Merlo v WA

[2018] WASCA 71

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Factual findings for sentencing purposes
4. › Aggravating factors
5. › Prior violence in family and domestic relationship
6. › Whether open for sentencing judge to find beyond reasonable doubt that offending not an uncharacteristic aberration
7. › Criminal Code (WA), s 294(1), s 297(3)
1. Criminal Law
2. › Sentencing
3. › Totality principle
4. › First limb
5. › Cumulative sentences
6. › Whether total effective sentence bore proper relationship to overall criminality
7. › One transaction rule as guideline not rule
1. Criminal Law
2. › Appeal
3. › Leave to appeal against sentence
4. › Implied error
5. › Whether appellate court can substitute its own opinion for that of sentencing judge

Quick Take

A sentencing judge's finding of prior violence as an aggravating factor is not undermined by acquittals on other counts involving the same complainant, provided the finding is not inconsistent with the jury's verdicts. The one transaction rule remains a guideline that should not be applied where doing so would produce a total sentence that does not properly reflect the overall criminality.