Damiani v WA

(2006) 165 A Crim R 358; [2006] WASCA 47

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Transitional provisions
4. › Failure to apply statutory one-third reduction
5. › Whether failure to expressly refer to transitional provision indicative of error
6. › Sentencing Act 1995 (WA), Sch 1 cl 2(1)
7. › Sentencing Legislation Amendment and Repeal Act 2003 (WA)
1. Criminal Law
2. › Sentencing
3. › Manifestly excessive sentence
4. › Aggravated robbery
5. › Whether total effective sentence outside range of sound discretionary judgment
6. › Criminal Code (WA), s 392(d)
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Drug-induced psychosis
5. › Self-induced intoxication
6. › Whether drug-induced psychotic state mitigatory
7. › Relevance of drug addiction to moral culpability
1. Criminal Law
2. › Sentencing
3. › Suspension of imprisonment
4. › Whether offences so serious that only immediate imprisonment appropriate
5. › Sentencing Act 1995 (WA), s 76(2)

Quick Take

Self-induced drug addiction and drug-induced psychosis are not mitigating factors in sentencing unless the addiction arose from circumstances that wholly or partly excuse the drug use (such as medicinal prescription). A sentencing judge's failure to expressly refer to the transitional provision requiring a one-third reduction in sentence, combined with a starting point that is excessive when converted to old provision equivalents, will support an inference that the provision was not applied. The range for armed robbery of 6-9 years under the old provisions equates to approximately 4-6 years under the transitional provision.