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