Wainwright v WA

[2005] WASCA 250

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

1. Appeal - Criminal law and procedure - Application for
1. leave to appeal - Whether reasonable prospects of success - turns on own facts

Under s 27 of the Criminal Appeals Act 2004 (WA), leave is required for each ground of appeal and must not be given unless the ground has a reasonable prospect of succeeding; where leave is refused on all grounds, s 27(3) deems the appeal dismissed.
A sentencing judge may permissibly observe that it was fortuitous that a stabbing caused only wounding rather than grievous bodily harm where the intent was to do grievous bodily harm; such a comment is not of itself appellable error, though it may explain why a sentence is excessive if it is shown to be outside the range.
Whether a sentence for unlawful wounding with intent to do grievous bodily harm is manifestly excessive should be assessed against comparable unlawful wounding cases rather than grievous bodily harm cases; on the facts, an effective 5-year term on a plea fell within the range of about 4 years to 5 years 4 months indicated by Ugle v The Queen [2001] WASCA 268, Vilai v The Queen [1999] WASCA 275 and R v White [2002] WASCA 112.
A sentencing judge is not obliged to make terms for breaching community based orders concurrent with a sentence for a later indictable offence; on the facts, a cumulative 6-month term was within discretion despite 11 months' compliance, given the seriousness of the breaching offence and that one underlying offence was committed while on bail.