2.Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 19 March 2014.
3.Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination.
On appeal from the Supreme Court of New South Wales
Representation
C T Loukas SC and G A Bashir SC with B C Dean for the appellant (instructed by Legal Aid NSW)
J V Agius SC with B K Baker for the respondent (instructed by Crown Solicitor (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
CMB v Attorney General for New South Wales
Criminal law – Sentencing – Sentence increased on prosecution appeal under s 5D of Criminal Appeal Act 1912 (NSW) – Appellant charged with sexual assault of daughter – Director of Public Prosecutions referred appellant for assessment for pre-trial diversion program – During assessment appellant disclosed further offences committed against daughter – First set of offences dealt with under program – Appellant charged with further offences and sentenced to good behaviour bonds with condition appellant complete program – Attorney General filed notice of appeal – Court of Criminal Appeal allowed appeal and re-sentenced appellant to five years and six months' imprisonment – Whether Court of Criminal Appeal erred in not exercising residual discretion to decline to interfere – Whether Court of Criminal Appeal erred in placing onus upon appellant with regard to exercise of residual discretion to dismiss appeal and limiting purpose of Crown appeals – Whether Court of Criminal Appeal erred in application of s 23 of Crimes (Sentencing Procedure) Act1999 (NSW) and principles regarding voluntary disclosure of otherwise unknown guilt.
Words and phrases – "discretion not to intervene", "leniency", "manifestly inadequate", "onus", "proper sentence", "residual discretion", "restraint", "unreasonably disproportionate".
FRENCH CJ AND GAGELER J. The office of the Director of Public Prosecutions ("the DPP") was established by statute in New South Wales in 1986[1]. The DPP is responsible to the Attorney General for the exercise of statutory functions[2] which include the institution and conduct, on behalf of the Crown, of prosecutions for indictable offences, relevantly in the District Court[3]. The statutory functions for which the DPP is responsible to the Attorney General also include the institution and conduct, on behalf of the Crown, of an appeal, relevantly in the Court of Criminal Appeal, in respect of any such prosecution[4].
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
CMB v Attorney-General (NSW) [2015] HCA 9
Case
[2015] HCA 9
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by CMB against the Attorney-General (NSW). The dispute arose from the Attorney-General's appeal to the Court of Criminal Appeal (NSW) against sentences imposed on CMB for sexual offences committed against his daughter. The Court of Criminal Appeal had increased CMB's sentence significantly, and CMB sought to challenge this decision in the High Court.
The legal issues before the High Court included whether the Court of Criminal Appeal erred in its exercise of residual discretion to decline to interfere with the original sentences, whether it wrongly placed the onus on CMB regarding the exercise of that discretion, and whether it correctly applied section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles concerning voluntary disclosure of guilt. These issues centred on the appropriate approach to sentencing when an offender voluntarily discloses further offences and the scope of appellate review of sentencing decisions.
The High Court found that CMB's grounds of appeal succeeded. It determined that the Court of Criminal Appeal had erred in its approach to the sentencing appeal. Consequently, the High Court allowed CMB's appeal, set aside the orders of the Court of Criminal Appeal, and remitted the matter back to that court for redetermination according to law.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 19 March 2014.
3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for determination.
Background
Background to the litigation
To explain that result, it is necessary first to explain the background to the prosecution which the DPP brought against CMB in the District Court.Background The background to the prosecution lay in curial and non-curial procedures for which provision was made in the Pre-Trial Diversion of Offenders Act 1985 (NSW). That Act provided for the protection of children who had been victims of sexual assault by a person who is a parent (or the spouse or de-facto partner of a parent) through the establishment and operation of a program for the treatment of such a person, which was administered by the Department of Health[5]. The program was known in practice as the Cedar Cottage Program ("the Program"). [5]Sections 2A and 30A of the Pre-Trial Diversion of Offenders Act 1985 (NSW). The Pre-Trial Diversion of Offenders Act allowed the DPP to refer a person charged with a sexual assault offence committed on a child of the person or person's spouse for assessment in relation to the person's suitability to participate in the Program[6]. If the Director of the Program assessed the person to be suitable, and if the person pleaded guilty to the charge, the person would be invited to give an undertaking to participate in the Program for a period of up to two years[7]. On that undertaking being given, the person would be convicted, but would not be sentenced or otherwise dealt with in relation to the offence provided the person complied with the undertaking and other statutory requirements[8]. [6]Sections 3A and 10 of the Pre-Trial Diversion of Offenders Act 1985 (NSW).[7]Section 23 of the Pre-Trial Diversion of Offenders Act 1985 (NSW).[8]Sections 24 and 30(1) of the Pre-Trial Diversion of Offenders Act 1985 (NSW). The procedures for referral of a person and for assessment in relation to that person's suitability to enter into the Program depended on the existence of a regulation made under the Pre-Trial Diversion of Offenders Act[9]. A regulation which was made in 2005 remained in existence until 31 August 2012[10]. It was repealed on 1 September 2012[11]. There is no dispute that the effect of that repeal was that the procedures for which the Act provided remained available to a person in relation to charges laid before 1 September 2012[12], but that those procedures were not available to a person in relation to charges laid on or after 1 September 2012. [9]Sections 10(a) and 14(1) of the Pre-Trial Diversion of Offenders Act 1985 (NSW).[10]Pre-Trial Diversion of Offenders Regulation 2005 (NSW).[11]Section 10(2) of the Subordinate Legislation Act 1989 (NSW).[12]Section 30 of the Interpretation Act 1987 (NSW). CMB sexually assaulted his daughter on numerous occasions between 2004 and 2006. She was then aged between 10 and 12. Some but not all of the assaults came to light in 2011 when his daughter reported them to police. She was then aged 17. As a result of his daughter's report, CMB was interviewed by police on 27 October 2011. He was on that day charged with 22 sexual offences committed against his daughter between 2004 and 2006. The DPP later reduced those charges to five counts of aggravated sexual assault, two counts of attempted aggravated indecent assault, and three counts of aggravated indecent assault ("the first set of charges").
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GAGELER J
KIEFEL, BELL AND KEANE JJ
The mandate of s 23(3) is that a lesser penalty imposed to take account of the offender's assistance to the authorities must not be unreasonably disproportionate to the nature and circumstances of the offence. The term "unreasonably" in this context has been given a wide operation[94]. Whether a sentence is unreasonably disproportionate necessarily is a judgment about which reasonable minds may differ. In determining whether the sentences imposed by Ellis DCJ were manifestly inadequate, the issue for the Court of Criminal Appeal was not whether it regarded non-custodial sentences as unreasonably disproportionate to the nature and circumstances of the offences but whether, in the exercise of the discretion that the law reposed in Ellis DCJ, it was open to his Honour upon his unchallenged findings[95] to determine that they were not.[94]See C (1994) 75 A Crim R 309 at 315 per Mahoney JA (Newman J agreeing at 317, James J agreeing at 317), referring to s 442B of the Crimes Act 1900 (NSW), the predecessor to s 23(3), which was relevantly in the same terms.[95]Carroll v The Queen (2009) 83 ALJR 579 at 584 [24]; 254 ALR 379 at 385; [2009] HCA 13.Conclusion and orders Each of CMB's grounds succeeds. The appeal must be allowed and the orders of the Court of Criminal Appeal set aside. The Attorney General submits that in this event his appeal should be remitted to the Court of Criminal Appeal for it to be determined according to law. That submission should be accepted and the orders proposed by French CJ and Gageler J made.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
GAGELER J,
KIEFEL, BELL AND KEANE JJ