WA v Shephard

[2018] WASCA 140

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Sexual offences against children
4. › Indecent dealing with child under 13
5. › Whether sentences of imprisonment conditionally suspended for 18 months manifestly inadequate as to type
6. › Whether implied error in decision to suspend
7. › Criminal Code (WA), s 320(4)
1. Criminal Law
2. › Sentencing
3. › Suspension of imprisonment
4. › Principles governing decision to suspend
5. › Whether exceptional mitigating factors justified suspension
6. › Whether mere prospect of future rehabilitation sufficient to justify suspension
7. › Sentencing Act 1995 (WA)
1. Criminal Law
2. › Appeal
3. › State appeal against sentence
4. › Manifestly inadequate sentence
5. › Implied error
6. › Residual discretion not to allow appeal
7. › Criminal Appeals Act 2004 (WA), s 24(1), s 31(4)(a)

Quick Take

For sexual offending against children involving multiple victims, multiple offences, abuse of trust, and limited mitigating factors (no remorse, no guilty plea on most counts, only a prospect of future rehabilitation), suspension of imprisonment is not open. The mere prospect of future rehabilitation, as distinct from demonstrated steps to rehabilitation, cannot reasonably justify suspension. Cases where suspension has been upheld for non-penetrative sexual offending against children each involved unusual and exceptional combinations of mitigating factors.