Walters v. The State of Western Australia - (10 Apr 2019)

Discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy

Criminal

The Appellant was convicted after trial on charge of unlawfully assaulting a member of the crew of an aircraft so as to interfere with the performance by the member of her functions or duties connected with the operation of the aircraft, contrary to Section 318A of the Criminal Code (WA) (the Code). The Appellant was sentenced on 7th December, 2018 to imprisonment for 12 months to be served immediately. He was made eligible for parole. The Appellant appealed against sentence on a single ground: that the trial judge erred in imposing a sentence which was manifestly excessive.

The trial judge said, correctly, that 'getting everyone on board, getting them seated, getting people who are responsible to sit in the appropriate emergency exit seats, are all matters that have to be treated seriously'. The Appellant's conduct interfered with the victim's performance of these functions, and had serious consequences. It also resulted in the flight being delayed to the inconvenience of all passengers and crew.

A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, 1995. A 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. In a borderline case, it may be reasonably open to impose different types of sentences.

The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. The Appellant was not youthful or inexperienced for sentencing purposes. The Appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not aggravate the offending in question. However, the Appellant did not stand for sentence as a person who was of prior good character.

Neither the type of sentence imposed nor the length of the term of imprisonment was unreasonable or plainly unjust. The existence of error is unable to be inferred from the sentencing outcome. The ground of appeal is without merit.

Tags : CONVICTION SENTENCE LEGALITY