Colwell v WA [No 2]

[2012] WASCA 196

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against sentence
3. › Application to adduce additional evidence on appeal
4. › Evidence of subsequent events
5. › Whether admissible to show facts in existence at time of sentence not known or not properly appreciated
6. › Criminal Appeals Act 2004 (WA), ss 31(4)(a), 39(1), 40(1)(e)
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Ill-health of offender
5. › Whether imprisonment more burdensome by reason of medical condition
6. › Capacity of prison authorities to provide treatment
7. › Whether evidence of capacity adequate
1. Criminal Law
2. › Sentencing
3. › Stealing by person in position of trust
4. › Systematic and sustained offending
5. › General deterrence
6. › Whether sentence manifestly excessive
7. › Criminal Code (WA), s 378(9)(b)

Quick Take

Evidence of post-sentence events may only be admitted on appeal to show facts in existence at the time of sentence that were not known or not properly appreciated; it is not sufficient for an appellant to show that expected prison medical care was not in fact provided if the capacity to provide it existed. In cases of systematic stealing in breach of trust, general deterrence is of primary importance and ill-health, while a mitigating factor, will not usually prevent a custodial sentence.