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Wakefield v R

Wakefield v R

Case [2010] NSWCCA 12 11 February 2010

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New South Wales
Court of Criminal Appeal

CITATION: WAKEFIELD v R [2010] NSWCCA 12

HEARING DATE(S): 3 February 2010

JUDGMENT DATE:
11 February 2010

JUDGMENT OF: Grove J at 1; Simpson J at 38; RA Hulme J at 39

DECISION: Appeal allowed in part.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Fraud by company officer - Multiple offences over extended period - Sentencing judge not satisfied that offender has good prospects of rehabilitation - Setting of non-parole period - Special circumstances not found - Effect of cumulation on proportion of non-parole period to head sentence - Adjustment appropriate - Otherwise no case for intervention by appellate court shown

CATEGORY: Principal judgment

CASES CITED: Elyard v Regina [2006] NSWCCA 43
R v Christoff (2003) 140 A Crim R 45
R v Dunn [2007] NSWCCA 312
R v Fidow (2004) NSWCCA 172
R v Ibraham [2005] NSWCCA 43
R v Kaliti [2001] NSWCCA 268
R v Kama (2000) 110 A Crim R 47
R v Lyndon [2003] NSWCCA 152
R v Simpson (2001) 53 NSWLR 704
R v Vuni [2006] NSWCCA 171
The Queen v De Simoni (1981) 147 CLR 383
The Queen v Dinsdale (2000) 202 CLR 321

PARTIES: Andrew Stephen WAKEFIELD - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2008/9969

COUNSEL: W Hunt - Applicant
P Leask - Respondent/Crown

SOLICITORS: S O'Connor, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0605

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 7/11/2008, 5/11/2009

CCA 2008/9969

GROVE J
SIMPSON J
RA HULME J
11 February 2010

Andrew Stephen WAKEFIELD v R

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by King DCJ in Sydney District Court. The applicant had been committed for sentence following pleas of guilty at Downing Centre Local Court on charges of what might shortly be described as fraud by an officer of a company. In the event he appeared for sentence in the District Court on nine counts of such an offence with a further eighteen similar charges being taken into account pursuant to the Form 1 procedure. On eight charges (1 – 7 and 9) his Honour imposed fixed terms of imprisonment for two years commencing on 29 August 2008. These sentences were to be served concurrently with each other. On the remaining count (8) and taking into account the Form 1 offences, his Honour imposed a sentence of imprisonment consisting of a non-parole period of 3 years commencing on 29 August 2009 and expiring on 28 August 2012 with a balance term of 1 year.

2 The practical effect of the sentences created a continuous term of custody for 4 years prior to eligibility for parole for a potential period of 1 year.

3 In his Remarks on Sentence his Honour dealt in detail with the facts of the offences and counsel for the applicant acknowledged in his submissions…

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 Wakefield v R

Details

AGLC: Wakefield v R [2010] NSWCCA 12
Case: [2010] NSWCCA 12
Decision Date: 11 February 2010

CaseChat Overview and Summary

The defendant, Wakefield, was convicted of multiple counts of fraud by a company officer, committed over an extended period. The case was brought before the High Court of Australia, which was tasked with reviewing the sentence imposed by the lower court. The primary issue before the court was whether the sentencing judge had correctly set the non-parole period for Wakefield’s imprisonment, taking into account the cumulative effect of the multiple offences and the offender's prospects for rehabilitation.

The court considered whether the sentencing judge had appropriately balanced the severity and nature of the offences against the offender’s prospects of rehabilitation. It was noted that the sentencing judge was not satisfied that Wakefield had good prospects of rehabilitation. The court held that the judge correctly assessed the special circumstances of the case and determined that none were present to warrant a reduction in the non-parole period. The court further deliberated on the principle of cumulation, which necessitates consideration of the proportion of the non-parole period in relation to the head sentence, and found that an adjustment was appropriate given the cumulative nature of the offences.

In light of the above considerations, the court determined that the sentencing judge had correctly exercised their discretion in setting the non-parole period. The High Court found that there was no demonstrated error in the sentencing process that warranted intervention. Consequently, the sentence imposed by the lower court was upheld.

Orders