When a sentencing judge refuses parole based on factors within s 89(4) of the Sentencing Act 1995 (WA), it will be difficult to demonstrate a misexercise of discretion on appeal. The proper approach involves a two-stage test: identifying the existence of the statutory criteria and then separately exercising the discretion. The question whether satisfaction of s 89(4) criteria alone could be sufficient to refuse parole without a separate discretionary exercise was left open.
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