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Wakeling v R

Wakeling v R

Case [2016] NSWCCA 33 7 March 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Wakeling v R [2016] NSWCCA 33
Hearing dates: 24 February 2016
Date of orders: 07 March 2016
Decision date: 07 March 2016
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Davies J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal upheld.
(3) Quash the sentence imposed by Judge Maiden in the District Court on 7 March 2014. In lieu thereof sentence the Appellant to a non-parole period of four years and one month commencing 22 July 2013 and expiring 21 August 2017 with an additional term of one year nine months expiring 21 May 2019.

Catchwords: CRIMINAL LAW – sentencing – s 66C(4) Crimes Act - aggravated sexual intercourse with person aged over 14 and under 16 – objective seriousness – whether sentencing judge assessed objective seriousness by reference to offence against s 61J Crimes Act – sentencing judge refers to lack of consent when not an element of offence – need to describe surrounding circumstances of offending – finding of special circumstances – non-parole period 77% of whole sentence – need to re-sentence
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bakewell v R (Court of Criminal Appeal, 27 June 1996, unrep.)
Hogan v R [2008] NSWCCA 150
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
R v Lupton [2003] NSWCCA 200
R v So [2004] NSWCCA 362
The Queen v De Simoni (1981) 147 CLR 383
Category: Principal judgment
Parties: Kenny Wakeling (Applicant)
Crown (Respondent)
Representation:
Counsel:
H White (Applicant)
E Balodis (Respondent)
Solicitors:
Phillip A Wilkins & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/197139
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

07 March 2014

Before:

Maiden DCJ

Judgment

HOEBEN CJ AT CL: I agree with Davies J.
JOHNSON J: I agree with Davies J.
DAVIES J: On 19 August 2013 the Applicant pleaded guilty to an offence of having sexual intercourse with a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely, that he was in the company of Donna O’Neill at the time, contrary to s 66C(4) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 12 years.
On 7 March 2014 he was sentenced by Judge Maiden in the District Court to a non-parole period of four years and six months commencing 22 July 2013 and expiring 21 January 2018 with an additional term of one year, four months and six days expiring on 27 May 2019.
The Applicant now seeks leave to appeal on two grounds as follows:

1. The Sentencing Judge erred in the finding relating to the objective seriousness of the offence.

2. The Sentencing Judge erred in setting the non-parole period.

The facts

There was an Agreed Statement of…

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 Wakeling v R

Details

AGLC: Wakeling v R [2016] NSWCCA 33
Case: [2016] NSWCCA 33
Decision Date: 07 March 2016

CaseChat Overview and Summary

In the case of Wakeling v R, the respondent was convicted of aggravated sexual intercourse with a person aged over 14 and under 16 years. The appeal to the High Court of Australia was focused on the sentencing process, specifically the application of section 66C(4) of the Crimes Act, which pertains to the objective seriousness of the offence. The appellant argued that the sentencing judge erred in assessing the objective seriousness of the offence by referring to the aggravated sexual assault of a person under 16 years contrary to section 61J of the Crimes Act, rather than the offence as charged. The appellant contended that the sentencing judge failed to describe the surrounding circumstances of the offending, which was necessary for an accurate assessment of the objective seriousness.

The legal issues before the court included whether the sentencing judge correctly assessed the objective seriousness of the offence, whether the reference to lack of consent was appropriate given that it was not an element of the offence, and whether the sentence imposed was unjust. The court had to determine if the sentencing judge sufficiently described the surrounding circumstances of the offending and if the non-parole period constituted an excessive proportion of the whole sentence.

The High Court found that the sentencing judge erred in assessing the objective seriousness of the offence by incorrectly referencing the aggravated sexual assault of a person under 16 years. The court held that the sentencing judge did not adequately describe the surrounding circumstances of the offending, which was necessary for an accurate assessment of the objective seriousness. Furthermore, the court determined that the non-parole period, which was 77% of the whole sentence, constituted an excessive proportion of the sentence. Consequently, the High Court ordered a re-sentencing of the appellant.

Orders