WA v Upkett

[2013] WASCA 263

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › State appeal against sentence
4. › Manifest inadequacy
5. › Aggravated sexual penetration without consent
6. › Aggravated robbery
7. › Group offending
8. › Whether individual sentences and total effective sentences manifestly inadequate
9. › Criminal Code (WA), ss 326, 392(c)
10. › Sentencing Act 1995 (WA), s 9AA
1. Criminal Law
2. › Sentencing
3. › Totality principle
4. › First limb
5. › Whether total effective sentence bore proper relationship to overall criminality
6. › Multiple offences arising from single episode
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Aboriginality and social disadvantage
5. › Youth of offender
6. › Guilty pleas
7. › Cooperation with authorities
8. › Weight to be given to mitigating factors in cases of serious offending
1. Criminal Law
2. › Sentencing
3. › Appellate review of sentence
4. › Principles governing State appeals
5. › House v The King discretionary error
6. › Inferred error from manifest inadequacy
7. › Residual discretion not to intervene
8. › Criminal Appeals Act 2004 (WA), s 24(1)(a), s 31(4)(a)

Quick Take

In cases of extremely serious group sexual offending, the mitigating effect of youth, Aboriginality and deprived background is significantly ameliorated by the gravity of the offending. The gravity of such offending cannot simply be explained by immaturity or youthful error of judgment. For aggravated sexual penetration without consent (maximum 20 years), individual sentences of 3-4 years for offending at the high end of seriousness are manifestly inadequate even with significant mitigating factors.