Abbott v The Queen

[2019] WASCA 90

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Role of appellate court
5. › Whether appellate court can intervene on basis of events occurring after sentence imposed
6. › Post-sentencing events unrelated to facts in existence at time of sentencing
7. › Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e), s 41(4)(a)
1. Criminal Law
2. › Sentencing
3. › Totality principle
4. › Whether 'retrospective totality' is a recognised concept
5. › Whether totality principle can be applied by reference to sentences subsequently imposed in another jurisdiction
6. › Sentencing Act 1995 (WA), s 6(3)(b)
1. Criminal Law
2. › Sentencing
3. › Prerogative of mercy
4. › Whether appellate court can exercise mercy to reduce sentence on basis of subsequent events
5. › Distinction between judicial and executive functions
1. Criminal Law
2. › Appeal
3. › Extension of time
4. › Application approximately 30 years out of time
5. › Whether ground of appeal has reasonable prospect of success

Quick Take

There is no concept of 'retrospective totality' in Western Australian sentencing law. An appellate court cannot reduce a sentence that was appropriate when imposed merely because subsequent events (including sentences imposed in other jurisdictions and refusal of interstate prisoner transfer) have resulted in a lengthy aggregate period of imprisonment. Section 41(4)(a) of the Criminal Appeals Act 2004 (WA) does not permit consideration of post-sentencing events unrelated to the original sentence when determining whether error has been demonstrated. The appropriate avenue for relief in such circumstances is the executive prerogative of mercy.