King v Thomasena Byrne
GENERAL
1. Deterrence means discouraging the offender before the court, and others, from committing offences of the kind in question and/or more generally: paras [8] – [9]
2. Every sentence has an inbuilt element of deterrence (the concept of “general deterrence”): paras [8] – [9] & [11]
3. In some cases the sentencing court may decide that deterrence of the offender and/or the public, in the sense explained in [1] above, requires particular emphasis, the consequence being that a punishment more punitive than would otherwise be merited may follow (the concept of “particular deterrence” / an “expressly deterrent sentence”): paras [11] – [13]
4. In cases belonging to the latter category, adherence to the guidance in QWL paras [102] – [103] is essential: para [14]
5. Where sentencing guidelines decisions of the NICOA incorporate an element of specific (as distinct from general) deterrence, the sentencing court must avoid double counting.
6. “ … an offender’s personal circumstances will rarely qualify to be accorded much weight, particularly in a context where a deterrent sentence is required.” (para [18] quoting QWL para [98] )
THIS CASE
7. In the fact specific context of this case. First, per para [21]
“ … the judge’s approach to the issue of personal mitigation was in substance one of applying an absolute rule and, hence, not compatible with the principles expounded above, in a context of having erroneously declared this to be a case requiring deterrence, without more. The judge should have approached the issue of personal mitigation more flexibly and, having done so, explained the weight which he had determined to allocate to it. The impugned sentencing decision is not to this effect. Furthermore, the judge’s decision is not in accordance with the QWL guidance at paras [102]–[103].”
This passage identifies two material judicial errors. The first error entailed a judicial failure to recognise that the general rule in play viz the need for a deterrent sentence normally entails attributing little weight to personal mitigation factors is not absolute in nature.
8. Second, per para [22]: The COA was influenced by the newly admitted evidence.