R v Hendricks

[2011] NSWCCA 203

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 O’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

1. BASTEN JA : In circumstances more fully described by Garling J, the applicant seeks leave to appeal in respect of two sentences imposed on him by the District Court on 27 April 2010. The sentences relate, respectively, to sexual assaults committed by the applicant on his then partner, on 13 August and 19 October 2008 respectively. The basis of complaint is not the length of the respective sentences, but the fact that the second was made entirely cumulative upon the non-parole period for the first.

1. Such a complaint may be approached in one or both of two ways. First, it is open to this Court to assess the objective circumstances, as revealed by the sentence itself, together with any findings of fact made by the sentencing judge, and determine whether the degree of accumulation demonstrated an error in point of principle. The second approach is to examine the reasons of the sentencing judge to determine whether they reveal an error in terms of principle.

1. Where adequate reasons have been given, it is appropriate to combine the two considerations. Adequate reasons should be given: s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW ("the Sentencing Procedure Act ") relevantly provides as follows:

" 5 Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, ....

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions."

1. That a sentencing court is required, generally, and not merely in the circumstances identified in s 5, to record the reasons for its orders is not in doubt: Regina v JCE [2000] NSWCCA 498; 120 A Crim R 18 at [19] (Fitzgerald JA, Whealy and Howie JJ agreeing).

1. Where an indictable trial proceeds before a judge without a jury, the judge makes a "finding" that has the same effect as a verdict of a jury: Criminal Procedure Act 1986 (NSW), s 133(1). The section further provides:

"(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied."

1. In dealing with a predecessor to this provision, the High Court has held that, although it "does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of [s 133(2)] be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached": Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [28].

1. At the commencement of the judgment in Fleming , the Court referred to statements by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277-278, identifying the historical transfer of fact-finding functions in civil proceedings from the jury to the judge and the consequences for both statutory appeals and other forms of review. The Court stated that similar issues were drawn into the field of criminal law by the provision for trial by judge alone: at [3]. Soulemezis was one in a line of authorities dealing with the obligation of a judge to provide reasons in respect of findings of fact and the process by which a final conclusion was reached. Soulemezis expanded the basic principle from its well-established area of operation, namely in respect of decisions from which there was a right of appeal, a process started in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 (Mahoney JA): see Soulemezis at 278C.

1. The function of sentencing falls within the area of decision-making from which an appeal lies, albeit with leave: Criminal Appeal Act 1912 (NSW), s 5(1). Given the seriousness of the subject-matter of a sentencing proceeding, it cannot be doubted that the obligation of a sentencing judge in respect of reasons is not less than that which would apply in a civil case. The proceeding culminates in a judgment, comprised of the orders of the court and the reasons therefor.

1. The important function of reasons in the sentencing process should not be diminished by the conventional reference to them as "remarks on sentence". Whatever the historical explanation for that nomenclature, it should be abandoned.

1. One of the problems in the present case, as identified by Garling J, is that the sentencing judge provided little by way of explanation for his decision to accumulate the non-parole periods in full. In the circumstances, the Court is left to infer from the result, the principles, correct or otherwise, which were applied, or not applied. As explained in House v The King [1936] HCA 40; 55 CLR 499 at 505:

"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. There are two important factors which should have weighed against a total accumulation. Neither of them was referred to in the judgment in this context, and it may, accordingly, be inferred that there was error.

1. The first point was that, as his Honour expressly identified in an earlier part of the judgment (p 6), an aggravating factor in relation to the first charge, namely an assault occasioning actual bodily harm, was required to be taken into account on a form 1, in respect of the second count. His Honour was at pains to avoid treating that factor as an aggravating factor in relation to the first charge: however, if, as was required, it were taken into account in respect of the second charge, there was a strong basis for the sentences being partly concurrent.

1. The second consideration was that each offence took place between two persons in a well-established (if at times unstable) relationship, which had included the birth of two children. As Garling J explains, the commission of the first offence, which resulted in a sentence of imprisonment for three years, did not destroy the relationship. Rather, although the applicant no longer lived on the same premises, he continued to help look after the family. It was only after his incarceration that the two young girls were removed to the custody of their paternal grandparents, because the mother could not care for them alone. I would therefore infer that the ongoing familial relationship was a matter of some practical importance in the period between the two offences.

1. For these reasons, as well as those provided by Garling J, there should have been a significant degree of concurrence in respect of the non-parole periods for each offence. I agree with the orders which his Honour has proposed.

1. SIMPSON J: I agree with Garling J.

1. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by his Honour Judge Freeman on 27 April 2010.

1. The applicant, Dan Hendricks, initially pleaded guilty before Finnane DCJ to two offences involving sexual intercourse without consent. He maintained that plea when he came before Freeman DCJ for sentencing.

1. The first offence was one contrary to s 61I of the Crimes Act 1900 namely that on 13 August 2008 the complainant had sexual intercourse with the victim, SM, without her consent.

1. The maximum penalty for an offence against this section is 14 years imprisonment. A standard non-parole period of seven years' imprisonment applies.

1. The second offence was one which occurred on 19 October 2008 and involved the contravention of s 61J(1) of the Crimes Act 1900, namely, the offence of aggravated sexual intercourse without consent. Again, it was alleged that the sexual intercourse occurred with SM without her consent. The circumstance of aggravation relied upon was that at the time of the sexual intercourse the applicant inflicted actual bodily harm on the victim.

1. The maximum penalty for this offence is 20 years imprisonment and a standard non-parole period of 10 years is applicable.

1. As well, there were three further offences considered by the sentencing judge. Two charges on a Form 1 were placed before the sentencing judge to be taken into account on the second offence and one offence was put before the judge for sentence on a certificate under s 166 of the Criminal Procedure Act 1986.

1. For the first offence, the sentencing judge imposed a sentence of imprisonment which comprised of a non-parole period of two years and three months commencing on 19 October 2008 and finishing on 18 January 2011 and a balance of term of nine months to conclude on 18 October 2011.

1. For the second offence, the sentencing judge imposed a sentence of imprisonment which comprised a non-parole period of five and a half years and balance of term of three and a half years. He ordered that the sentence commence on 19 January 2011. The effect of this was that the non-parole periods for each of these two offences were entirely accumulated although there was concurrence for nine months between the non-parole period of the second offence and the balance of term on the first offence.

1. In addition with respect to the charge of breaching an apprehended violence order which was dealt with on the s 166 certificate, the learned sentencing judge imposed a fixed term of imprisonment of 12 months commencing on 19 January 2011, and concluding on 18 January 2012.

Facts

1. A Statement of Agreed Facts was tendered to the sentencing judge. It is necessary for the purposes of this appeal to provide a brief summary of those facts.

First Offence

1. The applicant and SM, prior to the offence occurring, had been in a relationship for about six years. They had two daughters of their relationship, aged six and one. Their relationship had been turbulent and often argumentative largely due to the consumption of alcohol by the applicant. However, their relationship had proceeded to the stage where they had planned to be married on 23 August 2008.

1. Following an argument on the afternoon of 12 August 2008, and the consumption of alcohol by both the applicant and SM through the late evening of that day and into the early hours of the following morning, SM retired to bed. After that time a series of events occurred, only one of which was relied upon by the sentencing judge as constituting the offence.

1. The first episode occurred shortly after the victim went to bed. The applicant entered the bedroom and attempted to instigate sexual intercourse. SM clearly rejected his advances and refused to consent to sexual intercourse. The applicant then engaged in two acts of sexual intercourse, one involving oral/vaginal intercourse and the other involving penile/vaginal intercourse. He used force to make SM submit to him. At one point she tried to sit up but was pushed back down on to the bed and whilst the second episode of intercourse was occurring the applicant said to the victim " you love it, you're going to be my wife soon ", to which she responded " yeah, but I'm not a piece of steak, I'm not a piece of meat ".

1. SM attempted to leave the bed to attend to her youngest daughter who was sleeping in her bedroom, but the applicant prevented her from attending to her child, pushing her down onto her stomach on the bed. He then again had penile/vaginal intercourse with her from behind, and as he did so, he both pushed her back down and pulled her hair. SM was very upset and was crying at the end of this episode.

1. After some further conversation between the applicant and SM, which occurred variously in other rooms of the dwelling, SM returned to her bedroom. The applicant again started to grope SM and removed her pants. SM yelled " stop it ". The applicant persisted saying " you want it and you don't want it ". SM yelled " I didn't want this. No, this is wrong. No means no, Dan . This is disgusting. This is rape. You've got no respect for me ". The applicant then pushed SM down on her stomach and eventually had penile/vaginal intercourse with the victim against her will, which continued for two to three minutes.

1. He then left the bedroom and returned to the lounge room where he lay on the couch. After a further verbal and physical altercation in which SM kicked the applicant in the face, the police were telephoned and eventually attended.

1. In the meantime an ambulance had attended and established that SM was not suffering any serious injury. The police attended and found that the applicant had packed a bag for SM and their children and was in the process of forcing them out of the premises.

1. When interviewed at the Coffs Harbour Police Station the applicant claimed that the whole of the sexual activity between him and SM was consensual.

1. An interim Apprehended Violence Order was ordered by the Local Court at Coffs Harbour on 19 August 2008 which extended up to and including 28 October 2008. The Apprehended Violence Order provided that the applicant was not to

"...assault, molest, harass, threaten or otherwise interfere with the [complainant] ...".

1. There was an additional condition of the Apprehended Violence Order which should also be noted, namely that the applicant:

"...must not approach [the victim] or any such premises or place at which [the victim] from time to time resides or works, within twelve (12) hours of consuming intoxicating liquor or illicit drugs."

1. The agreed facts contained no material at all which suggested that when the applicant attended at the premises of SM on the morning of 19 October 2008, he had consumed any alcohol or drugs within the preceding twelve hours.

1. In considering any questions surrounding the applicant's conduct on 19 October 2008, there was no basis in the agreed facts to find that his attendance at the house, and his speaking to SM constituted a breach of this Apprehended Violence Order.

Second Offence

1. The second offence occurred on 19 October 2008. On that day, early in the morning, the applicant was seated in his motor vehicle outside SM's residence. He saw her in the company of another male who was from Jamaica. The male left the residence. She returned inside her residence and observed that the applicant had come to the house and knocked on the door. He made his way inside the house. An argument was initiated about the fact that SM had been in the company of the other male. The applicant expressed his disagreement with SM's description of their relationship. He then grabbed SM in a bear hug and put her over his shoulder. He carried her down the hallway to one of the bedrooms where he pushed SM onto the floor. He removed his trousers, asserting to the victim that it was now " his turn ". SM resisted his advances but the applicant forcibly removed her clothes and after some initial attempts, the applicant positioned himself on top of the victim using his strength to engage in oral/vaginal intercourse. He attempting penile/vaginal intercourse, but this was unsuccessful.

1. In the course of this, SM said to him " get off, no, get off, you're disgusting, you haven't learned ". The applicant replied " I don't care if the cops come, you fucked an African, now it's my turn ".

1. After the intercourse had concluded, verbal abuse occurred between the applicant and SM. The police were called. By the time they arrived the applicant had left, he was arrested later the same day.

1. He thereafter remained in custody until the time of his sentencing hearing.

1. The applicant pleaded guilty to the charges before the Local Court at Coffs Harbour on 7 April 2009 and ultimately adhered to that plea before the District Court at Coffs Harbour on 23 April 2010.

Applicant's submission on sentence

1. The applicant agreed with the facts tendered by the Crown.

1. The applicant did not give evidence on his sentence hearing, but two reports were tendered. The first of these was a report of Graham Schubert from the Macleay Valley Psychological Services Pty Ltd dated 9 May 2009 and the second was from Dr John Kasinathan, a consultant forensic psychiatrist. This report was dated 7 June 2009.

1. During submissions, Mr Harrison, who appeared for the applicant, submitted with respect to the first offence that the criminality involved was

"...very much bottom of the range in terms of the sort of offence that your Honour might see in relation to facts encompassed in s 61I."

1. With respect to the second offence, Mr Harrison submitted that his client had "... completely lost the plot ". He conceded that the Court should find that the second offence was " ...very close to, if not reaching, mid-range ". This concession appeared to be on the basis of the aggravating features involved in the conduct and the nature of the injuries involved.

1. Mr Harrison also conceded that the description which had been given in the Probation and Parole Service report of 1 June 2009 in respect of the second offence that:

"...he became enraged at his ex-partner seeing another male and he wanted to punish her for what he perceived as infidelity."

was correct.

1. It is relevant to note that the agreed facts recorded that between the two offences, the applicant had continued to visit SM, that they had discussed their future together on a number of occasions, the applicant retained a key to the premises in which SM was living with their children and that there had been ongoing episodes of sexual intimacy between them.

Subjective features of the applicant

1. The applicant was born in August 1966 and was aged 42 at the time of the offences and 43 at the time sentence was passed.

1. The applicant was born in the Cook Islands of a brief encounter between his biological parents. When he was a few weeks old, he was removed from his mother's care by his father and then left in the care of an unrelated foster family. He was apparently not well treated by that family and was subjected to abuse and effective enslavement.

1. He left school at about the age of 14 and ultimately joined the Merchant Navy. In his 30s, having travelled to various countries around the world, he decided to settle in Australia. He was then somewhat peripatetic as he was employed in the carnival industry.

1. Ultimately he, having commenced a relationship with SM, came to live in Coffs Harbour and prior to his arrest, was working for a security firm in Coffs Harbour on a regular basis and was also from time to time engaged in unskilled labouring positions.

1. The only other matter which the applicant had on his criminal history record was a minor motor vehicle offence in 2005 for which he had been convicted and fined. This was not suggested by the Crown to the sentencing judge as having any relevance to the sentencing hearing.

Remarks on Sentence

1. In dealing with the first offence, the sentencing judge concluded that he needed to identify one of the episodes of sexual intercourse as being the act upon which the count was based. He chose the act of penile/vaginal intercourse which was the last in point of time and the one which immediately followed the victim saying to him, amongst other things, " No, this is wrong. No means no Dan ".

1. His Honour described this as one of the more obvious and serious forms of sexual intercourse and expressed this conclusion with regard to the level of criminality involved:

"It falls below the mid-range of seriousness apart from the fact that the following aggravating elements are present: that it was committed in the home of the victim" (T6.1)

1. His Honour did not take into account, in forming this opinion, one element of the conduct namely that of an assault occasioning actual bodily harm because that conduct was to be found on the Form 1 which related to the second offence.

1. The finding made by the sentencing judge to which I have referred in [56] above, was made after receiving submissions from the applicant's counsel. There was no written or oral submission made by the Crown with respect to the assessment of the level of criminality which ought be found to exist in either of the two offences.

1. On the second offence, his Honour found that he was satisfied that the objective criminality reached the mid-range of seriousness.

1. The sentencing judge found that it was appropriate to give the applicant a 25 per cent discount for the utilitarian value of his early plea of guilty to all offences.

1. His Honour then turned to the subjective circumstances of the applicant. He found that the applicant had had a disadvantaged start in life. He found that it was a positive feature of his subjective history that he had always been fully employed and the absence of any criminal record entitled him to be considered as a person who was not of any " ...particularly criminal intent or predilection ".

1. His Honour then recorded that the applicant had no psychological illness and accepted the submission of the applicant's counsel that

"...having regard to his background, he has never really understood a relationship in which trust and gentleness predominate."

1. The sentencing judge was persuaded that special circumstances applied to the sentences which he imposed. On the question of concurrence or accumulation, the learned sentencing judge said:

"The two main offences are of course entirely discrete separated by a period of time. Mr Harrison argued for there being a high level of absorption of one into the other whereas the Crown position is as I understand it, there ought to be a greater level of accumulation. I think accumulation is the predominant element but that has required of course that I make some adjustment to the proportions of the second sentence ..."

1. As noted earlier, the two non-parole periods were entirely accumulated although there was a concurrent period of nine months between the two sentences.

1. The sentence for the s 166 certificate matter of breaching the apprehended domestic violence order was ordered to be wholly concurrent with the sentence on the second offence. Little was said about this offence in the Judge's remarks on sentencing.

Grounds of Appeal

1. Two grounds of appeal were relied upon by the applicant:

"1. The overall sentence imposed was manifestly excessive due to his Honour's failure to consider the totality of the sentence imposed as a result of which the sentence for the second offence remained fully accumulated upon the first offence.

2. His Honour failed to consider the principle of totality."

1. These two grounds can conveniently be considered together because they address the same issue, namely whether, having regard to the appropriate sentences to be imposed for the individual offences, proper attention to the principle of totality in sentencing required a degree of concurrence greater than that which his Honour allowed.

1. In considering the principle of totality, it is appropriate to commence with Pearce v R (1998) 194 CLR 610. In Pearce , McHugh, Hayne and Callinan JJ said at [40]-[46]:

"40. To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. ...

...

45. ...A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality: Mill v The Queen (1988) 166 CLR 59.

46. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. ... It is, then, all the more important that proper principle be applied throughout the process."

1. The principle of totality was also discussed by this Court in R v AEM Snr [2002] NSWCCA 58 at [63]-[64]. At [70] in AEM Snr , this Court said:

"The principle of totality can be simply stated. It requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved."

1. In considering questions of totality, it is necessary to keep in mind, the effect of the two additional offences which the sentencing judge was required to deal with by virtue of the Form 1 "List of Additional Charges" which the Court was asked to take into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. Those two offences involved an assault occasioning actually bodily harm on 13 August 2008 and possession of a prescribed restricted substance on 19 October 2008. The applicant asked the Court to take those matters into account in respect of the second offence, namely the aggravated sexual assault offence.

1. The principles to be applied in taking a Form 1 offence into account can conveniently be found in two decisions of this Court. The first is R v Morgan (1993) 70 A Crim R 368 at 371-372 where Hunt CJ at CL (Allen J and Loveday AJ agreeing) said:

"The only limitation upon the penalty to be imposed when dealing with matters to be taken into account ... is ... that the penalty must not exceed the maximum penalty which the court would have been empowered to impose if no other offence had been taken into account... [However] it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charge when another offence is taken into account. ..."

1. In R v Bavadra (2000) 115 A Crim R 152, Wood CJ at CL (Beazley JA and James J agreeing) said at 158:

"When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence ...

There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concern. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose."

Decision

1. The applicant's submissions to this Court accept that the learned sentencing judge arrived at appropriate sentences for each individual offence. But they contend that he failed to assess the appropriateness of the total sentence.

1. Accordingly, the applicant does not seek to challenge the individual sentences imposed for both offences but rather submits that there should have been a far greater degree of concurrence.

1. The Crown does not take issue with the individual sentences imposed. It submits that the total sentence was within the sentencing judge's discretion.

1. In light of the applicant's limited approach to the appeal, this Court should proceed upon the basis that the two sentences imposed were appropriate, or at least within an appropriate range for the offences, and examine what the sentencing judge said and did about accumulation.

1. The entirety of the sentencing judge's remarks on this question are to be found in the passage set out above at [63]. His Honour recognised that there needed to be accumulation, which he regarded as the predominant element. He recorded that the Crown did not submit that the sentences should be totally accumulated.

1. In considering the identified passage in his Honour's judgment, it does appear that the only factor to which his Honour had regard was that the two principal offences were " ...entirely discrete separated by a period of time ".

1. As the Crown most properly conceded during submissions to this Court, if that was the sole basis upon which the learned sentencing judge relied to determine concurrence or accumulation, then he fell into error. The Crown, however, argued that there were other matters which the learned sentencing judge took into account. In particular, the Crown noted that earlier in his judgment the learned sentencing judge had recorded that the second offence had occurred whilst the applicant was on conditional bail for the first offence.

1. The Crown submitted that this fact would merit a substantial degree of accumulation between the two offences.

1. The reference to the second offence being committed by the applicant whilst on bail for the first offence is to be found in that part of the Remarks on Sentence where his Honour was assessing the objective seriousness of the criminality involved in the second offence. I reject the Crown's submissions that this passage of the Remarks on Sentence was dealing with the concurrence/accumulation issue. Clearly, in assessing the objective seriousness of the criminality involved, the learned sentencing judge took the matter into account.

1. He did not have regard to it again. I am thus satisfied that his Honour fell into error in determining the extent of concurrence and accumulation between the two sentences which he imposed, because he only took into account the fact that the offences were discrete and separated in point of time. More was required, as the Crown conceded.

1. The total non-parole period that this applicant was ordered to serve was seven years and nine months, that is, from 19 October 2008 to 18 July 2016.

1. Having regard to the fact that his Honour allowed 25 per cent discount because of the utilitarian value of the applicant's pleas of guilty, the sentence which the applicant received represented an undiscounted non-parole period of 10 years and four months.

1. Although the offences were eight weeks apart, there were significant elements of commonality in all of the facts and circumstances surrounding the offences which merited careful consideration on the issue of concurrence and accumulation in this case.

1. Of particular importance, was the nature of the relationship between the applicant and SM. The agreed facts noted these features about it:

(a)   The relationship had existed for about six years and was an ongoing one at the time of the first offence;

(b)   Both the applicant and SM had planned to marry about two weeks after the first offence;

(c)   Although that marriage did not take place, and notwithstanding the occurrence of the first offence, the applicant and SM had a number of discussions about their future together;

(d)   They continued to see each other in the period between the two offences and were sexually intimate on a number of occasions;

(e)   As the agreed facts recorded, the applicant and SM, in the period between the two offences,

"...saw each other on numerous occasions, for reasons including access to the children, supply of general items to the children, friendship and intimacy".

1. As well, the nature of the offences, the nature of the conduct involved and the circumstances in which they occurred, all warranted the sentences being made concurrent to a degree far greater than that which the sentencing judge did.

1. The applicant's subjective case which the sentencing judge assessed as strong, also warranted a greater degree of concurrence.

1. In those circumstances I am satisfied that there should have been a real period of concurrence in the non-parole periods to which the applicant was sentenced. Without that, the effect of the sentences was manifestly excessive.

1. In my opinion error is demonstrated.

Further evidence

1. The applicant filed an affidavit upon which he relied in the event that his application for leave was granted and his appeal was upheld.

1. The affidavit indicated that the applicant has undergone some courses in education during his period of custody, that he has been a regular attendee at Bible study groups which he proposes to continue after his release. He has a supportive sister and brother-in-law and that upon release he has been offered a job with his brother-in-law.

1. Of particular importance to the applicant were the changed circumstances of his daughters who had formerly been in the care of his partner, the victim of these assaults. Of that position he says:

"3. I suffered a great deal of stress over the care of my daughters. The Department of Community Services (DOCS) removed them from their mother's care as she was unable to look after them. I had to arrange for DOCS to rehouse them with their maternal grandparents. This is not very satisfactory as they both suffer from poor health and it is difficult for them to look after two small girls.

4. I get to speak to my daughters every two weeks by telephone. I do not get to see them very often because Junee is too far away from where they live in Coffs Harbour.

5. I have been told I can't apply to be moved to a gaol closer to where my daughters live until I am reclassified. "

1. The applicant's daughters would now be aged seven and three.

1. Special circumstances were found to exist by the learned sentencing judge. That was clearly correct. Those circumstances justify an alteration to the statutory ratio fixed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

1. Given the fact that there was significant commonality to be found in the underlying facts and circumstances of these two offences, albeit, that they were separated by about two months, there ought to be a real period of concurrence to reflect the need for attention to the principle of totality.

1. I am satisfied that the commencement date for the sentence for the second offence of aggravated sexual assault should have been 19 July 2009 rather than 19 January 2011. The effect of this adjustment is that instead of accumulation being only nine months, which represented the balance of term on first offence, there will be a period of concurrence for all but nine months of the sentence on the first count.

1. The first available date for release parole will now not be 18 July 2016, but will be 18 January 2015. By that stage the applicant will have spent six years and three months in custody for the two offences. I am satisfied that this is an appropriate period for him to spend in custody to represent the total criminality involved.

1. In light of this conclusion, there is no need to amend the date of the sentence on the third offence which was brought forward on the s 166 Certificate.

Orders

1. I propose the following orders:

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 17 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 17 July 2018.

c) I confirm 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.

d) The first date upon which Mr Hendricks can be released on parole is 18 January 2015.

**********

Decision last updated: 30 September 2011