R v Hendricks [2011] NSWCCA 203

R v Hendricks [2011] NSWCCA 203

The sentencing judge erred in determining concurrence and accumulation because he treated the two principal offences as entirely discrete and separated in time without adequately considering other relevant matters. Significant commonality in the underlying circumstances, including the ongoing relationship between the applicant and SM, the nature of the offences and conduct, the circumstances in which they occurred, the Form 1 matters and the applicant's subjective case, required a real period of concurrence. Without that concurrence the total non-parole period was manifestly excessive.

Jurisdiction
Australia
Judgment Date
08 September 2011
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; the District Court sentence was quashed and the applicant was resentenced with greater concurrence between the non-parole periods.
Legal Topics
['sexual Assault' 'aggravated Sexual Assault' 'accumulation and Concurrence of Sentences' 'totality Principle' 'manifest Excess' 'form 1 Offences' 'apprehended Violence Order Breach']
['criminal Law' 'sentencing'] ['sexual Assault' 'aggravated Sexual Assault' 'accumulation and Concurrence of Sentences' 'totality Principle' 'manifest Excess' 'form 1 Offences' 'apprehended Violence Order Breach']

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 Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by making the non-parole period for the second sexual offence entirely cumulative upon the non-parole period for the first offence.' 'Whether the overall sentence was manifestly excessive because of a failure to apply the principle of totality.' "Whether significant commonality between the offences, the relationship between offender and victim, the circumstances of the offending, the Form 1 matters and the applicant's subjective case required a greater degree of concurrence."]

Ratio Decidendi

The sentencing judge erred in determining concurrence and accumulation because he treated the two principal offences as entirely discrete and separated in time without adequately considering other relevant matters. Significant commonality in the underlying circumstances, including the ongoing relationship between the applicant and SM, the nature of the offences and conduct, the circumstances in which they occurred, the Form 1 matters and the applicant's subjective case, required a real period of concurrence. Without that concurrence the total non-parole period was manifestly excessive.

Court Disposition

Leave to appeal granted; the District Court sentence was quashed and the applicant was resentenced with greater concurrence between the non-parole periods.

Orders

  • ['Leave to appeal granted.' 'Sentence of Freeman DCJ in the District Court of New South Wales on 27 April 2010 be quashed.' '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...