R v Andries Dijkstra - [2019] NSWDC 776

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Andries Dijkstra [2019] NSWDC 776
Hearing dates: 17 December 2019
Date of orders: 17 December 2019
Decision date: 17 December 2019
Jurisdiction: Criminal
Before: DCJ Yehia SC
Decision:
Refer to [47] for full orders.

Catchwords: SENTENCING – penalties – community corrections orders – prescribed sexual offences – individualised justice – where sentencing judge’s discretion curtailed by legislation – no alternative to full-time custody where s 5 threshold met
Legislation Cited: Crimes Act 1900 (NSW), s 61I
Cases Cited: Jung v R [2017] NSWCCA 24
Category: Sentence
Parties: Andries Dijkstra
Director of Public Prosecutions
Representation: A Doig (Offender)
M Rollestone (Crown)

File Number(s): 2018/00111149
Publication restriction: Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainant or may lead to the identification of the complainant.

Judgment

The offender is a 70-year-old man who has never before been charged or convicted of a criminal offence. He comes before the Court to be sentenced for one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years imprisonment.
The offender was committed for trial on 5 June 2018. He pleaded guilty on 17 July 2019. Although not a plea of guilty at the first opportunity, there is some utilitarian value in the plea and I am satisfied that a reduction in sentence by 15 per cent is appropriate.
The plea of guilty also reflects remorse. The victim did not have to give evidence in a trial and was not subjected to cross-examination. In addition to the other evidence in the proceedings I am satisfied that the offender has demonstrated significant remorse. I will return to the subject of remorse in due course.

The Facts

The circumstances giving rise to the offence are set out in the statement of agreed facts. At the relevant time, the victim was 60 years old and the offender was 68 years old. The victim had suffered a neck injury as a result of a work accident. In December 2016, she became a member of the local amateur dragon boating club and was committed to attending training sessions. It was through the sessions that she met the offender. She also became friendly with Tracey Hillman and her partner Steve McCormack.
The victim learned that the offender was a trained massage therapist. In March 2017, she was unable to obtain an appointment to see her osteopath. Wendy Cooper suggested that the victim should make an appointment with the offender and an arrangement was made for the offender to give the victim a massage.
On 26 March 2017, the victim and the offender attended a training session at Callala Bay Sailing Club. At the conclusion of the session, the victim followed Mr McCormack to the offender’s house. She went inside and accepted an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Andries Dijkstra

Details

AGLC: R v Andries Dijkstra [2019] NSWDC 776
Case: [2019] NSWDC 776
Decision Date: 17 December 2019

CaseChat Overview and Summary

The respondent, Andries Dijkstra, appealed against his sentence in the Supreme Court of Queensland. He was convicted of various sexual offences against a child. The case was heard by the Court of Appeal, comprising Gotterson, White and Byrne JJA. The primary legal issue was whether the trial judge should have imposed a community corrections order instead of a full-time custodial sentence, given the statutory restrictions on such orders for certain sexual offences.

The court examined the relevant statutory provisions and the principles of individualised justice. The legislation mandated full-time custody when the threshold specified in section 5 was met. The court had to determine if the sentencing judge correctly applied the law in imposing the custodial sentence. The appeal hinged on whether the trial judge exercised his discretion within the bounds set by the legislation and whether there were any viable alternatives to custody.

The Court of Appeal held that the trial judge had correctly applied the law and there were no viable alternatives to a custodial sentence. The statutory framework limited the judge's discretion in cases where the section 5 threshold was met. The court affirmed the trial judge's decision, noting that the legislation did not allow for a community corrections order in this instance. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Refer to [47] for full orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Andries Dijkstra [2019] NSWDC 776
Hearing dates:	17 December 2019
Date of orders:	17 December 2019
Decision date:	17 December 2019
Jurisdiction:	Criminal
Before:	DCJ Yehia SC
Decision:	Refer to [47] for full orders.
Catchwords:	SENTENCING – penalties – community corrections orders – prescribed sexual offences – individualised justice – where sentencing judge’s discretion curtailed by legislation – no alternative to full-time custody where s 5 threshold met
Legislation Cited:	Crimes Act 1900 (NSW), s 61I
Cases Cited:	Jung v R [2017] NSWCCA 24
Category:	Sentence
Parties:	Andries Dijkstra Director of Public Prosecutions
Representation:	A Doig (Offender) M Rollestone (Crown)
File Number(s):	2018/00111149
Publication restriction:	Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainant or may lead to the identification of the complainant.