Citation: R v Andries Dijkstra [2019] NSWDC 776
Court: District Court of New South Wales
Date: 17 December 2019
Judge: DCJ Yehia SC
Background
A 70-year-old first-time offender appeared for sentencing on one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years.
The offender, who had previously been a member of Massage Australia, gave a massage to a 60-year-old woman he had met through a dragon boating club. During the massage, he digitally penetrated her vagina on two occasions without her consent. The victim froze in fear and did not verbalise her objection at the time of penetration. When she later told the offender to stop touching her chest, he immediately complied.
The offender pleaded guilty in July 2019, over a year after being committed for trial. He maintained throughout that he had genuinely, though unreasonably, believed the victim was consenting.
Legal Issues
- What was the appropriate level of objective seriousness for this offence, given the circumstances including the breach of trust and the offender's claimed (but unreasonable) belief in consent?
- Whether good character could operate as a mitigating factor in the context of a sexual offence committed in a quasi-professional relationship.
- Whether any sentencing option other than full-time imprisonment was available once the court found that the s 5 threshold (that no penalty other than imprisonment is appropriate) was met, given that suspended sentences are abolished and Intensive Corrections Orders are unavailable for prescribed sexual offences.
- What discount and what variation to the standard non-parole period ratio were appropriate in the circumstances?
Decision
DCJ Yehia SC assessed the offence as falling well below the middle of the range for objective seriousness in this category. The offending was opportunistic rather than planned, occurred over a short duration, and involved no force, violence, coercion, or intimidation. The court accepted that the offender held a genuine belief in consent, while finding there were no reasonable grounds for that belief. The offence was nevertheless serious, and the breach of trust inherent in the masseur-client relationship was a significant aggravating factor.
On the question of good character, the court distinguished the Court of Criminal Appeal's reasoning in Jung v R, which concerned a registered physiotherapist whose professional registration expressly required him to be a fit and proper person of good character. Because the offender in this case was not a registered health professional, and because the evidence did not establish that his good character had assisted him in committing the offence, the court was not satisfied that good character should be treated as having facilitated the offending. It remained a mitigating factor.
A 15% discount was applied for the utilitarian value of the guilty plea, which also spared the victim from giving evidence and cross-examination. The court found special circumstances warranting a substantial departure from the standard non-parole period ratio, citing the offender's excellent prospects of rehabilitation, his age, the more onerous conditions of custody for an elderly first-time prisoner, and the benefit of an extended period on parole.
Despite the significant mitigating factors, the court held that the breach of trust meant no penalty other than imprisonment was appropriate. Because suspended sentences are no longer available and Intensive Corrections Orders cannot be imposed for prescribed sexual offences, the court had no option but to impose full-time custody once that threshold was crossed. The court expressed that this outcome constrained the individualised justice that sentencing ordinarily permits.
Orders Made
- The offender was convicted of one count of sexual intercourse without consent.
- Sentenced to imprisonment with a non-parole period of 10 months, commencing 17 December 2019 and expiring 16 October 2020.
- Balance of term: 1 year 6 months.
- Total term of imprisonment: 2 years 4 months.
- Eligible for release to parole at the expiration of the non-parole period, subject to supervision by Community Corrections for as long as deemed necessary.
Key Takeaways
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Where a court determines that no penalty other than imprisonment is appropriate for a prescribed sexual offence, and suspended sentences are no longer available, the legislative scheme leaves no alternative to full-time custody. Intensive Corrections Orders are expressly unavailable for prescribed sexual offences, removing what would otherwise be a significant sentencing option.
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The District Court declined to apply Jung v R's treatment of good character in a restricted way, limiting that approach to offenders whose professional registration expressly required them to be persons of good character. For a non-registered massage practitioner, good character was treated as a genuine mitigating factor.
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A genuine, though unreasonable, belief in consent was accepted as a relevant consideration going to the offender's culpability, without reducing the objective seriousness of the offence itself or displacing the aggravating effect of the breach of trust.
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Special circumstances warranting a substantial variation of the non-parole period ratio can be established by a combination of factors: excellent rehabilitation prospects, advanced age, the additional hardship of first-time custody, and the rehabilitative benefit of an extended parole period.
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Breach of trust in a quasi-professional relationship, such as that between a masseur and client, operates as a significant aggravating factor even where the offender was not formally registered as a health professional.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
Cases
- Jung v R [2017] NSWCCA 24