2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 14 November 2013.
3.Remit the application dated 26 June 2013 to the Court of Criminal Appeal for determination.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with J L Roy for the appellant (instructed by Legal Aid NSW)
J H Pickering SC with T L Smith for the respondent (instructed by Solicitor for Public Prosecutions (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
Kentwell v The Queen
Criminal law – Appeal – Application to extend time within which to apply for leave to appeal against sentence – Principles to be applied in determining whether extension of time should be granted – Whether applicant required to demonstrate that refusal of application would occasion substantial injustice – Relevance of principle of finality – Relevance of prospect of success should extension be granted – Whether extension of time should be granted.
Criminal law – Appeal – Appeal against sentence – Appellate court's power to re-exercise sentencing discretion – Where error of the kind identified in House v The King (1936) 55 CLR 499 established – Whether appellate court must form positive opinion that some other sentence is warranted in law before intervening.
Words and phrases – "Abdul test", "principle of finality", "substantial injustice", "warranted in law".
FRENCH CJ, HAYNE, BELL AND KEANE JJ. The appellant is presently serving sentences that were imposed on him in the District Court of New South Wales (Johnstone DCJ) on 20 February 2009. The sentencing judge sentenced for the offences for which a standard non-parole period is prescribed[1] in the manner explained in R v Way[2].Subsequently, this Court held that Way was incorrectly decided[3]. In light of the principles explained in Muldrock v The Queen[4], it is apparent that the sentencing for the standard non‑parole period offences was flawed.
On 28 June 2013, the appellant applied to the Court of Criminal Appeal of the Supreme Court of New South Wales (Hoeben CJ at CL, Johnson and Bellew JJ) for an extension of time in which to apply for leave to appeal against sentence ("the application"). The correctness of the principles applied by the Court of Criminal Appeal to the determination of the application is the issue in…
Grounds of appeal
[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
Kentwell v The Queen [2014] HCA 37
Case
[2014] HCA 37
Decision Date
CaseChat Overview and Summary
In *Kentwell v The Queen*, the High Court of Australia considered an application for an extension of time to appeal against a sentence imposed in the Court of Criminal Appeal of the Supreme Court of New South Wales. The applicant sought to appeal against the sentence, but the application for leave to appeal was filed outside the prescribed time limits.
The High Court was required to determine the principles governing the grant of an extension of time for an appeal against sentence, specifically whether the applicant must demonstrate that refusal would occasion a substantial injustice, the relevance of the principle of finality, and the importance of the prospects of success on the substantive appeal. The Court also considered the principles applicable to an appellate court's power to re-exercise sentencing discretion, particularly where an error of the kind identified in *House v The King* has been established, and whether the appellate court must form a positive opinion that some other sentence is warranted in law before intervening.
The High Court allowed the appeal, setting aside the order of the Court of Criminal Appeal made on 14 November 2013. The matter was remitted to the Court of Criminal Appeal for determination of the application for an extension of time. The Court's reasoning, though not detailed in the provided text, would have involved an application of the established principles for granting extensions of time and the criteria for appellate intervention in sentencing.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 14 November 2013.
3. Remit the application dated 26 June 2013 to the Court of Criminal Appeal for determination.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, BELL AND KEANE JJ
GAGELER J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, BELL AND KEANE JJ,
GAGELER J