SJMD v WA [No 2]

[2018] WASCA 99

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Leave to appeal
5. › Whether sentencing judge took into account irrelevant consideration
6. › Whether implied error as to type or length of sentence
7. › Offence of knowingly failing to protect child from harm
8. › Children and Community Services Act 2004 (WA), s 101(1)(a)
1. Criminal Law
2. › Sentencing
3. › Burden of proof on sentencing
4. › Aggravating factors to be proved beyond reasonable doubt
5. › Mitigating factors to be proved on balance of probabilities
6. › Consequence of failure to prove mitigating factor
1. Criminal Law
2. › Sentencing
3. › Manifest excess
4. › Whether immediate imprisonment was outside range of sound sentencing discretion
5. › Whether length of sentence manifestly excessive
6. › Relevance of comparable sentences
7. › Insufficient comparable cases to establish sentencing range

Quick Take

Where an offender seeks to advance as a mitigating factor that they did not cause injuries to a child (in a failure-to-protect prosecution), the onus of establishing that fact on the balance of probabilities falls on the offender. A sentencing judge's finding that the offender has not discharged that onus is not the taking into account of an irrelevant consideration; it simply means the asserted mitigating factor is not taken into account. Three comparable cases are an insufficient basis to establish patterns of sentences customarily imposed for offences under s 101 of the Children and Community Services Act 2004 (WA).