R v Wilhelm - [2005] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 262 of 2004

THE QUEEN
	v.
FRANK GEZA WILHELM

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JUDGES:	MAXWELL, P., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2005
DATE OF JUDGMENT:	4 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 192

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Criminal law – Sentencing – Sexual offences against two young children – Significance of victim impact statements – All sentences concurrent – Failure to moderate sentences and direct cumulation – Unusually powerful mitigatory factors – Depressive disorder falling short of serious psychiatric illness – Appellant re-sentenced to a shorter total effective sentence, but with cumulation to reflect there being two victims.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr G.J.C. Silbert	Geoffrey Tobin Pty.

MAXWELL, P.:

I will invite Callaway, J.A. to deliver the first judgment.

CALLAWAY, J.A.:

The appellant pleaded guilty in the County Court to one count of attempting to take part in an act of sexual penetration with a child under the age of 16 (count 1) and two counts of taking part in an act of sexual penetration with a child under the age of 16 (counts 2 and 3). No previous convictions or findings of guilt were alleged against him. The learned judge heard a plea, at which several witnesses gave evidence, and took time for consideration.

On 5th October 2004 her Honour sentenced the appellant to two years' imprisonment on count 1, four years' imprisonment on count 2 and four years and two months' imprisonment on count 3. The appellant was sentenced as a serious sexual offender on count 3, so that the sentence imposed on that count would be served cumulatively unless otherwise directed.[1] Her Honour did order that all sentences be served concurrently, but that is not recorded on the return of prisoners. The fact that the appellant was sentenced on count 3 as a serious sexual offender is recorded. It follows that the total effective sentence, expressed as 50 months, is not intelligible on the face of the return. A non-parole period of three years was fixed and a declaration made regarding five days' pre-sentence detention. The return of prisoners records recommendations that the appellant be placed in custody where protection is paramount, given the nature of the offences and his personal circumstances; that he be seen by a general medical practitioner and a psychologist or psychiatrist forthwith upon being taken into custody; and that he have access to prescribed medication and it be administered.
[1]Sentencing Act 1991, s.6E.

Leave to appeal was granted by a single judge of appeal on 8^th April 2005 and a full statement of grounds pursuant to rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998 was filed on 17th May 2005. There are seven grounds of appeal:

"1.That the learned trial judge failed to give sufficient weight to the appellant's complete co-operation with investigating police and expressions of remorse stated in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wilhelm

Details

AGLC: R v Wilhelm [2005] VSCA 192
Case: [2005] VSCA 192
Decision Date: 4 August 2005

CaseChat Overview and Summary

The case of R v Wilhelm was heard in the Victorian Court of Appeal. The appellant, Wilhelm, was convicted for multiple sexual offences against two young children. The primary dispute was the appropriateness of the sentences imposed on Wilhelm by the trial judge, specifically the sentencing principles applied and the total effective sentence. Wilhelm appealed the sentence on the basis that it was manifestly inadequate and that the trial judge failed to appropriately consider the impact on the victims and the need for cumulative sentencing due to the number of victims.

The legal issues before the court included whether the trial judge properly considered the significance of the victim impact statements, the necessity for cumulative sentencing given the two victims, and the adequacy of the total effective sentence imposed. The court needed to determine if the trial judge's approach to sentencing was correct and whether the sentence could be varied to ensure it reflected the seriousness of the crimes and the impact on the victims.

In delivering the judgment, the Court of Appeal found that the trial judge did not adequately address the impact of the offences on the victims and failed to appropriately cumulate the sentences for the two victims. The court concluded that the total effective sentence was too lenient, despite the presence of unusually powerful mitigating factors. The appellant's depressive disorder, while significant, did not amount to a serious psychiatric illness. The Court of Appeal re-sentenced Wilhelm, ordering that all sentences be concurrent but with appropriate cumulation to reflect the impact on two victims. Consequently, Wilhelm was re-sentenced to a shorter total effective sentence, with the cumulation adjusted to reflect the dual victim situation.

The final orders of the court included a re-sentencing of Wilhelm, with the sentences for each offence to run concurrently but with a specified cumulative effect to account for the two victims. The court directed that the total effective sentence be reduced, but with clear guidelines for the cumulation to be applied in the sentencing.

Orders