Suleiman v WA

[2017] WASCA 26

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Procedural fairness
4. › Sentencing judge rejecting prosecution concession without notice to parties
5. › Whether failure to raise concerns with parties before rejecting agreed factual basis denied procedural fairness
6. › Sentencing Act 1995 (WA), s 15
1. Criminal Law
2. › Sentencing
3. › Mental illness as mitigating factor
4. › Acute relapse of paranoid schizophrenia at time of offending
5. › Causal connection between mental illness and offending
6. › Effect on moral culpability and general deterrence
1. Criminal Law
2. › Appeal against sentence
3. › Additional evidence on appeal
4. › Whether additional psychiatric evidence should be admitted
5. › Whether different sentence should have been imposed had evidence been before sentencing judge
6. › Criminal Appeals Act 2004 (WA), s 40(1)(e)
1. Evidence
2. › Expert evidence
3. › Psychiatric evidence
4. › Whether sentencing judge entitled to reject unchallenged expert psychiatric evidence based on own lay assessment of accused's demeanour in police interview
5. › Diagnosis of mental illness requires expert evidence

Quick Take

A sentencing judge who proposes to reject a prosecution concession as to the factual basis for sentencing — particularly one based on unchallenged expert psychiatric evidence — must notify the parties and give defence counsel an opportunity to address the issue before imposing sentence. Failure to do so constitutes a denial of procedural fairness causing practical injustice. A judge's lay assessment of an offender's demeanour in a police interview cannot substitute for expert psychiatric diagnosis.