Court of Criminal Appeal Citation : McMASTER v The Queen

(2004) 144 A Crim R 428; [2004] WASCA 52

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Multiple offences
4. › Concurrent and cumulative sentences
5. › Partly cumulative sentences
6. › Two counts of grievous bodily harm with intent committed at same time
7. › Whether offences part of same transaction
8. › Whether sentences should have been wholly concurrent
9. › Totality principle
10. › Criminal Code (WA), ss 283(1), 294(1)
1. Criminal Law
2. › Sentence
3. › Appeal against sentence
4. › Prosecution concession on sentencing
5. › Whether sentencing judge bound by prosecution concession that sentences should be concurrent
1. Criminal Law
2. › Appeal
3. › Fresh evidence on appeal against sentence
4. › Events occurring after sentence
5. › Whether admissible
6. › Distinction between pre-existing facts and subsequent events
7. › Whether matter for Executive prerogative of mercy
8. › Criminal Code (WA), ss 689(3), 697

Quick Take

Fresh evidence relating entirely to events occurring after sentence is inadmissible on a sentence appeal where there is no sentencing error; such matters are for the Executive prerogative of mercy. Fresh evidence may be admitted only to bring before the Court facts existing at the time of sentence but unknown to the sentencing judge, or to explain known facts in a new light, and only in exceptional cases. A prosecution concession on concurrent sentencing is a factor but does not bind the sentencing judge.