Churnside v WA

[2016] WASCA 146

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Sentence of imprisonment
5. › Offender with significant intellectual impairment
6. › Foetal alcohol spectrum disorder
7. › Whether sentencing judge erred in concluding no viable community-based disposition available
8. › Whether further inquiries should have been directed before imposing imprisonment
1. Criminal Law
2. › Sentencing
3. › Relevance of offender's background
4. › Childhood trauma, social disadvantage and substance misuse
5. › Aboriginal offender
6. › Aboriginality not itself relevant to sentencing
7. › Circumstances of deprivation relevant to sentencing
8. › Bugmy v The Queen [2013] HCA 37
1. Criminal Law
2. › Sentencing
3. › Intellectual disability and cognitive impairment
4. › Foetal alcohol spectrum disorder
5. › Reduced moral culpability
6. › Diminished significance of general and specific deterrence
7. › Disability Services Act 1993 (WA)
1. Criminal Law
2. › Sentencing
3. › Parity principle
4. › Co-offenders
5. › Whether lack of disparity gives rise to objectively justifiable sense of grievance

Quick Take

A sentencing court must not conclude that no viable community-based disposition is available for a cognitively impaired offender without first directing inquiries to establish whether that is in fact the case. Where expert evidence establishes that imprisonment is unlikely to deter reoffending and that community-based support offers the only prospect of behavioural change, the court is obliged to use every means at its disposal to identify and engage governmental and non-governmental agencies capable of providing such support. The deterrent effect of imprisonment is of much reduced significance where the offender suffers from significant cognitive disabilities through no fault of their own.