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R v Hendricks

R v Hendricks

Case [2011] NSWCCA 203 8 September 2011

Sentencing

Cumulative Sentences

Principle of Totality

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Hendricks [2011] NSWCCA 203
Hearing dates: 26/07/11
Decision date: 08 September 2011
Jurisdiction: Civil
Before: Basten JA at 1
Simpson J at 15
Garling J at 16
Decision:
1. Leave to appeal granted.
2. Sentence of Freeman DCJ in the District Court of New South Wales on 27 April 2010 be quashed.
3. In lieu thereof impose the following as sentences:
a) Count 1: Sexual Assault contrary to s 61I of the Crimes Act, Dan Hendricks is sentenced to a non-parole period of two years and three months commencing on 19 October 2008 and concluding on 18 January 2011. He is sentenced to a balance of term of nine months, which will conclude on 18 October 2011.
b) Count 2: Aggravated Sexual Assault contrary to s 61J of the Crimes Act and taking into account the offences on the Form 1, Dan Hendricks is sentenced to a non-parole period of five and a half years to commence on 19 July 2009 and conclude on 18 January 2015. He is sentenced to a balance of term of three and a half years, which is to conclude on 18 July 2018.
c) The sentence with respect to the offence of breaching an Apprehended Violence Order on the s 166 Certificate of a fixed term of imprisonment for twelve months to commence on 19 January 2011 and conclude on 18 January 2012 is confirmed.
d) The first date upon which Mr Hendricks can be released on parole is 18 January 2015.

Catchwords: CRIMINAL LAW - Sentencing - Two sexual offences with same victim and offender - Two months apart - Accumulation of sentences - Principle of totality - Significant elements of commonality between offences - Nature of relationship between offender and victim - Nature of the conduct and circumstances of offences - Offender's subjective case - Sentences manifestly excessive.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited: Fleming v The Queen (1998) 197 CLR 250
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Pearce v R (1998) 194 CLR 610
R v AEM Snr [2002] NSWCCA 58
R v Bavadra (2000) 115 A Crim R 152
R v JCE (2000) 120 A Crim R 18
R v Morgan (1993) 70 A Crim R 368
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category: Principal judgment
Parties: The Crown
Dan Hendricks
Representation: Counsel:D Oâ€™Neil (A)
D Arnott SC / S Bowers (R)
Solicitors:
Legal Aid Commission of NSW (A)
Solicitor for Public Prosecutions (R)

File Number(s): CCA 2009/5335; 2009/11362
Publication restriction: Nil
Decision under appeal

Date of Decision:

2010-04-27 00:00:00

Before:

Freeman DCJ

File Number(s):

DC 2009/5335; 2009/11362

Judgment

BASTEN JA : In circumstances more fully described by Garling J, the applicant seeks leave to appeal in respect of two…

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 Hendricks

Details

AGLC: R v Hendricks [2011] NSWCCA 203
Case: [2011] NSWCCA 203
Decision Date: 08 September 2011

CaseChat Overview and Summary

The case of R v Hendricks involved the respondent, Hendricks, who was convicted of two sexual offences against the same victim within a short period. The dispute reached the court as the respondent sought a review of his sentence. The matter was heard and determined in the relevant appellate court.

The primary legal issues the court had to address were the appropriateness of the cumulative sentencing for the two offences, the principle of totality, and whether the sentences were manifestly excessive. The court examined whether the significant elements of commonality between the offences, the nature of the relationship between the offender and the victim, and the circumstances of the offences warranted a different approach to sentencing.

The court found that while the principle of totality requires that the cumulative sentence should not be greater than the sum of the appropriate sentences for each individual offence, the sentences in this case were manifestly excessive. The court noted the significant elements of commonality between the offences, including the victim, the time frame, and the nature of the conduct. Additionally, the nature of the relationship between the offender and the victim, as well as the circumstances of the offences, were taken into account. The court ultimately determined that the sentences imposed were manifestly excessive and ordered a review of the sentencing approach.

Orders