XMB v The State of Western Australia

The appellant in this case, XMB, was convicted of 13 child sex offences and was sentenced to a total effective sentence of 6 years and 6 months' imprisonment. After his convictions were set aside on appeal and a retrial was ordered, he was again convicted of the same offences and was sentenced to a total effective sentence of 9 years' imprisonment. He sought leave to appeal against that sentence. The Court of Appeal held that the appellant had not made out that the rule of restraint applied in the circumstances of this case, as the original sentence of 6 years and 6 months' imprisonment was manifestly inadequate and, therefore, did not act to restrain the discretion of the learned sentencing judge on the retrial. The appeal was dismissed.

The Court of Appeal considered the principle of restraint in sentencing an offender convicted on a retrial, which requires that the same sentence be imposed after the retrial, subject to some exceptions. The Court held that the rule of restraint had no application where the first sentence was manifestly inadequate, and in these circumstances, the first sentence was irrelevant to the exercise of proper sentencing discretion by the second sentencing judge. The Court found that the original sentence of 6 years and 6 months' imprisonment was manifestly inadequate and did not adequately reflect the total criminal conduct, and thus the rule of restraint had no work to do. The Court further held that the policy considerations justifying the general rule having no application where the first sentence was manifestly inadequate, and that the purpose of the rule was to ensure that convicted offenders were not deterred from appealing and that there was no perception that a successful appellant had been punished for bringing an appeal. The Court concluded that the appeal must be dismissed.