Otway v WA

[2008] WASCA 165

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Sentencing
4. › Totality
5. › Whether aggregate sentence for multiple property offences infringed totality principle
6. › Whether sentence bore proper relationship to overall criminality
1. Criminal Law
2. › Sentencing
3. › Time spent in custody
4. › Pre-sentence custody on unrelated charges subsequently discontinued
5. › Whether sentencing court has general discretion to take into account time spent in custody apart from backdating power
6. › Sentencing Act 1995 (WA), s 87
1. Criminal Law
2. › Appeal
3. › Sentencing
4. › Appellate intervention
5. › Failure to exercise sentencing discretion
6. › Whether appellate court should resentence
7. › House v The King principles
8. › Criminal Appeals Act 2004 (WA), s 31(4)(a)

Quick Take

Section 87 of the Sentencing Act 1995 (WA) does not limit the court's general sentencing discretion to take into account time spent in custody on unrelated charges that are subsequently discontinued. Where a sentencing judge fails to consider this discretion, the appellate court will exercise it afresh. The prohibition on 'tinkering' with sentences on appeal is not a separate principle but merely restates the House v The King principles.