The State of Western Australia v Winch

The State of Western Australia appealed against the sentence imposed on the respondent, Winch, who was found guilty of persistently engaging in family violence. The sentencing judge had imposed a sentence of 2 years and 3 months' imprisonment, which the State of Western Australia considered manifestly inadequate. The respondent pleaded guilty to the offence of persistently engaging in family violence against the victim between 31 December 2011 and 19 December 2019 at Ferndale. The State of Western Australia submitted that the sentencing judge erroneously took into account as a mitigating factor the custodial conditions experienced by the respondent while withdrawing from alcohol and medication use. This was a significant error, as it undermined the purpose of the legislation to ensure accountability of perpetrators of family violence.

The court was required to determine whether the sentence imposed by the sentencing judge was manifestly inadequate and whether the sentencing judge erroneously took into account the custodial conditions experienced by the respondent as a mitigating factor. The court needed to consider the maximum penalty for the offence of persistently engaging in family violence, the principle of parity, and the sentencing principles outlined in the Sentencing Act 1995 (WA). The court also needed to consider the Additional Evidence filed by the respondent in support of a contention that it should exercise its residual discretion to dismiss the appeal or on the basis that it was relevant to resentencing.

The appeal was allowed, and the respondent was resentenced to 5 years and 8 months' imprisonment. The court held that the sentence imposed by the sentencing judge was manifestly inadequate because it did not reflect the seriousness of the offence of persistently engaging in family violence. The court also held that the sentencing judge erroneously took into account the custodial conditions experienced by the respondent as a mitigating factor. The court considered that the sentence imposed by the sentencing judge was manifestly inadequate because it did not reflect the seriousness of the offence of persistently engaging in family violence. The court held that the maximum penalty for the offence was 14 years' imprisonment, and the sentence imposed by the sentencing judge was significantly below the midpoint of the maximum penalty range. The court also held that the sentencing judge erroneously took into account the custodial conditions experienced by the respondent as a mitigating factor, which undermined the purpose of the legislation to ensure accountability of perpetrators of family violence.

The court made the following orders: 1. The appeal is allowed. 2. The conviction of the respondent is affirmed. 3. The sentence of 2 years and 3 months' imprisonment is set aside. 4. The respondent is resentenced to 5 years and 8 months' imprisonment. 5. The respondent is to serve 2 years and 3 months' imprisonment already served on the original sentence.