Moody v French

(2008) 36 WAR 393; [2008] WASCA 67

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Transitional provisions
4. › Effect of transitional provisions reducing maximum penalties
5. › Whether court must first determine appropriate sentence then reduce by one-third, or reduce maximum then sentence within reduced range
6. › Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1, cl 2(1)
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Plea of guilty
5. › Whether reduction in sentence must result from plea of guilty
6. › Willingness to facilitate the course of justice
7. › Whether exceptional circumstances justify imposing maximum penalty notwithstanding plea
8. › Sentencing Act 1995 (WA), ss 7(2)(a), 8
1. Criminal Law
2. › Sentencing
3. › Parole eligibility
4. › Whether bias in favour of parole
5. › Construction of s 89 Sentencing Act 1995 (WA)
6. › Whether court required to make parole eligibility order unless at least two of four factors in s 89(4) present
7. › Sentencing Act 1995 (WA), s 89
1. Criminal Law
2. › Sentencing
3. › Totality principle
4. › Serial repeat offender
5. › Driving offences
6. › Whether total sentence disproportionate to overall criminality

Quick Take

Under s 89 of the Sentencing Act 1995 (WA), a court is required to make a parole eligibility order unless the discretion to decline is triggered by the presence of at least two of the four factors in s 89(4); once triggered, the discretion must be exercised without predisposition. A plea of guilty need not invariably result in a sentence reduction, but will do so in all but the most exceptional cases, because even an inevitable plea evidences willingness to facilitate the course of justice. The transitional provisions require the court first to determine the appropriate sentence and then reduce by one-third, not to reduce the maximum and then sentence within the reduced range. The 'seriousness' of an offence under s 89(4)(a) must be assessed in the context of offences justifying imprisonment, not offences generally.