Austin v WA

[2023] WASCA 191

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against sentence
3. › Procedural fairness in sentencing
4. › Sentencing judge independently obtaining and relying on material not put before the parties
5. › Whether failure to notify parties of adverse view on expert evidence constituted denial of procedural fairness
6. › Sentencing Act 1995 (WA), s 15
1. Criminal Law
2. › Appeal against sentence
3. › Whether different sentence should have been imposed
4. › Fresh evidence on appeal
5. › Mental illness and moral culpability
6. › Connection between offender's depression and offending
7. › Whether connection significantly diminished culpability
8. › Criminal Appeals Act 2004 (WA), s 31(4)
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Mental illness
5. › Effect of mental illness on moral culpability
6. › Offender required to prove on balance of probabilities that condition impaired mental functioning to reduce blameworthiness
7. › Relevance of general deterrence where offender suffers mental disorder
8. › Sentencing Act 1995 (WA), ss 6, 8

Quick Take

Sentencing judges who independently obtain and rely on material not put before the parties must notify the parties and give them an opportunity to respond before relying on that material adversely; even where procedural fairness is denied, the appellate court may dismiss the appeal if satisfied no different sentence should have been imposed after receiving fresh evidence.