Sevim -v- Nell - (26 Jul 2018)

Appellate Court must not substitute its own opinion for that of sentencing magistrate merely because it has exercised its sentencing discretion in a manner different from sentencing magistrate

Criminal

Mr Sevim was charged with one offence of indecent assault contrary to Section 323 of the Criminal Code (WA). Mr Sevim pleaded guilty on the first day of his trial and the magistrate imposed a fine of $18,000. Mr Sevim now seeks leave to appeal against the sentence that was imposed on the ground that the fine was manifestly excessive. That is, the quantum of the fine was unreasonable or plainly unjust. The issue for determination is whether the sentence, being a fine in the amount of $18,000, is manifestly excessive.

A sentence may be manifestly excessive because the wrong type of sentence has been imposed, or because the length of the term of imprisonment is manifestly long, or because the quantum of the fine is manifestly excessive. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.20 16 An Appellate Court must not substitute its own opinion for that of the sentencing magistrate merely because the Appellate Court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

There are aggravating factors concerning the offending. There was an age disparity between Mr Sevim, who was 61 years of age, and the complainant who was 27 years of age. The offending occurred, when the complainant was alone in her workplace and therefore, when she was vulnerable. The offending has had a profound effect on the complainant. The Appellant expressed remorse for the offending. There is no tariff for sexual offending. No range is apparent in respect of the standards of sentencing observed in relation to indecent assault. In circumstances, where a touching occurs outside the clothing of the complainant and when the contact is relatively brief, the sentence that should ordinarily be imposed is a non-custodial one.

Mr Sevim has excellent antecedents with no criminal record. Mr Sevim has expressed remorse. The fine imposed by the magistrate was manifestly excessive. The appropriate fine is one of $7,000. Mr Sevim is a small business owner who has always been gainfully employed. In any event, it is necessary that the fine imposed is a punishment that reflects the seriousness of offending and appropriately recognises the sentencing principles of general and personal deterrence. Appeal is allowed. The sentence of the magistrate is set aside and in lieu thereof a fine of $7,000 is imposed.

Tags : SEXUAL OFFENDING SENTENCE EXCESSIVE