Kirby v The Queen

[2003] WASCA 239

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Cumulative sentences
4. › Totality principle
5. › Whether departure from Pearce approach permissible where statutory framework prevents its application
6. › Sentencing Act 1995 (WA), s 88(4), s 93, s 94
1. Criminal Law
2. › Sentencing
3. › Parole eligibility
4. › Aggregation of parole terms
5. › Calculation of earliest release dates under cumulative sentences
6. › Whether partly cumulative terms subject to partial aggregation
7. › Sentencing Act 1995 (WA), s 94
8. › Sentence Administration Act 1995 (WA), s 7(2), s 8(1)
1. Criminal Law
2. › Sentencing
3. › Parity
4. › Disparity arising from respective dates of release
5. › Whether anomalies in parole release date calculations give rise to legitimate sense of grievance
6. › Whether sentencing courts required to mould sentences with eye on parole eligibility calculations

Quick Take

Where the statutory framework (Sentencing Act 1995 (WA), s 88(4)) prevents the Pearce approach to cumulative sentencing from achieving the desired overall term, a sentencing judge may depart from that approach and impose a reduced individual sentence to be served wholly cumulatively. Anomalies in parole release date calculations arising from the interaction of cumulative sentences with the statutory parole eligibility provisions do not give rise to legitimate parity grievances. The concept of 'partial aggregation' under s 94 for partly cumulative terms is doubtful but remains an open question.