Costa v The State of Western Australia

In Costa v The State of Western Australia, the appellant, who had been convicted of three counts of sexual penetration without consent, sought leave to appeal against his sentence. The case was heard in the Court of Appeal of Western Australia. The appellant argued that the sentencing judge failed to take into account the conditions in which he was incarcerated, as he was assaulted on two occasions in custody, and that the individual sentences imposed were manifestly excessive.

The court considered whether there were any errors in the sentencing process, including whether the sentencing judge failed to consider the appellant's incarceration conditions, which could be an express error. Additionally, the court examined whether the individual sentences amounted to a manifest excess of the court's sentencing discretion, particularly under the first limb of the totality principle.

The court found that while the sentencing judge did not expressly consider the conditions of the appellant's incarceration, this omission did not constitute an error as the judge was not required to do so. Regarding the manifest excess, the court held that the individual sentences, though high, were not manifestly excessive when considered in light of the totality principle. The court concluded that the total effective sentence of six years' imprisonment was not manifestly excessive. Consequently, the application for leave to appeal against the sentence was dismissed.