Wakeling v R [2016] NSWCCA 33

Court of Criminal Appeal Supreme Court New South Wales 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)