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provides for how the Court of Appeal must determine a Crown appeal against sentence. The court must allow the appeal if the DPP satisfies the court that there is an error in the sentence originally imposed and that a different sentence should be imposed. See the discussion of "error" in relation to clause 281. In the same way that a manifestly excessive sentence can allow the court to presume error on an offender appeal, a manifestly inadequate sentence can, in accordance with established principles on DPP appeals against sentence, allow the court to presume error. Subclause (2) is new and removes what is called sentencing double jeopardy as a factor when considering whether there has been an error on DPP appeals against sentence. Currently, when determining what sentence is appropriate to impose, the court may take into account what is described as the double jeopardy that the offender faces as a result of having to be sentenced twice. This is not double jeopardy in a strict legal sense. Instead, it reflects the anticipated trauma and inconvenience of being sentenced twice. Consideration of double jeopardy is removed because it interferes with a central function of DPP appeals which is to provide guidance for lower courts on sentencing. Further, the inconvenience and trauma of re-sentencing a person is not the only matter relevant to such policy issues. Rather, the interests of the community in seeing adequate punishment given for criminal offences is an overriding policy consideration. The double jeopardy principle is described in the often cited case of R v Clarke [1996] 2 VR 520 as follows: "When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it concludes that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance." Subclause (2) removes consideration of double jeopardy when deciding if there has been error demonstrated. Clause 290(2) removes consideration of "double jeopardy" when re-sentencing an offender after error has been established. In each context, the Bill—
removes the consideration in the first paragraph quoted from Clarke above (namely twice standing for sentence); and
limits the discretion in the second paragraph only to the extent that the discretion may be exercised on the basis of the double jeopardy principle. Accordingly, the conduct of the Crown at the original sentencing proceedings will continue to be relevant.
In order to avoid the potential difficulties identified in State of Western Australia v Wallam [2008] WASCA 117, the phrase "the element of double jeopardy involved in the fact that the respondent is being sentenced again" is used to ensure that it is clear what the court is not entitled to take into account.