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 | 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…
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- AGLC
- Wakim v The Queen [2016] VSCA 301
- Case
- [2016] VSCA 301
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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