Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) abrogated only the double jeopardy principle and did not eliminate the residual discretion under s 31(4) or alter the distinct purpose of State appeals against sentence. The earlier WASCA position that State appeals are governed by the same principles as offender appeals is wrong. The Fernando principles regarding sentencing of Aboriginal offenders do not operate as a mitigating factor and cannot justify a sentence disproportionate to the gravity of the offence; to apply them otherwise would constitute a discriminatory form of justice. General deterrence and denunciation remain important sentencing considerations in domestic violence manslaughter cases, and intoxication in such cases is an aggravating factor.
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