31 That decision was followed in Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, a decision which in turn was followed in relation to the general considerations applying to the making of a parole eligibility order when imposing a finite sentence of imprisonment, in Thompson v The Queen (1992) 8 WAR 387, 395 - 396, which decision in its turn was followed in respect of that part of the sentencing process under the present legislation in R v Wongawol (1998) 101 A Crim R 350, 353, 359.

35 Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 was a case which came to the High Court from Victoria and concerned a provision of the Penalties and Sentences Act 1985 (Vic), which introduced a requirement to fix a minimum term in respect of a mandatory sentence of life imprisonment and afforded the opportunity to prisoners already serving such a sentence to apply to the court for a minimum term to be fixed in their cases. In the particular case the Judge at first instance, in fixing a minimum term, said he thought the term fixed was appropriate to the gravity of the crime and not disproportionate to the criminality involved.

37 Finally, Inge v The Queen [1999] HCA 55; (1999) 73 ALJR 1563 was a case of murder which came to the High Court from SA where the crime carries a mandatory life sentence and the sentencing Judge is empowered to fix a non-parole period. The appellant was 23 years of age and the period fixed was 20 years. He appealed against the non-parole period on the ground that it was manifestly excessive. The CCA of SA dismissed his appeal on the particular ground that the relative youth of the appellant at the time when he committed the murder counted against him in determining the appropriate non-parole period. An appeal to the High Court was, however, successful, the Court holding that there could not be a meaningful search for a due proportion between the life sentence imposed and the minimum non-parole period. At 1565 the majority described the attempt to achieve such a due proportion as "a somewhat unrealistic and artificial exercise." Their Honours went on to say:

45 That is not to say that the matters particularised in ground 1.1 did not require consideration in fixing the minimum period, but in my respectful opinion, the error in the approach exemplified by the ground is made manifest when one comes to ground 1.2. The relevance of an intellectual deficit in the offender to the sentencing process generally was recently discussed by this Court in R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998 and again in R v Dalgety [2000] WASCA 10, 3 February 2000 it was held that the offender's intellectual retardation did not eliminate the aim of general deterrence as one to which a sentence should properly give effect, but that factor would, generally speaking, still operate "sensibly moderated". Those cases were relied upon by the applicant, but in my respectful opinion to do so was to treat the process of fixing the minimum period rather as if it was the imposition of an effective finite term of imprisonment and, as has been seen, that is not the basis upon which the minimum period is to be fixed.

(1974) 9 SASR 452

(1974) 131 CLR 623

(1984) 58 ALJR 367

(1992) 8 WAR 387

(1990) 19 NSWLR 112

(1990) 169 CLR 525

(1999) 73 ALJR 1563

(1953) 94 CLR 621

(1936) 55 CLR 499

(1979) 46 FLR 386

Sherratt v The Queen [2000] WASCA 112

At a glance

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Judgment (9 paragraphs)

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Legislation Cited (2)

Cases Cited (24)

Sherratt v The Queen [2000] WASCA 112 (5 May 2000)