GNR v WA

[2015] WASCA 5

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Guilty plea
5. › Refusal of permanent stay of prosecution
6. › Whether erroneous exercise of discretion
7. › Whether stay application in substance a challenge to prosecutorial discretion
8. › Criminal Procedure Act 2004 (WA), s 90(1)
9. › Criminal Appeals Act 2004 (WA), s 23(1)(a), s 30(3)
1. Criminal Law
2. › Sentencing
3. › Child sexual offence
4. › Sexual penetration of child aged 13-16
5. › Consensual relationship
6. › Whether pregnancy of child an aggravating factor
7. › General deterrence
8. › Personal deterrence and rehabilitation
9. › Criminal Code (WA), s 321(2)
1. Criminal Law
2. › Sentencing
3. › Spent conviction order
4. › Preconditions
5. › Whether offence trivial
6. › Distinction between 'the offence is trivial' and 'the circumstances of the offence are trivial'
7. › Sentencing Act 1995 (WA), ss 39(2), 45(1), 46(a)
1. Criminal Law
2. › Sentencing
3. › Manifest excess
4. › Community based order with supervision
5. › Standards of sentencing customarily imposed
6. › Criminal Code (WA), s 321(2)

Quick Take

A stay application under s 90 of the Criminal Procedure Act 2004 (WA) that is based on hardship to the offender following conviction, where there is no abuse of process, amounts to asking a judge to substitute their view for the prosecutorial discretion vested in the DPP. The expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act 1995 (WA) differs from 'the circumstances of the offence are trivial' in s 46(a), with the former focusing primarily on the type or nature of the offence rather than the particular circumstances. An offence against s 321(2) of the Criminal Code (WA) cannot be characterised as trivial for the purposes of s 45(1)(b)(i). The purpose of s 321 is not only to protect children from abuse by sexual predators but also to protect children from themselves, so a consensual relationship and parental support do not significantly mitigate the offence.