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Court of Criminal Appeal 8 September 2011

R v Hendricks

[2011] NSWCCA 203

Sexual offences
CRIMINAL LAW SENTENCING TWO MONTHS APART ACCUMULATION OF SENTENCES PRINCIPLE OF TOTALITY OFFENDER'S SUBJECTIVE CASE

Citation: R v Hendricks [2011] NSWCCA 203
Court: Court of Criminal Appeal, New South Wales
Date: 8 September 2011
Judge(s): Basten JA, Simpson J, Garling J

Background

The applicant had pleaded guilty to two offences of sexual intercourse without consent against the same victim, his then-partner, committed approximately two months apart in August and October 2008. The first offence was sexual assault under s 61I of the Crimes Act 1900, carrying a maximum of 14 years imprisonment. The second was aggravated sexual assault under s 61J(1), carrying a maximum of 20 years, with the aggravating circumstance being the infliction of actual bodily harm during the offence.

At sentencing in the District Court on 27 April 2010, the sentencing judge imposed separate sentences for each offence and made the second sentence entirely cumulative upon the non-parole period for the first. The applicant did not challenge the length of either individual sentence; his complaint was directed solely at the decision to fully accumulate the non-parole periods rather than allow any concurrency.

The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the total accumulated sentence was manifestly excessive, having regard to the principle of totality and the significant factual overlap between the two offences.

  • Whether the sentencing judge erred in making the second non-parole period fully cumulative on the first, rather than allowing a period of concurrence.
  • Whether the total sentence, viewed as a whole, was manifestly excessive in light of the principle of totality.
  • Whether the sentencing judge's reasons were adequate to explain the decision to fully accumulate the sentences.
  • How the principle of totality interacts with the commonality of circumstances between multiple offences committed against the same victim within a short period.

Decision

The Court of Criminal Appeal granted leave to appeal and found that full accumulation of the non-parole periods was an error. Garling J (with whom Simpson J agreed, and Basten JA agreeing in the result) identified two principal factors that weighed strongly against total accumulation but were not addressed in the sentencing judge's reasons.

The first factor was that an assault occasioning actual bodily harm arising from the first occasion had been placed on a Form 1 for consideration on the second count. The sentencing judge had taken care to avoid double-counting that matter as an aggravating factor on the first count, but its proper treatment as relevant to the second count meant there was a basis for concurrency rather than full accumulation.

The second factor was the ongoing relationship between the applicant and the victim. The two lived together as a couple and had two children. The first offence did not end the relationship; the applicant continued to assist with the family even after moving out, and it was only upon his subsequent incarceration that other arrangements for the children were made. The Court held that this continuing familial relationship during the interval between offences was a matter of practical importance that pointed against full accumulation.

The Court held that the inadequacy of the sentencing judge's reasons on the accumulation question permitted an inference of error, drawing on the principles in House v The King. Given the significant commonality between the two offences, a real period of concurrence was required. The commencement date of the second sentence was brought forward so that the non-parole periods would overlap substantially, with only a nine-month period of accumulation remaining.

Orders Made

  • Leave to appeal granted.
  • Sentence of Freeman DCJ imposed on 27 April 2010 quashed.
  • In lieu, the following sentences imposed:
  • Count 1 (Sexual Assault, s 61I Crimes Act): Non-parole period of 2 years and 3 months, commencing 19 October 2008 and concluding 18 January 2011; balance of term of 9 months, concluding 17 October 2011.
  • Count 2 (Aggravated Sexual Assault, s 61J Crimes Act, including Form 1 offences): Non-parole period of 5 and a half years, commencing 19 July 2009 and concluding 18 January 2015; balance of term of 3 and a half years, concluding 17 July 2018.
  • AVO breach (s 166 Certificate): Fixed term of 12 months confirmed, commencing 19 January 2011 and concluding 18 January 2012.
  • First available parole date: 18 January 2015.

Key Takeaways

  • Where a sentencing judge makes a substantial accumulation of non-parole periods without adequate reasons explaining that decision, an appellate court may infer error and intervene, even if the precise nature of the error cannot be precisely identified (following House v The King).
  • The principle of totality requires a sentencing court to ensure that the combined effect of accumulated sentences is not disproportionate to the overall criminality involved, particularly where multiple offences share significant factual and contextual commonality.
  • Form 1 matters carry weight in the accumulation analysis: where an offence from one occasion is taken into account on the sentence for a later offence, that linkage constitutes a basis for concurrency rather than full accumulation.
  • An ongoing relationship between an offender and victim, including a shared domestic and familial context, is a relevant circumstance when determining the appropriate degree of accumulation between offences separated by a short interval.
  • Basten JA took the opportunity to note that the conventional description of sentencing reasons as "remarks on sentence" understates their importance and that term should be abandoned, reflecting that sentencing reasons carry the same obligation of adequate reasoning as any other judicial decision from which an appeal lies.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), ss 133, 166

Cases
- 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