Men v WA [No 2]

[2020] WASCA 138

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Resentencing by appellate court
5. › Sentencing on erroneous factual basis following partial success on conviction appeal
6. › Whether appellants should be resentenced
7. › Appropriate factual basis for resentencing
8. › Children and Community Services Act 2004 (WA), s 101
1. Criminal Law
2. › Sentencing
3. › Failing to protect child from harm
4. › Aggravating factors
5. › Vulnerability of child
6. › Breach of trust
7. › Prolonged offending
8. › Knowledge of harm
9. › Children and Community Services Act 2004 (WA), s 101
1. Criminal Law
2. › Sentencing
3. › Appeal against sentence
4. › Task of appellate court on resentencing
5. › Whether task is to determine appropriate sentence or to discern sentence trial judge would have imposed but for error

Quick Take

When a conviction appeal results in a finding that certain particulars were not capable of being established beyond reasonable doubt, the appellate court must resentence on the facts found by the trial judge for the surviving particulars. The appellate court's task on resentencing is to determine the appropriate sentence independently, not to reconstruct what the trial judge would have imposed but for the error. Sentencing patterns for s 101 of the Children and Community Services Act 2004 (WA) remain undeveloped.