LTT vs. The State Of Western Australia - (15 Mar 2022)

Sentencing is a discretionary exercise, an appellate court can only intervene, if the Appellant demonstrates either an express or implied material error

Criminal

The Appellant was sentenced to a total effective sentence of 8 years 11 months' imprisonment. The appellant now appeals against his sentence. His sole ground of appeal asserts that the total effective sentence infringed the first limb of the totality principle.

Sentencing is a discretionary exercise. An appellate court can only intervene if the Appellant demonstrates either an express or implied material error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.

The range of sentences imposed in other cases does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of possible sentences.

The Appellant's offending was serious in a number of respects and for a number of reasons. The appellant committed 17 offences. Eight of those offences had a maximum penalty of 20 years' imprisonment and the other nine had a maximum penalty of 10 years' imprisonment. Error cannot be inferred from the sentencing outcome. On a proper exercise of the sentencing discretion, it was open to the sentencing judge to impose the sentence which her Honour imposed. The total effective sentence did not infringe the first limb of the totality principle.

Tags : CONVICTION SENTENCE VALIDITY