and feet. A sentence of 6 years and 6 months with a non-parole period of 4 years and 2 months was not disturbed on appeal.
In Bhatt v R [2024] NSWCCA 214 the offender attacked his neighbour with a cricket bat and struck him in the head multiple times. The victim suffered a fracture of his jaw and the root of a tooth, as well as a further fracture to the left maxillary sinus. He lost two teeth and a metal plate was required to be inserted to correct the jaw deformities. The victim was knocked unconscious. A sentence of 4 years and 6 months imprisonment was imposed with a non-parole period of 2 years and 6 months. The offender had pleaded Guilty and received a 25% discount.
The last comparative put forward by the defence was R v Cuthbert [2023] NSWDC 594. Cuthbert was the principal offender in a vicious attack by a group of inmates at the Mid-North Coast Correctional Centre who attacked another inmate in his cell. The victim was stomped on his head, kicked, and punched numerous times. He was bashed unconscious and suffered multiple injuries to his face and head. Cuthbert himself had thrown at least 16 punches to the victim’s head in fast consecutive punches with both fists. The victim suffered multiple facial factures including a complex facture to his right zygomatico-maxillary sinus which extended through a number of different bones in his face. He also had a fracture of his jaw, his right cheek, and right eye. He lost a tooth and also suffered extensive lacerations. Judge M King SC allowed a 25% discount following a plea of Guilty. He was sentenced to a term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 9 months.
In Field v R [2020] NSWCCA 105 the offender appealed against his sentence for one offence of causing grievous bodily harm with intent to cause grievous bodily harm. The victim was in a relationship with a Ms Crowther. He went to her home to see her and banged on the doors and windows loudly to no avail. He consumed alcohol and fell asleep in a chair on the front veranda. The victim awoke to the offender opening the front door, and immediately punched him. The pair entered the premises and the victim began remonstrating with Ms Crowther who was sitting on the lounge. As he did so, he felt a blow to his stomach from the offender which he had assumed was a punch. After the blow he went to the kitchen and realised he had been stabbed by the offender.
The victim received serious injuries. A portion of his intestines were protruding from the wound when police arrived, he underwent multiple surgical procedures including the removal of a portion of bowel, and spent months in hospital on feeding tubes. The offender had extremely strong subjective circumstances, being a 40-year-old Aboriginal man raised in an extraordinarily deprived background with longstanding drug abuse and mental health issues. He received no discount on sentence. Self-defence had been raised during the trial but clearly rejected by the jury given their verdict. In determining the facts for sentence, the sentencing judge found that the offence was committed as part of an excessive and disproportionate mode of self-defence, which reduced the seriousness of the offence.
Her Honour Judge English ultimately found that the offence fell below the midrange of objective seriousness and declined to impose the standard non-parole period. There was no discount on sentence. The offender was sentenced to imprisonment for 6 years with a non-parole period of 4 years. The appeal against the severity of sentence was dismissed.
In Soars v R [2024] NSWCCA 218 the offender appealed against both conviction and sentence for one offence of causing grievous bodily harm with intent to cause grievous bodily harm. The victim had been walking home from a hotel in East Maitland when he was struck by the offender wielding metal nun-chucks out the front of his property. The victim and offender were unknown to each other. The offender’s defence at trial was that the Crown could not exclude that it was his brother, rather than him, who was wielding the nun-chucks at the relevant time. The jury’s verdict indicated that they were satisfied it has been the offender.
The victim suffered life-threatening and serious injuries and the incident was described as a sustained attack to the head and body of short duration, without planning or pre-meditation. The judgment notes that the injuries impaired the victim’s ability to care for himself and to obtain meaningful employment, but do not go into any great detail beyond that. The offender’s subjective circumstances were comprised of difficulties during upbringing, child sexual abuse, and exposure to a violent crime in his youth which resulted in some mental health issues. The offender was 53 years of age and it was his first custodial sentence. There was no discount on sentence. He was ultimately sentenced to 9 years’ imprisonment with a non-parole period of 6 years and 6 months. The Court of Criminal Appeal described the sentence as stern but not excessive. The appeals against conviction and sentence were dismissed.
Although charged under a different statute, cases relating to manslaughter by reason of excessive self-defence provide a limited but nevertheless helpful comparator for the objective and subjective factors in this case.
R v Tristan LEE [2019] NSWDC 59 was a first instance decision by Judge Lerve in relation to a single count of manslaughter. The deceased and his friend Keith Waters were approached by two women looking to purchase drugs. All four travelled to the offender and his partner’s home sometime after 2am for that purpose. Waters was known to the offender. The offender woke to knocking and let the group in. At some stage the offender’s partner noticed her phone and money were missing from where she had left them on a microwave. The offender believed the deceased and/or Waters had taken the items and asked them to empty their pockets. The pair refused and the deceased ran outside followed by the offender. Each was observed to have something in their hands. The offender chased the deceased and, running through the dark, fell on the deceased and stabbed him with the outstretched knife he had been running with. The deceased died from his injuries, being a single stab wound in the back left upper thigh. The wound measured 10cm deep and 4.25cm wide. This wound severed the femoral artery and the femoral vein, such that he bled to death in no more than three minutes. A sharp pointed metal implement with a wooden handle, described as an ice pick, was found beside his hand. The metal spoke of this implement was 20cm in length. The offender confessed to his father a few hours later and arrangements were made for him to hand himself in the following morning, where he made full admissions.
The harm in that case was more substantial than in the present proceedings, resulting in the death of the victim. Further, the offender was sentenced on the basis that he had no intention to cause any harm, but that the offence was one of manslaughter by unlawful and dangerous act. The offending ultimately fell well below the mid-range of objective seriousness.
The offender had a limited criminal history which allowed him a degree of leniency, although not the same as if he had had no prior convictions. The offender had a history of drug problems, and a prior head injury.
The starting point for sentence was one of 6 years’ imprisonment. The deduction of a 25% discount for his early plea of Guilty resulted in a total head sentence of 4 years and 6 months with a non-parole period of 1 year and 9 months.
In R v Trevenna [2004] NSWCCA 43 both the offender and the Crown appealed against a sentence in relation to a single count of manslaughter. The offender had resided with the deceased, and although they were not in a romantic relationship, the deceased had been infatuated with the offender and apparently endeavoured to control her life. The deceased was said to be a large and intimidating man with a criminal record of violence against women and there were suggestions that the offender was afraid of him. The offender was an active drug dealer and kept a loaded gun and a baseball bat on the premises to protect himself.
The offender came home one evening and the deceased began questioning her about her taking the car and not telling him where she was going. That questioning escalated to the deceased angrily accusing her of sleeping with a friend. She denied this repeatedly and said she wanted to leave to be with her son, who refused to come to the deceased’s home. The offender aired her suspicion that the boy’s refusal was because the deceased had interfered with him, as he apparently previously had with a stepdaughter.
The deceased threatened to kill the offender and began strangling her. She managed to get away, and was standing close to a bunk where she knew he kept a shotgun for protection. The offender took the gun, and as the deceased continued threatening her with a raised cricket bat, she shot him once fatally in the back of the head. On appeal the Court noted that “*[t]*hough the weapon used in the present case was extreme, it was the only weapon that was at hand for the offender and was used in a situation where she feared her life” at [48].
The offender entered a late plea of Guilty to manslaughter on the basis of excessive self-defence. She had a minor criminal history of little relevance. The offender was ultimately sentenced to a term of imprisonment of 7 and a half years with a non-parole period of 4 and a half years. Both the appeals against inadequacy and manifest excess were dismissed and the sentence confirmed.
In that case Santow JA at [45] also helpfully listed various factors relevant to sentencing in excessive self-defence cases, some of which included whether the offender was carrying the weapon prior to the time of the offence; any threat to the offender’s life from a stronger assailant or one who is armed; any abusive history in the relationship between the offender and deceased, or the deceased and others; whether the offender was the original aggressor; and whether the offender lied to police about their involvement.
To the extent that it is not clear from my earlier Remarks, I should indicate clearly the factual conclusions leading up to the altercation upon which I reach a determination of an appropriate sentence.
The critical difference between the Crown’s submissions and my own view of the facts, is that I am not satisfied on any basis that there was any level of pre-meditation in the accused carrying a knife into the living/dining area of the house. The proposition that the offender somehow knew that his brother was already in the house is by no means inconceivable. However, given the evidence in the trial, such a proposition could never rise above mere speculation.
There was not a scintilla of evidence, nor any cross-examination, to suggest that Megan Bock, the offender himself, or his mother, had any awareness of the arrival of Dwayne Henderson at the house. I accept Kyle’s evidence that when he went into the kitchen area, he then saw his brother.
In my view the proposition that there was pre-meditation in carrying the kitchen knife into the kitchen area in his pocket in anticipation of a possible confrontation with his brother is speculation in the extreme. It is incapable of constituting aggravation to any level, let alone beyond reasonable doubt.
The proposition, as advanced to the jury in the Crown’s final address, that Mr Henderson’s evidence should be accepted that Kyle was seen coming out of the bedroom, rather than from the games room, ignores the concessions Mr Henderson made when confronted with his typed-up notes of his recollections which had been made when the matter was fresh in his memory.
The notion that the offender had in his possession the knife, and had earlier gone into his bedroom, and then emerged after his brother arrived, does not stand up to logical analysis.
I am firmly of the view, rather than rejecting the evidence of the accused completely as the Crown submits, there is likely a high degree of accuracy in much of what fell from the offender in his evidence.
I remain uncertain as to whether his mother has absented herself from the scene in order to not be an eyewitness. So much was not put to her, and I certainly do not draw a conclusion to that effect.
However, the ultimate concession from Mr Henderson, which followed questions from the Bench initially: with respect to his knowledge of a chair being involved, was of not insubstantial significance in giving consideration to the account given by the offender and his partner regarding the circumstances of the altercation.
Contrary to the Crown submissions to the jury in closing address, I am of the view that the upturned dining room chair evident in photographs in Exhibit 10 is the chair described by the offender and his partner as having been utilised by the victim. Mr Henderson’s evidence describing having been hit on the head with the chair in the course of endeavouring to break up the fight between his sons was highly corroborative of the assertions by Kyle Henderson. The different directions as to where the chair was either thrown or ended up do not materially affect that conclusion. I similarly reject the proposition that the chair was used by Dwayne Henderson defensively.
The photographs in Exhibit 10 indicate that the upturned chair had come from the far side of the dining table which was adjacent to the beginning archway. This circumstance is consistent with the evidence of both the offender and also Meagan Bock as to the route taken by Dwayne Henderson whilst holding a chair.
As I have already indicated, Mr Mark Henderson agreed that that was the route taken by Dwayne immediately before the altercation, from the kitchen, notwithstanding that he said he did not see a chair, nor who picked it up, before giving evidence that he had felt it.
I am satisfied that the actions of the offender in producing and then utilising the knife were initiated as a consequence of an action of self-defence, but that the stabbing of his brother was excessive in the circumstances.
Grievous bodily harm encompasses a wide range of injuries that result in the permanent or serious disfigurement of a person. Harm exceeding the bare requirements of that definition can be taken into account as a matter of aggravation: Heron v R [2006] NSWCCA 215 at [49]. In this case the injury substantially exceeds that definitional requirement. The wound required the use of a torniquet to prevent the victim bleeding to death. In making that observation I have regard to the fact that I must not take into account the potential harm of an injury but the actual harm caused, nor can I sentence the offender for an offence more serious than what has been charged: Heron at [48] and R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
The torniquet and the delays associated with a medical evacuation to Adelaide resulted in the amputation: a permanent disability with considerable long-term consequences for the victim which are described in his Victim Impact Statement. Ultimately the seriousness of the injury in the present matter prima facie places it at a comparatively high level of objective seriousness for offences of this type. However, the objective seriousness of these types of offences is not determined solely by the injury caused: Testalamuta v R [2007] NSWCCA 258.
The degree of violence and ferocity of an attack are material considerations, even where the injury is very substantial but the violence used is a single blow: R v Bloomfield (1998) 44 NSWLR 734*.*
A single blow of considerable force is comparatively less violent than this Court sees in many other cases involving a sustained attack including multiple blows.
In the present matter the fact that the offender’s attack took place in circumstances of self-defence, albeit excessive, lessens the objective seriousness. The incident was seemingly spontaneous and without any planning, and, for the reasons already outlined, without pre-meditation.
I have no evidence as to the amount of force required for the blade to penetrate the victim’s thigh, nor how sharp the knife was.
I find that in circumstances where the offender was armed with a large kitchen knife in his pocket, the use of that weapon involved an intrinsic escalation in the degree of violence and level of danger in the altercation between him and his brother.
In relation to the mental element of the offence, the jury’s verdict means that they were satisfied beyond reasonable doubt that the offender had the intention to cause grievous bodily harm when he inflicted the stab wound. As I have already observed, grievous bodily harm encompasses a wide range of injuries and the level of injury intended on that scale is also a relevant consideration: R v Zamagias [2002] NSWCCA 17; R v Mitchell [2007] NSWCCA 296.
It is clear that the offender intended to seriously injure his brother when he stabbed him. Extreme blood loss and the concomitant risks and consequences were an easily foreseeable result of stabbing a kitchen knife to a person’s thigh. However, I have no doubt that the ultimate injury that resulted, being the amputation of Dwayne Henderson’s leg and the associated consequences, were entirely unforeseen by the offender and far outweighed what he might have envisaged following a single stab wound to his brother’s thigh in the course of the physical fight and after his brother had attacked him with a chair.
In respect of the Crown’s submission that the offence was unprovoked, I have already stated that I am of the view that the jury’s verdict was on the basis of excessive self-defence in the context of a history of violence between the brothers, Dwayne confronting or charging at Kyle with a chair, and a fight breaking out between the two in circumstances where Kyle was in possession of a knife and became prepared to use it. I am conscious that there was a history of violence between the brothers, and each had separate histories of violence with others. I remind myself that Dwayne was notably older, larger, and presumably much stronger than Kyle.
Ultimately, I am of the view that this combination of circumstances result in a finding that this offence falls just below the mid-range of objective seriousness.
I am mindful of the offender’s post-offence conduct, which was the subject of Agreed Facts. Meagan Bock’s phone sent messages to Mrs Jennifer Henderson telling her that if she did call the police, that Dwayne had hit Kyle first and he had acted in self-defence; that if she made a police statement she would never see her grandchild; and that she needed to return to the house in case police found “ya know what” in the shed, referring to the knife which had been used to stab Dwayne. In his evidence at trial the offender claimed that he had sent those messages using language in the third person so that they looked as though Meagan had sent them. Whether that is accurate or not, I am unable to determine.
The offender also exchanged several messages with his sister Alina, which I will not repeat in full in these Remarks. In brief overview, Kyle said he would surrender himself to police the following day as Alina provided updates as to Dwayne’s changing condition and told him to wait until Dwayne woke up. Some of the messages from Kyle read as follows:
“*Okay sister I’*ll h**old out for now and I love you too hope he pulls through I reckon he will, really? Fuck sakes.Im going to jail ay? [sic]”
…
*“*I was just wondering, if mum and dad make a statement saying Dwayne charged me first which he really did, could I just plead guilty due to *self defence, that way no one will get locked up, Dwayne will get an assault charge but they’*re not gonna lock him up over it would they? Idn [I don’t know] I think I’m just shitting myself”
Alina sent further messages telling Kyle to get rid of “the thing you stick him sit*”* [quare “with”], referring to the knife, asking him for instructions on how to wipe security cameras, and telling him to turn off his Facebook status in case police began tracking him.
I note in passing that both Meagan and Alina faced separate criminal charges for their conduct post the incident.
In response to a message in which Alina said “They had to cut his leg off He*’*s probably not gonna make it”, Kyle said:
“FUCK OFF THEY DID”
…
“I’m gonna hang myself fuck this”
…
*“Okay, tell both mum and dad that I am sorry and I do love them I didn’t want Dwayne to run at me at all, he’s already smashed shit on meagans car in the past and I didn’*t wanna fucking get hurt on my way to bed, yeah I called him a hypocrite for starting on me but fuck.**”
As I have already noted, the Crown’s position is that the offender’s post-offence conduct, including consistent denials of responsibility, fleeing, and corresponding with his sister as outlined above, indicated that he was not remorseful. The comment to the effect that he might commit suicide was said by the Crown to indicate regret, rather than remorse, and the subsequent message an attempt to justify his actions.
In contrast, the defence submitted that the offender’s messages indicated shock and disbelief at the extent of the injury, and a degree of insight into the impact of the offending on the victim and his family. The comment concerning suicide was said by the defence to reflect self-hate and recrimination for his actions beyond simple and selfish regret.
I remind myself that pursuant to the terms of s 21A(3)(i) of the Cr**imes (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.
I am mindful that the offender has previous convictions for domestic violence, and that the present offence reflects a dramatic escalation in the level of his violence. I note that the offending occurred in the family home. However, in circumstances where the offence arises from excessive self-defence, I view the risk of re-offending as comparatively low. That finding is reinforced by the offender’s expressed desire to relocate away from Broken Hill and to continue psychological treatment to address his issues with low mood and aggression.
I make no specific finding in relation to his drug use, noting his custodial record, and his comments to the psychologist that he was not drug-affected at the time and that he has since abstained from marijuana and methamphetamine use.
I am mindful that the offender has the continuing support of his partner and has become a father since entering into custody. I note that his parents are in attendance at the proceedings today. I have already noted his intention to relocate away from Broken Hill. While he has previously served 3 months in custody in relation to domestic violence offences in 2021, his current period on remand since June 2023 represents his first substantial term of imprisonment.
He has expressed a level of insight into his offending and the consequences of his actions. He is now 30 years of age and will have family responsibilities on his release.
I have come to a view that his prospects of rehabilitation, whilst guarded to some degree based on his past history, can be viewed somewhat optimistically given his interaction with the psychologist, his undertaking of appropriate courses in custody, and his changed family circumstances. He will, however, require ongoing supervision after his release, particularly given the instances of violence in his record. In all of the circumstances his prospects of rehabilitation should be viewed as reasonable.
The circumstances of his upbringing, while not reaching Bugmy or Fernando-type considerations, clearly had some dysfunctional aspects. The psychological report noted increased aggression from his father following his father’s workplace injury. Mr Henderson’s volatility in the home was described as frightening. His mother’s excessive use of alcohol was described as making it “difficult to connect to her”**. Aspects of this upbringing are reflected in the resort to violence by both the offender and his older brother both as between themselves and with respect to third parties.
His moral culpability is to be assessed in light of this background.
The offender was arrested on 22 June 2023 and has been in custody since that date, being a period of approximately 2 years and almost 9 months. His sentence will be backdated to take this period into account.
Kyle Ross Henderson, you are convicted.
I sentence you to a term of imprisonment of 7 years with a non-parole period of 4 years. The sentence and non-parole period will be backdated to commence on 22 June 2023. You will be eligible for release to parole on 21 June 2027. the additional term of 3 years will expire on 21 June 2030.
**********
Wolfram Street Diagram (1.11 MB, pdf)
Insertion of Wolfram Street Diagram
R
Henderson [2026] NSWDC 77
(2013) 249 CLR 571
(2005) 228 CLR 357
(1998) 44 NSWLR 734
(1981) 147 CLR 383
(1999) 199 CLR 270