Wakeling v R

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.