Chen v WA

[2009] WASCA 52

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Aggravated robbery
4. › Circumstances of aggravation
5. › Bodily harm and complainant over 60 years of age
6. › Whether sentence of imprisonment to be served immediately only disposition open
7. › Whether open to suspend sentence
8. › Sentencing Act 1995 (WA), s 6(4), s 39(3), s 76(1)
9. › Criminal Code (WA), s 392(d)
1. Criminal Law
2. › Sentence
3. › Suspension of sentence
4. › Factors relevant to suspension
5. › Rehabilitation efforts
6. › Time in custody on remand
7. › Whether sentencing judge failed to take into account relevant considerations
8. › Sentencing Act 1995 (WA), s 76(1)
1. Appeal
2. › Criminal appeal
3. › Sentence appeal
4. › Resentencing by appellate court
5. › Whether sentencing judge erred in failing to consider relevant factors

Quick Take

A sentencing judge considering whether to suspend a sentence for aggravated robbery must take into account the offender's rehabilitation efforts (including attendance at counselling and cessation of the conduct that led to offending) and the offender's experience of time in custody, including its traumatic nature and deterrent effect. The question is not whether the case is 'exceptional' but whether the particular circumstances are such that only immediate imprisonment is appropriate. Failure to consider these factors constitutes appealable error.