HTD v. The State of Western Australia - (14 Nov 2018)

A Court must not impose a term of immediate imprisonment unless satisfied in view of sentencing principles

Criminal

Present is an appeal against sentence. The Appellant was charged on indictment with three offences. There are three grounds of appeal. Ground 1 alleges that, the trial judge made an express error by finding as a fact that, the offending was sexually motivated. Ground 2 alleges, in effect, that the length of the term of 16 months' immediate imprisonment was manifestly excessive. Ground 3 alleges, in effect, that his Honour made an implied error by failing to suspend the term of imprisonment.

There is no basis in the trial record for disturbing his Honour's finding that, the offending was sexually motivated. He was entitled to make that finding beyond reasonable doubt. Ground 1 is without merit.

The discretion conferred on sentencing judges is, of course, of fundamental importance and this Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

A Court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles. The sentencing judge must be positively satisfied that, it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation or other circumstances personal to the offender. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.

The sentence of 16 months' immediate imprisonment was not commensurate with the seriousness of the offence. In view of relevant facts and circumstances and sentencing factors, the length of the sentence was manifestly excessive. That is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty (10 years' imprisonment), the seriousness of the offending (including E's vulnerability), the general pattern of sentencing for offending of this kind, the importance of appropriate punishment and personal and general deterrence as sentencing considerations and all mitigating factors. The length of the term was unreasonable or plainly unjust. This Court's discretion to resentence the Appellant has been enlivened.

The Appellant was in custody, serving the sentence imposed by his Honour, between 9 May 2018 and 15 June 2018. The Appellant re-sentenced to a term of 8 months' imprisonment. However, it is appropriate, in all the circumstances, that the term be suspended, pursuant to Section 76 of the Sentencing Act, 1995 for a period of 12 months.

Tags : SENTENCE QUANTUM LEGALITY