Gillespie v. The State of Western Australia - (08 Dec 2016)

Where, there is challenge on totality grounds, severity of sentence imposed on individual count to be assessed in light of its contribution to total effective sentence

Criminal

Appellant appeals against his conviction on the grounds that a miscarriage of justice occurred due to the appellant wrongly pleading guilty. Appellant was 32 years old when he was sentenced so he no longer had the benefit of youth. He had a prior criminal record including offences of violence, multiple offences against police orders and violence restraining orders as well as drugs and property offences. Some of the previous convictions were for violence against his then partner. Sentencing judge observed that the appellant's record suggested specific deterrence was a significant sentencing consideration attempt to pervert the course of justice and the assault offences arose in the context of the appellant's relationship with the complainant

It is not an easy matter for an appellant to persuade a Court to set aside a conviction based on a plea of guilty. To succeed, Appellant must show there has been a miscarriage of justice. In that respect, it is not enough for Appellant to demonstrate, on appeal, that he or she was innocent of charge to which the plea of guilty was entered. A person may plead guilty for a range of reasons extending beyond belief in guilt, for example to avoid worry, inconvenience or expense, to protect someone else, or in hope of receiving a more lenient sentence than would follow from a conviction after trial. Consideration of circumstances of hearing at which plea was entered militates against a conclusion that Appellant's conviction following his plea of guilty gives rise to any miscarriage of justice.

Sentencing is a discretionary exercise. An appellate court can intervene only if Appellant demonstrates either an express or implied error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. 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 sentencing court merely because appellate court would have exercised a sentencing discretion differently.

Principles relevant to an appeal on grounds of totality were stated in Roffey v The State of Western Australia. Total effective sentence must bear a proper relationship to overall criminality involved in all offences, viewed in their entirety and having regard to circumstances of case, including those referable to offender personally. Practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all terms appropriate for individual offences.

Where, there is a challenge on totality grounds, severity of a sentence imposed on an individual count generally fall to be assessed in light of sentences imposed in respect of other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. In present case, sentence imposed was a proper reflection of Appellant's overall criminality, having regard to circumstances of case and his personal circumstances.

Relevant : Roffey v The State of Western Australia

Tags : CONVICTION SENTENCE TOTALITY PRINCIPLE