The State of Western Australia v. Colin John Smith - (31 Aug 2016)

Mere fact that sentence is within range of other sentences imposed for similar offences not necessarily establish that there was appropriate exercise of sentencing discretion

Criminal

Respondent was convicted, on pleas of guilty before Staude DCJ. Sentencing judge imposed a total effective sentence of 2 years 2 months' immediate imprisonment. A parole eligibility order was made. State filed instant appeals against impugned judgment on basis that, sentences imposed for unlawful wounding and grievous bodily harm and assaulting a public officer and cruelty to animal offences were manifestly inadequate.

Each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. Limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is one of factors to be taken into account in deciding whether a sentence is manifestly inadequate. But, mere fact that a sentence is within range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of sentencing discretion in particular case. Similarly, mere fact that, a sentence is outside that range does not necessarily establish that, exercise of sentencing discretion in particular case miscarried. Discretion conferred on sentencing judges is, 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.

Seriousness of the facts and circumstances of offending against s 301(1)(a) can be highly variable. Sentences imposed for offences of this kind vary significantly given the wide variety of circumstances in which the offence can be committed and the differing personal circumstances of the offenders. Accordingly, care must be exercised, when considering other cases of aggravated unlawful wounding, to identify all the relevant facts and circumstances of those cases before deciding whether the sentence in question is manifestly excessive or manifestly inadequate. Injury inflicted upon the victim in the present case was not of the most serious kind, but it was nevertheless significant. The wound to the back of her head exposed her skull and bled profusely. There were three lacerations which required suturing. Respondent had a history of domestic violence towards his partners, and this underscored the importance of personal deterrence as a sentencing factor.

Mitigating factors appear to have been confined to the respondent's early plea of guilty, his expression of remorse and the emotional trauma associated with the death of his father. Respondent's methylamphetamine intoxication was not, of course, mitigatory. Sentence of 6 months' immediate imprisonment was not commensurate with seriousness of the offence. Respondent's assault on Constable Salt and Respondent's cruelty to police dog, Slam were serious offences. Respondent produced a knife in course of his interaction with Constable Salt. Respondent used hammer to inflict bodily injury on Constable Salt. He also used hammer to strike Slam. Accumulation of individual sentences for those offences was necessary.

Further, it was an aggravating feature of offences in question that they were committed while Respondent was subject to a suspended imprisonment order. Total effective sentence imposed by sentencing judge were substantially less than sentences open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. Court while allowing State’s appeal enhanced sentences.

Tags : DISCRETION SENTENCE INADEQUACY