Langdon v Kelemete-Leoli-McLEAN

(2011) 206 A Crim R 368; [2011] WASCA 26

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Aggravating factors
4. › Consequences of offending
5. › Whether consequence amounting to more serious offence can be taken into account
6. › De Simoni principle
7. › Criminal Code (WA), s 297(1), s 317(1)(b)
8. › Sentencing Act 1995 (WA), s 6, s 7
1. Criminal Law
2. › Sentencing
3. › Aggravating factors
4. › Circumstances of aggravation distinguished from aggravating factors
5. › Whether s 7(3) of Sentencing Act 1995 (WA) applies where lesser and more serious offences are separate and distinct
6. › Sentencing Act 1995 (WA), s 7(3)
1. Criminal Law
2. › Appeal against sentence
3. › Substantial miscarriage of justice
4. › Whether different sentence should have been imposed despite sentencing error
5. › Criminal Appeals Act 2004 (WA), s 14(2)

Quick Take

Where an offender is charged with assault occasioning bodily harm under s 317(1)(b) of the Criminal Code (WA), the sentencer cannot take into account that the victim suffered injuries amounting to grievous bodily harm as an aggravating factor, though some impairment short of the permanent nature of the injury may be considered. Section 7(3) of the Sentencing Act 1995 (WA) has no application where the lesser and more serious offences are separate and distinct offences rather than the same offence with different statutory circumstances of aggravation. However, a sentencing error of this kind may not result in the appeal being allowed if the sentence imposed was appropriate regardless of the error.