Ellis v WA

[2013] WASCA 220

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Fact-finding for sentencing purposes
4. › Standard of proof
5. › Aggravating circumstances to be proved beyond reasonable doubt
6. › Mitigating circumstances to be proved on balance of probabilities
7. › Whether sentencing judge misapprehended applicable standard of proof
8. › Criminal Code (WA), s 297(1)
1. Criminal Law
2. › Sentencing
3. › Fact-finding for sentencing purposes
4. › Inability to make finding of fact
5. › Whether absence of finding proves converse fact
6. › Whether sentencing judge obliged to make finding on disputed factual issue
1. Criminal Law
2. › Appeal against sentence
3. › Manifest excess
4. › Unlawfully doing grievous bodily harm
5. › Sentencing range for s 297(1) offences
6. › Whether sentence of 5 years' imprisonment manifestly excessive
7. › Criminal Code (WA), s 297(1)

Quick Take

A sentencing judge is not bound to make a finding as to every disputed factual issue; where the judge is unable to make a finding, the disputed fact does not exist for sentencing purposes and does not prove the converse fact. The post-transitional sentencing range for serious offences of unlawfully doing grievous bodily harm under s 297(1) Criminal Code (WA) is 3 to 5 years for offences towards the upper end of the range, with the general range being 8 months to 5 years 4 months.