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Wakim v The Queen

Wakim v The Queen

Case [2016] VSCA 301 30 November 2016

Extra-curial Punishment

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0151
JOSEPH WAKIM	Applicant
V
THE QUEEN	Respondent

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JUDGES:	REDLICH JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2016
DATE OF JUDGMENT:	30 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 301
JUDGMENT APPEALED FROM:	[2016] VCC 980 (Judge Chambers)

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CRIMINAL LAW – Sentence – Sexual offences – Sexual penetration of child under 16 – Combined sentence of 20 months’ imprisonment and CCO of 2 years’ duration – Offender’s previous good character – Breach of trust an aggravating circumstance – Reduction in mitigatory weight of good character constituted double punishment – Extra-curial punishment – Sentence of imprisonment reduced to 18 months – CCO to NSW – Transfer of Community-Based Sentences (Transfer) Act 2012 – Unpaid community work unable to be transferred – Condition removed – Ryan v The Queen (2001) 206 CLR 267; CMG v The Queen (2013) 46 VR 728; Bishop v The Queen (2013) 39 VR 642; SD v The Queen (2013) 39 VR 487; R v Gent (2005) 162 A Crim R 29 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I D Hill QC Mr M D Stanton	Tony Hargreaves & Partners
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

BEALE AJA:

This is an application for leave to appeal against a combined sentence of 20 months’ imprisonment together with a two year Community Correction Order (‘CCO’). The sentence was imposed following a plea of guilty to one charge of sexually penetrating a child under the age of 16 years.[1]
[1]DPP v Wakim [2016] VCC 980 (‘Reasons’).

The applicant relies upon two grounds of appeal. First, that the sentencing judge erred in diminishing the weight to be given to the applicant’s otherwise good character and extra-curial punishment, and in the finding that those matters did not carry significant weight. Second, that the sentence imposed was manifestly excessive.

For the reasons that follow, we would grant leave to appeal, allow the appeal, reduce the term of imprisonment to 18 months in combination with a two year CCO and remove the condition that required the applicant to perform 300 hours of unpaid community work in Victoria.

Background of the offending

The factual basis upon which the applicant was sentenced is set out in the sentencing judge’s reasons, which adopt all but one aspect of the prosecution opening.[2] At the time of the offending, the applicant was 53 years of age. He lived in New South Wales with his three daughters. His daughters are aged between 17 to 24 years of age, with the youngest currently studying in Year 12.
[2]Ibid [25].

Prior to the offending, the applicant was known for his extensive social work and communal involvement. After completing his Bachelor’s degree in social work at the University of Melbourne, the applicant worked with street children from 1986 to 1988. He founded the Inner City Street Foundation. He worked for…

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 Wakim v The Queen

Details

AGLC: Wakim v The Queen [2016] VSCA 301
Case: [2016] VSCA 301
Decision Date: 30 November 2016

CaseChat Overview and Summary

In the High Court of Australia, the matter of Wakim v The Queen was presented concerning the sentencing of the respondent for sexual offences involving the penetration of a child under 16 years old. The sentencing court imposed a combined sentence of 20 months’ imprisonment and a community correction order (CCO) of 2 years. The respondent, who had a previous good character, appealed against the severity of the sentence, arguing that the reduction in the weight given to his good character constituted double punishment, particularly as the breach of trust was considered an aggravating factor. The Court was required to determine whether the reduction in the weight of the good character constituted double punishment and if the sentence was appropriate.

The legal issues before the Court included the appropriate consideration of good character as a mitigating factor in sentencing, the interplay between aggravating and mitigating factors, and the constitutionality of the sentence under the Transfer of Community-Based Sentences (Transfer) Act 2012. The Court examined whether the reduction in the weight of good character due to the breach of trust amounted to double punishment and whether the extra-curial punishment was justified. Additionally, the Court needed to determine the applicability of the Transfer Act to the unpaid community work component of the CCO and whether it could be transferred to another jurisdiction.

The High Court found that the reduction in the weight of the good character constituted double punishment, as the breach of trust was considered both an aggravating factor and a reason to reduce the mitigating effect of good character. Consequently, the Court reduced the sentence of imprisonment to 18 months. Furthermore, the Court ruled that the unpaid community work component of the CCO could not be transferred under the Transfer Act, and thus the condition requiring its completion in New South Wales was removed. The Court considered precedents such as Ryan v The Queen, CMG v The Queen, Bishop v The Queen, SD v The Queen, and R v Gent in reaching its decision.

The final orders of the Court were that the sentence of imprisonment was reduced to 18 months, and the condition requiring the completion of unpaid community work in New South Wales was removed from the CCO. The Court's decision provides clarity on the interplay between mitigating and aggravating factors in sentencing, the prohibition of double punishment, and the limits of the Transfer Act in relation to community-based sentences.

Orders