HIGH COURT OF AUSTRALIA
BELL, GAGELER AND NETTLE JJ
JESSE CUMBERLAND APPELLANT
AND
THE QUEEN RESPONDENT
Cumberland v The Queen
[2020] HCA 21
Date of Hearing: 15 April 2020
Date of Order: 15 April 2020
Date of Publication of Reasons: 3 June 2020D23/2019
ORDER
1. Appeal allowed.
2.The orders of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 19 June 2019 are set aside and in lieu thereof it is ordered that the appeal to the Court of Criminal Appeal is dismissed.
On appeal from the Supreme Court of the Northern Territory
Representation
M E Shaw QC with S A McDonald and M W Thomas for the appellant (instructed by Peter McQueen, Solicitor)
M W Nathan SC for the respondent (instructed by Director of Public Prosecutions (NT))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cumberland v The Queen
Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five‑member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant.
Words and phrases – "aggregate sentence", "Crown appeal against sentence", "delay in the appeal process", "discretionary factors against allowing the Crown appeal", "imminence of the offender's release", "manifestly inadequate", "procedural fairness", "proper exercise of discretion", "re‑sentencing exercise", "residual discretion".
Criminal Code (NT), s 414(1)(c).
BELL, GAGELER AND NETTLE JJ. On 11 April 2018, the appellant was sentenced in the Supreme Court of the Northern Territory (Blokland J) on his pleas of guilty to six offences against the Misuse of Drugs Act 1990 (NT) ("the MDA"). The offences arose out of a course of commercial dealing in cannabis plant material and MDMA[1], commonly known as "ecstasy". The appellant, who was aged between 20 and 22 years at the time of the offending, was sentenced to an aggregate term of four years and six months' imprisonment to date from 27 June 2017. The sentencing judge directed his release from custody after two years,…
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- Cumberland v The Queen [2020] HCA 21
- Case
- [2020] HCA 21
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the Court of Criminal Appeal had failed to accord the appellant procedural fairness in its conduct of the sentencing appeal. Specifically, the court considered whether the appellant was denied an opportunity to present material regarding his progress in custody and to make submissions on the re-sentencing or the dismissal of the Crown appeal in the exercise of its "residual discretion." The court also considered whether the Court of Criminal Appeal erred in proceeding to allow the appeal against sentence when all relevant circumstances for the exercise of this residual discretion were not yet known, and whether the matter should be remitted for re-sentencing.
The High Court allowed the appeal, finding that the appellant had been denied procedural fairness. The court reasoned that the significant delay in the appeal process meant that circumstances had changed considerably by the time the Court of Criminal Appeal delivered its judgment. Crucially, the appellant was nearing automatic release under the original sentence, a fact that necessitated consideration of the residual discretion to dismiss the Crown appeal, regardless of any prior submissions. The onus was on the Crown to demonstrate why the Court of Criminal Appeal should not have declined to interfere with the original sentence, given the circumstances at the time of judgment.
Consequently, the High Court set aside the orders of the Court of Criminal Appeal and ordered that the appeal to that court be dismissed.
Orders
Orders of the court
1. Appeal allowed.
2. The orders of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 19 June 2019 are set aside and in lieu thereof it is ordered that the appeal to the Court of Criminal Appeal is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BELL, GAGELER AND NETTLE JJ
The appellant was re-sentenced to an aggregate sentence of eight years' imprisonment[33]. When account is taken of the 25 percent reduction for pleas of guilty, the effective starting point for the sentence was around ten years and eight months' imprisonment. A non-parole period of five years, five months and one week was specified[34]. The sentence was backdated to 27 June 2017[35]. The first date on which the appellant was eligible for consideration of release on parole was 4 December 2022. [33]R v Cumberland [2019] NTCCA 14 at [28].[34]R v Cumberland [2019] NTCCA 14 at [32].[35]R v Cumberland [2019] NTCCA 14 at [28].Submissions and consideration In written submissions filed before the hearing in this Court, the respondent conceded that the appellant had been denied procedural fairness by the Court of Criminal Appeal in the conduct of "the resentencing exercise" in that he had not had the opportunity to place further material before the Court. On the hearing, the respondent accepted that the appeal must be allowed on ground three. The appropriate consequential order, in the respondent's submission, was to remit the matter to the Court of Criminal Appeal for the appellant to be re-sentenced following a hearing at which he had the opportunity to adduce evidence and make submissions. The respondent's concession was confined to remitter for re-sentencing on the footing that dismissal of its appeal in the exercise of the residual discretion had not been in play before the Court of Criminal Appeal; the appellant's counsel had not purported to rely on it. The respondent's submission was posited on acceptance that counsel's email of 1 August 2018, in which the Court of Criminal Appeal was invited, in terms, to consider the residual discretion, was to be understood as limited to the contention that the Court should impose a reduced sentence in the event that the Crown appeal was allowed. Whether that is so is not known because the appellant's counsel was not given the opportunity to develop the submission before the Court pronounced orders. It remains that the Court was on notice of the appellant's desire to make a submission concerning the residual discretion. More fundamentally, the respondent's submission overlooks that, while it was appropriate for the appellant's counsel to acknowledge on 18 July 2018 that no circumstance engaged the residual discretion, matters were very different 11 months later when the Court of Criminal Appeal delivered judgment. The delay in the appeal process was of a marked degree. By the time the Court of Criminal Appeal came to pronounce sentence, the appellant was within one week of automatic release under the existing sentencing order. Regardless of any submission made on the appellant's behalf at the hearing of the appeal 11 months earlier, this circumstance necessitated consideration of the residual discretion to dismiss the Crown appeal. At all times, the onus was on the respondent to negate the existence of any reason why the Court of Criminal Appeal should decline to interfere notwithstanding that their Honours were satisfied that the sentence was erroneously lenient[36].[36]CMB v Attorney-General (NSW) (2015) 256 CLR 346 at 366 [56] per Kiefel, Bell and Keane JJ, citing R v Hernando (2002) 136 A Crim R 451 at 458 [12] per Heydon JA (Levine J agreeing at 464 [31], Carruthers A-J agreeing at 464 [32]).