R v Andries Dijkstra [2019] NSWDC 776

R v Andries Dijkstra [2019] NSWDC 776

Because the offence involved a serious breach of trust by a masseur against a customer, no penalty other than imprisonment was appropriate. Since the offence was a prescribed sexual offence and the imprisonment threshold was met, the Court had no option but full-time imprisonment; however, the sentence was substantially reduced because the offence was well below the middle of the range of objective seriousness, the offender pleaded guilty, showed significant remorse, had prior good character, was a very low risk of reoffending, and had excellent prospects of rehabilitation. Special circumstances justified a substantial variation of the statutory ratio and a longer period on parole.

Jurisdiction
Australia
Judgment Date
17 December 2019
Procedural Posture
Criminal Sentencing / Sentence After Guilty Plea
Outcome
Offender convicted and sentenced to full-time imprisonment for a total term of 2 years and 4 months, with a non-parole period of 10 months.
Legal Topics
['sexual Intercourse Without Consent' 'community Corrections Orders' 'prescribed Sexual Offences' 'full Time Imprisonment' 'standard Non Parole Period' 'breach of Trust' 'remorse' 'prior Good Character' 'special Circumstances']
['criminal Law' 'sentencing' 'sexual Offences'] ['sexual Intercourse Without Consent' 'community Corrections Orders' 'prescribed Sexual Offences' 'full Time Imprisonment' 'standard Non Parole Period' 'breach of Trust' 'remorse' 'prior Good Character' 'special Circumstances']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentencing / Sentence After Guilty Plea

Legal Issues

  1. 1 ['What sentence should be imposed for one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).' 'Whether the objective seriousness and breach of trust meant that no penalty other than imprisonment was appropriate.' 'Whether a Community Corrections Order was available or appropriate for a prescribed sexual offence where the imprisonment threshold was met.' 'Whether special circumstances justified variation of the statutory ratio between the non-parole period and the total sentence.']

Ratio Decidendi

Because the offence involved a serious breach of trust by a masseur against a customer, no penalty other than imprisonment was appropriate. Since the offence was a prescribed sexual offence and the imprisonment threshold was met, the Court had no option but full-time imprisonment; however, the sentence was substantially reduced because the offence was well below the middle of the range of objective seriousness, the offender pleaded guilty, showed significant remorse, had prior good character, was a very low risk of reoffending, and had excellent prospects of rehabilitation. Special circumstances justified a substantial variation of the statutory ratio and a longer period on parole.

Court Disposition

Offender convicted and sentenced to full-time imprisonment for a total term of 2 years and 4 months, with a non-parole period of 10 months.

Orders

  • ['The offender is convicted.' 'A sentence of imprisonment is imposed consisting of a non-parole period of 10 months, commencing on 17 December 2019 and expiring on 16 October 2020, with a balance of term of 1 year 6 months.' 'The total term of imprisonment is 2 years 4 months.' 'The offender is eligible for release...