Lemmon v. Walker-Mclean

Australia

31.12.2019

Criminal

An appellate Court can only intervene if Accused demonstrates, either express or implied, material error of fact or law

In present case, on 27 August 2019, the Appellant was sentenced in the Kalgoorlie Magistrates Court to a term of immediate imprisonment of 18 months for four offences of driving a motor vehicle while not being a person authorised to drive, in contravention of Section 49(1)(a) of the Road Traffic Act 1974.

The Appellant sought leave to appeal on the basis that, the sentence infringed the totality principle; that is, she contended that the total effective sentence did not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to her personally.

The principle of appellate restraint means that, an appellate court can only intervene, if the Appellant demonstrates either and express or implied material error of fact or law - an appellate court cannot intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge. A ground of appeal that, asserts a breach of the totality principle asserts the existence of implied error. The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust. In determining whether a sentence is manifestly excessive regard is to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to offences of that nature, the place which the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender. The guidance afforded by roughly comparable cases is flexible rather than rigid. Caution is needed when considering past cases to assess sentencing patterns. Each case is sensitive to its own particular facts.

The sentence imposed by the learned magistrate infringed the totality principle - it was unreasonable. The appellant had demonstrated that she was capable of leading a law-abiding life. She had been law abiding for the majority of her life - until the period of repeat offending began in July 2018. Her offending coincided with her developing addiction to methylamphetamine. It was not unreasonable for the magistrate to accept that the death of the appellant's children provided the explanation for her drug use. The Appellant had not previously been sentenced to a term of imprisonment to be served.

A total effective sentence of 18 months' imprisonment was unreasonable because it was not required to meet the requirements of personal or general deterrence. Given the Appellant's personal history, in particular, that she had been a person who had abided by the law for the majority of her life, a term of immediate imprisonment of 12 months was sufficient to meet the requirements of personal deterrence. A sentence of 12 months' imprisonment to be served adequately fulfilled the requirement for general deterrence.

Tags : Sentence Quantum Legality

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