Lat v. The state of Western Australia - (07 Dec 2018)

An appeal to present Court is not an opportunity to revisit question of appropriate sentence

Criminal

The Appellant pleaded guilty to three offences. He was sentenced to 7 years' imprisonment on count 1, attempting to possess methylamphetamine with intent to sell or supply. On count 2, attempting to wilfully destroy evidence, he was sentenced to 6 months' immediate imprisonment, to be served concurrently with count 1. On count 3, possession of methylamphetamine with intent to sell or supply, he was sentenced to 1 year 6 months' immediate imprisonment, also to be served concurrently.

The Appellant's sole ground of appeal challenges the total effective sentence on the basis of his post-sentencing cooperation in offering to give, and then giving, evidence against his co-offender. The Appellant submits that, the cooperation given by the Appellant warrants a discount, as it was useful to law enforcement authorities. The Appellant alleges that, the total effective sentence infringed the totality principle having regard to his future cooperation with the police at the Trial of the co-[offender]. The Appellant seeks leave to adduce additional evidence concerning his cooperation with authorities, subsequent to sentencing.

An appeal to this Court is not an opportunity to revisit the question of the appropriate sentence in light of all material now available. The essential role of this Court on an appeal against sentence is to discern whether there was error or a miscarriage of justice in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to the second stage of re-exercising the sentencing discretion and deciding whether a different sentence should have been imposed. Consequently, with limited exceptions referred to below, it is only at the second stage - once error or a miscarriage of justice is demonstrated - that this Court takes account of post-sentencing events in exercising afresh the sentencing discretion and deciding whether a different sentence should have been imposed. Because there is no ground of appeal asserting error or a miscarriage of justice in the sentence imposed as at the time it was imposed, no occasion arises to receive information concerning events post-sentencing.

While, as a general rule, an appeal Court decides an appeal on the evidence and material before the court below, this Court has a broad discretion to admit other evidence on appeal under Section 40(1)(e) of the Criminal Appeals Act 2004 (WA). The application for leave to adduce additional evidence refused. Appeal dismissed.

Tags : CONVICTION SENTENCE VALIDITY