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Judgment handed down in Wakim v The Queen
30 November 2016
The Court of Appeal has allowed an appeal and reduced the sentence of an offender sentenced to sexually penetrating a child under the age of 16 years on the basis that the sentencing judge did not give appropriate weight to the offender’s otherwise good character.
In particular, the Court held that the sentencing judge had erred in diminishing the mitigatory weight of the offender’s prior good character while also considering the breach of trust facilitated by that good character as an aggravating factor. The Court considered that both reducing the weight of good character in mitigation and increasing the weight in aggravation ‘effectively doubly punishes the offender’.
The offender pleaded guilty to one charge of sexually penetrating a child under 16 years and was originally given a total effective sentence of 20 months’ imprisonment combined with a two year Community Correction Order (‘CCO’). Taking into account the offender’s prior good character and other relevant sentencing factors, the Court reduced the sentence to 18 months’ imprisonment combined with a two year CCO, removing the condition that required the offender to complete 300 hours of community work. It was removed from the CCO to allow the order to be transferred to New South Wales, where the offender resides. Currently, CCOs may be transferred interstate, but unpaid community work hours must be completed in Victoria. The Court considered that the requirement to complete the work hours in Victoria was onerous and unduly increased the punitive element of the CCO on the offender given that he does not live in Victoria.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.